Facts: Mother and Father are the parents of two children. While Mother was at work, Child went into medical distress while in Father’s care. Doctors discovered Child had bleeding in her brain caused by abusive head trauma.

Mother and Father were arrested. Father was charged with, and pleaded guilty to, aggravated child abuse. Mother was charged with child endangerment.

Shortly thereafter, the Department of Children’s Services (DCS) obtained custody of the children via a dependency and neglect petition.

Seven months later, Mother entered a best-interest plea in the criminal case to child endangerment and was placed on diversion for a year.

The first trial exhibit in the dependency and neglect trial was Mother’s best-interest plea to child endangerment and the criminal court’s approval of the plan for diversion. The Court found Mother guilty of severe abuse because of her best-interest plea to child endangerment, noting that the “conviction” includes the element that Mother knowingly failed to protect the child from abuse or neglect.

Mother appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

To show that Mother committed severe child abuse, DCS must prove that (1) Mother committed the criminal offense of child endangerment, and (2) Mother’s child endangerment resulted in serious bodily injury to the child.

A criminal defendant may plead guilty under a “best-interest” plea—also known as and Alford plea—where the defendant pleads guilty while maintaining factual innocence of the crime. While a best-interest plea may be admitted into evidence as an admission of guilt in a subsequent civil proceeding, it is not dispositive.

The Majority found Mother’s best-interest plea would satisfy the clear-and-convincing standard of proof for dependency and neglect:

By entering an Alford plea on the charge of child endangerment, Mother admitted guilt to each element of that offense. . . . So, by her Alford plea, Mother is guilty of failing to protect [Child] from Father’s perpetration of aggravated child abuse . . . . As such, Mother may be found to have committed severe child abuse by her “knowing failure to protect the child from the commission of” aggravated child abuse by Father.

Mother’s Alford plea resulted in her admission that she committed the offense of child endangerment.

By a 2-1 majority, the Court affirmed the trial court’s finding of dependency and neglect.

Dissent: Judge Stafford dissented, writing:

At trial, Mother’s plea form was entered into evidence. Mother testified, however, that she had successfully completed diversion and that her charge was dismissed and her record was expunged. No order of expunction was entered as an exhibit.

The trial court found that “she did get diversion . . . and I take it the proper order has been signed and she’s completed all that based on her testimony.”

In its final order, however, the trial court ultimately ruled that Mother had been “convicted” of child endangerment, which included a knowing element, and that in the absence of an order of expunction, the conviction and “finding of guilt” was sufficient to show that Mother was guilty of severe abuse. . . .

[Tennessee law provides that] a prior conviction [is] entitled to preclusive effect in a later civil action under the doctrine of collateral estoppel . . . . [T]his rule appears to be valid even when the defendant enters an Alford plea to the charge. The problem, of course, with the trial court’s reliance on Mother’s conviction is that there was not one. Rather, Mother entered an Alford plea to charge of child endangerment, but ultimately received judicial diversion.

Pursuant to Tennessee’s judicial diversion statute, . . . a court may order a criminal defendant to complete diversion instead of entering a conviction. If the defendant successfully completes diversion, “the court shall discharge [her] and dismiss the proceedings against [her].” A successfully completed period of diversion does not, therefore, result in a conviction.

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[R]egardless of whether Mother followed through on expunction of her record, Mother simply does not have a conviction that may be entitled to preclusive effect in this case.

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[I]n the absence of a conviction, there is nothing that precludes a defendant from denying guilt in a subsequent civil action. And because of Mother’s diversion, she was not convicted of child endangerment.

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Here, the burden was on DCS to prove that Mother committed severe abuse by clear and convincing proof. DCS attempted to meet this burden by establishing the necessary “knowing” element through Mother’s purported child endangerment conviction. The only documentary proof presented by DCS to establish the “conviction” for child endangerment was a plea form in which Mother was granted judicial diversion. . . .

The mere fact that Mother entered into a plea and received diversion therefore does not establish a conviction. Given that the plea document alone does not establish a conviction, it was not Mother’s burden to prove that her charges had been dismissed through the successful completion of her diverted sentence, but DCS’s burden to present sufficient proof that her diverted sentence was in fact converted into a conviction through noncompliance with the terms of her diversion.

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DCS presented no documentary proof (or affirmative proof of any kind) to show that the diversion was in fact revoked for noncompliance . . . . The majority therefore appears to excuse DCS from the burden it places on Mother to submit documentary proof in support of its claim, even though it is DCS, rather than Mother, that bears the burden of proof in this matter.

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In light of DCS’s failure to prove that Mother was convicted of child endangerment so as to satisfy the “knowing” element of severe abuse, I cannot conclude that the other evidence presented “eliminates any substantial doubt” in my mind that Mother knowingly exposed or failed to protect the children from abuse. Because the severe abuse finding is not supported by clear and convincing evidence, I must respectfully dissent.

Rebuttal: The Majority responded to the dissenting opinion:

The dissent rests on the sole premise that Mother successfully completed the requirements of her diversion, which resulted in dismissal of the child endangerment charge (i.e., no conviction). . . . [T]he record contains neither an order of expungement, nor an order evincing Mother’s alleged completion of diversion. Regardless, it is well-settled that the court speaks through its orders, not through the transcript. So, while the dissent couches the trial court’s oral statement as a finding, it is not. Rather, as noted in the dissent, the trial court’s ultimate conclusion, as set out in its written order, was that “[M]other had been ‘convicted’ of child endangerment.” This is the finding of the court and the starting point of our review.

The only proof in the record concerning the question of whether Mother successfully completed her diversion is her own [contradictory] testimony.

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Because the dissent is premised on an unproven fact, i.e., that Mother successfully completed the requirements of her diversion, the analysis is not applicable in this case and, as such, is advisory.

In re Treylynn T. (Tennessee Court of Appeals, Western Section, September 9, 2020).