Divided Court Reverses Severe Abuse Finding in Lewisburg, Tennessee Dependency and Neglect Case: In re Angelleigh R.

June 7, 2021 K.O. Herston 0 Comments

Facts: Mother is the parent of a six-year-old developmentally delayed child (Child) whose functioning is well below that of a child her age.

The Department of Children’s Services (DCS) began an investigation after Child put her hands down the front of her pants at school. When asked, Child said she was hurting and that Mother’s boyfriend (Boyfriend) was “messing with her down there,” put hand sanitizer “down there,” and threatened to put hot sauce in her eyes.

In a forensic interview that followed, Child also accused Boyfriend of putting hot sauce “down there.” Child further claimed that Boyfriend killed 18 cats and one human, and she called the police on Boyfriend, and he was arrested for murder. She also said her teachers were going to jail because “they were not pretty, and they kicked her.”

The forensic interview was recorded on video and entered into evidence in place of Child’s testimony.

DCS petitioned to have Child declared dependent and neglected because of severe abuse.

Mother and Boyfriend claimed Child was known to fabricate stories and made up these allegations. The DCS investigator agreed Child had “a propensity to make up stories” but felt this was not unusual for such a young child suffering from developmental delays.

Boyfriend was never charged with a crime.

The trial court found the evidence clear and convincing that the sex abuse occurred and, therefore, Child was the victim of severe abuse by Boyfriend.

Mother appealed.

On Appeal: A divided Court of Appeals reversed the trial court.

Standing. DCS argued Mother lacked standing to appeal the severe abuse finding because the trial court found severe abuse by Boyfriend but not Mother. Because Boyfriend did not appeal that finding, DCS felt the severe abuse finding was final as to Boyfriend, and Mother had no standing to challenge that finding.

As a general rule, a party lacks standing to appeal an order entered against a co-party who has chosen not to appeal that order. Thus, only an aggrieved party may appeal. However, an aggrieved party has been defined to include one having an interest affected by the judgment or whose property rights or personal interests are directly affected by its operation.

To establish standing, Mother must show:

  • an injury which is distinct and palpable;
  • a causal connection between that injury and the conduct of which she complains; and
  • the likelihood that a favorable decision will redress that injury.

The Court unanimously held that Mother was an “aggrieved party” with standing to challenge the severe abuse finding:

There can be no dispute that a dependency and neglect and/or severe abuse action directly affects Mother’s fundamental liberty interest in the care and custody of her child. Although Mother was not named the perpetrator of the severe abuse by the trial court, the trial court maintained custody of the child with DCS, in large part based on the severe abuse finding. And the trial court specifically [ordered] that Mother was not to allow any contact whatsoever between Boyfriend and [Child], on pain of possible criminal charges. This order clearly interferes with Mother’s rights to have custody and control over her own child. Thus, while she has not been named a perpetrator of severe abuse, we cannot conclude that she was not aggrieved by the severe abuse finding.

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[A]lthough Mother was not found to have been a perpetrator of severe abuse, the severe abuse finding against Boyfriend has significant ramifications for her. Specifically, the severe abuse finding prevents Boyfriend and [Child] from having any contact with each other, much less residing together. Thus, the most significant barrier to reunification of [Child] with Mother is her continued relationship with Boyfriend. . . . Mother, however, shares a child with Boyfriend, lives with him, and relies on him for support. . . . The finding essentially forces Mother to choose between [Child] and Boyfriend. As such, she has a palpable injury, there is a causal connection between the injury and the severe abuse finding, and a reversal of the severe abuse finding is likely to redress that injury. She therefore has standing to appeal that finding.

Severe abuse. The case against Boyfriend consists of Child’s disclosures. The issue is whether those disclosures are trustworthy.

A witness’s story may be so internally inconsistent or implausible that a reasonable factfinder would not credit it.

Appellate courts do not have to give deference to a trial court’s findings of fact based on documentary evidence such as depositions, transcripts, or video recordings. When findings are based on such evidence, an appellate court’s ability to assess credibility and weight of the evidence is the same as the trial court’s. Thus, an appellate court may draw its own conclusions about the weight and credibility to be afforded to documentary evidence.

In a 2-1 decision, the Majority found Child’s disclosures lacked credibility and did not satisfy the clear-and-convincing-evidence standard required for dependency and neglect adjudications:

In this case, the child did make spontaneous disclosures that Boyfriend used foreign substances on her private area to multiple individuals. These disclosures unequivocally named Boyfriend as the perpetrator. These facts certainly lend credence to the allegations of severe abuse. Still, the child also said that Boyfriend did not hurt her and that no one touched her. . . . Here, the child was not consistent in detailing the instrumentality of the abuse—be it hand sanitizer or hot sauce; the frequency of the abuse—from one instance to “100 days”; or whether her mother had knowledge of the abuse—which ranged from not knowing to not caring to punishing Boyfriend.

The child’s other allegations against Boyfriend also give us pause. According to the child, Boyfriend not only killed 18 cats and stomped on her stomach, he murdered and dismembered a neighbor before burying him in the yard, for which the police arrested him. Other than the child’s statements, there was no proof whatsoever to substantiate these claims. The child’s allegations were not limited, however, to Boyfriend, as she also alleged physical abuse by her former teachers. Importantly, DCS ignores these allegations in its brief. Under these circumstances, we can only conclude that DCS wants this Court to believe the child’s allegation concerning hand sanitizer, while ignoring all of the other troubling and sometimes fanciful allegations made by the child.

Moreover, there was no expert medical or psychological proof of any kind submitted to substantiate the child’s allegations in this case. [T]here was no expert testimony in this case that the child was able to distinguish between truth and untruth. . . . The omission of proof as to the child’s ability to distinguish between truth and untruth is especially relevant in this case because the evidence was undisputed that the child had been diagnosed with developmental delays that affect her behavior; even the DCS investigator conceded that it would not be unusual for a child in that situation to make up stories and that the child at issue had a “propensity” to do so, as she often had difficulty distinguishing between the truth and facts created by her imagination. In light of the omission of this evidence coupled with the other incredible allegations in the forensic interview, we must conclude that substantial doubts about the child’s ability to understand the difference between truth and untruth exist in this case.

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[T]here was not expert testimony that the child was behaving in a way or suffering from issues that were typical of children who were the victims of sexual abuse. . . . Nor did the evidence show that the child has sexual knowledge inappropriate for her age. . . .

Returning a child to a home where there is even a possibility of sexual abuse is not a situation that this Court takes lightly. But Tennessee law provides that we exercise the same caution in removing a child from her parents without sufficient proof to substantiate the allegations made against them, as the law requires clear and convincing evidence to substantiate severe abuse. . . .

Despite our reluctance to overturn the decision of the trial court given the serious nature of the allegations at issue, we must conclude that clear and convincing evidence was not presented to support the allegation of severe abuse. . . . The issue in this case is not whether the child made these disclosures, but whether the disclosures produce a firm conviction of the truth of the allegations. And here the disclosures themselves are suspect, riddled as they are with inconsistencies, exaggerations, and obvious fabrications that DCS chooses to ignore rather than address. Thus, this is not the case where a child’s consistent allegations are rebutted by only a single instance of a false allegation.

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[T]he forensic interview demonstrates that the child indeed made other outlandish and untrue allegations against Boyfriend and other individuals. Given that the child made a multitude of allegations against Boyfriend that DCS does not appear to contend are credible and the child’s disclosures make up the bulk of the dispositive evidence in this case, we must conclude that the evidence presented in this case amply fails to eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. The trial court’s finding that the child was a victim of severe abuse committed by Boyfriend is therefore reversed.

Dissent: Judge Frierson dissented in part to argue that the severe abuse finding should be affirmed because the appellate record does not contain clear and convincing evidence sufficient to overturn the trial court’s credibility determinations:

In this matter, the trial court heard live, in-court testimony from several witnesses, including Mother, [Boyfriend], the child’s former teachers, the DCS investigator, and others.

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[T]his Court is required to afford the trial courts considerable deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses.

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[M]y review of the video supports the trial court’s determination concerning the credibility of the child’s abuse disclosure made therein. The child’s abuse disclosure was spontaneous, following a general discussion of “private parts” by the interviewer. . . . The child’s affect and tone during the initial disclosure appeared to be consistent with that of a child who was answering questions about a factual event. It is only much later in the interview, after participating in another 20-plus minutes of discussion with the interviewer, that the child begins to aggrandize the stories about [Boyfriend] being “bad,” relating clearly exaggerated narratives about [Boyfriend] and other subjects. Such behavior is explained by evidence concerning the child’s cognitive condition combined with the length of the interview and is clearly distinguishable from the tone of her earlier, consistent disclosure.

K.O.’s Comment: The trial court also found Child dependent and neglected in Mother’s care because of “educational neglect” related to Mother homeschooling Child. By the time of trial, however, Child was in DCS custody and enrolled in school.

Tennessee law requires that the circumstances leading to a finding of dependency and neglect must exist at the time of the trial.

Mother testified that if Child were returned to her custody, she would enroll Child in the local public school. No evidence was presented that this plan was inappropriate, and the trial court made no finding that it did not believe Mother’s testimony on this issue.

The finding of educational neglect was reversed because, while it may have existed when Child was removed from Mother’s custody, it no longer existed at the time of trial.

This reasoning is consistent with other cases, e.g., In re Maya M., where the Court held “[t]he dependency and neglect conditions must exist at the time of the hearing, whether before the juvenile court or in a de novo hearing before the circuit court, to sustain the petition.”

In re Angelleigh R. (Tennessee Court of Appeals, Middle Section, May 19, 2021).

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Divided Court Reverses Severe Abuse Finding in Lewisburg, Tennessee Dependency and Neglect Case: In re Angelleigh R. was last modified: June 6th, 2021 by K.O. Herston

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