Facts: Father and Mother are the never-married parents of two children. Their parenting plan gave 100 days of parenting time to Father.

The Department of Children’s Services (“DCS”) filed a petition in juvenile court alleging that both children were dependent and neglected and one as the victim of severe child abuse. This was based on the child’s disclosure that he and his brother were sleeping in the bed with Father when Father put his penis against the child’s anus and between his “butt cheeks.” The child said Father’s penis did not go all the way inside him and that it felt “terrible.”

The juvenile court found clear and convincing evidence that both children were dependent and neglected, and one child was the victim of severe child abuse. Father took a de novo appeal to the circuit/trial court.

The forensic interviewer, a DCS investigator, and a therapist testified about the child’s statements. Father testified that the alleged abuse never occurred. He believed that the child was coached to make the allegation so Father could not share custody of the children. Father testified he missed the children and wished to see them again.

At the close of DCS’s proof, Father moved for an involuntary dismissal, which the trial court granted. The trial court found the allegations don’t align with the facts, the circumstances, or the passage of time. The trial court did not find the child’s disclosures to be believable.

DCS and the guardian ad litem appealed.

On Appeal: The Court affirmed the trial court’s ruling.

Both that a child is dependent and neglected and that a parent has engaged in severe child abuse must be established by clear and convincing evidence. This is evidence that eliminates any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence. It produces a firm belief or conviction as to the truth of the allegations sought to be established.

To establish severe child abuse, DCS had to prove by clear and convincing evidence that Father intentionally touched his intimate parts (whether clothed or unclothed) to his son’s intimate parts (whether clothed or unclothed) for the purpose of sexual arousal or gratification.

Here, that proof consisted of the child’s disclosures to various individuals and expert witnesses. There was no eyewitness to any abuse, and no physical evidence substantiated the child’s allegations.

Applying its deferential standard of review for a trial court’s credibility determination, the Court affirmed the circuit court’s judgment:

On first blush, this encounter seems to meet the definition of aggravated sexual battery; however, we are unable to discern from [the child’s] description of the incident whether Father intentionally touched his erect penis to the child’s buttocks or whether the touching occurred while Father was sleeping or as a result of the close proximity of the three people in the full-sized bed…. In its order, the trial court stated:

• 5. The Court finds that there has been no proof or testimony as to whether or not the father was awake or asleep and that nobody asked that.
• 6. The Court finds that would be an important question to ask and not to make an assumption.

[The child] stated that his back was facing Father and that he remained still during the encounter. Therefore, [the child] could not have known for certain whether Father was awake or asleep during the incident or whether the touching occurred involuntarily. [The child] also did not know what made Father discontinue the behavior. The evidence does not preponderate against the trial court’s finding that there is no proof that Father was awake, and there is not clear and convincing evidence that the touching was intentional or a result of Father’s “conscious objective.”

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While we find clear and convincing evidence to overturn the trial court’s finding that the child was not credible, we do not find clear and convincing evidence to overturn the trial court’s finding that Father was credible. Father unequivocally testified that the encounter [the child] described did not happen. The trial court seemed to conclude that there was not clear and convincing evidence confirming that the incident occurred while Father was awake or that the encounter was a result of Father’s conscious objective. Based on our review of the testimony, we agree that there is not clear and convincing evidence to confirm that Father acted intentionally. Therefore, despite our sympathy for the child, we affirm the trial court’s finding that there was not clear and convincing evidence of severe abuse.

Likewise, we have reviewed the offered grounds and find that dependency and neglect has not been established in this case. We affirm the trial court’s finding that the children are not dependent and neglected.

The Court affirmed the trial court’s dismissal of DCS’s petition.

Source: In re A.H. (Tennessee Court of Appeals, Middle Section, June 30, 2023).

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