Facts: Tennessee’s Department of Children’s Services (“DCS”) filed a dependency and neglect petition alleging that Child had been severely abused. After a trial, the juvenile court found Child dependent and neglected and that he was the victim of severe child abuse perpetrated by Mother and Father.

Mother and Father sought a de novo appeal in the circuit court. While that appeal was pending, DCS petitioned the juvenile court to terminate the parental rights of both parents. After a trial, the juvenile court terminated both parents’ parental rights on grounds of severe child abuse.

The Court of Appeals affirmed the trial court, but the Tennessee Supreme Court reversed the findings of severe child abuse and, therefore, the termination of parental rights. Click here to read about that opinion.

On remand, proceedings in the dependency and neglect de novo appeal resumed in the circuit court. DCS filed an amended petition alleging new facts related to Child’s current circumstances but adding no new claims.

Mother and Father sought to dismiss the amended petition, arguing that the Supreme Court’s ruling barred them from relitigating the issue. The trial court held that the Supreme Court’s decision had no preclusive effect on either the dependency and neglect or the severe abuse claim.

An interlocutory appeal followed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Jurisdiction. Mother and Father first argued that the circuit court lacked subject matter jurisdiction to consider DCS’s amended dependency and neglect petition because it was not first considered by the juvenile court. Only the juvenile court can decide a dependency and neglect matter before any other court may do so.

The Court disagreed:

[DCS’s] amended dependency and neglect petition contains the same claims alleged in the original petition—that the child is dependent and neglected and is the victim of severe child abuse perpetrated by the parents—stemming from the same extensive, unexplained injuries that were discovered in January 2015. The new factual allegations added by the amended petition relate to the developments in the termination proceeding as well as the present circumstances of the child and the parents, e.g., That the child does not know the parents and has bonded with his foster family, that both parents have repeatedly denied that the child suffered any abuse and have never “offered any plausible explanation” for the child’s injuries, that the parents have been “resistant to recommended medical care and other services” for the child, and that the parents “are no longer residing together as a couple.”

After determining that none of the caselaw cited by the parents supported their arguments, the Court affirmed the circuit court’s determination that it had jurisdiction to consider DCS’s amended petition.

Judicial estoppel. Judicial estoppel prohibits a party from occupying inconsistent positions or taking a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by the party, at least where they had, or were chargeable with, full knowledge of the facts. In Tennessee, our courts apply judicial estoppel to circumstances where a party attempts to contradict, by oath, a sworn statement previously made. In other words, judicial estoppel is used to uphold the sanctity of an oath. For the doctrine to apply, the sworn statements being compared must be totally inconsistent—that is, the truth of one must necessarily preclude the truth of the other.

The Court found judicial estoppel did not apply:

[T]he new evidence is offered to show the child’s current circumstances—evidence the circuit court must consider to determine whether the child is dependent and neglected and what custody arrangement is in the child’s best interests at the time of the de novo hearing. We conclude that judicial estoppel does not apply because no sworn, contradictory statements made by DCS exist and DCS is not occupying inconsistent positions vis-à-vis the initial dependency and neglect case for the termination proceeding.

Res judicata and collateral estoppel. The doctrine of res judicata is often referred to as claim preclusion, and it bars a second suit between the same parties on the same cause of action with respect to all issues which were or could have been litigated in the former suit. Courts apply res judicata when an existing final judgment, rendered on the merits without fraud or collusion by a court of competent jurisdiction, is conclusive of the rights, questions, and facts at issue as to the parties.

Collateral estoppel, often referred to as issue preclusion, has been described as an extension of the doctrine of res judicata. It bars the same parties from relitigating in a second suit issues that were actually raised and determined in an earlier suit.

Collateral estoppel and res judicata have the same goals: to promote finality in litigation, prevent inconsistent or contradictory judgments, conserve legal resources, and protect litigants from the cost and vexation of multiple lawsuits.

The Court found the trial court erred by allowing relitigation of the severe child abuse claim:

[T]he Tennessee Supreme Court squarely addressed the severe child abuse claim against both parents [], concluding that DCS failed to prove by clear and convincing evidence that either parent committed severe child abuse against [Child] by knowingly failing to protect him from abuse. A review of the two dependency and neglect petitions shows that DCS did not assert any new facts in the amended petition relating to whether the parents committed severe child abuse against [Child] in 2015, or at any time thereafter. Rather, the new facts alleged in the amended petition relate to the parents’ and the child’s current circumstances that have changed since the juvenile court adjudicated the child dependent and neglected in 2015, particularly that the parents no longer live together and that [Child] has been diagnosed with various medical conditions.

The Court held that relitigation of the severe child abuse claim is barred by res judicata.

Dependency and neglect claim. The parents argued that the dependency and neglect claim is precluded by the Supreme Court’s decision.

In Tennessee, termination proceedings are separate and distinct from dependency and neglect proceedings. The Court found the Supreme Court’s decision did not preclude further action on the dependency and neglect claim:

First, the courts of this state have repeatedly held that a parent’s state of mind is irrelevant for a finding of dependency and neglect because the definitions of “abuse” and “dependent and neglected child” focus on the child’s circumstances, not on the state of mind of the caregiver…. Second, the rules of statutory construction require us to presume that, in using “cause” to define “abuse” while using “knowing” to define “severe child abuse,” the legislature purposely chose to use different terms to define different concepts. Lastly, because the definition of “abuse” includes injuries “caused by brutality, neglect, or other actions or inactions of a parent, relative, guardian, or caretaker,” it includes conduct that may not have been “knowing.”

In sum, based on our review of the Supreme Court’s opinion [] and the relevant statutes, we conclude that the severe child abuse claim and the dependency and neglect claim are different claims. The relevant portions of the Supreme Court’s decision[] concerned only whether the parents perpetrated severe child abuse against [Child]. The Court made no findings or conclusions regarding whether he is a dependent and neglected child.

The Court reversed the trial court’s decision that the Supreme Court’s opinion did not preclude retrial of the “severe abuse” claim but affirmed the trial court in all other respects.

Source: In re Markus E. (Tennessee Court of Appeals, Middle Section, July 10, 2025).

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