Session September 4, 2014
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed. Appeal by Permission from the Court of Criminal Appeals, Circuit Court for Loudon County. No. 10611B. E. Eugene Eblen, Judge.
Gregory P. Isaacs and Andrea B. Mohr, Knoxville, Tennessee, for the appellant, Jacqueline Crank.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; John H. Bledsoe, Senior Counsel; Russell Johnson, District Attorney General; and Frank Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.
Catherine E. Swan, Steamboat Springs, Colorado, and A. Wayne Henry, Loudon, Tennessee, for the amici curiae, Children's Healthcare Is a Legal Duty et al.
GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined. JEFFREY S. BIVINS, J., not participating.
GARY R. WADE, J.
The defendant, who was indicted for child neglect based upon her failure to obtain medical treatment for her daughter, challenged the constitutionality of the " spiritual treatment" exemption within the child abuse and neglect statute. The exemption, which is set out in Tennessee Code Annotated section 39-15-402(c), precludes the prosecution of parents who " provide treatment by spiritual means
through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The defendant moved to dismiss the charge against her, claiming that the exemption was unconstitutionally vague and violated the Establishment and Equal Protection Clauses of the Federal Constitution, as well as the comparable provisions of the Tennessee Constitution. The trial court denied the motion to dismiss. Following a bench trial, the trial court determined that the defendant did not qualify for the spiritual treatment exemption, found her guilty of child neglect, and imposed a sentence of eleven months and twenty-nine days, all to be served on unsupervised probation. The Court of Criminal Appeals affirmed the conviction without addressing the merits of the constitutional claims. We hold that the spiritual treatment exemption is not unconstitutionally vague. Because the exemption may be elided without invalidating the remainder of the child abuse and neglect statute, the defendant's remaining constitutional challenges, even if successful, would not afford her relief. As a result, we decline to address whether the exemption violates the Establishment or Equal Protection Clauses of the Federal Constitution or the corresponding provisions in article I, section 3 and article XI, section 8 of the Tennessee Constitution. The judgment of the Court of Criminal Appeals is affirmed.
I. Facts and Procedural History
In April of 2001, Ariel Ben Sherman rented a house in Lenoir City, where he began to conduct religious services in the name of the Universal Life Church. The parishioners of the church included Jacqueline Crank (the " Defendant" ) and her minor daughter, Jessica. Jessica became ill in early 2002 and was eventually diagnosed with Ewing's Sarcoma, a rare form of cancer that most commonly afflicts people under the age of twenty. She died in September of 2002 at the age of fifteen.
In April of 2003, Sherman and the Defendant were indicted for neglect of a child under the age of eighteen, see Tenn. Code Ann. § 39-15-401(a) (Supp. 2001), based upon their failure to obtain adequate medical treatment for Jessica. Although the trial court dismissed the indictment against Sherman, the charge was reinstated on appeal, and the case was remanded for further proceedings. State v. Sherman, 266 S.W.3d 395, 399 (Tenn. 2008). On remand, Sherman was convicted of child neglect. He died, however, during the pendency of his appeal.
Initially, the trial court also dismissed the charge against the Defendant based upon a 2005 amendment to section 39-15-401 that made the child neglect portion of the statute applicable only to children under thirteen years of age. See Act of June 22, 2005, ch. 487, § 1, 2005 Tenn. Pub. Acts 1183, 1183-84. The Court of Criminal Appeals reversed the judgment of the trial court and reinstated the indictment, holding that the 2005 amendment was not retroactively applicable. State v. Sherman, No. E2006-01226-CCA-R3-CD, 2007 WL 2011032, at *4-5 (Tenn.Crim.App. July 12, 2007).
On remand to the trial court, the Defendant moved to dismiss the charge on other grounds. Relying upon the Due Process, Establishment, and Equal Protection Clauses of the Federal Constitution and the corresponding provisions of the Tennessee Constitution, the Defendant challenged the constitutionality of the child abuse and neglect statute based upon the " spiritual treatment" exemption set out in Tennessee Code Annotated section 39-15-402(c) (Supp. 2001) (amended 2005). The exemption provides that child abuse and neglect do not occur when a child is " provided treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The Defendant also sought relief pursuant to Tennessee's Preservation of Religious Freedom Act, which prohibits the State from " substantially burden[ing] a person's free exercise of religion" unless the State shows that the burden is " [e]ssential to further a compelling governmental interest" and constitutes " [t]he least restrictive means of furthering that compelling governmental interest." Tenn. Code Ann. § 4-1-407(c)(1)-(2) (2011).
On January 12, 2009, the trial court conducted a pre-trial hearing to address the effect of the spiritual treatment exemption on the charge of neglect. The Defendant, who described Jessica as a strong believer whose " focus was upon Jesus Christ," acknowledged that in 2002 she discovered that Jessica " had a problem with her shoulder" and took her first to a chiropractor and later to a nurse practitioner at a walk-in clinic. Eventually, Jessica's symptoms became more pronounced, and the Defendant " knew there was a problem" when Jessica developed " a grapefruit size tumor on her shoulder." The Defendant testified that as a " devout Christian," she decided
to turn to Jesus Christ, my Lord and my Savior, my Healer, Defender for [Jessica's] healing. That being a believer in the Lord, being a believer in this Word, that He was the only Healer. And through that belief we took it in our hands to pray for her, to heal her with prayer, to know that Jesus Christ is the Healer, is the Deliverer.
She and Jessica prayed together, read scriptures, and enlisted churches across the country to pray for Jessica's return to good health. Shortly before Jessica's death, the Department of Children's Services took her into its custody and authorized medical treatment.
At the conclusion of the hearing, the trial court rejected the Defendant's constitutional claims and denied the Defendant's motion to dismiss. The State and the Defendant then consented to a bench trial based upon the Defendant's prior testimony on the motion to dismiss and affidavits submitted by several other witnesses.
Dr. Guy Wells, the Lenoir City chiropractor who had examined Jessica, provided the following testimony by affidavit:
[O]n February 11, 2002[,] I had an occasion to examine and x-ray a child identified to me as Jessica Crank. She was brought to my office by her mother . . . . A brief exam of the child was given, an x-ray was taken, and . . . she was instructed to return on February 18, 2002. [The Defendant], along with the child Jessica Crank and an individual identified as Ariel Sherman, who signed Jessica Crank in as her father, did return on February 18, 2002. Based upon an additional x-ray and examination of Jessica Crank, I informed [the Defendant] and Ariel Sherman that I could not treat her and that she needed to be taken to an emergency room immediately. . . .
[H]er condition was quite serious and it appeared likely to be some sort of malignancy. Before leaving my office, [the Defendant] and Ariel Sherman indicated they would take Jessica Crank to an emergency room.
Later on February 18, 2002, Ariel Sherman called me, identifying himself as Jessica Crank's father, and informed me that he was not taking her to an emergency room but that he had gotten a telephone diagnosis from a Boston doctor of Green Stick Fracture and was taking her to Boston to see the doctor there.
Tracy Gartman, the nurse practitioner who had observed Jessica at the walk-in clinic, testified by affidavit as follows:
On May 6, 2002[,] I had occasion to examine a child identified to me as Jessica Crank who presented with a severely swollen left shoulder and appeared to be in severe pain. An x-ray of Jessica Crank's shoulder was taken and I was able to identify bone disintegration and other indications of a serious medical condition requiring immediate treatment.
To that end, these indications on the x-ray were pointed out to her mother, [the Defendant], the significance and seriousness of her medical condition was discussed[,] and she was instructed to take her child, Jessica Crank, immediately to the U.T. Emergency Room. I arranged with a physician at the U.T. Emergency Room to be ready for her arrival for further diagnosis and treatment of her condition. Thereafter, . . . U.T. was contacted and at that time I discovered that [the Defendant] and Jessica Crank had never arrived at the Emergency Room. Based upon this finding, local law enforcement was notified of the above described incident.
Officer Lynette Ladd of the Lenoir City Police Department also submitted an affidavit. She attested that she had received a complaint of possible child neglect following Jessica's visit to the walk-in clinic. With the assistance of the Department of Children's Services, Officer Ladd removed Jessica from the custody of the ...