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In re Marcell W.

Court of Appeals of Tennessee, Jackson

July 23, 2015


Assigned on Briefs May 20, 2015.

Appeal from the Circuit Court for Shelby County No. CT00119114 Robert Samual Weiss, Judge.

Reginald E. Shelton, Memphis, Tennessee, for the appellant, Michelle W.

Herbert H. Slatery, III, Attorney General and Reporter; Ryan L. McGehee, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Arnold B. Goldin, J., delivered the opinion of the Court, in which Brandon O. Gibson, J., and Kenny Armstrong, J., joined.



I. Background

This appeal stems from a joint dependency and neglect/termination hearing that took place in the Shelby County Circuit Court. In a separate appeal regarding the dependency and neglect proceeding, In re Marcell W., No.W2014-02120-COA-R3-CV (Tenn. Ct. App. July 16, 2015) ("Marcell I"), we previously affirmed the Circuit Court's finding that the minor child at issue in this case was the victim of severe abuse. In this Opinion, we address the trial court's termination of Mother's parental rights.

The minor child at issue, Marcell W.[2] ("Marcell"), was born in March 2012. On September 4, 2012, the Department of Children's Services ("DCS") received a referral concerning allegations of severe physical abuse committed against the minor child. Marcell had been admitted to LeBonheur Children's Hospital ("LeBonheur") in Memphis for severe injuries. Tanisha Harper ("Ms. Harper"), a DCS child protective services investigator, was assigned to investigate the situation. The medical consultation at LeBonheur revealed that Marcell presented with a number of significant medical conditions, including a subdural hematoma, bilateral hemorrhages, a liver laceration, and a left buckle fracture of the arm. When investigating the case, Ms. Harper discovered that Marcell had presented for a well-being checkup at his primary doctor the previous Friday. No issues were found during this checkup, and by all accounts, Marcell was in good health at that time.

Marcell and Mother spent the night at Marcell's grandmother's home following the checkup, but they returned to Mother's residence later that weekend. Ms. Harper did not discover that anything traumatic had happened to Marcell during his stay at his grandmother's home. On the Sunday prior to Marcell's admittance to LeBonheur, Mother apparently observed Marcell "stiffen up" periodically, but no medical action was taken at that time. On Monday, Marcell began having repeated hiccups, and according to Ms. Harper, Mother relayed that he became "non-responsive." The child was subsequently taken to the hospital.

When Ms. Harper discussed Marcell's injuries with Mother, Mother did not provide a specific explanation as to how they had occurred, other than to speculate that Marcell had hit his head on a wall. According to Ms. Harper, Mother informed Ms. Harper that she, Marcell, and her boyfriend all slept together in the same bed. Because the bed leaned against a wall, Mother surmised that Marcell may have hit his head on the wall while she was sleeping. Mother also informed Ms. Harper that she was the primary caretaker of Marcell. Marcell entered the custody of DCS on September 14, 2012. He remained in DCS's custody as of the date of the hearing in this case on August 14-15, 2014. Marcell stayed in the hospital for approximately a month.

Mother was arrested on charges of aggravated child abuse in February 2013, [3] and in April 2013, the Juvenile Court of Shelby County found Marcell to be dependent and neglected and the victim of severe abuse. The Juvenile Court found that, on the basis of the testimony that was presented, Mother was the perpetrator of Marcell's injuries.[4] In its order, the Juvenile Court relieved DCS of making reasonable efforts as to Mother in light of its finding that Marcell had been a victim of severe abuse. Following a rehearing of the case in September 2013, the Juvenile Court upheld the prior findings that Marcell was dependent and neglected and the victim of severe abuse.[5] Mother subsequently appealed to the Shelby County Circuit Court, and the matter was later set for a de novo hearing.[6]

On March 18, 2014, prior to the hearing of Mother's de novo appeal, DCS filed a petition to terminate her parental rights in the Shelby County Circuit Court.[7] The petition alleged that two grounds justified terminating Mother's rights. First, the petition asserted that Mother had abandoned Marcell pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv). Second, the petition alleged that Mother had committed severe child abuse. The petition stated that Marcell had remained continuously in foster care since September 14, 2012, and averred that a change of caretaker would likely have a negative effect on his emotional, psychological, and medical condition. It also claimed that his best interests would be served by forever severing Mother's parental rights.

Following the filing of the petition, DCS moved to join the termination hearing with the hearing of Mother's de novo dependency and neglect appeal. The motion stated that the de novo dependency and neglect appeal was pending in another division of Circuit Court and asserted that both proceedings should be considered in a joint hearing due to a common issue of law and fact pertaining to allegations of severe abuse. DCS explained that a joint hearing would help ensure consistent rulings, avoid unnecessary delay, and preserve judicial resources. By order dated May 21, 2014, a ...

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