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In re Brooklyn S.

Court of Appeals of Tennessee, Nashville

November 8, 2017

IN RE BROOKLYN S., ET AL.

          Session: October 4, 2017

         Appeal from the Circuit Court for Franklin County No. 2016-CV-161 Judge Justin C. Angel

         This is a dependent and neglect action in which the mother of three minor children appeals the circuit court's finding that her children were subjected to severe abuse and that she "either committed the severe abuse herself, or knowingly failed to protect her four month old infant from the severe abuse that led to his death." Mother contends the circuit court erred by allowing three grandparents who intervened in the juvenile court proceedings to fully participate as parties in the circuit court proceedings. She further contends the circuit court failed to conduct a true de novo hearing following her appeal from the juvenile court, and that the circuit court erred by admitting the transcripts from the juvenile court hearings into evidence. We affirm the trial court in all respects but one. We find the evidence insufficient to clearly and convincingly establish that Mother committed the severe abuse herself; however, we affirm the circuit court's ruling that Mother committed severe child abuse by knowingly failing to protect Hunter from the severe abuse that led to his death.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed As Modified

          Peter Trenchi, III, Sewanee, Tennessee, for the appellant, Miranda S. [1]

          Cailtyn Marie Callaway, Decherd, Tennessee, for the appellee, Bryan P.

          Sandra I. Schefcik, Estil Springs, Tennessee, for the minor children, Brooklyn S. and Dustin S.

          Glen A. Isbell, Winchester, Tennessee, for the appellees, Deborah S. and Mark S.

          Herbert H. Slatery, III, Attorney General and Reporter; Martha A. Campbell Assistant Attorney General; and Jordan Keith Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On March 9, 2016, the Tennessee Department of Children's Services ("the Department") filed a petition in the Juvenile Court of Franklin County, Tennessee for emergency temporary legal custody of Miranda S.'s ("Mother") children: Hunter S., born in October 2015, Dustin S., born in September 2011, and Brooklyn S., born in April 2010. The Department also petitioned the court to find the three children dependent and neglected. Mother's boyfriend, Bryan P., was alleged to be the perpetrator of the severe abuse, and Mother was accused of failing to protect her children. On April 27, 2016, the Department filed an amended petition alleging that Mother committed severe abuse or knowingly failed to protect Hunter from severe abuse.

         Following a hearing, the juvenile court entered an order on June 10, 2016, finding that Bryan P. had committed the severe abuse and that Mother had failed to protect the children. Mother timely appealed to the Circuit Court of Franklin County on June 20, 2016. The appeal was heard in the circuit court on December 6, 2016. In an order entered on February 6, 2017, the circuit court found that Mother "either committed the severe abuse herself" against Hunter, "or knowingly failed to protect [him] from the severe abuse that led to his death." On February 22, 2017, Mother filed a timely appeal to this court.

         The most relevant facts and additional details of the procedural history of this case are summarized as follows. On March 3, 2016, 5-month-old Hunter was admitted to the emergency room in respiratory and cardiac distress. The infant had been in the care of Bryan P. while Mother ran errands at a nearby store. According to Mother's testimony, Hunter was fine before she left to run errands. The child was transferred almost immediately to Vanderbilt Children's Hospital, where the Department got involved after medical staff suspected the child was suffering from non-accidental injuries.

         Dr. Deborah Lowen, a child-abuse specialist at Vanderbilt, diagnosed Hunter with brain hemorrhaging, multiple bruises on his ear, face, torso and anus, and a torn frenulum. An MRI of Hunter's brain revealed hemorrhaging throughout certain areas of his brain caused by "non-accidental trauma, " and a spinal MRI revealed subdural hematoma extending from T8 to S2 on Hunter's spine. Dr. Lowen concluded that Hunter's injuries were caused by "physical abuse."

         On March 9, 2016, the Department petitioned the Franklin County Juvenile Court for emergency temporary legal custody of Hunter, Dustin, and Brooklyn, and to find the three children dependent and neglected.[2] At the preliminary hearing, Mother testified that she did not think Bryan P. caused Hunter's injuries because he had watched her children before with no incident. However, Mother also admitted that Hunter was fine when she left for Walmart, but that he was having trouble breathing when she returned thirty minutes later, and that Bryan P. was the only adult with Hunter during that time.

         The juvenile court entered a supplemental protective custody order on March 11, 2016. The court specifically found that Mother's testimony at the preliminary hearing was "evasive, at best. She failed to protect Hunter. She continued to defend her boyfriend and even implied that she could have been responsible for the child's injuries." Brooklyn and Dustin were placed in the custody of their great aunt and uncle, Michelle and Bruce S. This same day, Hunter died from the internal respiratory injuries he suffered.

         A few days later, Jacob S., the biological father of Dustin and Hunter, and his parents, Mark and Deborah S., filed an intervening petition for custody of Brooklyn and Dustin.[3] The parties later amended their petition to seek custody of only Dustin. Around this same time, Timothy E., Brooklyn's paternal grandfather, also filed an intervening petition for her custody. Following a hearing on March 23, 2016, Dustin was placed in the temporary legal custody of Mark and Deborah S., and Brooklyn was placed in the temporary legal custody of Timothy E. Jacob S. was granted supervised visits with Dustin. Mother was ordered to have no contact with the children.

         On April 27, 2016, the Department filed an amended petition to include the ground of severe abuse, alleging that Mother committed severe abuse against Hunter or knowingly failed to protect Hunter from severe abuse. This new allegation was based on Mother's testimony at the March 23 preliminary hearing, and Mother's behavior on that day. She was observed sitting close to and "being amorous towards" Bryan P. before the hearing, despite Mother's knowledge of the accusations against him.

         The juvenile court conducted an adjudicatory hearing on May 27, 2016. Jaclyn P., Bryan P's ex-wife, testified about text messages she saw on Bryan's phone regarding abuse of Dustin and Brooklyn. One message from Mother to Bryan told him to keep Dustin home from school and away from other family members because of the "marks on his butt, his back and his neck." Bryan sent a message back apologizing to Mother for whipping Dustin, and Mother replied that "it was okay" because Dustin "hasn't acted up anymore." In another message, Mother said that Bryan had "slapped the h-e-1-1 out of [Brooklyn] and blackened her eye." Jaclyn P. testified that these messages were sent before the March 3, 2016 incident involving Hunter. When Bryan P. was called to the witness stand to testify, he acknowledged that his attorney had advised him of his rights under the Fifth Amendment to not testify. Based on this response, the judge went on to advise Bryan P. that if he asserted his right to not answer questions that "the court may draw what is called a negative inference. That is, I can hold it against you in the custody case for failure to answer." When asked if he understood he responded affirmatively and informed the court that he elected to not testify at the adjudicatory hearing. When Mother was called to testify, she too acknowledged that her attorney had advised her of her rights under the Fifth Amendment to not testify and acknowledged knowing that the court may draw a negative inference from her choosing to not answer questions at the hearing. Following this colloquy, Mother was asked a question to which she responded by stating "Fifth Amendment, " and informed the court that she would not testify at the adjudicatory hearing.

         Pursuant to an order entered on June 10, 2016, the juvenile court adjudicated the children dependent and neglected due to severe abuse by Bryan P. "for the act, " and severe abuse by Mother "for the act or failure to protect" Hunter from abuse. Because Mother asserted her Fifth Amendment right and did not testify at the adjudicatory hearing, the court took judicial notice of her prior testimony from the preliminary hearing. The court based its finding of severe abuse on Mother's prior testimony and on Hunter's medical records, which showed a "non-accidental trauma diagnosis." The court also took judicial notice that Hunter was now deceased. Mother filed a timely appeal to the circuit court. Bryan P. did not appeal.

         The circuit court held a de novo hearing on December 6, 2016, during which four witnesses testified in person. Mother testified in circuit court, but she declined to answer most questions based on her Fifth Amendment rights. Specifically, when asked about her relationship with Bryan P., whether she knew he had abused Hunter and her other children, whether some of the abuse of the children happened in her presence, whether she attempted to cover up injuries to the children, and whether she made statements to others admitting Bryan's abuse of the children, Mother asserted the Fifth Amendment. She did, however, admit to "sitting quite close and intimately with [Bryan P.]" in the hall outside the courtroom prior to the preliminary hearing and knowing at that time of the allegations that Bryan P.'s abuse of Hunter caused Hunter's death. Due in part to Mother's decision to not answer numerous questions during the de novo hearing in circuit court, transcripts from both the preliminary hearing and the adjudicatory hearing were entered as exhibits for impeachment purposes. Mother agreed to the admissibility of the transcripts for the purpose of "impeachment only"; however, she objected to the admissibility of the transcripts for any other reason.[4]

         Estill Springs Chief of Police Allen Rhodes testified regarding a criminal investigation he conducted of Bryan P., who was subsequently charged with second-degree murder of Hunter. As part of the investigation, Chief Rhodes subpoenaed cell phone records. Text messages revealed that Mother and Bryan P. discussed an incident with Hunter that happened on March 1, 2016, two days before Hunter went to the emergency room. Chief Rhodes testified that in one text message, Mother stated to Bryan P., "I know it wasn't done on purpose. . . . Things happen." Bryan P. responded that, "someone is going to think he's abused and he was left with me." Chief Rhodes interviewed Mother in July 2016. During the interview, Mother admitted that she sent text messages stating that Dustin received bruises when he was disciplined by Bryan P., but that she "wanted to keep it from the family."

         Deborah S., Dustin and Hunter's paternal grandmother, testified that when Mother brought the children to her house on March 1, 2016, Hunter had a black eye and "a bruise going all the way around his face." Deborah S. suspected abuse, and testified to Mother's "cold-hearted" behavior throughout Hunter's hospitalization at Vanderbilt. After Deborah S. gained custody of Dustin on March 23, 2016, Dustin described instances of abuse he suffered at the hands of Bryan P.

         Timothy E., Brooklyn's paternal grandfather, testified that his son, Nicholas E., was Brooklyn's father. After Nicholas died in 2012, Mr. E. filed a petition for visitation with Brooklyn, and Brooklyn has spent one weekend per month with Mr. E. since March 2013. Mr. E. gained custody of Brooklyn on March 23, 2016. Brooklyn told him that Bryan P. "whipped Dustin bad" and "hurt him." She also said that Mother broke a paddle on Dustin.

         At the end of the hearing the court took the matter under advisement. On February 6, 2017, the circuit court's order was entered, in which it made detailed findings of fact and conclusions of law:

         FINDINGS OF FACT

1. The State of Tennessee, Department of Children's Services (hereinafter "DCS") filed a Petition for (Emergency) Temporary Legal Custody on March 9, 2016, in the Franklin County, Tennessee Juvenile Court (hereinafter "Juvenile Court").
2. The Petition alleged the minor children, Brooklyn [S.] and Dustin [S.], along with four other minor children, were dependent and neglected by the parents. One parent is Miranda [S.], the Respondent in this case.
3. On March 10, 2016, the Juvenile Court ordered that the minor child, Hunter [S.], could be removed from the respirator at the Vanderbilt Hospital in Nashville, Tennessee where he had been hospitalized since March 4, 2016. His injuries were caused by severe physical abuse according to the Vanderbilt medical staff.
4. Thereafter, Hunter died on March 11, 2016. The [S.] children's temporary custody was placed with Bruce and Michelle [S.], paternal great uncle and aunt. By Order of the Juvenile Court filed on March 11, 2016, the Juvenile Court found that the children were dependent and neglected by the mother, Miranda [S.], and her paramour, Bryan [P.], who had custody at the time.
5. At a hearing on March 23, 2016, the Juvenile Court ordered that Brooklyn [S.]'s custody be placed with the maternal grandfather, Timothy [E.], and that Dustin [S.]'s custody be placed with the paternal grandparents, Mark and Deborah [S.].
6. DCS filed its Amended Petition on April 13, 2016, alleging severe abuse and improper supervision by the mother, Amanda [sic] [S.], by knowingly failing to protect Hunter [S.] from harm, which ultimately led to his death.
7. On May 27, 2016, the Juvenile Court adjudicated the children as being dependent and neglected with a severe abuse finding against their mother, Amanda [sic] [S.], for failure to protect the child, Hunter [S.]. Further, the Juvenile Court found mother's paramour, Bryan [P.], guilty of severe abuse, non-accidental trauma to the child, Hunter [S.].
8. The Juvenile Court held a review hearing on August [sic] 17, 2016. The mother appealed the case to the Franklin County Circuit Court on June 20, 2016. The Circuit Court requested the parties brief the issue of whether it has jurisdiction since the Juvenile Court continues to review the case.
9. The Circuit Court ruled that though the Juvenile Court continues to hold hearings reviewing the case, this Court would consider this appeal.
10.Bryan [P.] failed to answer or appear at the December 6, 2016. DCS moved for a default judgment against Bryan [P.] and the Court granted same.
11.At the December 6, 2016, hearing the mother, Amanda [sic] [S.], pled her Constitutional Fifth Amendment right not to answer the questions asked of her. The Court takes a negative inference of the mother invoking the 5th Amendment, as this is a civil matter, per Baxter v. Palmigiano, 425 U.S. 308, 316-320, 96 S.Ct. 1551, 1557-1559, 47 L.Ed.2d 810 (1976). She invoked the 5th Amendment regarding her continued involvement with Brian [P.], knowing of the severity of the harm to Hunter, her child; whipping Dustin too hard, keeping Dustin out of school due to physical abuse inflicted, Brooklyn having a black eye caused by either Brian [P.] or Miranda [S.].
12. As part of the de novo review, the Court entered the Preliminary Order from the Juvenile Court into the record as Exhibit 1.
13. Pursuant to Tennessee Code Ann. §37-1-129 (b)(2), this Court has discretion on review of the case.
14. The Court admitted the medical records of the minor child, Hunter [S.], into evidence as Exhibit 2, upon the stipulation to admit ...

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