IN RE ETHAN W., ET AL. 
Assigned on Briefs August 1, 2017 
from the Circuit Court for Wayne County No. 4658 Stella L.
Department of Children Services initiated a proceeding to
declare the three minor children of Mother and Father
dependent and neglected following the discovery of a sexual
relationship between two of the children. The Juvenile Court
adjudicated the children dependent and neglected, as did the
circuit court in a de novo hearing on appeal. Upon
our review, we conclude the record contains clear and
convincing evidence that the children were dependent and
neglected; accordingly, we affirm the judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Case Remanded
Long Schisler, Lawrenceburg, Tennessee, for the appellant,
Richard Boehms, Hohenwald, Tennessee, for the appellant,
Billy W., Jr.
Herbert H. Slatery, III, Attorney General and Reporter, and
Michael C. Polovich, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C.J., and J. Steven Stafford,
P.J., W.S., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
children are the subject of this dependency and neglect case:
Ethan, born March 2000; Makayla, born September 2002; and
Tommy, born August 2003. Their parents, Kimberly W.
("Mother") and Billy W., Jr. ("Father")
adopted the children at different times, and each child was
younger than two years old at the time of his or her
February 16, 2013, Billy, the fourth child and eldest
brother, found Ethan and Makayla, who were then twelve and
ten, respectively, having sex inside the family's home.
Mother reported the incident to the Tennessee Department of
Children's Services ("DCS"), whose subsequent
investigation revealed that Ethan and Makayla had been
engaging in sexual contact with each other for at least two
years. DCS filed a Petition for Restraining Order and Ex
Parte Order in Wayne County Juvenile Court on February 21
(Case 632), and the court entered an ex parte restraining
order on February 22, directing that Ethan would reside with
his maternal grandmother, Joyce S., and Makayla and Tommy
would remain in the home pending further
orders. On March 26, the court entered a
preliminary hearing order, with orders for the parents
[Mother and Father] shall ensure that Ethan does not have any
unsupervised contact with the minor children, Makayla and
[Tommy]. Ethan's visits with the other child shall be
strictly supervised with one or both parents in the room with
Ethan and the children at all times.
March 27, 2013, a petition alleging Ethan to be delinquent
was filed in Juvenile Court (Case 12180). The record shows
that on March 12, 2014, the Juvenile Court entered an order
retiring the case, contingent on Ethan entering treatment as
a sexual offender; the order also included conditions that
Ethan would have no contact with Makayla and that they would
live in separate homes.
November 6, 2014, the Wayne County Juvenile Court Youth
Service Officer (YSO) filed a petition with the Juvenile
Court of Wayne County to declare Makayla and Tommy dependent
and neglected; the petition detailed reports of sexual and
aggressive behavior in the home from February 16, 2013,
through October 21, 2014 (Case 848). On November 12, the
court issued an order placing Makayla and Tommy into DCS
custody. A preliminary hearing was held on November 26, after
which the court issued an order holding that probable cause
existed that the children were dependent and neglected,
prohibiting contact between Makayla and Ethan, and ordering
temporary DCS custody to continue. On January 9, 2015, the
YSO filed an amended petition that added Ethan to the pending
petition; on January 21, DCS requested the court to review
the status of all three children.
course, the Juvenile Court held an adjudicatory hearing, and
on June 16, the court entered an order declaring the children
dependent and neglected. Mother and Father appealed to Wayne
County Circuit Court and in March and May of 2016, the
circuit court held a de novo trial. On July 6 the
court issued a memorandum opinion finding that the children
were dependent and neglected; the memorandum opinion was
incorporated into the final order entered October 3. Mother
and Father appeal, asserting that DCS did not prove by clear
and convincing evidence that Ethan, Makayla, and Tommy were
dependent and neglected.
Standard of Review
and neglect must be established by clear and convincing
evidence. In re S.J., 387 S.W.3d 576, 587 (Tenn. Ct.
App. 2012) (citing Tenn. Code Ann. § 37-1-129). This
standard of proof requires the evidence to eliminate any
serious or substantial doubt about the correctness of
conclusions arising from the evidence. In re S.J.,
387 S.W.3d at 587 (citing In re A.T.P., No.
M2006-02697-COA-R3-CV, 2008 WL 115538, at *4, (Tenn. Ct. App.
Jan. 10, 2008)). This standard of proof is relevant to
appellate review, where the reviewing court must distinguish
specific facts found by the trial court from the combined
weight of those facts. In re Tiffany B., 228 S.W.3d
148, 156 (Tenn. Ct. App. 2007) (overruled on other
grounds by In re Kaliyah S., 455 S.W.3d 533, 555 n.34
(Tenn. 2015)). Specific fact findings are reviewed de
novo with a presumption of correctness; this presumption
can only be overcome when the evidence preponderates
otherwise. See Tenn. R. App. P. 13(d). The combined
weight of those facts is reviewed de novo without
any presumption of correctness. In re S.J., 387
S.W.3d at 588. Specifically, the ultimate issue of dependency
and neglect as established by clear and convincing evidence
is a question of law, and will be reviewed as such.
Cornelius v. State Dep't of Children's
Servs., 314 S.W.3d 902, 907 (Tenn. Ct. App. 2009).
memorandum opinion, the court recounted the case's
procedural background, the circumstances that caused DCS
involvement, each child's specific circumstances and
history, and the testimonies at trial; the court then held:
The Court finds the children were dependent and neglected at
the time of the filing of the original Petition and
disposition in Juvenile Court. The Court finds the children
are dependent and neglected at the time of the appeal and the
instant hearings. The children remain dependent and
The Court finds [that despite] the parents' statements
that they now know Makayla was not a victim of sex abuse by
Ethan, their actions, demeanor, and attitude indicate
otherwise. [Mother] still blames Makayla. [Mother]
blames DCS for removal of the children from the home.
[Father] still blames Makayla, as well as DCS. All three of
these children remain victims of serious parental neglect.
While the sexual activity between Ethan and Makayla may have
increased beginning in 2009 when [Mother] became ill, the
problems in this home began as early as 2006, when
inappropriate sexual behavior began with Billy. The Court
questions how these parents could have missed sex acts
occurring frequently in the trailer between Ethan and Makayla
for some two years. Both [parents] are so preoccupied with
blaming Makayla, as well as DCS, they have lost sight of
placing any blame on themselves. They accept no personal
responsibility. Neither one of them admits to having a clue
of inappropriate sex acts, including intercourse, occurring
right under their nose, for some two years. Neither one of
them comprehends the magnitude of the issues these children
have faced and the seriousness of their mental problems.
There is an absolute lack of parenting skills. There is an
absolute lack of parental concern, involvement and
supervision. It is amazing to the Court that [Mother or
Father] were ever approved as foster parents of these
Court finds DCS has carried its burden of proof pursuant to
Tenn. Code Ann. 37-1-102(b)(12) as follows:
The parents, by reason of cruelty, mental incapacity,
immorality, and/or depravity are unfit to properly care for
The children, while in the care of the parents, are under
unlawful or improper care, supervision, custody ...