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In re Ethan W.

Court of Appeals of Tennessee, Nashville

May 31, 2018

IN RE ETHAN W., ET AL. [1]

          Assigned on Briefs August 1, 2017 [1]

          Appeal from the Circuit Court for Wayne County No. 4658 Stella L. Hargrove, Judge.

         The 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.

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

          Amy Long Schisler, Lawrenceburg, Tennessee, for the appellant, Kimberly W.

          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.

          OPINION

          RICHARD H. DINKINS, JUDGE.

         I. Factual and Procedural History

         Three 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 adoption.

         On 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.[2] On March 26, the court entered a preliminary hearing order, with orders for the parents including:

[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.

         On 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.[3]

         On 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.

         In due 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.

         II. Standard of Review

         Dependency 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).

         III. Analysis

         In the 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 neglected.
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.[4] [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 children.

         The Court finds DCS has carried its burden of proof pursuant to Tenn. Code Ann. 37-1-102(b)(12)[5] as follows:

The parents, by reason of cruelty, mental incapacity, immorality, and/or depravity are unfit to properly care for the children;
The children, while in the care of the parents, are under unlawful or improper care, supervision, custody ...

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