Domestic (Family Law) Cases
Dependency and Neglect
Except as indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
Opinions of the Tennessee Court of Appeals
In re A.H., No. M2022-01066-COA-R3-JV, p. 4 (Tenn. Ct. App. June 30, 2023).
Because the trial court must use the same reasoning to dispose of a motion for involuntary dismissal under Tenn. R. Civ. P. 41.02(2) as it would have used to make a final decision at the close of all the evidence, we must consider the evidentiary standard required for resolution of a petition for dependency and neglect and severe child abuse. As we have explained:
The fact a child is dependent and neglected and the fact a parent has engaged in severe child abuse must be established by clear and convincing evidence. Tenn. Code Ann. § 37-1-129(c); Tenn. Dep’t of Children’s Servs. v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8, 2005) (holding that despite the lack of a statutory requirement that severe child abuse be shown by clear and convincing evidence, due to the consequences of such a finding the clear and convincing standard must be applied). For the evidence to be clear and convincing, the evidence must eliminate any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). The evidence should produce a firm belief or conviction as to the truth of the allegations sought to be established. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007); In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006). In contrast to the preponderance of the evidence standard, clear and convincing evidence should demonstrate that the truth of the facts asserted is “highly probable” as opposed to merely “more probable” than not. In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000)).
In re Angelleigh R., No. M2020-00504-COA-R3-JV, 2021 WL 1994033, at *6 (Tenn. Ct. App. May 19, 2021).
Our Supreme Court has recently reiterated the two-step process trial courts must employ when applying the clear and convincing standard:
[T]rial courts apply this standard in a two-step process, distinguishing between the individual underlying facts and the aggregate of those facts:
Under the clear and convincing evidence standard, it is important to distinguish between the specific facts found by the trial court and the combined weight of those facts. Each specific underlying fact need only be established by a preponderance of the evidence. [. . .] Once these specific underlying facts are established by a preponderance of the evidence, the court must step back to look at the combined weight of all of those facts, to see if they clearly and convincingly show severe child abuse. In re S.J., 387 S.W.3d 576, 591-92 (Tenn. Ct. App. 2012) (internal citations and some quotation marks omitted).
After the trial court finds the individual underlying facts by a preponderance of the evidence, it then considers whether “the combined weight of those facts . . . amount[s] to clear and convincing evidence.” In re Kaliyah S., 455 S.W.3d [533, at 555–56 (Tenn. 2015)] (citing In re Adoption of Kleshinski, [No. M2004-00986-COA-R3-CV,] 2005 WL 1046796, at *17 [(Tenn. Ct. App. May 4, 2005)]).
In re Markus E., No. M2019-01079-SC-R11-PT, — S.W.3d —, 2023 WL 3557708, at *13 (Tenn. May 19, 2023). Our Supreme Court went on to explain the process for appellate review under the clear and convincing evidence standard:
To review trial court decisions, appellate courts use a similar two-step process, to accommodate both Rule 13(d) of the Tennessee Rules of Appellate Procedure and the statutory clear and convincing standard. First, appellate courts review each of the trial court’s specific factual findings de novo under Rule 13(d), presuming each finding to be correct unless the evidence preponderates against it. In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); In re Justice A.F., [No. W2011-02520-COA-R3-PT,] 2012 WL 4340709, at *7 [(Sept. 24, 2012)]. When a trial court’s factual finding is based on its assessment of a witness’s credibility, appellate courts afford great weight to that determination and will not reverse it absent clear evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re Justice A.F., 2012 WL 4340709, at *7 (citing In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005)).
Second, appellate courts determine whether the combination of all of the individual underlying facts, in the aggregate, constitutes clear and convincing evidence. In re Taylor B.W., 397 S.W.3d at 112; In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re Justice A.F., 2012 WL 4340709, at *7. Whether the aggregate of the individual facts, either as found by the trial court or supported by a preponderance of the evidence, amounts to clear and convincing evidence is a question of law, subject to de novo review with no presumption of correctness. See In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); see also In re Samaria S., 347 S.W.3d 188, 200 (Tenn. Ct. App. 2011). As usual, the appellate court reviews all other conclusions of law de novo with no presumption of correctness. In re Angela E., 303 S.W.3d [240, 246 (Tenn. 2010)].
In re Markus E., 2023 WL 3557708, at *13-14.
In re Isaiah W., No. E2022-00575-COA-R3-JV, p. 4-5 (Tenn. Ct. App. May 3, 2023).
We review a non-jury case “de novo upon the record with a presumption of correctness as to the findings of fact, unless the preponderance of the evidence is otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P. 13(d)). The trial court’s conclusions of law are reviewed de novo and “are accorded no presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008). This Court also gives considerable deference to a trial court’s assessment of a witness’ credibility, and such determinations will not be overturned absent clear and convincing evidence to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
…
Tennessee Courts have routinely noted that appeals in dependency and neglect cases are somewhat unique. As this Court has explained,
[t]he appeal from juvenile court to circuit court in a dependency and neglectcase is not the same as this [C]ourt’s review of trial court decisions, as set out in the Tennessee Rules of Appellate Procedure. That is because, by statute, the circuit court is to “hear the testimony of witnesses and try the case de novo.” Tenn. Code Ann. § 37-1-159(a). . . .
While the record of the juvenile court proceedings is required to be provided to the circuit court on appeal, Tenn. Code Ann. § 37-1-159(c), the circuit court is not limited to that record. On the contrary, the circuit court in a dependency and neglect proceeding may not rely solely on the record made before the juvenile court, but under Tenn. Code Ann. § 37-1-159(c) must try the case de novo by hearing witnesses again and by rendering an independent decision based on the evidence received in the circuit court proceeding. Tennessee Dept. of Children’s Services v. T.M.B.K., 197 S.W.3d 282, 289 (Tenn. Ct. App. 2006); In re M.J.B., 140 S.W.3d [643,] 651 [(Tenn. Ct. App. 2004)]; In re M.E., M2003-00859-COA-R3-PT, 2004 WL 1838179, at *5 (Tenn. Ct. App., August 16, 2004) (perm. app. denied Nov. 8, 2004). Black’s Law Dictionary defines a de novo trial as “[a] new trial on the entire case-that is, on both questions of fact and issues of law- conducted as if there had been no trial in the first instance.” Kissick v. Kallaher, W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3 (Tenn. Ct. App. May 18, 2006) (no Tenn. R. App. P. 11 application filed). Consequently, the circuit court is not “reviewing” the juvenile court’s decision; instead, it is conducting a new proceeding as though the petition were originally filed in circuit court.
Green v. Green, No. M2007-01263-COA-R3-CV, 2009 WL 348289, at *8 (Tenn. Ct. App. Feb. 11, 2009). Accordingly, when a circuit court holds a trial de novo, “it is as though the juvenile court proceeding never occurred,” and “any findings by the juvenile court about dependency and neglect were of no effect whatsoever.” Id. at *9. When a party appeals a circuit court’s decision in a dependency and neglect matter, this Court’s review is limited to the circuit court’s actions. In short, we do not also review the actions of the juvenile court.
In re Kansas B., No. M2021-00827-COA-R3-JV, p. 6 (Tenn. Ct. App. Oct. 12, 2022).
Concerning the standard of review in dependency and neglect cases involving severe child abuse, this Court has previously elucidated:
A child who is suffering from abuse is a dependent and neglected child. See Tenn. Code Ann. § 37-1-102(12)(G).[1] A determination that a child is dependent and neglected must be supported by clear and convincing evidence. See Tenn. Code Ann. § 37-1-129(a)(1) & (c). Severe child abuse in a dependency and neglect proceeding must also be established by clear and convincing evidence. In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App. 2012).
The “clear and convincing evidence standard” is more exacting than the “preponderance of the evidence” standard, although it does not demand the certainty required by the “beyond a reasonable doubt” standard. In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). The clear and convincing evidence standard defies precise definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). Evidence satisfying this high standard produces a firm belief or conviction regarding the truth of facts sought to be established. In re C.W.W., 37 S.W.3d at 474. Clear and convincing evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).
Our review of the trial court’s determinations on questions of fact is de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Whether a child has been proven dependent and neglected by clear and convincing evidence is a question of law which we review de novo without a presumption of correctness. In re H.L.F., 297 S.W.3d 223, 233 (Tenn. Ct. App. 2009). To the extent the trial court’s determinations rest upon an assessment of the credibility of witnesses, the determinations will not be overturned absent clear and convincing evidence to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
In re M.D., No. M2015-01023-COA-R3-JV, 2016 WL 5723954, at *3-4 (Tenn. Ct. App. Sept. 30, 2016) (quoting In re Kaitlynne D., No. M2013-00546-COA-R3-JV, 2014 WL 2168515, at *1-2 (Tenn. Ct. App. May 21, 2014)).
In re Aubree D., No. M2021-01229-COA-R3-JV, p. 15-16 (Tenn. Ct. App. Sept. 28, 2022).
Our review of the trial court’s determinations on questions of fact is de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Whether a child has been proven dependent and neglected by clear and convincing evidence is a question of law which we review de novo without a presumption of correctness. In re H.L.F., 297 S.W.3d 223, 233 (Tenn. Ct. App. 2009).
In Re Zaliyah S., et al., No. M2019-01241-COA-R3-JV, 2020 WL 3494471, *3 (Tenn. Ct. App. June 26, 2020) (citing In re M.D., No. M2015-01023-COA-R3-JV, 2016 WL 5723954, at *3-4 (Tenn. Ct. App. Sept. 30, 2016) (quoting In re Kaitlynne D., No. M2013- 00546-COA-R3-JV, 2014 WL 2168515, at *1-2 (Tenn. Ct. App. May 21, 2014)).
Furthermore, to the extent that Mother’s issues require interpretation of the dependency and neglect statutes, we are guided by the familiar rules of statutory construction. “The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). “The text of the statute is of primary importance.” Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). A statute should be read naturally and reasonably, with the presumption that the legislature says what it means and means what it says. See BellSouth Telecomm’ns., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997).
Finally, as set out in context above, the trial court made specific findings concerning the credibility of certain witnesses. With regard to credibility determinations, this Court has stated:
When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court’s factual findings. Further, “[o]n an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings.”
In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)). In the context of dependency and neglect actions, “[t]o the extent the trial court’s determinations rest upon an assessment of the credibility of witnesses, the determinations will not be overturned absent clear and convincing evidence to the contrary.” In re Zaliyah S., 2020 WL 3494471, at *3 (citing Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)).
