IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 1, 2024

IN RE JOSEPHINE H. ET AL.

Appeal from the Circuit Court for Montgomery County

No. CC2021CV1439 Kathryn Wall Olita, Judge

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No. M2023-01362-COA-R3-JV

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This is a dependency and neglect case. Appellants/parents do not dispute the trial court’s 

finding that the children are dependent and neglected. Rather, the sole issue involves 

whether the trial court’s disposition, under Tennessee Code Annotated section 37-1-130, 

was made in compliance with section 37-1-130(c) and, if so, whether the placement of the 

children with their aunt was “best suited to the protection and physical, mental and moral 

welfare of the child[ren].” Tenn. Code Ann. § 37-1-130(a). Affirmed and remanded.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT 

and KRISTI M. DAVIS, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellants, Richard H. and Tina H.1

Jonathan Skrmetti, Attorney General and Reporter, and Mara M. Cunningham, Assistant 

Attorney General, for the appellee, Tennessee Department of Children’s Services

OPINION

I. Background

Richard H. (“Father”) and Tina H. (“Mother,” and together with Father, “Parents,” 

or “Appellants”) are the natural parents of the two children at issue in this appeal, Josephine 

H. (d/o/b August 2016) and Justice H. (d/o/b August 2017) (together, the “Children”). 

Appellee Tennessee Department of Children’s Services (“DCS”) first became involved 

 

1

In cases involving minor children, it is the policy of this Court to redact the parties’ names to 

protect their identities.

09/04/2024
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with this family in 2018. On August 23, 2018, the Clarksville Police Department (“CPD”) 

responded to a report of suspected child abuse in the Parents’ home. Sergeant Lisa Fatula, 

with the CPD, discovered that the Children’s five cousins, G.P., L.P., V.P., N.H., and P.P. 

(together, the “Cousins”), also lived in Parents’ home. G.P., the alleged victim of the abuse,

was five years old at the time. G.P. was found to have swelling, bruising, and redness on

the right side of his face and throat. In interviews with the CPD, G.P., L.P., and P.P. 

revealed that Father hit G.P. in the face and strangled him. At the time of the altercation, 

Parents, paternal grandmother (Josephine W.), Cousins, and the Children were at the home. 

When asked who hurt his head, G.P. identified “Uncle Richard,” i.e., Father, and re-enacted 

someone punching the side of his face and choking him. G.P. stated that “Uncle Richard” 

got mad because G.P. was not doing his “letters.” P.P. stated that, while Father was with

G.P. in the playroom, P.P. heard yelling, a loud noise, and G.P. screaming. P.P. disclosed 

that, after he heard these noises, G.P. had a big, swollen bruise on his face. Although P.P. 

stated that he tried to tell a grownup about G.P.’s injuries, he could not find an adult before 

leaving for the school bus. P.P. further stated that, after G.P. started school, “Uncle 

Richard” would hit G.P. because he would get mad when G.P. messed up on schoolwork. 

P.P. stated that G.P. did not want to come home from school some days because he feared 

Uncle Richard. P.P. disclosed that Uncle Richard “hurts” him sometimes but not like he 

hurts G.P.

During the investigation, Sergeant Fatula also spoke with the Parents. When

informed that Mother, paternal grandmother, and P.P. had reported his actions, Father 

responded, “[T]hey’re not wrong.” Nonetheless, throughout these proceedings, Father has 

continued to deny the allegations of abuse. Mother stated that Father had been working 

with G.P. on his letters in the playroom and that she went to bed. Mother asserted that, due 

to hearing loss, she did not hear the events giving rise to the investigation. Mother further 

stated that she did not turn the lights on in the morning to avoid waking the younger 

children, so she did not see G.P.’s face before he left for school. The Parents initially 

refused DCS’s request to bring the Children and Cousins in so that DCS could assess their 

wellbeing. In fact, Father took the Children and refused to disclose his whereabouts. 

Based on the foregoing events, on August 27, 2018, DCS filed the dependency-andneglect petition in the Montgomery County Juvenile Court (“Juvenile Court”).2

 DCS asked 

the Juvenile Court to declare the Children dependent and neglected. DCS further averred 

that Justice was the victim of severe child abuse and later amended its petition to include 

findings made during the Children’s medical evaluations, see infra. Because Father had 

taken the Children and his whereabouts were unknown, DCS asked for an attachment pro 

corpus, requiring the Parents to bring the Children to DCS. On August 27, 2018, the 

Juvenile Court entered the attachment, which ordered the Parents to bring the Children to 

DCS pending a hearing on the matter. The Parents brought the Children to DCS on August 

 

2 DCS filed a separate petition regarding the Cousins. The Cousins are not the subjects of the 

instant appeal.
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30, 2018. On August 31, 2018, the Juvenile Court entered a protective-custody order 

removing the Children to DCS custody. Following an Interstate-Compact-on-thePlacement-of-Children investigation, in October 2018, the Children were placed with their 

maternal aunt, Bette R., who resides in Florida. The Children have remained in Bette R.’s 

custody since that time. 

On August 27, 2018, Danielle Knox, CPNP-AC, a member of the Vanderbilt CARE 

Team examined the Cousins. In her deposition, which was admitted as Trial Exhibit 9, 

Nurse Knox opined that, to a reasonable degree of medical certainty, G.P. had been the 

victim of physical abuse. Nurse Knox explained that G.P. had bruising and swelling on 

the right side of his forehead and temple, healing abrasions on his neck, what appeared to 

be old scars on his neck, and scattered lesions and abrasions on his hips. Photos, admitted 

as Trial Exhibit 2, corroborate Nurse Knox’s assessment of G.P.’s injuries. Nurse Knox 

testified that G.P. clearly identified Father as the perpetrator of his injuries.

On September 5, 2018, Nurse Knox evaluated the Children and determined that 

Justice, who was just one-year old, had spinal-compression fractures that were consistent 

with nonaccidental trauma and were “highly concerning for child physical abuse.” As 

Nurse Knox noted, these fractures would occur “outside of the normal force of normal 

play” and are common in abused children who are “victims of abusive head trauma” such 

as “being slammed down on their head or buttocks.” Nurse Knox explained that, although

such injury could have resulted from a traumatic accident, an attentive caregiver would 

know something was wrong, and there would be documentation of such an accident—none 

of which was present in Justice’s case. 

Based on the results of CPD and DCS investigations, and the medical evaluations 

discussed above, Mother and Father were both charged with seven counts of criminal child 

abuse. Father was charged with aggravated child abuse of G.P., but he pleaded guilty to 

the amended charge of child abuse. Father pleaded guilty to child abuse of L.P., V.P., and 

N.H., and he pleaded no contest to child abuse of Justice. On July 20, 2020, Father was 

sentenced to ten years of supervised probation. Mother was charged with child neglect of 

G.P., L.P., V.P., N.H., and Justice for failure to protect, and she pleaded no contest to the 

charges. On October 6, 2020, Mother was sentenced to three years supervised probation.

On October 7, 2020, Parent’s waived an adjudicatory hearing in the Juvenile Court 

and stipulated that the Children were dependent and neglected and that Justice was the 

victim of severe child abuse. Parents were represented by counsel at all relevant times.

Based on the Parents’ stipulations, on October 7, 2020, the Juvenile Court entered an order 

adjudicating the Children to be dependent and neglected. Parents did not appeal this order. 

However, on March 22, 2021, Parents filed a motion to set aside the Juvenile Court’s order 

because of alleged defects in the appeal notice. The Juvenile Court entered an amended 

adjudicatory order on July 16, 2021, to include notice that the order was appealable, and 

the Parents appealed the amended order to the Montgomery County Circuit Court (“trial 
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court”). 

Following a hearing on April 19, 2023, the trial court entered its Memorandum 

Opinion and Order on May 15, 2023, wherein it held, in relevant part:

The Court finds that the facts set forth above clearly and convincingly 

support the conclusion that Justice [H.] is the victim of severe child abuse 

and that [Parents] engaged in severe child abuse as defined by statute. 

Further, the Court finds that Josephine and Justice [] are dependent and 

neglected children. The Court finds that Bette [R.] is an appropriate custodian 

of the [C]hildren and that they are bonded to her. It is in the [C]hildren’s best 

interest if they remain in the care and custody of Bette [R.]. 

Parents filed a Tennessee Rule of Civil Procedure 59.04 motion to alter or amend the order. 

The trial court denied the motion by order of August 23, 2023. Parents appeal.

II. Issue

Appellants raise one issue for review as stated in their brief:

The Trial Court erred, as a matter of law, in not addressing the best interest 

analysis for the determination of whether or not [the Children] should be 

returned to the custody of Appellants.

Importantly, Parents do not raise an issue challenging either the trial court’s 

adjudication of dependency and neglect, severe child abuse, or its denial of their Tennessee 

Rule of Civil Procedure 59.04 motion. As such, we will neither address nor disturb these 

aspects of the trial court’s rulings. See, e.g., In re Ryat M., No. M2020-00156-COA-R3-

JV, 2021 WL 4432729, at *6 (Tenn. Ct. App. Sept. 27, 2021) (“Any issue not included in 

the statement of issues presented for review as required by Tennessee Rule of Appellate 

Procedure 27(a)(4), is not properly before the Court of Appeals.”). 

III. Standard of Review

This case was tried without a jury. As such, “[o]ur review is de novo upon the record 

of the proceedings below with a presumption of correctness as to the trial court’s factual 

findings unless the evidence preponderates against those findings.” Barnes v. Barnes, 193 

S.W.3d 495, 498 (Tenn. 2006) (citing Tenn. R. App. P. 13(d)). However, the trial court’s 

conclusions of law “are accorded no such presumption.” Id. (citing Union Carbide Corp. 

v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).

We also note that this Court is “required to defer to the trial court’s credibility 

findings . . . .” Williams v. City of Burns, 465 S.W.3d 96, 120 (Tenn. 2015); see also Street 
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v. Street, No. E2016-00531-COA-R3-CV, 2017 WL 1177034, at *7 (Tenn. Ct. App. Mar. 

29, 2017). In Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779 (Tenn. 1999), the 

Tennessee Supreme Court explained that

trial courts are able to observe witnesses as they testify and to assess their 

demeanor, which best situates trial judges to evaluate witness credibility. See 

State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 

836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most 

favorable position to resolve factual disputes hinging on credibility 

determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc., 778 

S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 

(Tenn. Ct. App. 1998). Accordingly, appellate courts will not re-evaluate a 

trial judge’s assessment of witness credibility absent clear and convincing 

evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 

S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 

567 S.W.2d 169, 170 (Tenn. 1978).

Wells, 9 S.W.3d at 783. 

To the extent the issue requires us to interpret the statute(s) governing dependencyand-neglect actions, we note that statutory interpretation is a question of law, which we 

review de novo with no presumption of correctness. See In re Estate of Tanner, 295 

S.W.3d 610, 613 (Tenn. 2009). The Tennessee Supreme Court has summarized the 

principles involved in statutory construction as follows:

When dealing with statutory interpretation, well-defined precepts apply. Our 

primary objective is to carry out legislative intent without broadening or 

restricting the statute beyond its intended scope. Houghton v. Aramark 

Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative 

enactments, we presume that every word in a statute has meaning and 

purpose and should be given full effect if the obvious intention of the General 

Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 

(Tenn. 2005). When a statute is clear, we apply the plain meaning without 

complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 

507 (Tenn. 2004). Our obligation is simply to enforce the written language. 

Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). 

It is only when a statute is ambiguous that we may reference the broader 

statutory scheme, the history of the legislation, or other sources. Parks v. 

Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). 

Further, the language of a statute cannot be considered in a vacuum, but 

“should be construed, if practicable, so that its component parts are consistent 

and reasonable.” Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 

(1968). Any interpretation of the statute that “would render one section of 
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the act repugnant to another” should be avoided. Tenn. Elec. Power Co. v. 

City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also 

must presume that the General Assembly was aware of any prior enactments 

at the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926 

(Tenn. 1995).

Id. at 613-14.

IV. Analysis

Dependency and neglect proceedings have two phases— “an initial hearing on the 

dependency and neglect petition and, if a child is found to be dependent and neglected, the 

court must proceed with a disposition of the case.” In re Hannah S., 324 S.W.3d 520, 525 

(Tenn. Ct. App. 2010). In this case, Appellants’ issue involves the second phase, i.e., 

disposition or placement of the Children. Tennessee Code Annotated section 37-1-130 

governs dispositions in dependency-and-neglect cases. The version of the controlling 

statute in effect at the time DCS filed its petition is applicable here. In relevant part, the 

statute provides that:

(a) If the child is found to be dependent or neglected, the court may make 

any of the following orders of disposition best suited to the protection and 

physical, mental and moral welfare of the child:

(1) . . . permit the child to remain with the child’s parents, guardian or other 

custodian . . .;

(2) . . .transfer temporary legal custody to or grant permanent guardianship . 

. . to any of the following:

***

(D) An individual in another state with or without supervision by an 

appropriate officer under § 37-1-142;

Tenn. Code Ann. §§ 37-1-130(a)(1), 37-1-130(a)(2)(D); In re Tamera W., 515 S.W.3d

860, 876 (Tenn. Ct. App. 2016) (citing Tenn. Code Ann. § 37-1-130(a)) (“Among the 

available dispositions are allowing the child to remain in the home, granting temporary 

legal custody to a third party, granting a permanent guardianship to a third party, or placing 

the child in the custody of DCS.”). However, the statute goes on to state that

[n]o child who has been found to be a victim of severe child abuse shall be 

returned to the custody or residence of any person who engaged in or 

knowingly failed to protect the child from the brutality or abuse unless the 
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court finds on the basis of clear and convincing evidence that the child 

will be provided a safe home free from further such brutality and abuse.

The court shall file written findings of fact that are the basis of its 

conclusions on that issue . . . . 

Tenn. Code Ann. § 37-1-130© (emphasis added). In the first instance, section 37-1-130©

applies only to Justice, who is the “victim of severe abuse.” See In re Samuel D., 536 

S.W.3d 447, 457 (Tenn. Ct. App. 2016) (finding that Tennessee Code Annotated section

37-1-130© does not apply to children who are not the direct victim of abuse). We will 

address Josephine’s placement below. Concerning section 37-1-130©, Appellants would 

have us read the emphasized language, supra, to require a trial court to make written 

findings and conclusions that placement with the Parents is not in Justice’s best interest. 

Specifically, Appellants contend that the trial court erred “in not addressing the best interest 

analysis for the determination of whether [Justice] should be returned to the custody of 

Appellants.” However, this is not the mandate of the statute.

The plain language of the statute can be parsed as follows. The statute begins with 

the proposition that placing the abused child with the perpetrator of the abuse is not a good 

placement option. As such, if a trial court opts to place the child with the perpetrator, the 

statute requires the court to make written findings that the evidence clearly and 

convincingly shows that the perpetrator’s home is safe. Application of this requirement 

safeguards the ultimate goal of the statute, which is to ensure that a dependent-andneglected child’s placement is “best suited to the protection and physical, mental and moral 

welfare of the child.” Tenn. Code Ann. § 37-1-130(a). Unlike other statutes addressing 

custodial decisions, the dependency-and-neglect statutes do not mention a best-interest 

analysis per se. See e.g., Tenn. Code Ann. § 36-6-106 (requiring a best-interest analysis in 

cases involving parental-custody arrangements); Tenn. Code Ann. § 36-1-113(i) (requiring 

a best-interest analysis in termination of parental rights proceedings); Tenn. Code Ann. § 

37-1-802 (requiring a best-interest analysis in cases involving permanent guardianship). 

Rather, the dependency-and-neglect disposition statute requires a placement that is “best 

suited to . . . [the] welfare of the child.” Tenn. Code Ann. § 37-1-130(a). Although a 

placement that is best suited to the child’s welfare would certainly be in his or her best 

interest, the statute does not require a trial court to conduct a full best-interest analysis as 

required under the other custodial statutes mentioned above. Contrary to Appellants’ 

position, where (as here) the trial court opts to place the child outside the perpetrator’s 

home, the court does not have to justify that decision on any ground other than such 

placement is “best suited to the protection and physical, mental and moral welfare of the 

child.” Tenn. Code Ann. § 37-1-130(a). In short, Tennessee Code Annotated section 37-

1-130(c) is not applicable here because the trial court did not decide to place Justice in the 

home of his abusers, and the “written findings” requirement of Tennessee Code Annotated 

section 37-1-130(c) is only triggered when a trial court determines to place the abused child 

in the home with the perpetrator. In that case, the trial court may not proceed with such 

disposition unless it first makes written findings that such disposition will be provided the 
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child with “a safe home free from further such brutality and abuse.” Tenn. Code Ann. § 

37-1-130(c) (emphasis added).

Here, the trial court held that “the [C]hildren should not be returned to [Parents]. 

Bette R[.] is an appropriate placement for the [C]hildren and they are bonded to her after 

having been with her for so many years. The Court finds is appropriate that they remain in 

her care and custody.” The question, then, is whether placement with Bette R. is “best 

suited to the protection and physical, mental and moral welfare of the [C]hild[ren].” Tenn. 

Code Ann. § 37-1-130(a). This question applies to the placement of both Justice and 

Josephine. 

Before turning to the evidence, we note that the trial court made specific findings 

concerning the testimony of certain witnesses. Specifically, the trial court’s order states 

that it “does not find [Mother’s] testimony to be credible.” The order further states that 

“[t]he Court does not find [Father’s] testimony to be credible.” Likewise, the trial court 

found Josephine W.’s “testimony [not] to be entirely credible.” In reviewing the evidence, 

we will not re-evaluate the trial court’s assessment of witness credibility because there is 

not clear and convincing evidence to the contrary. Wells, 9 S.W.3d at 783 (citations 

omitted). 

We further reiterate that we are not reviewing the trial court’s findings that the 

Children are dependent and neglected or that Justice is the victim of severe child abuse. 

Rather, our review is limited to whether the preponderance of the evidence supports the 

trial court’s placement of the Children with Bette R., i.e., whether this placement is “best 

suited to the protection and physical, mental and moral welfare of the [C]hild[ren].” On 

review, we conclude that it does.

The Children have been in Bette R.’s custody since October of 2018. Josephine was 

two years old when she came to live with Bette R., and Justice was one year old. At the 

time of the hearing, Josephine was six years old, and Justice was five. Bette R. testified 

that Justice “has been diagnosed with ADHD; ODD; sensitivity to light, sounds, just certain 

things; and he has tested positive for being on the spectrum for autism.” Bette R. stated 

that the Children do well in school, but Justice initially “had issues with new people and 

new surroundings.” Both Children are receiving behavioral therapy. 

Although Bette R. facilitates weekly FaceTime visits between the Children and 

Parents, she noted that “[s]ometimes [the Children will] be on [the call] for a lengthy period 

of time. Sometimes they don’t want to talk at all so they’ll just, Okay. Hi, bye, and they’ll

get off.” Bette R. explained that, since the Children have lived with her, there have only 

been three in-person visits between the Children and Parents. At times, the Children refer 

to Parents as “mom” and “dad,” but they also sometimes call Bette R. and her husband 

“mom” and “dad.”
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At the hearing, Mother and Father continued to deny that any abuse happened. 

Parents stated that G.P. received his injuries from falling from a bunk bed. Mother 

maintained that she did not see or hear anything concerning G.P.’s injuries. Concerning 

Justice’s spinal injuries, Mother claimed that he was injured falling down the stairs. During 

her testimony, Mother admitted that after Justice allegedly fell down the stairs, he cried for 

a bit but was fine after Mother picked him up. As noted above, the trial court found 

Mother’s testimony not to be credible. 

In his testimony, Father attempted to provide numerous explanations for Justice’s 

injuries. Like Mother, Father claimed that Justice’s injuries were the result of fall down

the stairs. Alternatively, Father opined that Justice may have been injured during the 

birthing process. However, when asked about any records to prove this theory, Father 

claimed he had no records because DCS took all the birth records to give to Bette R. on 

removal. There is no proof to substantiate this assertion. Although Father claimed that he 

attempted to contact approximately 15 doctors to review the records to prove how Justice’s 

injury happened, not one doctor would review the case. When questioned further, Father 

could not provide the names of any of the doctors he allegedly contacted. As was the case 

with Mother’s testimony, the trial court found that Father’s testimony was not credible.

Concerning Parents’ living arrangements, at the time the Children were removed 

from their custody, Parents resided with Father’s mother, Josephine W. In addition to the 

abuse perpetrated against Justice and G.P., the record indicates that there was drug use in 

the home. Josephine W. testified that Father had marijuana brownies in the home, and 

Josephine W. “unintentionally ingested” them. After the Children were removed, Parents 

moved to Kentucky, where they lived at the time of the hearing. Parents have four other 

children, who reside with them in Kentucky. Parents did not inform DCS of their move, 

and, in fact, have been less than forthcoming with DCS during the entire custodial episode. 

The Children have never visited the Parents’ home, and there has been no home study.

Given their ages (one and two years old) at the time they came to live with Bette R., 

and in view of the lack of physical contact between Parents and the Children, it appears 

that there is no true bond between the Parents and the Children. In fact, the record shows 

that Parents have not engaged in meaningful communication with Bette R. concerning the 

Children’s daily lives, academics, or medical issues. However, it is clear that the Children 

have bonded with Bette R., her husband, two children, and their maternal grandmother, 

who also resides in Bette R.’s home. In their current home, the Children are doing well. 

At the time of trial, Justice was five and Josephine was six. The Children receive therapy, 

and Bette R. and her husband work with Justice to ensure that he will be able to fully 

participate in academics and extracurricular activities despite his diagnoses. The Children 

appear to be fully integrated into Bette R.’s home, which (given their young ages at the 

time of removal) is probably the only home they remember. By all accounts, the Children 

are thriving in their current placement, and there is ample evidence that placement with 

Bette R. is “best suited to the[ir] protection and physical, mental and moral welfare.” Tenn. 
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Code Ann.§ 37-1-130(a).

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded 

for such further proceedings as may be necessary and are consistent with this opinion. 

Costs of the appeal are assessed to the Appellants, Richard H. and Tina H. Execution for 

costs may issue if necessary.

 s/ Kenny Armstrong 

KENNY ARMSTRONG, JUDGE