IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 2, 2019

ALAN O.1v. TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES

Appeal from the Chancery Court for Knox County

No. 190612-3 Gregory S. McMillan, Judge

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No. E2019-01053-COA-R3-CV

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The Appellant filed suit complaining that the Department of Children’s Services denied 

him an administrative hearing concerning the determination that he was a child abuser. 

The trial court ultimately dismissed the Appellant’s petition for review, noting that there 

had already been a prior judicial determination, by clear and convincing evidence, that 

the Appellant had committed severe child abuse. We affirm. 

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

and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Herbert H. Slattery, III, Attorney General and Reporter; Amber L. Seymour Assistant 

Attorney General, for the appellees, State of Tennessee and Tennessee Department of 

Children’s Services.2

Alan O., Knoxville, Tennessee, Pro se.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

The present controversy stems in large part from prior dependency, neglect, and 

abuse proceedings involving Alan. O. (“the Appellant”). In those prior proceedings, the 

Knox County Juvenile Court found, by clear and convincing evidence, that the Appellant 

 

1This Court has a policy of protecting children’s identities in parental termination cases, and 

therefore, certain names appearing herein are presented by their initials.

2 The State of Tennessee did not file a separate brief on its behalf.

12/19/2019
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had abused his daughter. In re Emmalee O., 464 S.W.3d 311, 313 (Tenn. Ct. App. 2015). 

The Knox County Circuit Court, following a de novo appeal from Juvenile Court, also 

determined, by clear and convincing evidence, that the Appellant had committed severe 

child abuse. Id. Upon appeal to this Court and following a thorough review of the record 

below, we also held that there was clear and convincing evidence sufficient to establish 

severe child abuse by the Appellant. Id. The Appellant’s subsequent attempts to seek 

appellate review by the Tennessee Supreme Court and United States Supreme Court were 

unsuccessful. 

Although administrative proceedings concerning the issue of the Appellant’s 

status as an abuser had also previously been pending, the administrative proceedings 

were stayed while the aforementioned litigation worked its way through the courts. See

Tenn. Comp. R. & Regs. 0250-07-09-.10(1) (providing that the “Department shall stay all 

administrative proceedings” if “an individual whom the Department has classified in a 

substantiated report as a perpetrator of abuse, severe child abuse, child sexual abuse, or 

neglect is the subject of other administrative or civil proceedings that are derived from 

the same allegations that caused the Department to investigate”). However, after the 

litigation in this Court concluded and the Appellant failed to secure review in the 

Tennessee Supreme Court and United States Supreme Court, further administrative 

activity occurred in the Department of Children’s Services. 

By letter, the Appellant was informed that the Department had completed a formal 

file review of the child abuse investigation involving his daughter in which he was 

substantiated as the perpetrator. Upon noting that the allegation of sexual abuse had been 

upheld by the Department, the letter stated in pertinent part as follows: “Having been 

named in an administrative, civil or judicial proceeding that stemmed from the same 

allegations as the child abuse or neglect classification, the court’s finding automatically 

terminates your review process.” Although the Appellant nonetheless sought further 

review and specifically requested an administrative hearing, his request was denied. The 

Department informed the Appellant that he did not qualify for an administrative hearing 

given the prior judicial adjudication that he had committed severe abuse against the child 

at issue. 

In the wake of the Department’s denial of a hearing, the Appellant filed a petition 

for review in the Knox County Chancery Court (“the trial court”). According to the 

Appellant, due process required that a hearing be provided to him. In a subsequentlyfiled answer and motion for dismissal, the Department moved to dismiss the Appellant’s 

petition. In relevant part, the Department argued that the prior judicial finding of abuse, 

which was affirmed by this Court, was “dispositive as res judicata on the issue of 

whether [father’s] indication as a perpetrator of sexual abuse may be further reviewed.” 

As support, the Department relied on the following rule:
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A final criminal conviction and/or civil adjudication will be conclusive 

evidence the individual is the perpetrator classified in the substantiated 

report and the individual will have no right to a hearing . . . in regard to that 

particular report and the Department may release information and the 

perpetrator as permitted under these Rules when:

. . . .

(c) Any court or administrative proceeding results in a judicial or 

administrative adjudication that the individual has committed, or has 

knowingly allowed to be committed any act against a child which would 

constitute abuse, severe child abuse, child sexual abuse, or neglect.

Tenn. Comp. R. & Regs. 0250-07-09-.10(3). The Department maintained that 

appropriate substantive and procedural due process had been provided “through civil 

litigation finding by clear and convincing evidence that the Appellant was a perpetrator 

of child sexual abuse.” The trial court ultimately agreed with the Department’s position 

and dismissed the case, holding in relevant part as follows:

At the administrative level, a finding that an individual is indicated 

or substantiated as having committed sexual abuse requires a 

preponderance of the evidence. Rule 0250-07-09.06 provides that “A 

report made against an alleged perpetrator shall be classified as 

substantiated if the preponderance of the evidence, in light of the entire 

record, proves that the individual committed any form of abuse . . . .” By 

contrast, the judicial determination made by the Juvenile Court for Knox 

County and the Fourth Circuit Court for Knox County, Tennessee was by 

clear and convincing evidence, a higher standard of proof. 

[Father] has already had two trials and has exhausted his appeals 

related to the issue of whether he committed sexual abuse against his 

daughter. There is no further due process to be afforded to him. The 

Court’s ruling on this issue is supported by and is consistent with the long 

standing doctrine of res judicata. 

(internal citations omitted) The Appellant thereafter filed a motion to alter or amend and, 

later, a motion for recusal, both of which were denied by the trial court. This appeal 

followed. 

DISCUSSION

The Appellant’s brief raises a number of arguments for our review, most of which 

involve substantial overlap and arise from the Appellant’s core concern that he was 
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wrongfully denied an administrative hearing by the Department. The Appellant also 

raises an issue concerning the trial court’s denial of his motion for recusal of the trial 

judge.

We will address the recusal issue first. As an initial matter, we note that the 

Appellant’s motion for recusal was made at the end stage of the proceedings in the trial 

court, after the filing of the Appellant’s motion to alter or amend. This timing issue is 

not without significance, as it “is a well known and well accepted rule that a party must 

complain and seek relief immediately after the occurrence of a prejudicial event and may 

not silently preserve the event as an ‘ace in the hole’ to be used in event of an adverse 

decision.” Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App. 1988) (citation 

omitted). This concern notwithstanding, we agree with the Department that any potential 

issues regarding recusal are waived. We observe that the argument section of the 

Appellant’s brief on this issue consists of three sentences and no citations to any 

authorities. Whereas the brief generally, albeit summarily, contends that the trial court 

should be recused due to “improper bias,” no explanation or citation to the record is 

proffered regarding this concern. Given the Appellant’s failure to develop an argument 

in his brief and failure to cite to the trial court record or any relevant legal authorities, this 

issue is waived. See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (“An issue may 

be deemed waived, even when it has been specifically raised as an issue, when the brief 

fails to include an argument satisfying the requirements of Tenn. R. App. P. 27(a)(7).”); 

see also Tenn. R. App. P. 27(a)(7) (requiring that an appellant’s argument section include 

“the contentions of the appellant . . . and the reasons therefor . . . with citations to the 

authorities and appropriate references to the record . . . relied on”). 

The heart of the Appellant’s grievance here is that the Department denied him an 

administrative hearing regarding its finding that he had committed severe child abuse 

against his daughter. The denial of an administrative hearing is what precipitated the 

Appellant’s filing for review in the trial court, and on appeal, the Appellant maintains that 

he should have been given an administrative hearing. We respectfully disagree and hold 

that the trial court did not err in dismissing the Appellant’s action.

Under the facts of this case, the Department’s denial of an administrative hearing 

to the Appellant was appropriately supported by its rules pertaining to child abuse 

investigations, rules which were developed to “establish procedures to review 

substantiated cases and to release the identity and other related information of a 

perpetrator in substantiated reports of any form of abuse or neglect.” Tenn. Comp. R. & 

Regs. 0250-07-09-.02.3 As noted earlier, the Department has developed two rules which 

 

3 Regarding child abuse investigations and the information and findings gleaned therefrom, the 

Department has authority to adopt rules that establish administrative and due process procedures “for the 

disclosure of the contents of its files and the results of its investigations.” Tenn. Code Ann. § 37-1-

409(e). 
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are pertinent here to administrative proceedings regarding child abuse allegations. First, 

as occurred in this matter, the Department will stay administrative proceedings when 

judicial proceedings into the same abuse allegations are ongoing. Tenn. Comp. R. & 

Regs. 0250-07-09-.10(1) (providing that the “Department shall stay all administrative 

proceedings” if “an individual whom the Department has classified in a substantiated 

report as a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect is the 

subject of other administrative or civil proceedings that are derived from the same 

allegations that caused the Department to investigate”). Second, when the judicial 

proceeding addressing the same abuse allegations results in a judicial adjudication that 

the individual has committed abuse, that “civil adjudication will be conclusive evidence 

the individual is the perpetrator classified in the substantiated report and the individual 

will have no right to a hearing.” Tenn. Comp. R. & Regs. 0250-07-09-.10(3). Here, 

there was no error in denying a hearing to the Appellant because the allegations 

concerning his status as an abuser were finally adjudicated in the judicial proceedings. 

This is “conclusive” and eliminates the right to a hearing. See id. As articulated by the 

trial court, such a result, which is required by rule, is “consistent with the long standing 

doctrine of res judicata.” 

Although the Appellant submits that treating the civil adjudication as conclusive 

and thereby eliminating the availability of an administrative hearing violates due process, 

we reject this argument. The Appellant was given appropriate due process regarding the 

allegations that he abused his child. The essence of procedural due process is notice and 

an opportunity to be heard. Manning v. City of Lebanon, 124 S.W.3d 562, 566 (Tenn. Ct. 

App. 2003). No affront to these principles occurred in this case, as the Appellant had a 

full and fair opportunity to litigate the allegations against him in the judicial forums 

previously detailed. Indeed, as the trial court noted, the Appellant “has already had two 

trials and has exhausted his appeals related to the issue of whether he committed sexual 

abuse against his daughter.”4 As we find no error in the Department’s decision to deny 

the Appellant a hearing and treat the judicial adjudication of his abuse as conclusive, we 

are of the opinion that the trial court’s dismissal of this case was proper.

CONCLUSION

The trial court’s dismissal of the case is hereby affirmed, and the case is remanded 

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

_________________________________

ARNOLD B. GOLDIN, JUDGE

 

4 We also note, as did the trial court, that the judicial determinations made in both the Juvenile 

Court and on appeal in the Circuit Court were made under the heightened “clear and convincing 

evidence” standard rather than under the “preponderance of the evidence” standard that would have been 

used at the administrative level.