1 At trial , both parents were co-defendants, although only t he mother appealed her conviction. Throughout the opinion there will

be references to the “ defendants”or “parents” indicat ing both the mother and father

. 2 Due to the v icti m’s st atus a s a juven ile, we wil l ref er to her as the “child ,” “dau ghter,” or “b aby,” and not by

name. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 15, 2002 Se ssion
STATE OF TENNESSEE v. TIFFANY GOO DMAN
Direct Appeal from the Circuit Court for Gr undy County No. 3572-B J. Curtis Smith, Judge

No. M2001-02880-CCA-R3-CD - F iled April 1, 2003

The Defendant was convicted, along with her co-defendant husband, of child abuse and neglect, a Class D felony, and se

ntenced to four y ears probation. She appeals, claiming that the evidence was insufficient

to support he

r convic tion and th at any

neglect that did oc cur was the result of mistakes in parenting skills, such mistake vitiating any knowing abuse. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the o pinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.
Philip A. Condra, District Public Defender, and David O. McGovern, Assistant Public Defender, for the appellant, Tiffany

Goodman.
Paul G. Summers, Attorney Gene ral and Reporter; David H. Findley , AssistantAttorney Genera l; James Michael Ta ylor, District Attorney General; and Steven H. Strain and Sherry D. Gouger, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.

OPINION

The de fe nd an t, Ti ff an y Goodman, 1 ga ve birth to her daug hter on N ovember

1, 1999, in Ja sper, Tennessee. 2 The child saw the doctor three times between birth and Nove mber 18, 1999

. During those visits, there were no indications of malnou rishment o

r growth proble

ms with the child. According to medical personnel, they informed the defendant about proper feeding techniques and-2-

other newborn issues dur ing the initial visits. After seeing the doctor on November 18, 1999, the child was not seen by a

nother health care professional until April 6, 2000, when t he defenda

nts brought her to the Marion Cou

nty Health D epartme

nt for sho ts. Acco

rding to the defe ndants, during that time, the child had difficulty in taking nourishment, vomiting a progression of different for mulas and differe

nt ty pes of milk . The vomit

ing and refusa l to acce pt feedi ngs per sisted be

tween vis its to the doctor. The defendants claim they no ticed t he child w as under weight , but they

were tr yin g to remedy that problem by using diff erent types of

formula, albeit to no success. They claim they had no idea that the child was suffering any life threatening danger

due to the malnutrition.

Kath y Lyle, a registered nurse with the Marion County Health Department, noticed the weight and malnourishment of the child and made a referr al for the child t o be seen by a doctor. Su bs eq ue nt ly, a Department of Children’s Services (“DCS”) investigation led to an April 28, 2000, visit to Dr. Amy Evans, a phy sician at Emerald-Hodgson hospital (“Sewanee”). Dr. Evans described the child as “ emacia

ted” and “malnour

ished.” Sh

e deter mined the

chil d was suffering from nutritional neglect and failure to thrive (“F TT”). Dr. Evans discusse d nutrition with the de

fendant s and ultimately prescribed A limentum, an alimental formula that is easier for babies to digest. Once on the Alim

entum, the child

started g aining w eight, s topped vo miting, a nd bega n to thrive. From April28, 2000, through May 9, 2000, the defendants were responsible for feeding the child, y

et the child’s weight

gain during t hat time w as unsati sfactor y to Dr. Evan s. This led to hospitalizing the child on May

9, and ultimately, to DCS custody on May 12, 2000. The

child was placed in foster
care on May 15, 2000, and later with the paternal grandparents. T here have been n o signs of malnourishment or FTT since the defendants lost custody of the child.

The defendants were indicted for child abuse a nd negl ect, in violation of Tennessee Code Annotatedsection 3 9-15-401 , a Cla ss D fe lony. They were convicted by

a jury on Fe

bruary 16, 2001, of child abuse and

neglect and sentenced as Rang e I standard offenders to four years with the Tennessee Department of Correction, all fo ur y ears t o be served on probation. Additionally , the defenda nts were required to participate in parenting skills training, mental health counse ling, and homeskills training. The defendant mother made a motion for a new trial, alleging, inter alia , that the evidence was i nsufficient to support her conviction. That motion was denied, leading to the instant ap peal.

Issue

The main issue on appeal is whether the evidence was suff icient to support

the defendant’s conviction fo r c hi ld ab us e a nd ne gl ec t. Ad di ti on al ly, the defendant claims any neglect that did occur
was the resul t of a mistake or ignorance, specifically the defendant’s ignorance a bout which baby formula would not result in her child vomiting. She claims that ignorance nega tes the “k nowin g” element require d in the child

abuse statute. Concluding that the neglect was not in the de fendant’s failure to discover the Alimentum, but in the defendant’s failure to seek proper medical attention for more than four months in light of the child’s weight loss and vomiting, we re spectfully disag ree.-3- Standard of Review

Where sufficiency

of the evidence is challenged, the r elevant question for an appellate court is whether, after viewing the evide nce in the light most favorable to the prosecution, any rational trier of fact could have found the essential elementsof the cr

ime or cr imes bey ond a rea sonable

doubt. Tenn. R. A

pp. P. 13(e); Jackson v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. A

brams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesse s’ testimony

are matt ers entr uste d e xc lu si ve ly to the jury as the trier s of fact. State v. Sheffield , 676 S.W.2d 542, 547 ( Tenn. 198 4); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

Elements

The defendant was convicted of violating Tenne ssee Code Annot ated section 39-15-401, child abuse and

neglect. The statute reads, in pertinent par t: “(a) [a]ny person who knowingly , other than by acc idental means, tr eats a child under eighteen (18) y ears of age in such a manne r as to inflict injury or neglects such a child so as to adver sely affe ct the child ’s health and welf are com mits a Class A misdemeanor; provided, that if the abused child is six (6) years of age or less, th

e penalt y is a Class D felony.”Tenn. Code Ann. § 39-15-401(a). Our supreme co urt re cognized that the offense of chi ld negl ect require s proof of three ma terial elements: ( 1) that a person knowingly neglected a chil d, (2) that t he chi ld’s a ge is within the applicable range set forth in the statute, and (3) that the neglect adversely affected the child’s health and welfare. State v. Mateyko , 53 S.W.3d 666, 670 (Tenn. 2001), citing State v. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000). In the instant case, the child was clearly

within the applica

ble age range , under six yea

rs, and w hile the child seems not to have suffered any

permanent damage beca

use of the past neglect, her hea lth and we lfa re were clearly a dversely a

ffected by the def end ant ’s f ail ure to pro vi de t he r igh t t ype o f fo rmu la. It belies
common sense to conclude that a child described a s “malnourished,” and “emaciated,” that wa s vomiting her inta

ke for mo re than f our monthswas not a

dversel y affec ted. None

theless, while

we will still review the evidence to determine if it was a ration al finding that the child was a

dversel y affected, the key

determination is whether the defendant “knowing ly” neglected this child.
“Knowing,” as it relates to the condu ct and ci rcumstan ces of on e’s cond uct is def ined in Tennessee Code Anno tated se ction 39- 11-106(2 0) as follows: “‘K nowing’ refer s to a person who acts knowingly with re spect to the conduct o r to circumstances surrounding the conduct whe n the person is aware of the nature of theconduct or that the circumstances exist.” The defendant ar gues that she was u naware of the fo rmula Alim

entum and

that throu ghout the

course of the ch ild’s illne ss, she was never made aware of Alimentum and, therefore, she was ignor ant as to any knowing

neglect. We disagree. As stated earlier, it is not her failure to sooner avail herse lf of the better

baby formula Alimentum that was neglectful, but her failure to see k proper medical attention ,despite being faced with a sick, vomiting , malnour ished chi ld. The jur

y f ound this to be k now in g ne gle ct. In order to determine if that w as a rat ional find ing, we must examine

the evide nce pre sented a

t trial.-4- Trial Test

imony

Th e State presented Dr. Gilbert Ghearing, D r. Amy Evans, Ka

thy L yle, Mary Ann Rollins Gifford, Cheryl Br

ewer, Wanda Van Ho oser and Peggy Durham. The defense offere d Robert Goodman, co-defendant James Goodman, Cy nthia Cox, and the defendan t. We will examine
re le va nt te st im on y.
The child was born November 1, 1999. Dr. Gilbert Ghearing, a family practice physician at Grandview Hospital in Jasper, testified that the child’s birth was routine. He said he did mee t with the defenda

nts at the hospital, and while unable to specifically recall the discussions with them, Dr. Ghea ring testified that as a

matter of

course h e goes over rou

tine child care w ith new pa

rents, discussing topics such as feeding, immunizations, and the need for fol low-up doc tor visits if any problems develop. Additionally, he said the de fendants were

given brochure

information regarding the same topics. Included in that information wasa paper titled, “Call your baby ’s doctor if . . . ,” which included instructions to call the doctor if there was vomiting or spitting up most of a feeding two or more times, and if the baby refuses two or more feedings in a r ow.
Ad di ti on al ly, there was a handout that included a section titled, “Reasons to notify your baby’s doctor,” which included the same information. There wa s also a section of a pamphlet titled “Well-Baby

Care,” which

listed among other things that “[y ]our baby

should be c

hecked regula rly by a doctor, even when he/she appears normal and heal thy (emphasis added),” and that

“ [i]mmunizations agains t disease ...will be given a t the prop er time. I

t is importa

nt that thes e immunizations be started as recommended by your baby ’s doctor.” D r. Ghea ring stated he recognized

the defendant’s signature, indicating she received a set of disch arge instru ctions on November

3, 1999, from one of the nurs e s. He said those instructions would have included the information discussed above.
Dr. Ghearing testified to two follow-up visits with the defendants. On November 5, 1999, h e said that t

he child h ad a jaundice condition and that the d

efenda nts mentioned to him a

bout a vomiting episode. He said he told the

m that if su ch condit

ion and ep isode con

tinue, the y should “follow-up p.r.n., which means if needed , if that con tinues.” At the second follow-up visit, on November 18, 1999, Dr. Ghearing testified that the ja undice condition had cleared up and that the child’s weight was very

good. The defendants told him the child was on Enfamil with low-iron. He didnot reca

ll any complaints about aller gies, throwing up, or

about the child not eating. He further testified that, at birth, the ch ild’ s length was 20 1⁄2 inches and her head c ircumference was 13 1⁄2 inches. He said that at a routine dischar ge, he would hav e discuss ed with the defendants the need for a follow-up visit for

a hepatitis vaccination and routine checkups and that the follow-u p should be done at a

minimum of tw o months, and possibly in one month. Dr. Ghearing testified that after November

18, 1999, the chi ld did not return to his office. Dr. Ghearing testified there we re no indications during the three visits in which he saw the child that there we r e improper fee ding techniques or improper growth.3 While the def endant t esti fied this Jasp er visit oc curre d in Fe brua ry or M arch, the visit to the M arion Co unty Health Depart ment in J asper occur red on Apr il 6, 2000.
-5- Dr. Ghearing was cross-examined by counsel for both the defendant and her husband codefenda nt. On cross-examination, Dr. Gh earing adm itted there were no records indicating he wanted the defendants to reschedule with him after November 18. He also admitted that while he recognized that the defe ndant signed pape

rwork ind icating she rec eived the

dischar ge pac ket, he did

not know if she actu ally

receiv ed the pa

cket si nc e members of his staff handled the task of distribution. Ad di ti on al ly, Dr. Ghea

ring discussed failure to thrive, stating there are both or ganic, or natural causes, and inorganic causes , such as impr oper feeding and stress. He a dmitted that one of the leading causes of inorganic failure to thrive was ignorance. He also stated that the child had a fungal condition known as “thrush”and that t here co uld be a r elationsh ip betwee n the thru sh and the

child vomi ting.

Between November 18, 1999, and

April 6, 20 00, there

is no evide

nce that the child received professional medical attention. James Goodman, the co-defendant at trial, testified that during that time, he went to see a Dr. Respess for himself. He said th at during his doctor

visit, Dr. Respess d

id look at the child and play with her a bit. He also said that in January they tried to address the child’s immunizations at the Gr

undy County Health D epartme

nt, but the health department was closed. He said they were

trying to addr

ess the vomiting pro blem. Th e defendant said that during the time betweenNovember 18, 1999, and April 6, 2000, they tried to addre ss the vomiting problem by switching formulas. She said in January or F ebruary , when the co-defendant went to Dr . Respess , that Dr. Respe ss did see the child and made no comment about the child’s condition. She admitted that vi si t w as fo r t he co -d ef

en da nt . A dd it io na ll y, she said “sometime after” the Dr. Re spess visit , theya ttempted to go to the Grundy County Health Clinic in Tracy City, but the clinic wa s visibl y closed. She said they first went to the he alth department in Jasper at the “end of Februa ry , or ear ly March, something like that” where clinic workers g ave the child her immunizations and began informing the defe

ndants ab out well

infant care (“WI C”) programs, and places to shop for formula. 3

On April 6, 2000, the defendants took the child to the Marion County Health Department

in Jasper. Kathy L

yle, a registered nurse at the clinic, testified that she saw the chi ld and had some concerns because the child looked very small, sick, and unde rweight. She said sh

e discuss ed these problems with the parents an d that the parents told her they could not afford formula and were feeding the child

milk and g oat’s milk . Nurse L yle said the p arents didnot compla in about the child vomi ting. She said she refer red the p arents to Dr. Fox, a physician she r egularly made referrals to, outof concern for the child being unde rweight. She said the parents made the actual a ppointmen

t. According to DCS caseworker Wanda VanHooser, the defenda nts never met with Dr. Fox. N

urse Ly le said she gave the

child some

vaccina tions. Acc ording t

o Ly le, a bab y should have

those shot s around six weeks to two months of age and that this child, who was over five months old, had not received any shots since she wa s a newborn at Grandview H ospital. She t hen di scu ss ed t he W IC program with the pa

rents and gave them vouchers for two months worth of formula and discussed withthem that

when they

ran out of vouchers they

could come back to the clinic to pick up more. She stated that was one way to make sure children came back and got shots. When the pa rents lef t,4 DCS refe rral s ar e conf ident ial , s o the act ual sourc e of t he re fer ral wil l not

be ment ioned.
-6- Ly le said she gave them

the usual papers about possible reactions to the shots. According to L yle, there were no recorded f

ollow-up visits to the Marion County Health Department.

On cross-examination, Nurse Ly le testified that the parents told her they had been giving the child some sort of n ourish ment eve ry four to six ho

urs, go ing fro m formula

until they

ran out, t o whole milk, and th

en to goat’s milk. She admitted that when the child was brought in, it was not an im mediatel y life threate

ning situ ation. L

yle further stated tha

t if a chil d merited

such, she would contact DCS, but in th

is case she

felt that a doctor should dia

gnose th e child before any

referral was made. Nurse L

yle further admitted t

hat, according to a form from April 6, the baby ’s color was fine and that the general

appearance

was checked as being normal. F urthermore, she said she did mark parental interaction with the child as good, amplify ing that answer

to indicate that it was the father who had the interaction.
DCS received a referral on Apr il 19, 2000. 4 Wanda Va

nHooser , the afo

rementio ned child protective service s worker withDCS in Grundy

County, testified that she was assigned the case and made her firs t contac t with the defendants on April 25, 2000. She said she went to the home in the “Gizzard” area on a

mountain in Tracy City . VanHooser said the co-defendant came to her c ar but would not allow her

in, telling her that the child was sleeping. They arranged for the fa

mily to bring the child to her office that afternoon. Accor ding to VanHooser, when they arrived at her office, the child looked “s ick,” “n ot clean ,” “like a skelet on with sk

i n wrapped around it.” She said the defendant did not pick up the child but left her in the carrier. Concerned a bout the child’s health, VanHooser

said she a sked the d

efenda nt if she had taken the child to a doctor, to which the defendant said they had take

n her to Dr. Ghearing in Jasper, but had not returned to Ghearing due to some insurance problems. VanHooser said she then contact ed Dr. Evans and discussed her
concerns with her, but she had the parents make the actual appointment, which was set for April 28, 2000. VanHooser sai d she also ordered two different services into the def endants’ home in order to try and help the fa

mily and keep them tog ether.

On cross-examination, VanHooser said the parents were c ooperative with her. She said her concern was that the parents had not followed through with what they

were supposed

to do, as far
as taking t he child t o the doct or. She sa id she wa s try

ing to ad dress social concerns in thehome that could effect the health of the child. She admitted that one of the services she

attempte d to place

in the home, the services of Kelly Lusk, never happene d, as Lusk had scheduling problems. She said that one service, Children

and Family Servic es, did go into the home, although she was unsure if that
wa s b efor e t he ch il d w as pl ac ed in to st at e c us to dy.
Furthermore, VanHooser testified that she indicated the child as a possible FTT in the referr al she made for

Dr. Evan s. She said

there is a social a sp ectto FTT in which parents may not have knowl edge about caring for a child, but she also said it has to be a combination of social and medical aspects

. She said th

e paren ts rece ived some

training when the child wasplaced into the hos pital.-7-

Ul ti ma te ly, VanHooser said that the social ills that play ed a part in the FTT of the child were pr ob ab ly n ot ad dr es se d p ri or to th e c hi ld be in g t ak en in to st at e c us to dy.

On April 28, 2 000, the child was seen at Sew anee ho spital, pr imarily by Dr. Amy

Evans, who received the referral from DCS. Evans, a pediatricia n, testified th at DCS referred the child to her because the child was severely

underweight, had poor growth, a nd was failing to thrive. On April 28, accord

ing to Dr . Evans, the child weighed 8 pounds, 8 ounces, which was the average weig ht for
a three- month old, but in the fi fth perc entile fo r this chil d. Addition ally , the leng th of the child was average for a two-month old, but in the f ifth perc entile fo

r this chil d’s age . Dr. Eva ns said she met withboth parents who told her that the child was vomiting on a frequent basis. The parents told her they tried different formulas, including I somil, a soy formula . Dr. Evans diagnosed gastroe sophageal reflux (“GER”). She conducted a phy sical exam of the child, describing her

as “ema ciated, severely undernourished, and with no expression on her face, v ery

delay ed, deve lopmenta lly delayed.” She also said the child was not clean.

Dr. Evans further testified that she h ad discus sio ns with the defendant about feeding the child. After learning from the defe ndant that the defendant was feeding the child too many ounces of formula at each feeding, Dr . Evans instructed her to feed fewer ounces , but at more frequent interva ls. Ultimately Dr. Evans recommended the formula Alimentum, an ali mental formula that is easie r fo r babies to digest. She gave the def endants a prescription for Alimentum so that they
cou ld get th e Al im ent um th rou gh t he W IC progra m. Dr. Eva

ns said she went over proper feeding techniques with the defendants but that while the father interacted with the child, the mother seemed distant.

Dr. Evans t estified

that if the

condition

of this ch

ild continu ed unchecked by medic a l personne l, it was a potentially fata l problem. She described the differe nces between organic FTT and inorganic FTT, and concluded that the child was suffering nutr itional neglect and

that lab te sts she ran showed no evidence of org anic FTT.

On May 3, 2000, Dr. Evans tes tified tha t the child weighe d 8 pounds, 12.4 ounces and was gaining one ou nce a da y, althou gh she would have p refer red the c hild gain two to thr

ee ounc es a da y. Dr. Evans said the parents were please d that the c hild was gaining weight and not vomiting while taking the Alimentum but were not very communicative about

the feeding schedule they were using with the child. Dr. Evans, being unsatisfied with the weight g ain in the child, admitted the child to the hospital on May

9, 2000, when the child weighed 8 pounds, 14.8 ounces, or about onesixth the amo unt of we

ight ga in Dr. Eva

ns would ha

ve pref erred. Dr. Evan s said the child still appeared malnouris hed. She s tated tha t while hos pit alized, the child gained weight to her satisfaction. The child was placed into state custody on May 15, 2000. Thr

oughout the cour se of the initial hospitalization an d t he ea rl y da ys of the child being in state custody , Dr. Evans testified that she was satisfied with the weight gain and progress of the c hild. She testified that on July 11, 2000, the child weighed 17 pounds, 7 ounces, which was the fiftieth percentile for the child’s age. The child ’s weig

ht gain w as norma

l up to the time of the

trial.-8-

In sum, Dr. Evans testified that the child was malnourished wh en she first saw her. She attempted to help the

defenda nts with feeding a

nd paren ting skill s i n an effort t

o get the child he al th y. Dr. Evan s determined that t he formula Alimen

tum was tol erable

by the child and that the vomiting episodes stopped once the child was taking Alimen

tum. Despi

te her discussions with the defenda nts as to feeding the child, Dr. Evans was dissatisfied with the weight gain progre ss made by the child while the defe ndants we re resp onsible f

or feed ing her . That led

to Dr. Evans’ decision to hospitalize the child. Once hospitalized and under the care of the prof essional medical staff, the child began to thrive. Dr. Evans concluded the c hild had suffered from severe malnutrition.
During the child’s hospitalization, othermedical personnel testified to her condition. Mary Ann Rollins Gifford, a licensed practical nurse (“LPN”) a

t Sewanee testified that the child was very small, underwe

ight, and dirty . She said

that the defendant did not interact with care and love to the child. She also sa

id that whi le the ch

ildwas hospitalized, both parents left the hospital to take care of perso nal thing s. She admi tted that s he had ne

ver hea rd of the formula A

limentum.

Ch er yl Brewe

r, an L PN at Sewanee, testified that the child had no vomiting problems while being fedAlimentum. She said when she heard the child cry ing in her baby

swing, the parents were notattending to the child, but were ly ing in bed. She said that both parents left the hospital once in order to attend to a sick dog. According to Nurse Brewer, the parents wer

e not interestedin helping her bathe and feed the child, despite her offe ring them that opportunity. She s aid that the codefenda nt seeme d willing

to learn about some

feeding techniqu es.

Dr. Evans testified on cross-examination that the child appeared hea lthy at the time of the trial, but was malnourished during theearlier episodes . She said t

he child is still at risk for learning disabilities and emoti onal prob lems, although she admitted that there were no objective findings of any phy sical or mental injury at the time.

Dr. Evans sta

ted she f elt that th e paren ts were going

through a process of try

ing to find out why the child was vomiti ng, eve

n if they did not take the child to the doctor. She sta ted, however, that the process of try

ing new formulas and milk should have taken a few weeks . She furt her said that many of the fee ding pro

blems the c

hild was suffering from would not have bee n understood by the defendant without more education. She said that maternal depre ssion could be a factor in FTT. Dr. Evans sa

id she did not think the intention of the parentswas to sta rve the c hild. Dr. E

vans also testified that the formula Alimentum was a “rare bird,” and it would be f air to say the de

fe ndan ts
were ignorant about it. She said that if the parents made a mistake, it was in the feeding techniques they used, but what alarmed he r was the severity of the malnutrition and how long it took the defenda nts to bring the child to a

docto r. She also f elt t he defe ndant s were n ot for thcom ing eno ugh in giving her a medical history of the child. She said the defendants were not ignor ant peo ple , althoug h even br ight peo ple did not

know of A

limentum.

On re-direct examination, Dr. Evans testified that the expectedparenta l reacti on to a chi ld vomiting over a period of time would be to seek medi cal attention. She said the parents seemed knowledg eable

about feeding during the

first few weeks of life and that they were

bright people that-9-

understood directions and proper procedures. Dr. Evans’ general summation was that, based on the child’s particular condition, the parents should have seen a doctor sooner.

On Ma y 12 , 2 00 0, th e c hi ld wa s p la ce d i n f os te r c ar e w it h P eg gy Durha m, a foste r paren t. Ms. Durham te stified th at the ch ild, who wa s just short

of being six month s old, looked l ike a newborn. She said that she followed the feeding instructions of Dr. Evans and that

the child already weighed 17 pounds by June and after a bout another five months with her , the chil d weighed 24 pounds. Ms. Durham said she had no tro uble ge tting the child to e at and tha

t the child may have spit up two times, but never threw up.

Defense
Cyn thia Cox, a social worker that does contract work for DCS, testified that on May 2, 2000, she rec eived a r

eferr al from D CS to work with the defendants. She said that from the information she had, DCS di d not belie ve the defendant s knew som e of the t h ings they ne ed ed to know about child care.

DCS placed t

he child wit h Ro bert Goodman, the co-defendant’s fathe r, some time after placing the child into foster care. Robert Goodman had custody at the time of the trial. He testified that the child was “perfectly

normal.”He said he canno t detect a ny p resent e ffect f rom her p ast malnouris hment.

The co-defendant, James Go odma n, did testify at trial. He said that a fter the birth, he and the defendant took their daughter to Dr. Ghre aring due to her jaundice condition and her thrush. He sai d the next time his daughter received treatment of any kind was when she re ceived he r immunization s, and they took her for those shots because they

knew she needed them. He testified th at he has a vision problem that prevents him from driving and that arra nging transportation is , therefore, stressful.

Goodman testified that their daughter appeare d to them to be a normal child. He said she cooed, smiled, and even screamed joyously when he would tickle he r. He said that he thought in early December, the

child would throw up after just about every feeding. According to Goodma n, Dr. Ghearing sugg ested to th em that all formula s were a like, sothe defendant and he tried changing formulas , even trying

goat’s milk, butthat after a while the child would start throwing up ag ain. He said the first time they wer

e aware of a malnutrition problem was when Ka thy L yle informed them
on April 6, 2000, at the Marion County Health Departm ent. He said th at beca

use he sa w the chil d every day and wa s so close to the situation, he did not notice the problem. He thought his daughter would “catch up.” While

at the he alth depa

rtment, Goodm an said he did not detect a sense of urgency about the health of his daug hter. He said that after getting the immunizations at the Marion County Health Department, they

tried to make an appointment to see Dr. Fox, but Dr. Fox’s office told themthey did not take TennCar e. Goodman said they did not have $20 0 for the

office visit, so the next doctor they saw was Dr . Evans. He did not sense any urgency from the DCS worker, Wanda VanHooser, nor any

urgency from Dr. Evans until May 9, 2000, w hen Dr. Evans told

him that the5 Ali mentu m is menti oned i n th e packa ge of brochu res on chi ld ca re the def endant s re ceiv ed.
-10- child was at serious risk and might die if the condition continued. Goodman said that as soon as the Alimentum was giv en to his daughter, the vomiting stopped, but that before seeing Dr. Evans he had not hear d of Alime

ntum. 5

Goodman said t

hat prior to see ing Dr. Ev ans, he di d not r eali ze the importance of nurturing butthat they tri ed to follow Dr. Evans’ feeding instructions, and he be lieves he did every

thing he could in cooperating with Dr. Evans. He said he did attend pa renting classes and, before thos e classes , he was un aware

of the tro uble sig ns as appl

ied to his daughter. He said there was no inkling of DCS removing the child from their care until they took her on May 12, 2000.

On cross-e

xami natio n, Goodman said he was computer literate, even mee ting his wife throu gh the internet. He said they lived close to h

is wife’ s family

so they could g et assista

nce with transportation. He admitted he knew that y ou had to feed a baby a nd that y ou had to ta

ke babie s to the doctor f

rom time to

time. He s aid

that when the child had jaundice, he did know enough to take the baby to the doctor but that with the vomiting pr oblem, he did not know, beca use that subject
never ca me up du ri ng th e e ar ly v is it wi th Dr . G he ar in g. He sa id he ne ve r t ol d N ur se Lyl e at t he Marion Health Department that they did not have enough money for food, only that

t he child was having trouble getting food down. He admitted not seeking another doctor after Dr. Fox turned down their referral.

Goodman admitted that his visit to Dr. Respess was for himself, to get anAlbutrol inhaler, and that the child was not officially seen until the immunizations on April 6, 2000. Goodman s aid they were able to get transportation for his visit to Dr. Respess. He sa id his daughter’s lack of weight gain did not concern him. Goodman admitted that he owned some anima

ls and that he did shop for t hem, even traveling to Chattanooga for specialty items. He said they had insurance and shopp e d at Wal-Mart. He said they

tried to get his daughter’s shots but the facility they went to, the Grundy County Health Department, was closed. He admi tted they started the pr ocess of seeking medical attention for th eir dau gh ter in J anuary, a lthough she was not seen until April. He said he was not concerned

when Dr. Evans described the child’s condition as “emacia ted,” because

the docto r said she wanted to try a

new formula.

Goodman said that d

uring th e child’ s hospitali zati on, there we re times when he and the defendant left the ho spital, s uch as to treat his sick dog. He said that while he was a ware of Dr. Evans’ instructions about nurturing the child, he still left her with the nur ses and di d not part icipate in feedings and the like, because the nur ses did not ask him to.

The defendant testified on her own behalf. She said she initially bre ast fed the child and then switched to formula, but the child vomited the formula. She said she tried differe nt formula s, including Isomi l, Enfami l with low iron, Enfamil with high iron, and more. She even tried goat’s milk, but that did not really addre ss the spitting up. S he sai d they did all go see Dr. Respess and that-11-

even though the visit was for the co-defendant , Dr. R espess did see the child. Furthermore, the defendant said the nurse at the office saw the child and was not a larmed by the

child’s appearance.

After taking the child to the Marion County Health Department, thedefendant testified that they tried to arr ange a visit with Dr. Fox, but were unable to see him because he did not take Te nn Care. She said that while the nurse at Marion County Health commented that the child was small , the nurse did not point out any problems out of the ordina ry.
Th e defendant testified that DCS worker Wanda VanHooser’s visit to their home led to a scheduledvisit at the DCS office. That visit resulted in the referral to Dr. Evans. She said Dr. Evans reviewed proper feedingtechniqu es and al so starte d the chil d on Alimen tum. Prior to that visit, the defendant said she had never heard

of Alimentum. The def

endant sa id that af ter the th ird visit wi

th Dr. Evans, Dr . Evans wa

nted the c hild to be hospitalized. The defendant said that the co-defendant and she were instructed to watch and let the hospital staff do the feeding and the like of the child. The defendant admitted

to leaving the child at the hospital during the stay but said sh

e felt fine with that because the child was safe with the staff a nd she had some personal things to attend to.

She said she had no indication that DCS was going to remove the child from her custody

but that it was traumatic when it happened. She said DCS onl

y se nt one per son to help her and that she had no t a tt en de d a ny p ar en ti ng cl as se s b efor e t he re mo va l. Ge ne ra ll y, the defenda nt claims s he did not receive enough help from DCS in addressing her problems in caring for the child.

On cross-examination , the defendant said she did understand the importance of the ba by getting adequate nutrition. She said that after switching from bre ast feeding to formula, they picked up the formula f

rom Wal-Ma

rt, althou gh she d

id not rec all seeing Alimen tum at the Wa

l-Mart. She said it was important to give a medical history to a doctor. She said she did discuss the c hild’s vomiting problem with Dr. Ghearing, and Dr. Ghe aring asked her about projectiles in the vomit. She said she told hi m that it wa s more like excessive

dribbling , and the d

octor told her that was per fectly normal. She had no explanation why Dr. Ghe aring ’s off ice had no notes to that affect. The defendant said she was aware that the projectile vomiting wa s nota normal thing for a child, but they were told to find something that agreed with the child.

The defendant admitted

that between November 18, 1999, and April 6, 20 00, the ch

ild did not see a doctor for

purposesof trea

tment, alt hough sh e said they attempted to g et her to a doctor. She admitted that she work ed at Genesis Center, which was about five or ten minutes from Grandview Hospital, and that Dr. Ghearing’s office was about fifteen

minutes away. She said that she had the child with

her on oc casion when she w ent to Gen esis to pic k up her p ay checks. She said she was concerned enough a boutthe child’s projectile vomiting that she tried different formulasto addressthe problem, and she was aware the child was not e ating r

ight and was unde rweight, but that she neve r took the child to the

doctor on

her way to Genes is.

The defendant testified that she owned some hors es and do gs. She s aid she certainly

made
sure the dogs, Borzois, got their shots and veterinary attention. She admitted that when her husband-12-

needed an inhaler, they

were able to see a doctor; that when she w as having complications during her pre gnanc y, s he was a

ble to see a doctor; that when her dog g otshot, she was able to get it to a doctor; but that when her daughter was projectile vomiting and sick, she was unable to get her to a doctor, making just the one attempt to take her to the closed Grundy County Health Depar

tment.

The jury convicte d the def

endants o f child

abuse and negle ct of a child under six years of

age. Analysis

A violation of Tennessee Code Anno tated section 39-15-401 may be established by either inflicting injury upon a child or by neglecting the

child. State v. Hodges , 7 S.W.3d 609, 622 (Tenn. Crim. App. 1998). Viewing the evide nce in the light most favorable to the State, as we are required to do, we conclude there wa s ample evidenc e for the

jury to deter mine that t

he defe ndant kno wingly neglected her c hild and that the child’s health was adversely affected over the four-month period between doctor visits.

Foremos tis the number of medical personnel that testified concerni ng th e child’s health. Kathy Ly le, with the Marion County Health De partment, noticed the child was very small, sick, and underwe ight. DCS worker Wanda VanHooser described the child as sick, not clean, and like a skeleton. Impor

tantly , Dr. Eva

ns, a ped iatricia n, diag nosed the

child as failing to thrive, suffering from nutrition al negl ect, and suffering a life thre atening condition if it went unchecked. Ad di ti on al ly, Dr. Evan s testifie d that as a resu lt of the FT T, the child ran the risk of suffering emotional and physical proble ms in the future. Mary

Ann Rollins Gifford, a licensed practical nurse, described the child as very

sm al l, un de rw ei gh t, an d d ir ty. The testimony of the af orementioned medical pers onnel, c learly, wa s sufficient to allow a rational jury to find the child’s health and welfare was adversely

affected.

Even if we were to accept the arg ument that

the child, while under the care of the State and,
su bs eq ue nt ly, the paternal grandparents, sh owed no permanent adverse affe ct, that would still not vitiate the adverse condition the child suffered during the period of actual neglect. Moreove r, as our supreme court determined in State v. A dams , “[n]e glect through a refusa l to provide medical or hospital lasts as long as such care is not provided , and a c hild contin ues to be in ‘a s ituation of want’
as long as the morals or health of the child is endang ered.” 24 S.W. 3d 289, 296 (Tenn. 2000). The conclusion that while the child in the instant case was not being provided medical c are and was therefore in a “situation of want ” was adverse to the child is inescapable.

This lead s us to the determination of whether there was knowing neglect on behalf of the defenda nt. The def

endant arg ues th at even if the re was n eglect , such neglect was no t kno wing, bec ause it was a result of a mistake on her part in not knowing about the for mul a Alimentum

. Ignoranc e or mistake of fact is a defense if such ignor ance or mistake negates the culpable mental state of the charged offense . Tenn. Code Ann. § 39-11-502(a). I n this case, that culpable mental state is “knowing.” Had this case been dec ided solely upon whether the defendant knew o f Alimentum, the defendant would be correct, that she lacked knowledg e. However, there is ample-13-

evidence throughout the record tha t the know ing neglect wasnot in the failure to discover

and use Alimentum but in the failure to bring the child to a doctor for such a lengt h y time period. The defendant’s ignorance

as to Alimentum does nothing to negate her knowing f ailure, in light of the information she had, to seek medical help.

A rational jury

could have determined the defendant knew that not taking the child to the doctor for such

a lengthy period was neglectful, based on a numbe r of reasons, including: (1) The defendant was bright enough to be computer literate to the point she met her husband through the interne t; and (2) The defend ant kn ew enou gh to take the child to the doctor at the early infant stages in Novembe

r, 1999, a nd, while at the doctor, received an abundanc e of advice, both oral and written, about caring for a child, including advic e about contacting the doctor if there is frequent

vomi ting. While the defendant does not characterize the child as appearing sick, there was such an abundance of evidence that medical personnel thought the chi ld appear ed malnou

rished th at the jur

y e asily could have inferred the defendant kne w something was wrong with the child. The def endant, by her
own admission, knew enough to have her animals cared for, yet in the appearance of a sick and vomiting child she made only one r eal attempt in over four mont hs to have the child seen by professional medical personnel. The totality of the situation was more thanadequate to allow a jury to find beyond

a reasonable doubt that

this sick, v omiting child was be ing know ingly

neglected in the failure

to take he

r to the do ctor for

so long. Common sens e leads u s to concl ude that t his de fe nd an t, a m ot he r, wa s b ri gh t e no ug h t o k no w t ha t h er si ck ly, malnouris hed daug hter nee ded to seek medical attention.

The def endant, a s a pare

nt, had a duty

to care for the child. Tenn. Code Ann. §§ 34-1-102 (a)-(c) (2002). She knowingly neglected that duty

by failing to obtain medic al care. At exactly what pointthe knowi ng fail

ure to obt ainmedical treatment becomes child neglect as defined in Tennessee Code Annotated section 39-15-401 is not clear, but must be determined on a case-by -case basis. A few examples should be illustrative.

In State v. Kathryn L

ee Adler , No. W2001-00951-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 141 (Tenn. Crim. App. at Jackson, Feb. 19, 2002) (rehearing de nied Sept. 9, 2002), a child suffered accidental, y et serious, burns in abathtub. The defendant did not seek medical attention for the burns for 72 hours, resulting in harm to the child. This Court affirmed that the f ailure to obtain medical attention for that period of time, faced with the burn injuries evident on the extremities of the child , was knowing neglect.

In State v. Hodges , a child victim was severely beaten, wi th vi sible injuries, including lacerations of the nostrils and lips and abrasions on the hands and arms. 7 S.W.3d 609 (Ten n. Crim. App. 1998). The defendant, who did not necessarily

inflict the injuries, was left as the sole caretaker of th e c hi ld vi ct im , h is st ep ch il d, fo r a n e nt ir e d ay. This Court affirmed his felony mur der conviction and, importantly for the instant case, stated, “[D]efendant knewthis victim was in serious medical trouble. Defend ant took no action to provide m

edical a ttention f or the ch ild he con sidered

his own . . . .”-14-

We find the evidenc e suffici ent to permit the jury to convict him . . . upon a theory that Defendant

knowingly ne glected her as to adversely a ffect her health and welfare.” Id. at 623 ( citing with approval State v. B ordis , 905 S.W.2d 214, 225-26 (Tenn. Crim. App.), where this Court found evidence to convict of

second degree murder w

here the deterioration [of the victim] was evident and the need for medicalattent ion apparent, ye t the defendant elected not to nourish or seek medical attention).

In Hodges , this Court concluded that 72 hours wi thout medical attention was knowing neglect when the manifestationof injury was wate r-produ ced burn s. It i s a

stretch b ey ond cred

ulity to think that when that

manifestation is in the form of vomiting, malnourishment, and emaciation, that a fa ilure to ob tain medic al attent ion for f our and o ne-half

months wasnot knowin g neg lect.

A rational jury could ha

ve determined

that the defendant knew the child was sick, based on the constant vomiting and sickly a ppearance of her da ughter and the information available to the defenda nt. The defendant had ac cess to nearb y medical fa cilities and, through her husband and throu gh TennCare, had the finan cial abil ity t o obtain me dical tre atment. Y et, other than a feeble effort to visit the Grundy County Health Department, she made no real attempt to take her daughter to the doctor.

Conclusion

We have little doubt that the de fendant want ed to help her daughter, evidenced by her
attempts at switching formulas as the child remained sick. Howeve r, no intentional harmfu l behavio r was needed in order to be convicted of child abuse, only knowing neglect. The evidence is sufficient t o support the conclusion that the defendant knew her daug hter needed medial attention, y et, f o r whatever inexplicable reason, gave little to no effort to obtain it. We can forgive h er mistak e in being unaware of the formula, Alimentum, but we cannot ignore her

failure to simply take her child to the doc tor. Acc ordingl y, w e affir

m the tria l court.

__________________________________ JOHN EVERETT WILL IAMS, JUDGE