IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 20, 2015

IN RE MARCELL W.

Appeal from the Circuit Court for Shelby County

No. CT00119114 Robert Samual Weiss, Judge

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No. W2014-02004-COA-R3-PT – Filed July 23, 2015

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In this parental termination case, Mother appeals the termination of her parental rights to 

the minor child at issue. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.

GIBSON, J., and KENNY ARMSTRONG, J., joined.

Reginald E. Shelton, Memphis, Tennessee, for the appellant, Michelle W.

Herbert H. Slatery, III, Attorney General and Reporter; Ryan L. McGehee, Assistant 

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

Services. 

MEMORANDUM OPINION1

 

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or 

modify the actions of the trial court by memorandum opinion when a formal opinion would have 

no precedential value. When a case is decided by memorandum opinion it shall be designated 

“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any 

reason in any unrelated case.
2

I. Background

This appeal stems from a joint dependency and neglect/termination hearing that 

took place in the Shelby County Circuit Court. In a separate appeal regarding the 

dependency and neglect proceeding, In re Marcell W., No.W2014-02120-COA-R3-CV

(Tenn. Ct. App. July 16, 2015) (“Marcell I”), we previously affirmed the Circuit Court‟s 

finding that the minor child at issue in this case was the victim of severe abuse. In this 

Opinion, we address the trial court‟s termination of Mother‟s parental rights.

The minor child at issue, Marcell W.2(“Marcell”), was born in March 2012. On 

September 4, 2012, the Department of Children‟s Services (“DCS”) received a referral

concerning allegations of severe physical abuse committed against the minor child.

Marcell had been admitted to LeBonheur Children‟s Hospital (“LeBonheur”) in Memphis

for severe injuries. Tanisha Harper (“Ms. Harper”), a DCS child protective services 

investigator, was assigned to investigate the situation. The medical consultation at 

LeBonheur revealed that Marcell presented with a number of significant medical 

conditions, including a subdural hematoma, bilateral hemorrhages, a liver laceration, and 

a left buckle fracture of the arm. When investigating the case, Ms. Harper discovered 

that Marcell had presented for a well-being checkup at his primary doctor the previous 

Friday. No issues were found during this checkup, and by all accounts, Marcell was in 

good health at that time. 

Marcell and Mother spent the night at Marcell‟s grandmother‟s home following 

the checkup, but they returned to Mother‟s residence later that weekend. Ms. Harper did 

not discover that anything traumatic had happened to Marcell during his stay at his 

grandmother‟s home. On the Sunday prior to Marcell‟s admittance to LeBonheur, 

Mother apparently observed Marcell “stiffen up” periodically, but no medical action was 

taken at that time. On Monday, Marcell began having repeated hiccups, and according to 

Ms. Harper, Mother relayed that he became “non-responsive.” The child was 

subsequently taken to the hospital.

When Ms. Harper discussed Marcell‟s injuries with Mother, Mother did not 

provide a specific explanation as to how they had occurred, other than to speculate that 

Marcell had hit his head on a wall. According to Ms. Harper, Mother informed Ms. 

Harper that she, Marcell, and her boyfriend all slept together in the same bed. Because 

the bed leaned against a wall, Mother surmised that Marcell may have hit his head on the 

wall while she was sleeping. Mother also informed Ms. Harper that she was the primary 

caretaker of Marcell. Marcell entered the custody of DCS on September 14, 2012. He 

 

2

In cases involving minor children, it is this Court‟s policy to redact names sufficient to protect the 

children‟s identity.
3

remained in DCS‟s custody as of the date of the hearing in this case on August 14-15, 

2014. Marcell stayed in the hospital for approximately a month.

Mother was arrested on charges of aggravated child abuse in February 2013,3and 

in April 2013, the Juvenile Court of Shelby County found Marcell to be dependent and 

neglected and the victim of severe abuse. The Juvenile Court found that, on the basis of 

the testimony that was presented, Mother was the perpetrator of Marcell‟s injuries.4In its 

order, the Juvenile Court relieved DCS of making reasonable efforts as to Mother in light 

of its finding that Marcell had been a victim of severe abuse. Following a rehearing of 

the case in September 2013, the Juvenile Court upheld the prior findings that Marcell was 

dependent and neglected and the victim of severe abuse.5 Mother subsequently appealed 

to the Shelby County Circuit Court, and the matter was later set for a de novo hearing.6

On March 18, 2014, prior to the hearing of Mother‟s de novo appeal, DCS filed a 

petition to terminate her parental rights in the Shelby County Circuit Court.

7

 The petition 

alleged that two grounds justified terminating Mother‟s rights. First, the petition asserted 

that Mother had abandoned Marcell pursuant to Tennessee Code Annotated § 36-1-

102(1)(A)(iv). Second, the petition alleged that Mother had committed severe child 

 

3

Following her initial arrest, Mother was incarcerated for over two weeks. Although Mother argues in 

her brief that all criminal charges against her have now been dismissed, this contention is not supported 

by the record transmitted to us on appeal. Rule 14 of the Tennessee Rules of Appellate Procedure governs 

requests to consider post-judgment facts in this Court. Pursuant to Rule 14(b), requests to consider postjudgment facts must be made in a manner compliant with Rule 22 of the Tennessee Rules of Appellate 

Procedure. Rule 22 directs movants to file a written motion, which is to be accompanied by a 

memorandum of law in support of the motion and an affidavit, if needed. Tenn. R. App. P. 22. In this 

case, no motion was ever filed. Although certain documents were attached to Mother‟s appellate brief, 

this does not make them available for our consideration. See Carney v. State, No. M2006-01740-CCAR3-CO, 2007 WL 3038011, at *4 n.2 (Tenn. Crim. App. Oct. 17, 2007) (noting that “„documents attached 

to an appellate brief but not included in the record on appeal cannot be considered by this court as part of 

the record‟”) (citations omitted).

4 The Juvenile Court found that Mother committed severe abuse either by direct action or by her inaction 

in failing to protect Marcell. The Juvenile Court‟s finding was based, in part, on the evidentiary 

deposition of Dr. Karen Lakin. Dr. Lakin testified that Marcell‟s injuries were consistent with nonaccidental trauma, specifically abusive head trauma.

5 The Juvenile Court also upheld the prior ruling that DCS was relieved of making reasonable efforts to 

reunify Mother with Marcell.

6 We note that when dependency and neglect cases are appealed to Circuit Court, the Circuit Court “must 

try the case de novo by hearing all the witnesses again and by rendering an independent decision based on 

the evidence received in the circuit court proceeding.” In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. App. 

2004).

7 The petition also sought to terminate the parental rights of Marcell‟s father. Although the father‟s 

parental rights were ultimately terminated, he has not appealed.
4

abuse. The petition stated that Marcell had remained continuously in foster care since 

September 14, 2012, and averred that a change of caretaker would likely have a negative 

effect on his emotional, psychological, and medical condition. It also claimed that his 

best interests would be served by forever severing Mother‟s parental rights.

Following the filing of the petition, DCS moved to join the termination hearing 

with the hearing of Mother‟s de novo dependency and neglect appeal. The motion stated 

that the de novo dependency and neglect appeal was pending in another division of 

Circuit Court and asserted that both proceedings should be considered in a joint hearing 

due to a common issue of law and fact pertaining to allegations of severe abuse. DCS 

explained that a joint hearing would help ensure consistent rulings, avoid unnecessary 

delay, and preserve judicial resources. By order dated May 21, 2014, a consent order was 

entered transferring the termination of parental rights matter to the division of Circuit 

Court where the de novo appeal was pending.

On August 14 and 15, 2014, the Circuit Court held a joint hearing on the 

dependency and neglect appeal and termination issues. At the hearing, the Circuit Court 

heard testimony from several DCS case workers and Marcell‟s foster mother, and the 

medical deposition of Dr. Karen Lakin was read into the record. As we discussed in 

Marcell I, Dr. Lakin concluded that Marcell was a victim of a non-accidental traumatic 

injury and that Mother had offered no plausible explanation for his injuries. In re 

Marcell W., No.W2014-02120-COA-R3-CV, slip op. at 9 (Tenn. Ct. App. July 16, 2015).

On September 29, 2014, the Circuit Court entered an order terminating Mother‟s 

parental rights. In its order, the Circuit Court found by clear and convincing evidence 

that Mother had committed severe child abuse against Marcell and that she had 

abandoned him within the meaning of Tennessee Code Annotated § 36-1-102(1)(A)(iv). 

The Circuit Court also found that it was in Marcell‟s best interests that Mother‟s parental 

rights be terminated. This timely appeal followed.

II. Issues

In her brief, Mother presents one issue for our review, stated as follows:

1. The Department of Children Services failed to sufficiently prove that it 

made reasonable efforts to reunite the Appellant and the minor child where 

the Case Manager readily conceded that a bond exists between Mother and 

minor child, that Mother has a stable residence, that Mother is visiting 

regularly with the minor child, that the Mother has been in compliance with 

the permanency plan.
5

III. Standard of Review

Although parents have a fundamental right to the care, custody, and control of 

their children under both our state and federal constitutions, the right is not an absolute 

one. In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) (citations omitted). 

“Well-defined circumstances exist under which a parent‟s rights may be terminated.” In 

re Roger T., No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App. 

Apr. 27, 2015), no perm. app. filed. In Tennessee, such circumstances are defined by 

statute. Id. (citation omitted). Pursuant to the Tennessee Code, parties who have 

standing to seek the termination of a parent‟s parental rights must prove two things. 

First, they must prove at least one of the statutory grounds for termination. In re J.C.D., 

254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-113(c)(1)). Second, they must prove 

that termination of parental rights is in the child‟s best interests. Id. (citing Tenn. Code 

Ann. § 36-1-113(c)(2)). “Because the stakes are so profoundly high, Tenn. Code Ann. § 

36-1-113(c)(1) requires persons seeking to terminate a biological parent‟s parental rights 

to prove the statutory grounds for termination by clear and convincing evidence.” In re 

Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). The clear and convincing 

evidence standard also applies to the trial court‟s determination regarding the child‟s best 

interests. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 

36-1-113(c)). As we have previously observed, the heightened burden of proof under 

Tennessee Code Annotated § 36-1-113(c) requires us to adapt our customary standard of 

review. In re Audrey S., 182 S.W.3d at 861. “First, we must review the trial court‟s 

specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d).” In re 

M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). “Second, we must determine 

whether the facts, either as found by the trial court or as supported by the preponderance 

of the evidence, clearly and convincingly establish the elements required to terminate a 

biological parent‟s parental rights.” Id. (citations omitted).

IV. Analysis

In this appeal, Mother presents only one issue for our review. Specifically, she 

asserts that DCS failed to sufficiently prove that it made reasonable efforts to reunite her

with Marcell. In light of the recent Tennessee Supreme Court decision in In re Kaliyah 

S., 455 S.W.3d 533 (Tenn. 2015), we conclude that Mother‟s assertion of error on this 

issue cannot be sustained. In the Kaliyah case, the Tennessee Supreme Court was 

confronted with an issue of first impression concerning “whether the State is required to 

prove that it made reasonable efforts to reunify the parent with the child as a precondition 

to termination.” In re Kaliyah S., 455 S.W.3d at 535. In holding that the State is not 

required to prove “reasonable efforts” as a precondition to termination, the Supreme 

Court explained as follows:
6

An action to terminate the parental rights of a biological parent is governed 

by Tennessee Code Annotated § 36-1-113. The language of Section 36-1-

113 makes the State‟s efforts to assist the respondent parent one of the 

factors to be considered in determining whether termination of the parent‟s 

rights is in the child‟s best interest. After reviewing the language of 

Section 36-1-113, other pertinent statutes, the legislative history, and 

caselaw interpreting Section 36-1-113, we hold that, in a termination 

proceeding, the extent of the efforts made by the State is weighed in the 

court‟s best-interest analysis, but the State need not prove that it made 

reasonable efforts as an essential component of its petition to terminate 

parental rights.

Id. Although Mother seems to suggest that the termination of her parental rights cannot 

occur absent sufficient proof of the State‟s efforts at reuniting her with her child, the 

decision in Kaliyah negates her argument.8

We observe that Mother‟s brief does not challenge any of the grounds upon which 

her parental rights were terminated. She has not challenged the trial court‟s finding that 

she committed severe child abuse against Marcell, nor has she challenged the trial court‟s 

finding related to the statutory ground of abandonment. Rule 27(a)(4) of the Tennessee 

Rules of Appellate Procedure provides that the brief of the appellant shall contain, “under 

appropriate headings,” “[a] statement of the issues presented for review[.]” Tenn. R. 

App. P. 27(a)(4). Because Mother‟s “statement of the issues” section of her brief does 

not challenge either of the grounds upon which the trial court terminated her parental 

rights, any issues regarding those grounds are waived. See State v. Freeman, 402 S.W.3d 

643, 653 (Tenn. Ct. App. 2012) (citation omitted).

Sufficient proof of a statutory ground for termination, however, does not by itself

justify the termination of parent‟s parental rights. “Because not all parental conduct is 

irredeemable, Tennessee‟s termination of parental rights statutes recognize the possibility 

that terminating an unfit parent‟s parental rights is not always in the child‟s best interest.” 

In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) (citation omitted), perm. 

app. denied (Tenn. Mar. 5, 2014). “When at least one ground for termination of parental 

rights has been established, the petitioner must then prove, by clear and convincing 

evidence, that termination of the parent‟s rights is in the child‟s best interest.” Id. at 572

(citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)).

As with the predicate statutory grounds that supported the termination of her 

parental rights, Mother‟s brief fails to raise the trial court‟s findings regarding Marcell‟s 

 

8 Moreover, we note that, in proceedings before the Shelby County Juvenile Court in the dependency and 

neglect litigation, DCS was relieved of making reasonable efforts as to Mother in light of the finding that 

Marcell had been a victim of severe abuse.
7

best interests as an issue for our review. In the argument section of her brief, Mother 

makes a passing reference that “the combined weight of the . . . facts do not support the 

trial court‟s ultimate conclusion[,]” but nowhere is a “best interest” argument specifically

developed in a manner that complies with the dictates of Rule 27(a)(7) of the Tennessee 

Rules of Appellate Procedure. See Tenn. R. App. P. 27(a)(7) (setting out the specific 

requirements for the argument section of an appellant‟s brief). As we previously stated, 

failure to raise an issue in an appellant‟s “statement of the issues” section is sufficient by 

itself to waive an issue for review. Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 

578 (Tenn. Ct. App. 2002) (citation omitted).

Although Mother‟s brief waives any issue regarding the trial court‟s best interests

analysis on account of her failure to comply with Rules 27(a)(4) and 27(a)(7) of the 

Tennessee Rules of Appellate Procedure, we nonetheless exercise our discretion to 

review the trial court‟s findings concerning Marcell‟s best interests due to the gravity of 

the consequences involved in the termination of Mother‟s parental rights.9 See In re 

Justin K., No. M2012-01779-COA-R3-PT, 2013 WL 1282009, at *8 n.6 (Tenn. Ct. App. 

Mar. 27, 2013) (exercising discretion to address the minor child‟s “best interests” on 

appeal notwithstanding a waiver by the appellant on the issue). When conducting a best 

interests analysis, conflicts between the interests of the parent and child are to be resolved 

in “favor of the rights and best interest of the child.” In re Jacobe M.J., 434 S.W.3d at 

573 (citing Tenn. Code Ann. § 36-1-101(d)). Indeed, the best interests analysis “must be 

viewed from the child‟s, rather than the parent‟s, perspective.” White v. Moody, 171 

S.W.3d 187, 194 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, the Legislature 

has codified a list of nine, non-exclusive factors that trial courts are to consider when 

determining the bests interests of a child in a termination of parental rights proceeding. 

These factors are as follows:

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the child‟s 

best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment 

after reasonable efforts by available social services agencies for such 

duration of time that lasting adjustment does not reasonably appear 

possible;

 

9 Additionally, although we have concluded that Mother‟s “reasonable efforts” issue, as presented, is 

misplaced in light of the Tennessee Supreme Court‟s decision in Kaliyah, we note that the extent of the 

State‟s efforts to assist a parent are weighed in the best-interest analysis. In re Kaliyah S., 455 S.W.3d at 

535. Because Mother specifically raised the reasonableness of DCS‟s efforts in this case, we will 

consider her grievance in the context of our best interest analysis.
8

(3) Whether the parent or guardian has maintained regular visitation or 

other contact with the child;

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to 

have on the child‟s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent

or guardian, has shown brutality, physical, sexual, emotional or 

psychological abuse, or neglect toward the child, or another child or adult 

in the family or household;

(7) Whether the physical environment of the parent‟s or guardian‟s home is 

healthy and safe, whether there is criminal activity in the home, or whether 

there is such use of alcohol, controlled substances or controlled substance 

analogues as may render the parent or guardian consistently unable to care 

for the child in a safe and stable manner;

(8) Whether the parent‟s or guardian‟s mental and/or emotional status 

would be detrimental to the child or prevent the parent or guardian from 

effectively providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with 

the child support guidelines promulgated by the department pursuant to § 

36-5-101.

Tenn. Code Ann. § 36-1-113(i) (2014). “Ascertaining a child‟s best interests does not 

call for a rote examination” of these factors, and the relevancy and weight to be given to 

each will depend on the unique facts of the case. In re Audrey S., 182 S.W.3d at 878. 

“[D]epending upon the circumstances of a particular child and a particular parent, the 

consideration of one factor may very well dictate the outcome of the analysis.” Id. (citing 

Moody, 171 S.W.3d at 194).

In this case, we cannot conclude that the trial court erred in finding by clear and 

convincing evidence that termination of Mother‟s parental rights is in Marcell‟s best 

interests. Although Mother‟s brief generally questions the sufficiency of DCS‟ efforts in 

reuniting her with Marcell, we note that the Juvenile Court relieved DCS of making 

reasonable efforts in its adjudication of the dependency and neglect litigation. 

Unfortunately, this is a case where Marcell has been subjected to severe abuse, see Tenn. 

Code Ann. § 36-1-113(i)(6), and the testimony before the trial court established that he 
9

continues to suffer from a variety of medical ailments, including cerebral palsy. His 

medical conditions require frequent doctor visits, but his foster mother testified at trial

that Mother had not been to one of his medical appointments in more than a year. 

Moreover, the trial court found that “a change of caretakers and physical environment is 

likely to have a traumatic effect on [Marcell‟s] emotional, psychological, and medical 

condition[.]” See Tenn. Code Ann. § 36-1-113(i)(5). Based on the record transmitted to 

us, we are compelled to affirm the trial court‟s termination of Mother‟s parental rights.

V. Conclusion

The order of the Circuit Court terminating Mother‟s parental rights is hereby 

affirmed. Costs of this appeal are assessed against Mother. Because Mother is 

proceeding in forma pauperis in this appeal, execution may issue for costs if necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE