                                                                                       10/29/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                       Assigned on Briefs September 4, 2018

                                 IN RE COLTON B.

                Appeal from the Juvenile Court for Overton County
                   No. 16-JV-122      Diana F. Monroe, Judge
                    ___________________________________

                          No. M2018-01053-COA-R3-PT
                      ___________________________________

This is a parental termination case. The trial court terminated the parental rights of a
mother based on the statutory grounds of severe child abuse, substantial noncompliance
with a permanency plan, and failure to manifest an ability and willingness to assume
custody or financial responsibility of the child. The mother appeals. We reverse in part,
with respect to one ground for termination, but otherwise affirm the trial court’s order
terminating parental rights and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in
                     Part, Affirmed in Part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.

William A. Cameron, Cookeville, Tennessee, for the appellant, Miranda H.

Herbert H. Slatery, III, Attorney General and Reporter, and Erin A. Shackelford,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.

                                       OPINION

                          I. FACTS & PROCEDURAL HISTORY

       Miranda H. (“Mother”) has a long history of involvement with the Tennessee
Department of Children’s Services. Mother’s first child was born in 2005. In 2008,
Mother was admittedly “having issues with drug addiction” and was arrested on drug-
related charges. DCS filed a petition to declare the child dependent and neglected, and
the juvenile court of Overton County entered a restraining order preventing Mother from
having any contact with the child unless supervised by DCS. According to the
restraining order, the court found probable cause to believe that Mother had left the child
with the child’s father, who was unable to care for her, and Mother was believed to be
evading arrest and using morphine. She was deemed a flight risk and a danger to the
child. In 2009, the juvenile court awarded custody of the child to Mother’s mother
(“Grandmother”) and provided in the custody order that Mother would have to file a
petition with the court should she desire to regain custody of the child. Mother never
challenged the restraining order or sought to regain custody, so the child remained with
Grandmother.

       Over the next few years, Mother’s continued involvement with drugs led to
numerous criminal charges. Mother was admittedly “wanted” and “on the run for three
years.” During this period, Mother discovered that she was pregnant with a second child.
Mother did not seek any prenatal care while she was pregnant, and she used morphine
and Subutex during the pregnancy. When Mother went into labor and went to a local
hospital to deliver the child, blood tests revealed her drug use, so doctors stopped her
labor and transferred her to Vanderbilt University Hospital in Nashville. When the child,
Colton, was born at Vanderbilt, he was not breathing and required intubation, suctioning,
and ventilation to resuscitate him. He was premature, and doctors estimated that he was
born at 36 weeks gestation. Colton was critically ill and spent approximately thirty days
in the neonatal intensive care unit at Vanderbilt. He was drug screened and tested
positive for morphine, buprenorphine, meperidine, opioids, and benzodiazepines. Colton
developed signs of neonatal abstinence syndrome and had to be given morphine
intravenously in order to control his withdrawal symptoms, which included tremors in his
arms and legs, sniffling, sneezing, vomiting, diarrhea, and other symptoms.1 Shortly after
Colton’s birth, Mother was interviewed by a detective with a local sheriff’s department
and reported that she had been using morphine and Subutex intravenously for several
years and on a daily basis throughout her entire pregnancy. Four days after Colton’s
birth, Mother completed an alcohol and drug assessment, and the provider recommended
that she enter a residential substance abuse treatment program. Due to outstanding
warrants for violations of probation, Mother was arrested five days after Colton’s birth.
At the time, Mother and DCS believed that they knew the identity of Colton’s father, but
he had substance abuse issues and did not have a stable home or transportation.
Grandmother informed DCS that she would be unable to raise the child because she had
already adopted Mother’s older child and could not raise another. The sister of the
putative father agreed to take Colton and went through the home study process to become
an approved foster home. DCS filed a petition to declare Colton dependent and neglected
and sought an adjudication as to whether he was the victim of severe child abuse. The

       1
          According to Colton’s neonatologist, if a baby receives scores greater than eight on the
neonatal abstinence scoring spectrum, doctors consider starting a narcotic to control the
withdrawal symptoms. Colton’s symptoms were rated at “very high” scores of 14 to 15 (and the
highest that his doctor had ever seen in 30 years of practice was an 18). After 25 days in the
hospital, Colton was still scoring over eight on the spectrum.
                                              -2-
juvenile court entered a protective custody order granting temporary custody to DCS.

        Upon his release from the hospital on August 26, 2015, Colton was placed with
the sister of the putative father (“Foster Mother”) in what was believed to be a relative
placement. Mother participated in a child and family team meeting that same day, at the
jail, and helped to develop a permanency plan for Colton with dual goals of return to
parent or adoption. She was not allowed visitation with Colton due to her incarceration.
The permanency plan required Mother to sign the necessary releases for DCS to obtain
her substance abuse treatment records, follow the recommendations of her alcohol and
drug assessment upon release from incarceration, notify DCS of changes in her
medications, consent to urine and hair follicle drug screens, obtain a driver’s license,
secure stable employment, complete a domestic violence assessment and a psychological
evaluation, and participate in supervised visitation upon her release from incarceration

       In September 2015, when Colton was around six weeks old, DNA test results
revealed that the putative father was not in fact the biological father of Colton. Still, the
putative father’s sister, Foster Mother, continued to care for Colton. Meanwhile, Mother
was drug screened in jail and tested positive for THC/cannabinoids in October 2015. In
November 2015, she was screened again and tested positive for opiates.

        Mother’s permanency plan was revised in February 2016, when Colton was six
months old, to remove references to the putative father.2 Mother remained incarcerated,
so the child and family team meeting was held at the jail. The revised plan omitted the
requirements of a domestic violence assessment and psychological evaluation but added
requirements that Mother apply for health insurance, obtain stable housing upon release
from incarceration, and avoid incurring additional criminal charges. Due to the length of
time since Mother’s alcohol and drug assessment, the plan provided that Mother would
complete another. The plan also directed Mother to provide names of other possible
putative fathers, but Mother was either unwilling or unable to do so, insisting to this day
that she does not know the identity of Colton’s father. Colton remained at an increased
risk of developmental delays due to his birth history and was required to attend follow-up
visits at the neonatal clinic and participate in Tennessee Early Intervention therapy, but
his doctors concluded that he was making “excellent progress” in Foster Mother’s care.

       In April 2016, the juvenile court entered its final adjudicatory and dispositional
order adjudicating Colton dependent and neglected and finding that he was the victim of
severe child abuse perpetrated by Mother. Grandmother had filed an intervening petition
for custody of Colton, but it was denied, with custody to remain with DCS. The court
order relieved DCS of its obligation to provide reasonable efforts to assist Mother.3

       2
           Due to the recusal of a trial judge, the August 2015 permanency plan had not been
ratified, but the February 2016 revised plan was ratified by the court.
        3
           “Pursuant to Tennessee Code Annotated section 37-1-166(g)(4)[], DCS need not make
                                            -3-
Nevertheless, DCS continued its involvement with Mother as before the ruling.

       On June 8, 2016, when Colton was ten months old, DCS filed a petition to
terminate Mother’s parental rights, alleging two grounds for termination – severe child
abuse and abandonment by wanton disregard. Mother was released from jail on June 13.
She tested negative on her first few drug screens and began supervised visitation with
Colton twice a month. Mother completed a second alcohol and drug assessment and
began an intensive outpatient substance abuse treatment program, which she completed in
August, making “moderate progress in her recovery.” She also completed parenting
classes. Mother was living with a male friend, and DCS visited the home on more than
one occasion. The male friend tested negative on drug screens, but Mother’s case worker
did not deem the house suitable for a child because it was so hazy with smoke that it
made her eyes burn, there were barrels full of empty beer cans in the yard, and she
observed pornography in the living room. The case worker also testified that the male
friend was not, to her knowledge, willing to let Colton move into the home.

       A revised permanency plan was formulated in August 2016, with a sole goal of
adoption. The plan required Mother to continue participating in supervised visitation and
to provide names of putative fathers. Beginning in October 2016, DCS’s attempts to drug
screen Mother were unsuccessful. In November, DCS drug screened Mother at her
home, and she tested positive for opiates. Mother denied any drug use so DCS
administered a second screen, which was positive for “bupronephrine
(Suboxone/Subutex).”4 The case worker arranged for Mother to take a hair follicle drug
screen for further testing, but when the case worker arrived at Mother’s house to transport
her to the drug screening location, no one answered the door. The case worker’s
subsequent attempts to get Mother to submit to a hair follicle screen were also
unsuccessful. Mother would later testify that she did not take a hair follicle screen
“[b]ecause I don’t trust them and I don’t have no confidence in them.”

       On December 15, 2016, an order of voluntary dismissal was entered dismissing
the first termination petition filed by DCS. That same day, DCS filed a separate
termination petition alleging four grounds for terminating Mother’s parental rights –

reasonable efforts to assist a parent whose parental rights have been previously terminated to a
sibling or half-sibling of the child, or a parent who has committed severe abuse against the child
or any sibling or half-sibling of the child.” In re Gabriella D., 531 S.W.3d 662, 668 n.8 (Tenn.
2017).
        4
          The drug test result form apparently contains a misspelling. According to the Substance
Abuse and Mental Health Services Administration, an agency within the U.S. Department of
Health and Human Services, Buprenorphine is prescribed “to help people reduce or quit their use
of heroin or other opiates, such as pain relievers like morphine.” Buprenorphine, Substance
Abuse       and       Mental       Health       Services     Administration,     available      at
https://www.samhsa.gov/medication-assisted-treatment/treatment/buprenorphine. However,
Mother was not prescribed the drug by a doctor.
                                              -4-
severe child abuse, failure to manifest an ability and willingness to assume custody or
financial responsibility of the child, substantial noncompliance with a permanency plan,
and persistent conditions. While the termination case was pending, Mother missed or
refused several more attempted drug screens but completed some other tasks listed in her
permanency plan. Mother began working at a grocery store a couple of weeks before
trial.

        The termination trial was held on April 18, 2017. By that time, Colton was twenty
months old, and he had lived with Foster Mother and her two daughters since his
discharge from Vanderbilt. The trial court heard testimony from the DCS family service
worker assigned to Colton’s case, an investigator for Child Protective Services who
interviewed Mother after Colton’s birth, Foster Mother, Grandmother, and Mother. The
trial court received voluminous exhibits, spanning eighteen volumes of the record on
appeal, including DCS’s entire case file regarding Mother dating back to 2007, the
deposition of Colton’s neonatologist at Vanderbilt, and the deposition of the detective
who interviewed Mother after Colton’s birth. The trial judge had to take breaks at more
than one point in the testimony in order for Mother’s attorney to calm her down and
ultimately threatened Mother with contempt if she did not compose herself and “behave.”
At the conclusion of the testimony, the trial judge announced that she found clear and
convincing evidence to support termination of Mother’s parental rights based on all four
grounds asserted in the termination petition and that termination was in the best interest
of Colton. The trial judge indicated that she deemed DCS’s witnesses credible and
Mother not credible. After the entry of a written order terminating Mother’s parental
rights, Mother timely filed a notice of appeal to this Court.

        On appeal, we determined that the final order entered by the trial court was nearly
a verbatim recitation of the termination petition and that the trial court failed to provide a
rationale for its decision. In re Colton B., No. M2017-00997-COA-R3-PT, 2017 WL
6550620, at *1 (Tenn. Ct. App. Dec. 22, 2017). As a result, we vacated the order of the
trial court and remanded for the entry of an order that reflected that it was the product of
the trial court’s individualized decision-making and independent judgment. Id.

       On remand, the trial court entered a lengthy and detailed written order terminating
Mother’s parental rights on May 9, 2018. Again, the trial court expressly found the DCS
case manager, the CPS investigator, Foster Mother, the detective, and Colton’s doctor to
be “credible and very persuasive,” notably omitting Mother and Grandmother from that
list. The trial court found that the ground of persistent conditions had not been proven by
clear and convincing evidence. However, for reasons that will be discussed in greater
detail below, the trial court found by clear and convincing evidence that the grounds of
severe child abuse, failure to manifest an ability and willingness to assume custody or
financial responsibility, and substantial noncompliance were all sufficiently proven. The
trial court further found, by clear and convincing evidence, that termination was in
Colton’s best interest. Mother timely filed a second notice of appeal.
                                            -5-
                                  II. ISSUES PRESENTED

       Mother raises the following issues, as we perceive them, for review on appeal:

1.    Whether clear and convincing evidence was presented to establish the following
grounds for terminating Mother’s parental rights:
(a)   persistent conditions;
(b)   substantial noncompliance with a permanency plan;
(c)   severe child abuse; and
(d)   failure to manifest an ability and willingness to assume custody or financial
responsibility.

2.    Whether clear and convincing evidence supports the trial court’s finding that
termination was in the best interest of the child;

3.    Whether sufficient evidence supports the trial court’s finding that DCS made
reasonable efforts to reunite Mother and Colton; and

4.     Whether reversal is required because a conflict of interest existed among Mother,
Foster Mother, and DCS, which led to prejudice against Mother in the handling of her
case.

For the following reasons, we reverse in part, affirm in part, and remand for further
proceedings.

            III. STANDARDS APPLICABLE TO TERMINATION PROCEEDINGS

        Tennessee Code Annotated section 36-1-113 “sets forth the grounds and
procedures for terminating the parental rights of a biological parent.” In re Kaliyah S.,
455 S.W.3d 533, 546 (Tenn. 2015). Pursuant to the statute, a party who has standing to
seek termination of parental rights must prove two elements. Id. at 552. First, the
petitioner must prove the existence of at least one of the statutory grounds for termination
listed in Tennessee Code Annotated section 36-1-113(g). Id. Second, the petitioner must
prove that terminating parental rights is in the child’s best interest, considering, among
other things, the factors listed in Tennessee Code Annotated section 36-1-113(i). Id.

       Because of the constitutional dimension of the parental rights at stake, the
petitioner must prove both of these elements by clear and convincing evidence. In re
Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). Clear and convincing evidence produces
a firm belief or conviction in the fact-finder’s mind regarding the truth of the facts sought
to be established, eliminating any serious or substantial doubt about the correctness of the
findings. Id.

                                            -6-
       Due to the heightened burden of proof in parental termination cases, we adapt our
customary standard of review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn.
Ct. App. 2005). First, we review the trial court’s factual findings de novo in accordance
with Tennessee Rule of Appellate Procedure 13(d), presuming each finding to be correct
unless the evidence preponderates against it. In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016). Then, we make our own determination regarding “whether the facts, either
as found by the trial court or as supported by a preponderance of the evidence, amount to
clear and convincing evidence of the elements necessary to terminate parental rights.” Id.
(citing In re Bernard T., 319 S.W.3d at 596-97). “The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion of law, which
appellate courts review de novo with no presumption of correctness.” Id. (citing In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).

                                     IV. DISCUSSION

                             A.     Grounds for Termination

                               1.    Persistent Conditions

        On appeal, Mother argues that DCS failed to prove the ground of persistent
conditions by clear and convincing evidence. However, the trial court did not terminate
Mother’s parental rights on the ground of persistent conditions. In its amended order, the
trial court found that DCS did not meet its burden of proving the ground of persistent
conditions by clear and convincing evidence. And, DCS does not challenge this ruling on
appeal.

        In Carrington, the Tennessee Supreme Court granted review to decide “whether
the Court of Appeals must review any ground the trial court relied on to terminate
parental rights when a parent fails to raise all grounds for termination on appeal.” 483
S.W.3d at 511 (emphasis added). The court held that “in an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best
interests, regardless of whether the parent challenges these findings on appeal.” Id. at
525-26 (emphasis added). This review is intended to “ensure that fundamental parental
rights are not terminated except upon sufficient proof, proper findings, and fundamentally
fair procedures.” Id. at 525. However, we do not interpret Carrington to mean that this
Court must also review grounds that the trial court found were not sufficiently proven
when the party who sought termination does not challenge that ruling on appeal. See,
e.g., In re Gabriel B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 & n.5
(Tenn. Ct. App. July 23, 2018) (limiting review on appeal to “each ground for
termination that the trial court found the Department established by clear and convincing
evidence” but omitting analysis of another ground that the trial court found was not
proven where DCS did not challenge that ruling on appeal); In re Zayne P., No. W2017-
                                            -7-
01590-COA-R3-PT, 2018 WL 2041573, at *6 (Tenn. Ct. App. Apr. 30, 2018)
(concluding that “the mandate from In re Carrington H. to review all grounds on which
termination of parental rights is based does not apply” and the Court of Appeals “need
not consider the grounds that were not proven” when the trial court declines to terminate
parental rights); In re Addalyne S., No. M2017-00958-COA-R3-PT, 2018 WL 1976175,
at *6 n.6 (Tenn. Ct. App. Apr. 26, 2018) perm. app. denied (Tenn. July 30, 2018) (“‘The
rule adopted in Carrington has never been construed to require this Court to also consider
the grounds not sustained by the trial court’ and not challenged on appeal by the
[petitioner].”) (quoting In re Sydney B., 537 S.W.3d 452, 456 (Tenn. Ct. App. 2017)
perm. app. denied (Tenn. Aug. 1, 2017)). Because the trial court found in favor of
Mother on the ground of persistent conditions, and that ruling is not challenged on
appeal, this Court is not required to review this ground for termination. See In re
Addalyne S., 2018 WL 1976175, at *6 n.6.

                            2.   Substantial Noncompliance

        The ground of substantial noncompliance presents a slightly different issue. The
trial court did find that Mother’s parental rights should be terminated based on the ground
of substantial noncompliance. However, on appeal, DCS abandoned its pursuit of
termination based on this statutory ground. Its brief on appeal states:

       The Department will not defend the ground of substantial non-compliance
       with the permanency plan, as [her case worker] acknowledged that Mother
       accomplished all she could on the first two plans during her eleven months
       in jail, and the third permanency plan, created less [than] two months after
       her release, required only that she participate in visitation and provide
       names of putative fathers—neither of which was related to remedying the
       drug abuse that necessitated Colton’s placement in foster care[.]

Again, Carrington provides that “appellate courts must review a trial court’s findings
regarding all grounds for termination and whether termination is in a child’s best
interests, even if a parent fails to challenge these findings on appeal” in order to “ensure
that fundamental parental rights are not terminated except upon sufficient proof, proper
findings, and fundamentally fair procedures.” In re Carrington H., 483 S.W.3d at 511,
525 (emphasis added). However, when the petitioner who sought termination has
conceded on appeal that a ground was not sufficiently proven, this Court has, in several
cases, reversed the trial court’s finding as to that ground without reaching the merits of
whether the ground was actually established.

      For instance, when faced with the same situation in In re Zane W., No. E2016-
02224-COA-R3-PT, 2017 WL 2875924, at *7 (Tenn. Ct. App. July 6, 2017) perm. app.
denied (Tenn. Sept. 26, 2017), this Court explained:

                                           -8-
             As an initial matter, we note that DCS, in the body of its brief, states
      that it “does not defend the ground of persistence of conditions ... but
      proceeds only the grounds of abandonment by wanton disregard and
      substantial noncompliance with the permanency plan” on appeal. Based
      upon DCS’s concession, we need not tax the length of this Opinion with an
      analysis of whether the trial court was correct in terminating Mother’s
      parental rights on the ground of persistence of conditions. Cf. In re I.E.A.,
      511 S.W.3d 507, 514 (Tenn. Ct. App. 2016) (assuming that the trial court
      was not entitled to rely on the magistrate’s previous finding of severe abuse
      in a dependency and neglect proceeding based on DCS’s concession). Our
      decision does not run afoul of the Tennessee Supreme Court’s decision in
      In re Carrington H., 483 S.W.3d 507 (Tenn. 2016), which ruled that this
      Court must consider all of the grounds found by the trial court, “regardless
      of whether the parent challenges these findings on appeal.” Id. at 525-26.
      The policy behind this rule is to “ensure that fundamental parental rights
      are not terminated except upon sufficient proof, proper findings, and
      fundamentally fair procedures.” Id. at 525. However, this rule has never
      been construed to require this Court to also consider the grounds sustained
      by the trial court and thereafter conceded or waived by the non-parent on
      appeal. Accordingly, we reverse the trial court’s finding of the ground of
      persistence of conditions and will only consider the remaining grounds
      found by the trial court and appealed by Mother in this case.

See also In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at *3
(Tenn. Ct. App. Sept. 18, 2018) (stating that DCS conceded two grounds on appeal and
therefore the grounds were waived and summarily reversed); In re Gabriel B., 2018 WL
3532078, at *4 n.6 (“On appeal, the Department elected not to defend the trial court’s
termination of Father’s rights based on his failure to provide a suitable home . . . . As a
result of the Department’s position, we will not review the trial court’s findings with
respect to this ground, and we vacate the trial court’s termination of Father’s parental
rights based on [this ground].”); In re Jaylah W., 486 S.W.3d 537, 547 (Tenn. Ct. App.
2015) (“taking DCS’s assertion as true that clear and convincing evidence did not exist as
to these two grounds, we reverse the trial court’s decision to terminate Mother’s rights
based on these grounds” without opining on the merits, as DCS abandoned the issues on
appeal); but see In re Hayden L., No. E2018-00147-COA-R3-PT, 2018 WL 4190986, at
*5 (Tenn. Ct. App. Aug. 31, 2018) (“Despite DCS’s choice not to defend the ground of
abandonment by willful failure to support, [] this Court is charged to review each of the
grounds the trial court relies on in terminating a parent’s rights.”)

      Because of the position taken by DCS on appeal, we reverse the trial court’s
termination of parental rights on the ground of substantial noncompliance.


                                           -9-
                                   3.   Severe Child Abuse

      At the time of the proceedings below, Tennessee Code Annotated section 36-1-
113(g)(4) provided that a ground for terminating parental rights existed if:

       The parent or guardian has been found to have committed severe child
       abuse as defined in § 37-1-102, under any prior order of a court or is found
       by the court hearing the petition to terminate parental rights or the petition
       for adoption to have committed severe child abuse against the child who is
       the subject of the petition or against any sibling or half-sibling of such
       child, or any other child residing temporarily or permanently in the home of
       such parent or guardian[.]5

We conclude that this ground for termination was proven by clear and convincing
evidence.6 While in the NICU, Colton was drug screened and tested positive for
morphine, buprenorphine, meperidine, opioids, and benzodiazepines. The detective from
the sheriff’s department testified during his deposition that when he interviewed Mother
days after Colton was born, she admitted to using morphine and Subutex by injection
daily throughout her entire pregnancy. The investigator for Child Protective Services
likewise testified that when she interviewed Mother after Colton’s birth, Mother admitted
to being an intravenous drug user for years and shooting up morphine the night before
she went into labor. At trial, Mother conceded that she used drugs during her pregnancy,
but she claimed that once she learned she was pregnant, she stopped using morphine and
switched to Subutex. Still, Mother admitted that she did not have a prescription for
Subutex, and she later admitted to taking morphine the night she went into labor because
her back was hurting. Thus, the undisputed facts show that Mother engaged in illegal
drug use during her pregnancy.

       This particular ground for termination requires a finding of severe child abuse “as
defined in § 37-1-102.” Tenn. Code Ann. § 36-1-113(g)(4). Pursuant to that definition,
severe child abuse includes “[t]he knowing exposure of a child to or the knowing failure
to protect a child from abuse or neglect that is likely to cause serious bodily injury or
death[.]” Tenn. Code Ann. § 37-1-102(b)(22)(A)(i). On appeal, Mother concedes that
she used morphine and Subutex during her pregnancy. However, she insists that her
actions did not constitute severe child abuse against Colton because he was a “fetus” at

       5
          Effective July 1, 2018, the statute was amended to provide for termination based on a
finding of severe child abuse against “any child,” not just the child who is the subject of the
petition, siblings, or other children in the home. See Tenn. Code Ann. § 36-1-113(g)(4) (2018).
        6
          The juvenile court’s prior finding of severe child abuse had been appealed at the time of
the termination trial, and the resolution of that appeal is not clear from the record. As a result,
we have not relied on the prior decision for purposes of determining whether severe child abuse
occurred.
                                              - 10 -
the time of her conduct, not a “child.” Mother acknowledges that Tennessee appellate
courts have repeatedly held that prenatal drug use qualifies as severe child abuse. Still,
she insists that our courts have “played with some definitions and language and
ultimately found a way to reach this conclusion” when it was not supported by public
policy or fairness. Citing criminal and wrongful death cases, Mother urges this Court to
overrule the line of termination cases “arbitrarily” holding that prenatal drug use
constitutes severe child abuse for purposes of terminating parental rights.

        For over a decade, this Court has held that prenatal drug use constitutes severe
child abuse for purposes of terminating parental rights. See In Matter of M.J.J., No.
M2004-02759-COA-R3-PT, 2005 WL 873305, at *8 (Tenn. Ct. App. Apr. 14, 2005). In
In re Benjamin M., 310 S.W.3d 844, 846–51 (Tenn. Ct. App. 2009), we discussed the
issue in great detail in light of a parent’s argument that a “child” within the meaning of
the statute “does not include a fetus.” Id. at 847. We agreed with DCS that this argument
“misses the point because the fetus did not stay a fetus but became a child that sustained
injury at the hand of the Mother.” Id. As a result, we concluded that a parent may be
held responsible for prenatal conduct that exposes a child, once born, to great bodily
harm. Id. We also considered the mother’s arguments regarding whether a fetus is a
child or a person within the meaning of criminal law and wrongful death actions but
found that neither argument was helpful in a parental termination case. Id. at 849-50.
We ultimately concluded that “the statutory language defining severe child abuse clearly
reflects an intent that actions before a child is born can constitute abuse to a child that is
born injured by those actions.” Id. at 850. Consequently, “[w]hen a child is born alive
but injured, the pre-birth timing of the actions is not dispositive.” Id. at 850-51.

       In numerous cases since Benjamin M., this Court has repeatedly confirmed that
severe child abuse can be based on a mother’s prenatal drug use.7 See, e.g., In re P.T.F.,
No. E2016-01077-COA-R3-PT, 2017 WL 2536847, at *5 (Tenn. Ct. App. June 12, 2017)
(“This Court has consistently upheld termination of a mother’s parental rights on the
ground of severe child abuse when she has used drugs during pregnancy.”); In re Garvin
M., 2014 WL 1887334, at *5 (“there are numerous cases holding that a mother’s use of
drugs while pregnant can constitute severe child abuse”); In re Shannon P., No. E2012-
00445-COA-R3-PT, 2013 WL 3777174, at *5 (Tenn. Ct. App. July 16, 2013) perm. app.
denied (Tenn. Oct. 16, 2013) (“there is substantial case law supporting a finding of severe
child abuse for a parent exposing a child to drugs in utero”); In re Ethin E.S., No. E2011-
02478-COA-R3-PT, 2012 WL 1948817, at *8 (Tenn. Ct. App. May 31, 2012) (“this
Court has repeatedly held that a mother’s prenatal drug use can constitute severe child
abuse in termination of parental rights cases”); In re Joshua E.R., No. W2011-02127-

       7
         Likewise, “a father may have his parental rights terminated based on the ground of
severe child abuse for failing to take action to protect an unborn child from illicit drug use by the
Mother during pregnancy.” In re Garvin M., No. E2013-02080-COA-R3-PT, 2014 WL
1887334, at *5 (Tenn. Ct. App. May 9, 2014).
                                               - 11 -
COA-R3-PT, 2012 WL 1691620, at *3 (Tenn. Ct. App. May 15, 2012) (“In light of our
prior holdings, and the supreme court and General Assembly’s disinclination to overrule
them, we continue to hold that prenatal drug abuse may constitute severe child abuse for
the purpose of terminating parental rights.”); In re B.A.C., 317 S.W.3d 718, 725 (Tenn.
Ct. App. 2009) (“we are content to rely on the reasoning set forth in . . . In re Benjamin
M. . . . thoroughly addressing the question of whether prenatal drug use may constitute
severe child abuse”). This long line of cases “demonstrate[s] the uniform view of this
Court that prenatal drug use does, in fact, constitute severe child abuse.” In re P.T.F.,
2017 WL 2536847, at *4. “A child has the right ‘to begin life free from the impairment
of drug addiction and other ill effects of prenatal drug abuse.’” Id. at *5 (quoting In re
Benjamin M., 310 S.W.3d at 849).

       We continue to adhere to these holdings and reject Mother’s assertion that she did
not commit severe child abuse by exposing Colton to prenatal drug use. “[P]renatal
abuse of controlled substances constitutes severe child abuse, whether or not the child
actually suffers harm.” In re Shannon P., 2013 WL 3777174, at *5; see Tenn. Code Ann.
§ 37-1-102(b)(22)(A)(i) (referencing “abuse or neglect that is likely to cause serious
bodily injury or death”) (emphasis added). “[T]he healthy development of the child . . .
does not diminish the severity of the harm to which the child was exposed.” In re M.J.J.,
2005 WL 873305, at *8. Here, of course, Colton did experience significant harm due to
Mother’s drug use, necessitating intubation, suctioning, and ventilation to revive him at
birth and care in the NICU for nearly a month thereafter. Colton’s neonatologist testified
that Mother’s prenatal drug use placed him at an imminent risk of harm following birth,
or even potential death. We affirm the trial court’s conclusion that Mother engaged in
severe child abuse against Colton.

       The termination statute provides that termination of parental rights “may be based
upon any of the grounds listed in [ ] subsection (g).” Tenn. Code Ann. § 36-1-113(g). In
other words, “the existence of any one ground for termination is enough.” In re
M.A.A.K., No. E2010-01318-COA-R3-PT, 2010 WL 4342154, at *4 (Tenn. Ct. App.
Nov. 3, 2010). However, due to the supreme court’s instruction in Carrington, we must
also review the other ground that was at issue in this case.

4.   Failure to Manifest an Ability and Willingness to Assume Custody or Financial
                                   Responsibility

       Tennessee Code Annotated section 36-1-113(g)(14) provides that another ground
for termination exists when:

      A parent or guardian has failed to manifest, by act or omission, an ability
      and willingness to personally assume legal and physical custody or
      financial responsibility of the child, and placing the child in the person’s
      legal and physical custody would pose a risk of substantial harm to the
                                          - 12 -
       physical or psychological welfare of the child.

This ground was added to the termination statute effective July 1, 2016. See 2016 Tenn.
Laws Pub. Ch. 919. “Because of the relatively recent enactment of section 36-1-
113(g)(14), few cases have considered this particular ground for termination of a legal
parent’s parental rights.” In re Isaiah B., No. E2017-01699-COA-R3-PT, 2018 WL
2113978, at *17 (Tenn. Ct. App. May 8, 2018).

       This ground for termination requires the petitioner to prove two elements by clear
and convincing evidence. In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL
1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018). First, the petitioner must prove that the
parent has failed to manifest “an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child.” Tenn. Code Ann. § 36-1-
113(g)(14). Second, the petitioner must prove that placing the child in the parent’s
custody “would pose a risk of substantial harm to the physical or psychological welfare
of the child.” Id.

       Currently, a “split in authority exists” as to how the first element must be proven.
In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12 (Tenn. Ct.
App. June 20, 2018). In In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018), a panel of this Court concluded that the
first prong of the statute requires the petitioner to prove both an inability and an
unwillingness of the parent to assume custody or financial responsibility for the child. In
that case, DCS argued that “it only had to prove an inability or unwillingness” of the
parent to assume custody (or financial responsibility). Id. This Court declined to adopt
DCS’s interpretation and concluded that this ground for termination was not sufficiently
proven where the juvenile court found that the parents at issue “definitely want[ed]”
custody and were “willing to assume” financial responsibility, which “negated a required
element of the statutory ground.” Id.

       Another panel of this Court “respectfully disagree[d]” with the Ayden S. decision
in In re Amynn K., 2018 WL 3058280, at *13. Analyzing each phrase of the statute, the
Court explained that “the petitioner must prove the legal parent or guardian’s failure to do
something” -- specifically, the parent’s failure “to satisfy a conjunctive basic
requirement.” Id. at *13. That basic requirement was that “the parent must have
‘manifest[ed], by act or omission, an ability and willingness.’” Id. (quoting Tenn. Code
Ann. § 36-1-113(g)(14)). The Amynn K. Court held:

       [T]he first prong of Tennessee Code Annotated § 36-1-113(g)(14) requires
       that the petitioner prove that a parent has failed to meet the requirement of
       manifesting both a willingness and an ability to assume legal and physical
       custody of the child or has failed to meet the requirement of manifesting
       both a willingness and an ability to assume financial responsibility of the
                                            - 13 -
       child.

Id. at *14. Thus, the Amynn K. Court concluded that subsection (g)(14) permits
termination of parental rights if a parent has manifested a willingness but not an ability to
assume custody or responsibility for the child. See id.

       In Colton’s case, it is not necessary to adopt one approach over the other because,
under either approach, this ground for termination was met. In other words, this is not a
case where a parent manifested a willingness to assume custody and financial
responsibility but was simply unable to do so. Mother manifested neither the ability nor
the willingness to assume custody or financial responsibility of Colton. Again, the statute
requires us to consider whether the parent “has failed to manifest, by act or omission, an
ability and willingness to personally assume legal and physical custody or financial
responsibility of the child.” Tenn. Code Ann. § 36-1-113(g)(14) (emphasis added).
“[T]he parent’s willingness and ability may be manifested through either an ‘act’ or an
‘omission.’” In re Isaiah B., 2018 WL 2113978, at *18; see, e.g., In re Maya R., 2018
WL 1629930, at *7 (“Mother failed to manifest a willingness to personally assume legal
and physical custody of the children: she completed virtually nothing required by the
permanency plan until after the termination petition was filed.”). A mere subjective
claim of willingness is insufficient. See In re Keilyn O., No. M2017-02386-COA-R3-PT,
2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018) (“Although Mother testified that
she was both willing and able, her actions proved otherwise.”); In re M.E.N.J., No.
E2017-01074-COA-R3-PT, 2017 WL 6603658, at *6-7 (Tenn. Ct. App. Dec. 27, 2017)
(acknowledging that a mother seemed to love her children and desired to see them during
visits but concluding that she failed to manifest a willingness to assume custody by
refusing assistance from DCS).

        Mother has failed to manifest an ability to assume custody of Colton due to her
unresolved issues with a longstanding drug addiction and unstable housing and
employment. She has further failed to manifest a willingness to assume custody by
failing to take the steps necessary to resolve these issues and by generally demonstrating
a lack of interest in actually obtaining custody of Colton. At trial, Mother’s case worker
opined that Mother’s actions throughout the case did not indicate, to her, “a willingness
to take Colton for herself,” but rather, a desire for Colton to be placed with Grandmother,
just like Mother’s older child.8 The case worker testified that when the issue of custody
was discussed, Mother repeatedly told her that Colton should be placed with
Grandmother, or “family,” but she never specifically said that she wanted custody
herself. Even at trial, when Mother was asked how she felt about either Grandmother

       8
           Mother had reflected the same ambivalent attitude about her older child. When
Grandmother was asked at trial about why Mother had not attempted to regain custody of the
older child, Grandmother testified, “She never said anything about wanting her or not wanting
her. She was just in agreeance, as far as I know, with me having her.”
                                           - 14 -
adopting Colton or adopting Colton herself, Mother replied, “Either way it goes, I’m fine
with it.” Overall, her acts and omissions throughout this case have failed to demonstrate
a “willingness to personally assume legal and physical custody . . . of the child.” Tenn.
Code Ann. § 36-1-113(g)(14). Likewise, Mother failed to manifest an ability or
willingness to assume financial responsibility for Colton, providing only one $100 child
support payment for him over the course of nearly two years and securing stable
employment just a couple of weeks before the termination trial.

       As for the second prong, we conclude that placing custody of Colton with Mother
“would pose a risk of substantial harm to the physical or psychological welfare of the
child.” Tenn. Code Ann. § 36-1-113(g)(14). This element requires “‘a real hazard or
danger that is not minor, trivial, or insignificant,’” and although “‘the harm need not be
inevitable, it must be sufficiently probable to prompt a reasonable person to believe that
the harm will occur more likely than not.’” In re Maya R., 2018 WL 1629930, at *8
(quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)). Mother began
attending supervised visits with Colton twice a month after she was released from
incarceration, but placing Colton in Mother’s custody would likely result in additional
drug exposure and instability. Colton’s neonatologist testified that “probably the most
important thing that you can do for these children, is put them in a home where they are
loved, nurtured, and supported, in an environment with a sober [] provider.” It is unlikely
that Mother would be able to fulfill that role. At the same time, Colton’s doctors have
determined that he is making “excellent progress while in [Foster Mother’s] care” and
that he is “fortunate to have such a loving and committed foster family caring for him.”

       For the aforementioned reasons, we conclude that this ground for termination was
also proven by clear and convincing evidence.

                                     B.    Best Interest

      Because the trial court properly found at least one ground for termination, we must
review the trial court’s finding that termination of parental rights is in the best interest of
Colton. The Tennessee Supreme Court recently discussed the best interest analysis as
follows:

              When conducting the best interests analysis, courts must consider
       nine statutory factors listed in Tennessee Code Annotated section 36-1-
       113(i). These statutory factors are illustrative, not exclusive, and any party
       to the termination proceeding is free to offer proof of any other factor
       relevant to the best interests analysis. Facts considered in the best interests
       analysis must be proven by a preponderance of the evidence, not by clear
       and convincing evidence. After making the underlying factual findings, the
       trial court should then consider the combined weight of those facts to
       determine whether they amount to clear and convincing evidence that
                                            - 15 -
       termination is in the child’s best interests. When considering these
       statutory factors, courts must remember that the child’s best interests are
       viewed from the child’s, rather than the parent’s, perspective. Indeed, a
       focus on the perspective of the child is the common theme evident in all of
       the statutory factors. When the best interests of the child and those of the
       adults are in conflict, such conflict shall always be resolved to favor the
       rights and the best interests of the child.

              Ascertaining a child’s best interests involves more than a rote
       examination of the statutory factors. And the best interests analysis
       consists of more than tallying the number of statutory factors weighing in
       favor of or against termination. Rather, the facts and circumstances of each
       unique case dictate how weighty and relevant each statutory factor is in the
       context of the case. Simply put, the best interests analysis is and must
       remain a factually intensive undertaking, so as to ensure that every parent
       receives individualized consideration before fundamental parental rights are
       terminated. Depending 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. But this does not mean that a court is relieved of
       the obligation of considering all the factors and all the proof. Even if the
       circumstances of a particular case ultimately result in the court ascribing
       more weight—even outcome determinative weight—to a particular
       statutory factor, the court must consider all of the statutory factors, as well
       as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017) (citations and quotations
omitted).

       Here, the trial court made extensive findings regarding every one of the statutory
factors. The trial court found no reasonable likelihood that Mother would adjust her
circumstances to enable Colton to be returned to her home because she still had not
exhibited sufficient efforts to address the concerns that led to him being removed from
her custody nearly two years before trial. The trial court found that Mother’s failed drug
screens during this case indicated that she continued to use illegal and non-prescribed
substances, rendering her unable to provide a safe and stable environment for Colton.
The trial court found that “despite the best efforts of DCS to provide services to her,”9

       9
         As a separate issue, Mother contends that the evidence does not support the trial court’s
finding that DCS made reasonable efforts to assist her. “[I]n a termination proceeding, the extent
of DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof
of reasonable efforts is not a precondition to termination of the parental rights of the respondent
parent.” In re Kaliyah S., 455 S.W.3d at 555. Here, the trial court found that DCS made
reasonable efforts to assist Mother (even though it was relieved of its obligation to make
                                              - 16 -
Mother avoided DCS drug screens whenever possible and did not consistently attend the
aftercare programs recommended to address her substance abuse. It found that she did
not have a home of her own but lived with a friend who might not welcome Colton into
the home, and Mother had a history of “persistent unemployment.” While Mother was
paying her own legal fees, she had only paid $100 in child support in almost two years.

       The trial court found that Mother attended supervised visits with Colton regularly
and that her time with Colton was “not negative” but that she permitted other family
members to visit with him for the last 30 minutes of each visit and had not established a
meaningful relationship with him. The trial court also credited the testimony of Colton’s
neonatologist about the need for a stable environment and a sober provider. The court
noted that Foster Mother’s home is the only home that Colton has ever known, that he
refers to Foster Mother as “Momma,” and that he has bonded with Foster Mother’s
parents and her two daughters. The court found that Foster Mother ensured Colton
received all services and resources available from Vanderbilt and DCS to monitor his
development and that he was “thriving in his current placement.” It found that placing
Colton with Mother would negatively impact his emotional and psychological well-being
and be contrary to his best interest. It also noted that Mother had committed severe child
abuse against Colton by using drugs while she was pregnant, placing him at an imminent
risk of harm. The court concluded that Mother “is not capable of effectively providing
safe and stable care and supervision” for Colton. The evidence does not preponderate
against the trial court’s factual findings, and we conclude that the combined weight of the
evidence clearly and convincingly establishes that termination of Mother’s parental rights
is in Colton’s best interest.

                                  C.    Conflict of Interest

       Finally, Mother argues that “conflicts of interest between [Mother], [Foster
Mother], and the Department of Children’s Services resulted in prejudice against
[Mother] in the handling of this case.” As support for this assertion, Mother notes that
Foster Mother had served as Mother’s probation officer in the past. The record before us
contains a “Violation of Probation” affidavit signed by Foster Mother from December
2012 indicating that Mother had previously been convicted of reckless endangerment and
possession of drug paraphernalia and that the court suspended her sentence and placed
her on probation. The affidavit states that Mother had violated the conditions of her
probation by failing to report to her probation officer since October 2012, failing to
maintain her court cost payments, and failing to pay her probation fees. Mother was
admittedly “on the run” for the next three years. When Foster Mother learned that her
brother was the putative father of Mother’s unborn child, she “passed the case off” to
another probation officer before the child was born. It was not until after Colton’s birth

reasonable efforts pursuant to the juvenile court’s order in April 2016). The evidence supports
the trial court’s conclusion that DCS made reasonable efforts.
                                            - 17 -
in 2015 that Mother was arrested and a judge ordered her to serve her original sentence.
And, it was not until after Colton’s birth that Grandmother indicated she was unwilling to
raise Colton, and he was placed with Foster Mother in what was believed to be a relative
placement. The record contains no indication that Mother ever argued that this
constituted a “conflict of interest,” either at the time of placement or during the
termination trial.

       On appeal, Mother argues, for the first time, that this alleged “conflict of interest”
prejudiced her because Foster Mother “would have had access to confidential information
regarding [Mother] and her history,” and “as a probation officer, [Foster Mother] would
have had regular contact with DCS although the extent of her relationship with DCS is
not contained in the record.” Mother also suggests that “the probation officer could have
got the probation reinstated after several months thus allowing [Mother] to be released
from jail early,” but it is not clear from this argument whether Mother is criticizing her
new probation officer or Foster Mother for relinquishing the case.

        We conclude that Mother waived any argument regarding an alleged conflict of
interest by raising it for the first time on appeal. See Black v. Blount, 938 S.W.2d 394,
403 (Tenn. 1996) (“Under Tennessee law, issues raised for the first time on appeal are
waived.”) Even if we considered the issue, though, we would conclude that it had no
merit. See In re S.M.R., No. M2008-01221-COA-R3-PT, 2008 WL 4949236, at *13
(Tenn. Ct. App. Nov. 18, 2008) (finding no merit in a mother’s “unsubstantiated
contention that she was prejudiced due to [an] alleged conflict of interest” from a foster
parent being employed by DCS). The record contains no evidence that Foster Mother’s
former role as Mother’s probation officer impacted this case in any way or resulted in
prejudice to Mother. For instance, Mother claims that prejudice was demonstrated when
DCS left Colton with Foster Mother even after a DNA test revealed she was unrelated,
rather than placing the child with Grandmother. However, the juvenile court considered
and rejected Grandmother’s intervening petition for custody, not DCS. We find no merit
in this issue.

                                    V.   CONCLUSION

       For the aforementioned reasons, the decision of the juvenile court is reversed in
part, affirmed in part, and remanded for further proceedings. The termination of
Mother’s parental rights is affirmed. Costs of this appeal are taxed to the appellant,
Miranda H., for which execution may issue if necessary.

                                                    _________________________________
                                                    BRANDON O. GIBSON, JUDGE



                                           - 18 -
