                                                                                                                08/04/2020
                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                  Assigned on Briefs January 2, 2020

                                      IN RE JUSTIN D., ET AL.1
                        Appeal from the Juvenile Court for Unicoi County
                           No. JV8653         David R. Shults, Judge
                           ___________________________________

                                    No. E2019-00589-COA-R3-PT
                               ___________________________________


D. MICHAEL SWINEY, C.J., concurring and dissenting.

       I concur with the majority’s opinion except as to the holding that the ground as to
the “failure to manifest an ability and willingness to assume custody” was not satisfied as
to Mother. This Court is split on this issue, and I agree with the line of cases that hold that
the parent has to be able and willing rather than just either of the two. See In re Amynn K.,
No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20,
2018). I would affirm the Trial Court’s determination “that the Petitioners have proven by
clear and convincing evidence that the Mother has demonstrated an unwillingness to
assume custody of the minor children.” I agree with the Trial Court that Mother’s “sobriety
was only very recently established, and her continued success in her sobriety is
questionable . . . .” Mother’s unwillingness to assume custody satisfies this requirement
of Tenn. Code Ann. § 36-1-113(g)(14). I concur in all the rest of the majority’s opinion
including termination of Father’s and Mother’s parental rights. Given this Court’s
recurring clear and irreconcilable split as to this question of statutory interpretation, I
request the Tennessee Supreme Court accept and resolve this issue once it has the
opportunity to do so.



                                                      ____________________________________
                                                      D. MICHAEL SWINEY, CHIEF JUDGE




1
    This Court has a policy of protecting the identity of children by initializing the last names of the parties.
