                                                                                                          03/20/2020
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               Assigned on Briefs November 1, 2019

                                                IN RE H.S.

                    Appeal from the Juvenile Court for Williamson County
                             No. 35799    Sharon Guffee, Judge


                                    No. M2019-00808-COA-R3-PT


ANDY D. BENNETT, J., concurring in part and dissenting in part.

       I fully concur in the majority opinion’s determination by clear and convincing
evidence that the grounds of abandonment by failure to provide a suitable home and
persistent conditions exist. I also agree that there is clear and convincing evidence
supporting a finding that termination of Mother’s parental rights is in the best interest of
the child. Therefore, I agree with the ultimate result reached by the majority. However, I
do disagree with the treatment of the ground found in Tenn. Code Ann. § 36-1-
113(g)(14).1 The majority opinion follows In re Amynn K., No. E2017-01866-COA-R3-
PT, 2018 WL 3058280 (Tenn. Ct. App. June 20, 2018), which engages in a complicated
use of statutory construction and grammar rules to essentially conclude that “and”
actually means “or” in the language “ability and willingness.” I prefer the interpretation
found in In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 (Tenn. Ct.
App. May 31, 2018). I believe the General Assembly purposefully chose the word “and”
in order to differentiate this ground from other grounds. Interpreting “and” as “or,” in my
opinion, makes Tenn. Code Ann. § 36-1-113(g)(14) a weaker version of other grounds. I
do not believe such an interpretation is consistent with the legislative intent. Therefore, I
dissent from the majority opinion’s interpretation of Tenn. Code Ann. § 36-1-113(g)(14).


                                                              ________________________________
                                                              ANDY D. BENNETT, JUDGE


1
    Under Tenn. Code Ann. § 36-1-113(g)(14), a parent’s rights may be terminated if he or she

          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
          physical or psychological welfare of the child.
