                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs December 6, 2013

                               IN RE KALIYAH S., ET AL.

                  Appeal from the Juvenile Court for Bradley County
                      No. J-08-435     Daniel Swafford, Judge


             No. E2013-01352-COA-R3-PT-FILED-FEBRUARY 28, 2014


D. M ICHAEL S WINEY, J., dissenting.


     I respectfully dissent from the majority’s decision. I believe the Trial Court
committed no reversible error, and I would affirm the decision of the Trial Court.

       The majority acknowledges that there are two distinct lines of cases from this Court
on this issue. The majority discusses these cases in detail and there is nothing to be gained
by my discussing them once again in this dissent. I, however, believe that those decisions
holding that in a case involving “aggravated circumstances,” DCS is relieved of making an
attempt to reunify the parent and the child best give effect to the intent of our General
Assembly.

       I find it difficult to believe, given the language of the statutes involved as set out in
the majority’s opinion, that our General Assembly intended to require DCS to attempt to
reunify a child with a parent even when the grounds alleged rise to the level of “aggravated
circumstances” as defined by our General Assembly in the statute. While abandonment is
the “aggravated circumstances” present in this case, our General Assembly included
abandonment as an aggravated circumstance along with “aggravated assault, aggravated
kidnapping, especially aggravated kidnapping, aggravated child abuse and neglect,
aggravated sexual exploitation of a minor, especially aggravated sexual exploitation of a
minor, aggravated rape, rape, rape of a child, incest, or severe child abuse . . . .” Tenn. Code
Ann. § 36-1-102(9) (2010). As is clear from the statute, abandonment is only one of many
different “aggravated circumstances” as determined by our General Assembly. The
particular circumstances which would constitute “aggravated circumstances” was a policy
decision made by our General Assembly.
              The majority’s holding means that as to all aggravated circumstances, not just
abandonment, DCS will be required to attempt to reunify the parent and the child unless there
has been a prior determination by a court that such aggravated circumstances exist. In short,
DCS will be required to prove the aggravated circumstances in some court hearing before it
has to prove them in the termination proceeding.

                I do not read the statutes to require DCS to attempt to reunify the parent and
the child in those cases where aggravated circumstances, including abandonment, are at issue
in the termination of parental rights action. I find nothing in the statutes that convinces me
that our General Assembly intended that DCS must attempt to reunify a parent and a child
where aggravated circumstances serve as the basis for the attempted parental termination.
More specifically, I find nothing in the statutes requiring DCS to attempt to reunify the parent
and the child in those aggravated circumstances which include not just abandonment but the
entire list as detailed above such as aggravated sexual exploitation of a minor, aggravated
rape, and incest, among others.

                Given the language of the statute, there is no basis for treating the aggravated
circumstances of abandonment differently from any of the other aggravated circumstances
listed in that statute. If DCS is to be required to attempt to reunify a parent and a child if
abandonment is alleged, then DCS also must attempt to reunify the parent and child when
any of the other aggravated circumstances are alleged. The majority’s decision means that
if DCS is going to rely upon any aggravated circumstances, DCS first must attempt to reunify
the parent and the child at least up until the time a court of competent jurisdiction, likely the
termination court itself in the termination hearing, makes the determination as to whether or
not the aggravated circumstances have been proven by clear and convincing evidence. I do
not believe it was the intent of the General Assembly to require DCS to attempt to reunify
a child and a parent in those circumstances where aggravated circumstances serve as the
basis for the termination.

        For these reasons, I respectfully dissent from the majority’s opinion. I would affirm
the decision of the Trial Court. Further, I respectfully suggest this is an appropriate case for
consideration by our Tennessee Supreme Court so as to resolve the conflict in the decisions
of this Court on this issue.




                                                           ______________________________
                                                           D. MICHAEL SWINEY, JUDGE




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