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 drugrelated 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 

10/29/2018
- 2 -

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.1Shortly 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. 
- 3 -

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 
- 4 -

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.
- 5 -

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. 
- 6 -

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.
- 7 -

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-
- 8 -

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:
- 9 -

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.
- 10 -

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.
- 11 -

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).
- 12 -

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 
- 13 -

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 
- 14 -

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.8The 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.” 
- 15 -

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 
- 16 -

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 
- 17 -

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. 
- 18 -

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