IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 21, 2021 Session

RACHAEL GREEN ET AL. v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. T20192526 James A. Haltom, Commissioner

___________________________________

No. M2020-01244-COA-R3-CV

___________________________________

In this action filed against the State of Tennessee (“the State”), alleging negligence by 

employees of the Tennessee Department of Children’s Services (“DCS”), the Claims 

Commission (“the Commission”) dismissed the plaintiffs’ claims due to lack of subject 

matter jurisdiction. Determining that subject matter jurisdiction existed in the 

Commission, we vacate the Commission’s order and remand this matter to the 

Commission for further proceedings consistent with this opinion. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission

Vacated; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

W. Gary Blackburn and Bryant Kroll, Nashville, Tennessee, and Robin C. Moore, 

Carthage, Tennessee, for the appellants, Rachael Green and Logan White.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, 

Solicitor General; and M. Andrew Womack, Assistant Attorney General, for the appellee, 

State of Tennessee.

OPINION

I. Factual and Procedural Background

The plaintiffs, Rachael Green (“Mother”) and Logan White (“Father”) 

(collectively, “Parents”), filed a claim with the State of Tennessee Division of Claims 

Administration on May 15, 2019, concerning the death of their two-year-old child, 

Z.W.G. (“the Child”). According to Parents’ claim, the Child had been removed from 

12/15/2021
- 2 -

Mother’s home in Sumner County by DCS and placed in a home in Warren County that 

DCS knew to be unsafe. The Child died four months later when he asphyxiated while cosleeping with his caregiver in a recliner.

Parents’ claim further stated that DCS had an open case involving Mother in 

January 2018. According to Parents, the DCS case manager assigned to Mother, Kalee 

McSwain, encouraged Mother to sign an Immediate Protection Agreement (“IPA”) 

concerning her three children, D.G., A.S., and the Child. Mother agreed to sign the IPA, 

granting supervision of the children to David and Pamela M., A.S.’s paternal 

grandparents (“Grandparents”). Parents asserted that by virtue of the IPA and placement 

of the children in the home of Grandparents, DCS was in control of the children for the 

purposes of Tennessee Code Annotated § 9-8-307(a)(1)(E), which concerns claims 

against the State alleging the “negligent care, custody and control of persons.” 

Parents averred that DCS was required to follow a set protocol before placing the 

children in the home, including a placement assessment and home visit. Parents urged 

that DCS was also required to provide sufficient furniture for safe sleep and to ensure that 

it was installed and being used properly. According to Parents, when a DCS staff 

member in Warren County visited Grandparents’ home, she reported to Ms. McSwain 

that the home was not safe and advised against placing the children in the home. Parents

pointed out that Ms. McSwain was specifically told that the home had only a single

functional bathroom and one functional bedroom. Despite this information, Ms. 

McSwain proceeded to place the children in Grandparents’ home. Moreover, Parents 

advance that Ms. McSwain never visited the home because she did not want to drive the 

distance and failed to request that Warren County DCS workers perform another visit. 

Four months later, the Child tragically died from co-sleeping in a recliner with Pamela M. 

Ms. McSwain and her supervisor, Cicely Dixon, were subsequently terminated by DCS 

for negligence.

Parents attached to their claim, inter alia, copies of the separation notices issued 

by DCS to Ms. McSwain and Ms. Dixon in September 2018 along with memoranda

explaining the reasons for their discharge from employment. The information contained 

in the memoranda substantiates Parents’ claims regarding the unsafe nature of 

Grandparents’ home and Ms. McSwain’s knowledge of that fact when she placed the 

Child in the home. 

On September 17, 2019, Parents filed a complaint against the State with the 

Commission, stating that the case had been transferred to the Commission by the 

Division of Claims Administration. The substantive allegations of the complaint were 

substantially the same as those contained in the earlier claim and outlined above.

On December 4, 2019, the State filed a motion to dismiss pursuant to Tennessee 

Rule of Civil Procedure 12.02(1), propounding that the Child was not in the “care, 
- 3 -

custody, or control” of the State at the time of his death. According to the State, the 

Sumner County Juvenile Court (“juvenile court”) had entered an order on April 18, 2018, 

placing the Child in the temporary custody of Grandparents. The State argued that this 

grant of custody to Grandparents meant that the Child was no longer in the care, custody, 

or control of the State and that Parents’ claim would not fall within the parameters of 

Tennessee Code Annotated § 9-8-307(a)(1)(E). The State thus posited that the 

Commission had no subject matter jurisdiction to adjudicate the claim and that the claim 

was barred by sovereign immunity. Copies of the juvenile court’s orders were attached 

to the State’s motion.

Parents filed a response in opposition to the motion to dismiss, asserting that the 

juvenile court’s orders only applied to Mother’s other children, A.S. and D.G., because 

no specific allegations of abuse or neglect had been raised concerning the Child. Parents 

further postulated that Mother’s execution of the IPA did not grant custody of the Child 

to Grandparents. Parents claimed that DCS maintained control over the Child and had a 

duty to oversee his welfare by virtue of the IPA that Ms. McSwain had requested Mother 

to sign. Parents therefore contended that their claim against the State was properly filed 

pursuant to Tennessee Code Annotated § 9-8-307(a)(1)(E). In support, Parents attached a 

declaration of Sonia Boss, who was the guardian ad litem for the children. 

The State filed a reply and attached an affidavit executed by Nicole Fisher, DCS 

Assistant General Counsel. Ms. Fisher explained that an IPA 

is a voluntary agreement signed by the parent or legal custodian to place 

alleged child victims with a chosen caregiver when the parent or legal 

custodian cannot protect the children from abuse and neglect. 

An IPA can be revoked by the parent or legal custodian at any time 

and does not transfer legal custody of the children to the Department of 

Children’s Services.

(Paragraph numbering omitted.) Ms. Fisher further stated that the juvenile court’s April 

18, 2018 order placed the Child and his siblings in the temporary custody of 

Grandparents.

On August 12, 2020, the Claims Commission entered an order granting the State’s 

motion to dismiss. The Commission found that the juvenile court’s orders granted 

custody of the Child to Grandparents. Accordingly, the Commission determined that 

DCS did not have care, custody, or control of the Child at the time of his death and that 

the Commission lacked subject matter jurisdiction regarding Parents’ claims. The 

Commission subsequently entered an amended order on August 26, 2020. Parents timely 

appealed.
- 4 -

II. Issues Presented

Parents present the following issues for our review, which we have restated 

slightly:

1. Whether the Claims Commission erred in determining that the Child 

was not in the care or control of DCS at the time of his death.

2. Whether DCS had control over the Child’s placement for purposes 

of establishing subject matter jurisdiction before the Claims 

Commission prior to any orders transferring custody.

3. Whether the juvenile court’s orders applied to the Child, who was 

referenced in the case caption but was not specifically mentioned in 

the body of the pleadings.

The State frames the overarching issue, which we have also slightly restated, as follows:

4. Whether the Commission properly dismissed Parents’ claim under 

Tennessee Code Annotated § 9-8-307(a)(1)(E) for lack of subject 

matter jurisdiction because the State did not have care, custody, or 

control of the Child.

III. Standard of Review

Regarding the proper standard of review to be applied concerning the grant of a 

motion to dismiss for lack of subject matter jurisdiction, pursuant to Tennessee Rule of 

Civil Procedure 12.02(1), our Supreme Court has explained:

A motion to dismiss for lack of subject matter jurisdiction falls 

within the purview of Tenn. R. Civ. P. 12.02(1). Challenges to a court’s 

subject matter jurisdiction call into question the court’s “lawful authority to 

adjudicate a controversy brought before it,” Northland Ins. Co. v. State, 33 

S.W.3d 727, 729 (Tenn. 2000), and, therefore, should be viewed as a 

threshold inquiry. Schmidt v. Catholic Diocese of Biloxi, 2008-CA-00416-

SCT (¶ 13), 18 So.3d 814, 821 (Miss. 2009). Whenever subject matter 

jurisdiction is challenged, the burden is on the plaintiff to demonstrate that 

the court has jurisdiction to adjudicate the claim. See Staats v. McKinnon,

206 S.W.3d 532, 543 (Tenn. Ct. App. 2006); 1 Lawrence A. Pivnick, 

Tennessee Circuit Court Practice § 3:2 (2011 ed.) (“Pivnick”).

Litigants may take issue with a court’s subject matter jurisdiction 

using either a facial challenge or a factual challenge. See, e.g., Schutte v. 
- 5 -

Johnson, 337 S.W.3d 767, 769-70 (Tenn. Ct. App. 2010); Staats v. 

McKinnon, 206 S.W.3d at 542. A facial challenge is a challenge to the 

complaint itself. See Schutte v. Johnson, 337 S.W.3d at 769. Thus, when a 

defendant asserts a facial challenge to a court’s subject matter jurisdiction, 

the factual allegations in the plaintiff’s complaint are presumed to be true. 

See, e.g., Staats v. McKinnon, 206 S.W.3d at 542-43.

Alternatively, “[a] factual challenge denies that the court actually 

has subject matter jurisdiction as a matter of fact even though the complaint 

alleges facts tending to show jurisdiction.” Staats v. McKinnon, 206 

S.W.3d at 543. Thus, the factual challenge “attacks the facts serving as the 

basis for jurisdiction.” Schutte v. Johnson, 337 S.W.3d at 770.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445-46 (Tenn. 

2012). 

In the case at bar, DCS mounted a factual challenge to the petition, filing various 

attachments in support of the motion. “When resolving a factual attack on subject matter 

jurisdiction, a court may consider matters outside the pleadings, such as affidavits or 

other documents.” Church of God in Christ, Inc. v. L. M. Haley Ministries, Inc., 531 

S.W.3d 146, 160 (Tenn. 2017). Our High Court has further explained: 

[M]otions challenging subject matter jurisdiction are not converted to 

summary judgment motions when matters outside the pleadings are 

considered or when disputes of material fact exist. Rather, courts presented 

with such motions must weigh the evidence, resolve any factual disputes, 

and determine whether subject matter jurisdiction exists. The trial court 

may hold an evidentiary hearing limited to the question of subject matter 

jurisdiction if necessary to resolve jurisdictional factual disputes. 

Regardless of the manner used, the plaintiff bears the burden of establishing 

that the court has subject matter jurisdiction over the case. 

Id. (internal citations omitted).

Moreover, as this Court has elucidated concerning its review of a decision from 

the Claims Commission:

Our review of decisions of individual claims commissioners and 

those of the Claims Commission are governed by the Tennessee Rules of 

Appellate Procedure. T.C.A. § 9-8-403(a)(1). Decisions by the 

Commission are reviewed pursuant to the standard of review for non-jury 

cases. Tenn. R. App. P. 13(d). The factual findings of the Claims 

Commission are reviewed de novo with a presumption of correctness. The 
- 6 -

presumption must be honored unless this court finds that the evidence 

preponderates against those findings. Beare Co. v. State, 814 S.W.2d 715, 

717 (Tenn. 1991). Questions of law are reviewed de novo, without a 

presumption of correctness. Crew One Prods, Inc. v. State, 149 S.W.3d 89, 

92 (Tenn. Ct. App. 2004).

Mullins v. State, No. M2008-01674-COA-R3-CV, 2009 WL 1372209, at *5 (Tenn. Ct. 

App. May 15, 2009) (“Mullins I”).

IV. Subject Matter Jurisdiction

The overarching issue in this matter concerns whether the Commission maintained 

subject matter jurisdiction to adjudicate Parents’ claim. Parents alleged negligence on the 

part of DCS by, inter alia, allowing the Child to be temporarily placed in Grandparents’ 

home when Ms. McSwain, the DCS case manager, knew that the home was unsuitable. 

The Commission ultimately determined that DCS did not have care, custody, or control 

of the Child at the time of his death and that the Commission therefore lacked subject 

matter jurisdiction regarding Parents’ claim. Following our thorough review of the 

record and applicable law, we disagree with the Commission’s conclusion that it lacked 

subject matter jurisdiction over the claim.

As our Supreme Court has previously explained concerning claims against the 

State:

It has long been well-established that the State of Tennessee, as a 

sovereign, is immune from lawsuits “‘except as it consents to be sued.’”

Stewart [v. State], 33 S.W.3d [785,] 790 [(Tenn. 2000)] (quoting 

Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 779 (1965)). 

The doctrine of sovereign immunity “‘has been a part of the common law 

of Tennessee for more than a century.’” Id. (quoting Hawks v. City of 

Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997)). The rule of sovereignty 

is both constitutional and statutory. Article I, section 17 of the Tennessee 

Constitution provides that “[s]uits may be brought against the State in such 

manner and in such courts as the Legislature may by law direct.” 

Tennessee Code Annotated section 20-13-102(a) (2009) provides that

[n]o court in the state shall have any power, jurisdiction or 

authority to entertain any suit against the state, or against any 

officer of the state acting by authority of the state, with a view 

to reach the state, its treasury, funds or property, and all such 

suits shall be dismissed as to the state . . . .
- 7 -

Exercising its constitutional prerogative to allow suits against the 

State, the General Assembly in 1984 enacted a comprehensive procedure 

for the filing, prosecution, and disposition of monetary claims against the 

State. As a part of this statutory scheme, the Tennessee Claims 

Commission, consisting of one commissioner from each grand division of 

the State, was created to hear and determine claims against the State. See

Act of May 24, 1984, ch. 972, §§ 1, 5(a), 1984 Tenn. Pub. Acts 1026, 1027-

28 (codified at Tenn. Code Ann. § 9-8-301(a), -305(1) (Supp.1984)).

The Claims Commission and its commissioners have exclusive 

jurisdiction to adjudicate all monetary claims against the State which fall 

within certain specified categories as defined by the statute. Id. §§ 5(a), 

8(a), 1984 Tenn. Pub. Acts at 1028-30 (codified at Tenn. Code Ann. §§ 9-

8-305(1), -307(a)); Conley v. State, 141 S.W.3d 591, 597 (Tenn. 2004); see 

also Tenn. Code Ann. § 20-13-102(a). The legislature did not remove 

immunity for all claims against the State, but only those claims specified in 

section 9-8-307(a). It follows then that the Claims Commission lacks 

subject matter jurisdiction and has no authority to hear any claims that fall 

outside the categories enumerated in section 9-8-307(a). Stewart, 33 

S.W.3d at 790.

Mullins v. State, 320 S.W.3d 273, 278-79 (Tenn. 2010) (“Mullins II”). 

Parents herein filed their claim pursuant to Tennessee Code Annotated § 9-8-

307(a)(1)(E) (2020), which states:

The commission or each commissioner sitting individually has exclusive 

jurisdiction to determine all monetary claims against the state based on the 

acts or omissions of “state employees,” as defined in § 8-42-101, falling 

within one (1) or more of the following categories:

* * *

Negligent care, custody and control of persons[.]

The Commission determined that the Child was not in the care, custody, or control 

of DCS, elucidating:

In Mullins [I], the Tennessee Court of Appeals addressed a similar 

situation to this case.[1]In Mullins, a child was heartbreakingly murdered 

 

1 Although the Commission did not include a citation for Mullins at this point in its order, the 

Commission appears to be referring to this Court’s decision in Mullins I, although the Commission also 
- 8 -

after he had been removed from his mother’s home by DCS and voluntarily 

placed with a relative (the mother’s aunt). After the child was initially 

removed from the home, the Davidson County Juvenile Court subsequently 

conducted a hearing, and pursuant to a court order, awarded custody of the 

child to a relative. Shortly thereafter, the aunt left the child to the 

supervision of her daughter, who was mentally challenged. The child 

subsequently died from injuries suffered while in the care of the mentally

challenged daughter. The mother filed a lawsuit asserting that DCS was 

negligent for removing the child. Ultimately, the Claims Commission 

determined that it lacked jurisdiction because the Juvenile Court, not DCS, 

made the ultimate decision to place the child with the relative. The Mullins

court further indicated that upon the Juvenile Court’s placement of the child 

with the relative, the child left the care, custody, and control of the State at 

that time. The Mullins court further indicated that even if subject matter 

jurisdiction had existed, there could be no recovery as a matter of law 

because the proximate (and legal) cause of death were apparently actions of

the aunt’s daughter, not anything the State may or may not have done.

The Claimants argue that Mullins is not controlling and that In re 

Demitrus is the controlling case.[2]In that case, a six-month old child 

heartbreakingly drowned when he was left unattended in a bathtub while in 

the custody of a friend. The child had been placed with the friend through a 

DCS safety plan, voluntarily agreed upon by the mother, as the “placement

caregiver.” While the Juvenile Court had awarded custody in Mullins, the 

same was not true in the case of In re Demitrus. In that case, no Juvenile 

Court order awarding custody existed. Therefore, the Claims Commission 

correctly determined that it had subject matter jurisdiction over the claim, 

but found that the State was not negligent. On appeal, the Court of Appeals 

affirmed [that] the Claims Commission had jurisdiction, but reversed the 

dismissal as to negligence.

Here, on May 9, 2018, the Juvenile Court of Sumner County entered 

an Order Resetting Adjudicatory Hearing, which specifically granted 

temporary protective custody to [Grandparents] of all three children, 

including [the Child], who tragically died shortly thereafter on May 27, 

2018. The bright line that distinguishes the Mullins case from In re 

Demitrus is the Juvenile Court’s May 9, 2018 Order awarding temporary 

protective custody.

 

references the Supreme Court’s decision in Mullins II in other parts of its order.

2

See In re Demitrus, No. E2009-02349-COA-R3-CV, 2011 WL 863288 (Tenn. Ct. App. Mar. 14, 2011).
- 9 -

Prior to entry of the May 9, 2018 order, the IPA indicates that the 

children will reside in McMinnville until otherwise noted by DCS and/or 

Sumner County juvenile court. Had [the Child] died after entry of the IPA, 

but prior to the Juvenile Court awarding custody, the issue of subject matter 

jurisdiction could be a question of fact that might survive a motion to 

dismiss. But here, as set forth in Mullins and examined in In re Demitrus, 

the State (DCS) did not have care, custody, or control of [the Child] after 

the Juvenile Court entered its May 9, 2018 order awarding custody of the 

children to [Grandparents]. While the death of [the Child] is heartbreaking 

and tragic, the Tribunal must apply the law as interpreted by the Tennessee 

appellate courts as set forth in Mullins. Accordingly, the Claims 

Commission lacks subject matter jurisdiction.

Although we agree with the Commission’s characterization of the holding in Mullins I, 

we disagree with the Commission’s ostensible conclusion that the facts presented in

Mullins I and II (collectively, “Mullins” when referring to common facts between the two 

decisions) are entirely on point with this case. 

In Mullins, the record demonstrated that before the child was removed from his 

mother’s home and placed in the home of the mother’s aunt, the aunt and her home were 

investigated and found to be suitable by DCS. See Mullins II, 320 S.W.3d at 276. DCS 

therefore recommended that the child be placed in the custody of the mother’s aunt, and 

the trial court did so. Id. DCS then closed its case file concerning the child, and a DCS 

case manager explained at trial that DCS no longer maintained a duty to supervise the 

placement. Id.

Notably, however, when the mother in Mullins initially brought her claim against 

DCS with the Commission, she alleged, inter alia, that DCS had failed to conduct an 

adequate investigation of the aunt’s home environment before placing the child there, 

despite the fact that DCS had performed a background check concerning the aunt and had 

inspected the home and found it adequate prior to placement. See Mullins I, 2009 WL 

1372209, at *5. The Commission determined, with respect to this particular claim, that 

DCS was entitled to quasi-judicial immunity concerning its investigation and 

recommendation with regard to the child’s placement and, in the alternative, that DCS 

had not acted negligently. Id. at *9. The Commission ultimately determined, however, 

that it did not possess subject matter jurisdiction to consider any of the mother’s claims. 

Id. 

On appeal to this Court in Mullins I, when discussing the mother’s particular claim

concerning negligent investigation of the aunt’s home before placement, this Court 

stated:
- 10 -

In this case . . . there is a period of time that the State had taken 

custody of the child. When [the child] was initially removed from 

Mother’s home by DCS, he was clearly in the care, custody, and control of 

the State. In T.C.A. § 37-2-402(5), “foster care” is defined as

the temporary placement of a child in the custody of the 

department of children’s services or any . . . home, whether 

public or private, for care outside the home of a parent or 

relative (by blood or marriage) of the child, whether such 

placement is by court order, voluntary placement agreement, 

surrender of parental rights or otherwise. . . .

The one claim of Mother’s that falls within this time frame is the 

contention that DCS was negligent in its investigation of the [aunt’s] home 

prior to [the child’s] placement there. In its Judgment, the Claims 

Commission held, in pertinent part, as follows:

Ms. Mullins contends that DCS was negligent in that no 

interview or evaluation of Latara Williams was conducted to 

determine whether she posed a danger to the children prior to 

DCS’s recommendation to the juvenile court that they be 

placed in the [aunt’s] home. Defendant argues that DCS is 

entitled to quasi-judicial immunity with respect to its 

recommendations to a court relative to a child’s custody 

placement, since it performs an essential role in the custody 

proceedings.

* * *

Social workers acting in an advisory role to a juvenile court 

are entitled to quasi-judicial immunity. Rippy v. Hattaway, 

270 F.3d 416 (6th Cir. 2001), cert. denied, 537 U.S. 812, 123 

S. Ct. 72, 154 L. Ed. 2d 15 (2002). In Rippy, the Court 

considered whether social[] workers charged with making a 

recommendation to a juvenile court as to whether a child who 

has been committed to DCS was ready to return home are 

entitled to quasi-judicial immunity. Equating the role of a 

social worker making a recommendation to a juvenile court to 

a probation officer making a sentencing, the Rippy Court 

noted that:

The function of making such recommendations, 

including the underlying investigation, is 
- 11 -

similarly intimately related to the judicial phase 

of the child custody proceedings. Social 

workers involved in the investigation or 

recommendation are, therefore, entitled to 

absolute immunity with respect to claims 

arising from such recommendations and 

investigations.

Rippy v. Hattaway, 270 F.3d 416, 422-423. Like Rippy, the 

proof here is that the ultimate decision of where to place the 

Mullins children was the juvenile court’s. DCS, however, 

was required to make a recommendation relative to that 

placement, and that recommendation and the investigation 

attendant to the recommendation were intimately tied to the 

judicial process. Therefore, the State, which may raise this 

immunity pursuant to Tenn. Code Ann. § 9-8-307(d), has 

quasi-judicial immunity.

Even if DCS employees are not entitled to absolute immunity 

for acts taken in connection with the recommendation to the 

juvenile court to place the Mullins children in the [aunt’s]

home, the Commission finds the evidence does not 

preponderate in favor of a finding of negligence as to this 

issue. The proof demonstrated that DCS conducted the 

required criminal and background investigation and met with 

all of the interested parties, including Ms. Mullins, [aunt,] and 

Latara Williams. There is no evidence that Ms. Williams had 

any previous history of abusive or assaultive behavior that 

would have been uncovered by a more thorough 

investigation. Although Ms. Mullins stated in her referral on 

May 17, 2005, that Williams had been in special education 

classes and that she had the maturity level of a thirteen year 

old, there is no proof before the Commission that further 

investigation would have revealed these claims to be accurate 

or whether in fact they were accurate. Nor is [it] clear that 

either fact would render it more likely that Williams would 

have abused or assaulted [the child].

The proof established that [the aunt’s] home was considered 

as a placement at Ms. Mullins[’] request. Ms. Mullins wanted 

the children to be placed with her aunt, despite the fact that 

she knew Latara Williams and knew that she lived with her 

aunt. None of the other parties at the TDM voiced any 
- 12 -

concerns relative to Williams. Based upon the facts 

submitted at trial, the Commission cannot conclude that Ms. 

Mullins sustained her burden of demonstrating that DCS’s 

conduct with respect to its recommendation of the [aunt’s]

household fell beneath the standard of care, such that it 

breached the duty that it owed claimant’s son.

Despite the fact that she ultimately concluded erroneously that the 

Commission lacked jurisdiction to rule on this claim, the evidence does not 

preponderate against the findings of the Commissioner. The Court of 

Appeals may affirm a judgment on different grounds than those relied upon 

by the trial court when the trial court reached the correct result. In re Estate 

of Jones, 183 S.W.3d 372, 378 n.4 (Tenn. Ct. App. 2005).

Id. at 10. This Court then proceeded to consider the mother’s remaining claims and 

whether the Commission possessed subject matter jurisdiction to address them.

In its conclusion, the Mullins I Court reiterated that the child was in the care, 

custody, and control of DCS with regard to the mother’s negligence claim concerning the 

investigation of the initial placement of the child in the aunt’s home; however, the Court 

concluded that the Commission had arrived at the proper result when dismissing that 

claim. Id. at 15. The Court therefore affirmed the Commission’s judgment of dismissal 

with a modification concerning the claim of negligence prior to the transfer of custody. 

Id. In other words, the Mullins I Court determined that the Commission did possess 

subject matter jurisdiction as to that claim because the child was in the care, custody, and 

control of DCS before custody was granted to the mother’s aunt.

On appeal to our Supreme Court in Mullins II, the High Court noted:

The Court of Appeals ruled that the Claims Commission had jurisdiction to 

hear Ms. Mullins’ claim relative to [the child’s] placement with [the 

mother’s aunt], because at that time, DCS had custody and control of [the 

child] and concurrent responsibility for his care, but that DCS was entitled 

to quasi-judicial immunity regarding its investigation of the suitability of 

[the mother’s aunt] and her home and its recommendation to the juvenile 

court. Mullins v. State, No. M2008-01674-COA-R3-CV, 2009 WL 

1372209, at *9 (Tenn. Ct. App. May 15, 2009).[FN] The Court of Appeals 

further held that the Claims Commission did not have jurisdiction to hear 

claims alleging negligence by DCS that occurred after the juvenile court’s 

order granting custody to [the mother’s aunt] and the placement of the 

children in her home, because at those times DCS did not have care, 

custody, and control of the children. We granted Ms. Mullins’ application 

for permission to appeal.
- 13 -

[FN] The issue of the correctness of this ruling has not been raised by Ms. 

Mullins. Consequently, we express no opinion regarding the correctness of 

the Court of Appeals’ ruling on DCS’s quasi-judicial immunity, which is 

not before us on appeal. See Tenn. R. App. P. 13(b).

Mullins II, 320 S.W.3d at 278. Accordingly, the issue addressed by our Supreme Court 

in Mullins II was “whether the Tennessee Claims Commission had subject matter 

jurisdiction to hear a claim for negligence against the State which arose after a child who 

had been removed from his mother’s care was placed in the temporary custody of a third 

party by court order.” Id. The Court did not address, however, any issue concerning 

whether the child was in the care, custody, or control of DCS with regard to the mother’s 

claims concerning the investigation of the initial placement of the child in the aunt’s 

home.

Similar to the mother in Mullins II, Parents herein have asserted a claim of 

negligence by DCS with regard to its investigation of Grandparents’ home and its 

recommendation that the Child be placed there. This claim is predicated on alleged 

negligence that occurred during the timeframe that began when the Child was removed 

from Mother’s home and ended when the Child was placed in the custody of 

Grandparents by the juvenile court. Based on this Court’s ruling in Mullins I, which was 

not addressed by the Supreme Court on appeal in Mullins II, the Child was clearly in the 

care, custody, or control of DCS during that timeframe. See Mullins I, 2009 WL 

1372209, at * 8; see also Tenn. Code Ann. § 37-1-102(b)(17) (defining “foster care” as 

“the temporary placement of a child in the custody of the department of children’s 

services or any agency or institution, whether public or private, for care outside the home 

of a parent or relative, by blood or marriage, of the child, whether the placement is by 

court order, voluntary placement agreement, surrender of parental rights or otherwise”).

Furthermore, we agree with Parents that the facts of the instant action closely 

resemble the facts presented in In re Demitrus, No. E2009-02349-COA-R3-CV, 2011 

WL 863288 (Tenn. Ct. App. Mar. 14, 2011), with respect to the timeframe between the 

Child’s removal from Mother’s home and entry of the juvenile court’s order awarding 

custody to Grandparents. In Demitrus, a DCS employee had informed the parents that 

their children would be removed unless the parents agreed to place them in a safe home 

until the parents’ housing issues could be resolved. See 2011 WL 863288, at *1. During 

his meeting with the parents, the DCS employee prepared a “safety plan” for the children 

that placed them in the temporary care of the parents’ neighbor, S.H., until such time as 

the parents could locate suitable housing. Id. at *2. The parents signed the plan, and the 

children were placed in S.H.’s care. Id. No evidence was presented that DCS 

investigated S.H. or her home; however, there was proof that S.H.’s apartment building 

manager advised the DCS employee that he should not leave the children with S.H. Id. 
- 14 -

One of the children tragically drowned a few days later when S.H. left him unattended in 

a bathtub. Id. at *3.

The parents in Demitrus filed a claim with the Commission, pursuant to Tennessee 

Code Annotated § 9-8-307(a)(1)(E), asserting that DCS was negligent for, inter alia, 

failing to investigate S.H. or her home before placing the children there and ignoring 

warnings that the children should not reside with S.H. Id. The Commission determined

that it maintained subject matter jurisdiction to hear the claim because the children were 

in the care and control of DCS due to (1) DCS’s intervention in the lives of the parents 

and children by threatening the children’s removal from the parents unless a safety plan 

was enacted; (2) development of the safety plan; and (3) exerting control over whether 

the children could be returned to the parents. Id. at *3-4.

On appeal in Demitrus, this Court agreed that subject matter jurisdiction was 

proper in the Claims Commission, explaining:

The State’s position in the present case is that Mullins controls this 

case and requires a holding that the Commission does not have jurisdiction. 

The holding of Mullins is obviously important, but it is equally important 

that we understand what Mullins did not hold. Mullins affirmed that part of 

this court’s judgment which “held that the Claims Commission did not have 

jurisdiction to hear claims alleging negligence by DCS that occurred after 

the juvenile court’s order granting custody to [the aunt] and the placement 

of the children in her home.” Id. at 278 (emphasis added). The issue of the 

correctness of this court’s ruling “that the Claims Commission had 

jurisdiction to hear Ms. Mullins’ claim relative to [the child’s] placement 

with [the aunt], because at that time, DCS had custody and control of [the 

child] and concurrent responsibility for his case” was not raised before the 

Supreme Court and was not addressed. Id. & n.4 (emphasis added). 

* * *

The bright line that separates the present case from Mullins is that 

the only claim being examined by the High Court in Mullins for jurisdiction 

was based on facts, i.e., the negligent investigation, that came after the 

child was placed in a third party’s custody by court order. The Court 

expressly stated that the “State did not have care, custody, or control of [the 

child] after the juvenile court awarded custody of him to [the aunt]—at this 

point, [the aunt] was the only one who had custody of [the child] and thus 

the responsibility and obligation to provide care for him and control over 

him.” Id. Thus, the only basis for jurisdiction would have been the lone act 

or omission of negligent inspection for which there existed no private right 

of action.
- 15 -

In the present case, there was no such court order placing custody in 

[S.H.]. [S.H.] had the Infant as the “placement custodian” as a result of the 

safety plan which was initiated by the Department. In our opinion in 

Mullins, we held that the Commission had jurisdiction over the “one claim” 

concerning the Department’s actions that preceded the court ordered 

placement with the aunt. That “one claim . . . that falls within this time 

frame is the contention that DCS was negligent in its investigation of the 

[aunt’s] home prior to [the child’s] placement there [by court order].” 2009 

WL 1372209 at *9. 

* * *

The Commission determined in the present case that the Infant was 

not in the custody of the DCS, but was nevertheless in the control of the 

DCS. The High Court in Mullins recognized that the mere lack of legal or 

physical custody is “not entirely determinative.” 320 S.W.3d at 281. The 

proper inquiry is whether the State’s involvement is such that it may be 

fairly said to have exercised either care, custody, or control. Id. (analyzing 

Hembree v. State, 925 S.W.2d 513, 517 (Tenn. 1996) (jurisdiction over 

release of a mental patient into the community); Stewart [v. State], 33 

S.W.3d [785,] 792 [(Tenn. 2000)] (read in the disjunctive so that failure to 

exercise control will give jurisdiction if there was a legal duty to control or 

actual control assumed but negligently exercised); and Conley [v. State], 

141 S.W.3d [591,] 591 [(Tenn. 2004)] (no jurisdiction for negligent 

preadmission screening because no showing that limited involvement 

devolved into control). The inquiry is made in the disjunctive; the State 

need not have exercised all three functions. Stewart, 33 S.W.3d at 792.

Following the guidance we have been able to glean out of the cases, 

with particular reference to that part of our opinion in Mullins that was not 

at issue on appeal to the High Court, we hold that jurisdiction was proper in 

the present case. This case is not controlled by the Supreme Court’s 

opinion in Mullins, because of the distinctions we have discussed. Our 

opinion in Mullins suggests that the mere fact that the parents consent does 

not prevent the placement from being one that would invoke jurisdiction for 

“care, custody and control” pursuant to Tenn. Code Ann. § 9-8-

307(a)(1)(E). It also suggests that a DCS initiated removal of a child out of 

the care of the parents and placement in another home, however temporary, 

and however parental friendly, will invoke jurisdiction. However, given 

the record in the present case, we need not go that far to find jurisdiction.

As found by the Commission, the record indicates that unless the parents 

had called [the DCS employee] on the day he found [the children] in 
- 16 -

separate homes, he would have intervened through some channel more 

drastic than a “team meeting.” The team meeting did happen, at which time 

DCS told the parents—it did not ask—that the situation must change. Once 

the team meeting was conducted, specific standards were set which (1) 

required that the children remain with [S.H.], (2) required that the parents 

maintain contact with DCS, (3) forbade the parents from moving the 

children to a place not approved by DCS, and (4) required that any new 

residence be approved by DCS. According to the testimony of DCS 

employees, the children could not be returned to their parents without a 

second meeting between the parents and a DCS decision maker. The safety 

plan itself characterizes the situation with [S.H.] as a “placement” of the 

children. According to DCS employee Crumly, the term “placement” is 

generally synonymous with “custody.” A safety plan generally is 

considered by the Department to be an “intrusive” measure. The 

regulations that the Department follows to implement a safety plan confirm 

a high level of DCS involvement, as found by the Commission. In short, 

we agree with the Commission that the facts in this case establish DCS 

control sufficient to establish jurisdiction in the Commission. This is not a 

situation where we are being asked to create a “new category.” See 

Northland [Ins. Co. v. State], 33 S.W.3d [727,] 730 [(Tenn. 2000)]. Rather, 

this is a situation “where the statutory language legitimately admits of 

various interpretations” and we are simply following the General 

Assembly’s instructions to “give the most favorable view in support of the .

. . claim.” Stewart, 33 S .W.3d at 791 (citations and internal quotation 

marks omitted).

Id. at *15-17.

Similarly, in the instant action, Parents asserted a claim of negligence by DCS 

with regard to its investigation of Grandparents’ home and its recommendation that the 

Child be placed there despite the fact that DCS employees had knowledge that 

Grandparents’ home was unsuitable. As such, this claim is based on alleged negligence 

that occurred during the timeframe between the Child’s removal from Mother’s home and 

the transfer of custody to Grandparents by the juvenile court. The Child was clearly in 

the care, custody, or control of DCS during that timeframe. See Demitrus, 2011 WL 

863288, at *15-17; Mullins I, 2009 WL 1372209, at * 8. 

According to Parents’ complaint, Ms. McSwain, as the DCS case manager 

assigned to this matter, encouraged Mother to sign the IPA, placing the children in the 

home of Grandparents. The copy of the IPA contained in the record, which utilizes a 

form generated by DCS, demonstrates that Ms. McSwain was responding to allegations 

of abuse and neglect in Mother’s home. The IPA states that the children would be 

“safety placed” with Grandparents “until otherwise noted by DCS and/or the [juvenile 
- 17 -

court].” The IPA further states that the children would be supervised by Grandparents at 

all times and would require separate sleeping arrangements. In addition to Mother’s

signature, the IPA bears the signatures of Ms. McSwain and her supervisor, Ms. Dixon. 

Parents contend that by virtue of the IPA and placement of the children in the 

home of Grandparents, DCS was in control of the children for the purposes of Tennessee 

Code Annotated § 9-8-307(a)(1)(E). We agree. Clearly, Mother did not initiate a 

placement agreement that removed her children from her home on her own volition. 

Although the IPA states that it is a “voluntary agreement between the signed parties,” we 

note that the IPA, which was executed by Mother and two DCS employees, utilizes a 

DCS form, clearly references DCS involvement with the family due to allegations of 

abuse and neglect, and provides for placement of the children outside Mother’s home. As 

such, the IPA demonstrates a significant amount of DCS involvement and control 

concerning the Child. In addition, although the IPA does state that it can be revoked, it 

also states that the children would remain with Grandparents “until otherwise noted by 

DCS and/or the [juvenile court].” 

Parents further claimed that DCS was required to follow a set protocol before 

placing the children in Grandparents’ home, including a placement assessment and home 

visit, and that DCS was required to follow up on the placement by conducting additional 

home visits. These allegations are supported by Ms. McSwain’s termination 

memorandum from the DCS Commissioner, which states in relevant part:

On January 30, 2018, an Immediate Protection Agreement (IPA) was

initiated to place the children with non-biological (acting) grandparents, 

who live in Warren County. Before the children were placed with the 

grandparents, the safety of the grandparents’ home needed to be confirmed 

prior to placement per DCS policy 14.9, Child Protective Services 

Immediate Protection Agreements.

To determine the safety of the grandparents’ home, DCS staff in 

Warren County were contacted to assess the home. On January 30, 2018, 

CPSI [Child Protective Services Investigator] Shelley Smith went to the

grandparents’ home and made an assessment of the home. CPSI Smith 

advised you and your supervisor, Lead Investigator (LI) Cicely Dixon, 

verbally and in writing, that she did not find the home to be a safe 

placement for the children. At that time, CPSI Smith advised against 

placing the children in the home and told you and LI Dixon in Warren 

County, if children were found to be placed in such an environment, they 

would be removed. You also received pictures of the home which showed 

CPSI Smith’s concerns.
- 18 -

You and LI Dixon proceeded in placing the children in an unsafe 

home rather than relying on the report from CPSI Smith. In addition, you 

stated during the IAD [DCS Internal Affairs Division] interview that LI 

Dixon had informed the grandfather that the residence needed some 

cleaning and he was to send photos after cleaning.

* * *

You never went to the home, and you never requested a follow up 

walk-through from Warren County CPSI staff during the months of 

February, March, April and May 2018. During your interview with IAD, 

you stated that you did not know how to request a courtesy walk through 

from another county, although this was what was done initially on this case, 

and you have completed this type of request on other cases.

As the assigned Case Manager for this case, you never took any 

action to ensure the home was safe. Regardless of reporting that your 

supervisor did not direct you to visit the home, as an experienced Case 

Manager for DCS, you were aware that per policy 14.7 Work Aid 3, you 

are required to see children on your caseload once a month in the home.

As explained in Demitrus, the fact that “DCS initiated removal of a child out of 

the care of the parents and placement in another home, however temporary, and however 

parental friendly, will invoke jurisdiction” of the Claims Commission. In re Demitrus

M.T., 2011 WL 863288, at *15-17. Here, DCS initiated the IPA that placed the Child in 

Grandparents’ home, an “agreement” contemplating that the Child would remain there 

pending further action by DCS or the juvenile court, thereby demonstrating DCS’s 

control over the situation. In addition, DCS clearly maintained a duty to investigate 

Grandparents and their home before such placement occurred and to continue to monitor 

the situation, at least until such time as custody was transferred to Grandparents by the 

juvenile court. By reason of these circumstances, DCS maintained control over the Child 

during the relevant timeframe pursuant to Tennessee Code Annotated § 9-8-

307(a)(1)(E)’s requirement that the State exercise “care, custody and control of persons.” 

We reiterate that “inquiry is made in the disjunctive; the State need not have exercised all 

three functions.” See In re Demitrus M.T., 2011 WL 863288, at *16.

As the Commission concluded, the main distinction between the case at bar and 

Demitrus is that there was never a court order transferring custody in Demitrus. See id. 

However, this does not change the significant fact that in this matter, DCS maintained 

some measure of control regarding placement of the Child before the juvenile court 

transferred custody, invoking the Commission’s jurisdiction, pursuant to Tennessee Code 

Annotated 9-8-307(a)(1)(E), for purported negligence that occurred during that 

timeframe. As such, the fact that no custody order existed in Demitrus is a distinction 
- 19 -

without a substantive difference with respect to any negligence occurring before the 

transfer of custody in this case.

DCS argues that Parents have not shown that DCS’s negligence was the proximate 

cause of the Child’s death. However, the issue confronted by the Commission—and by 

this Court on appeal—was whether the Commission possessed subject matter jurisdiction 

to adjudicate Parents’ claim. We conclude that it did. Proximate causation is an issue to 

be addressed by the Commission upon remand.

Finally, we recognize that Parents have contended that the juvenile court’s orders 

transferring custody did not apply to the Child because he was not specifically mentioned 

in the body of the orders although he was named in the case caption. The Commission 

determined in its order that in addition to naming the Child in the case caption, the 

juvenile court’s orders made specific references to “the children” and found them all to 

be dependent and neglected. We agree. In its April 18, 2018 protective custody order, 

the juvenile court specifically named the Child and his siblings in the caption and found

that “the above-named child(ren) is/are dependent and that said child(ren) should be 

brought into the protective custody of this Court and that temporary custody be awarded 

to [Grandparents] pending an investigation and adjudication of the custody of said 

child(ren).” Ergo, it is clear that the juvenile court’s order applied to the Child.

V. Conclusion

For the foregoing reasons, we vacate the order of the Commission dismissing 

Parents’ claims for lack of subject matter jurisdiction. Having determined that subject 

matter jurisdiction exists in the Commission, we remand this matter to the Commission 

for further proceedings consistent with this opinion. Costs on appeal are assessed against 

the State of Tennessee.

s/ Thomas R. Frierson, II

_________________________________

THOMAS R. FRIERSON, II, JUDGE