In Re Allyson P. - Concurring and Dissenting

Opinion

06/17/2020

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

Assigned on Briefs May 1, 2020

IN RE ALLYSON P.1

Appeal from the Juvenile Court for Blount County No. JV-1085 Kenlyn Foster, Judge

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No. E2019-01606-COA-R3-PT

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

I concur with the majority’s opinion except as to the holding that the ground as to the “failure to manifest an ability and willingness to assume custody” was not satisfied. This Court is split on this issue, and I agree with the line of cases that hold that the parent has to be able and willing rather than just either of the two. See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn. Ct. App. June 20, 2018). I concur in all the rest of the majority’s opinion including termination of the father’s parental rights. Given this Court’s clear and irreconcilable split as to this question of statutory interpretation, I request the Tennessee Supreme Court accept and resolve this issue once it has the opportunity to do so.

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D. MICHAEL SWINEY, CHIEF JUDGE

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