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In re Kyle F.

Court of Appeals of Tennessee, Knoxville

April 25, 2018

In re KYLE F.

          Assigned on Briefs February 2, 2018

          Appeal from the Juvenile Court for Sullivan County No. 16-JV-41643 Raymond C. Conkin, Jr., Judge

         This is a termination of parental rights case involving a two-year-old child, Kyle F. ("the Child"). In January 2016, the Sullivan County Juvenile Court ("trial court") granted temporary legal custody of the Child to the Tennessee Department of Children's Services ("DCS"). The Child was immediately placed in foster care, where he has remained since that date. DCS subsequently filed a petition to terminate the parental rights of the Child's mother, Debra F. ("Mother"), on September 19, 2016.[1] Following a bench trial, the trial court determined that DCS had failed to prove by clear and convincing evidence that Mother had abandoned the Child through conduct exhibiting a wanton disregard for the welfare of the Child prior to her incarceration. Determining that no statutory ground existed for termination of Mother's parental rights, the trial court declined to address the best interest of the Child. The guardian ad litem timely filed a notice of appeal. Discerning no reversible error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded

          Jessica Newhart, Kingsport, Tennessee, Guardian Ad Litem for Kyle F., appellant. Randall D. Fleming, Kingsport, Tennessee, for the appellee, Debra F.

          Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services. [2]

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         In June 2011, Mother was convicted of two counts of grand larceny and one count of unlawful possession of a firearm. Based on those convictions, Mother was sentenced to five years of imprisonment for each conviction, with four years and six months of each sentence to be suspended with the sentences running concurrently. Mother was placed on supervised probation for a period of two years, to be followed by two years of unsupervised probation.

         In September 2015, Mother's probation officer filed a "Major Violation Report" with the Wise County Circuit Court ("Wise County court") in Virginia, alleging that Mother had violated the terms of her probation. Mother entered a plea of "not guilty." Following an evidentiary hearing on November 23, 2015, the Wise County court found that Mother was guilty of violating the rules of her probation. Due to the probation violation, the Wise County court sentenced Mother to two years of incarceration for each of the three counts, which were to run concurrently. The Wise County court's order does not state with particularity which rules of probation Mother had violated.

         On December 4, 2015, Mother pled guilty to and was further convicted of two counts of violation of probation in the Scott County Circuit Court ("Scott County court") located in Virginia. Consequently, Mother was sentenced to one year of incarceration for each count, to be served concurrently with each other but consecutive to the Wise County convictions. The Scott County court judgment does not identify the reasons for Mother's probation violation or the underlying offenses that led to Mother's probation.

         Courtney Buck, the Child's DCS case manager, testified that Mother's probation was violated because she failed to report an address change to her probation officer after she changed residences. According to Ms. Buck, Mother was approximately six months into her pregnancy with the Child when she became incarcerated. While incarcerated due to her probation violation, Mother was prescribed Suboxone and subsequently gave birth to the Child in January 2016.[3] Upon birth, the Child was transferred to the neonatal intensive care unit at Holston Valley Hospital in Kingsport, Tennessee. According to Ms. Buck, the Child was born with Neonatal Abstinence Syndrome due to Mother's prenatal use of Suboxone. Shortly after the Child's birth, the trial court ordered that custody of the Child be placed with DCS. In February 2016, the trial court found that the Child was dependent and neglected due to "the situation of the mother" and ordered that the Child would remain in the custody of DCS.

         On September 19, 2016, DCS filed a petition seeking to terminate Mother's parental rights to the Child, alleging in part that Mother had abandoned the Child because she had engaged in conduct that exhibited a wanton disregard for the welfare of the Child prior to her incarceration. Following a trial on the merits, the trial court determined that DCS failed to meet its burden of proof on this ground. Because it did not find that a statutory ground existed to terminate Mother's parental rights, the trial court declined to conduct an analysis concerning the best interest of the Child. The trial court denied DCS's petition. The guardian ad litem timely appealed.

         II. Issue Presented

         The guardian ad litem presents one issue for our review, ...


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