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In re Kylea K.

Court of Appeals of Tennessee, Knoxville

June 21, 2018

IN RE: KYLEA K. [1]

          Session: May 29, 2018

          Appeal from the Chancery Court for Washington County No. 43983 John C. Rambo, Chancellor

         This appeal involves the termination of a father's parental rights. The trial court found that grounds existed to terminate parental rights based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court also found, by clear and convincing evidence, that termination was in the best interest of the child. The father appeals. We vacate the trial court's finding regarding one ground for termination but otherwise affirm the order terminating parental rights.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in part, Affirmed in part, and Remanded

          Adam J. Haselsteiner, Johnson City, Tennessee, for the appellant, Michael M.

          Harry Curtis Williams, Johnson City, Tennessee, for the appellee, Crystal S.

          Michelle Lee Caggiano, Johnson City, Tennessee, Guardian ad Litem.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and D. Michael Swiney, C.J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Kylea was born in Tennessee in September 2015. Her parents were unmarried and had recently moved to Tennessee from Chicago. Due to drug exposure in the womb, Kylea was born with neonatal abstinence syndrome and went through drug withdrawals after birth.

         Kylea's father ("Father") was in jail during most of the pregnancy and when Kylea was born, after he pled guilty to possession of methamphetamine, possession of Schedule IV controlled substances, possession of drug paraphernalia, and joyriding or unauthorized use of an automobile. Father was released from jail when Kylea was about two weeks old. According to Father, Kylea still remained hospitalized at that time because she was born drug-exposed and required medication. According to Father, he became very close with Kylea and stayed in the hospital with her and Kylea's mother as Kylea went through the period of withdrawal.

         At some point, Kylea was discharged from the hospital and lived with both parents for about one month. Around November 2015, Father moved out of the home because his relationship with Kylea's mother deteriorated. According to Father, he continued to visit Kylea and provide her mother with diapers, formula, and baby supplies.

         On December 1, 2015, when Kylea was two months old, Father accepted a position as a technician with a company that required him to travel to various locations around the country for the construction of cell phone sites and antenna systems. He spent the next several months in Orlando. Kylea remained in Tennessee with her mother. Father earned $25 per hour plus overtime pay, and his employer also provided him with hotel accommodations and per diem compensation. He continued to send money and packages to Kylea's mother from Orlando.

         In February 2016, the Tennessee Department of Children's Services filed a petition seeking to have Kylea adjudicated dependent and neglected. According to the petition, DCS had received a referral alleging a drug exposed child after a domestic dispute between Kylea's mother and grandmother. Mother left the home where she was residing and moved into a homeless shelter. Kylea was reportedly found at another home, which smelled of marijuana, and various relatives at the home either tested positive for drugs or admitted to using them.

         DCS attempted to locate other suitable relatives and eventually contacted a second cousin of Kylea's mother (an unmarried female in her twenties) who agreed to care for five-month-old Kylea. Although Father had not taken any steps to establish paternity of Kylea, DCS contacted him in Orlando via telephone. Father verbally agreed for the cousin ("Cousin") to have temporary custody of Kylea. According to Father, Kylea's mother was supposed to enter rehabilitation, and he expected that Kylea would be returned to her thereafter. On February 25, 2016, the juvenile court of Washington County entered a protective custody order placing temporary custody of Kylea with Cousin. On March 9, 2016, a hair follicle drug screen was administered to Kylea, and the test indicated that Kylea had been exposed to THC and cocaine within the last ninety days.

         Father called Cousin at least three times while Father continued to work in Orlando. He sent Cousin one money order for $100 to buy diapers. Father returned to Tennessee on March 15, 2016. He spoke with Cousin one or two more times by telephone and exchanged text messages with her, but he did not have any visits with Kylea or send additional support.

         Kylea's mother was homeless and relapsed into drug use, and she stipulated that Kylea was dependent and neglected. Father initially participated in the dependency and neglect proceeding with an appointed attorney, but Father failed to appear at the adjudicatory hearing on July 21, 2016. His attorney moved to withdraw due to Father's failure to maintain contact with him. According to the juvenile court's adjudicatory order, DCS caseworkers and service providers testified that Father refused to provide DCS with his contact information, refused to take drug screens, and failed to cooperate with DCS or service providers. Based on the evidence presented, including the positive drug test recently administered to Kylea, the juvenile court found that Kylea was a dependent and neglected child and that Father and Kylea's mother had perpetrated severe child abuse upon Kylea by knowingly exposing the child to and knowingly failing to protect her from abuse and neglect, including exposure to such high levels of cocaine that she was metabolizing the substance in her body. The order placed full legal custody of Kylea with Cousin.

         Two days before Kylea's first birthday, on September 12, 2016, Father was arrested after he was reportedly found "passed out" in a stolen vehicle with additional stolen property from a local business. Father was charged with burglary and theft over $10, 000. Father pled guilty and remained in jail for several more months.

         On October 20, 2016, Cousin filed a petition to terminate the parental rights of Father and Kylea's mother and to adopt Kylea. According to the petition, Kylea's mother had returned to Chicago and was believed to be homeless. Father remained in jail. The petition alleged that grounds for termination existed based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and/or support. Kylea's mother was served by publication, her parental rights were terminated on various grounds, and she is not a participant in this appeal, so we will not discuss the proceedings relating to her for purposes of this opinion.

         The trial court appointed an attorney for Father and a guardian ad litem for Kylea. The termination trial was held on September 8, 2017, just days before Kylea's second birthday. Father had been released from jail about two weeks earlier, and he testified at trial. Cousin and her fiancé also testified. On September 11, 2017, the trial court entered an order terminating Father's parental rights on the grounds of a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court found by clear and convincing evidence that it was in the best interest of Kylea to terminate Father's parental rights. Father timely filed a notice of appeal.

         II. ...


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