In re S.J.M.

Father in Nebraska allowed his child’s caregiver to take the child to Tennessee. A strange series of events led to DCS’s being given custody of the child by the Dickson County Juvenile Court and the placement of the child in a foster home. Meanwhile, Father ran afoul of the law (again) and became an involuntary guest of the federal penal system under a fifteen-year sentence. The foster parents petitioned for termination of Father’s and Mother’s parental rights based on abandonment and sought adoption of the child. Father’s mother intervened. Mother did not defend and her rights were terminated. Father defended. The trial court found Father had not abandoned the child, but that the parties had tried by consent the issue of Father’s being sentenced to prison for a term of ten years or more when the child is younger than eight years of age, circumstances which present a ground for termination of Father’s parental rights pursuant t Tenn. Code Ann. § 36-1-113(g)(6). The trial court then granted the adoption. Father filed a motion to alter or amend, presenting to the trial court a document showing that Father’s sentence had been reduced to seven and one-half years. The motion was denied. Father appealed. We reverse the trial court’s determination that the issue was tried by consent of the parties. Our decision necessitates that the adoption order be vacated and the child be returned to the legal custody of DCS.