Facts: Mother and Father are the never-married parents of the children. During one of Father’s incarcerations, Mother relocated to Tennessee with the children. Mother married Stepfather, and they petitioned to terminate Father’s parental rights and proceed with a stepparent adoption.

The petition alleged grounds of abandonment for failure to visit and pay support during the four-month period “prior to the filing of this Petition.”

After Father complained about the sufficiency of the petition, Mother and Stepfather amended their petition and then—on the day of trial—filed an “addendum” that, for the first time, identified the relevant four-month period as being from January 20, 2016 to October 23, 2017, a period of 21 months.

Father objected, claiming Mother and Stepfather “didn’t say what period they’re talking about,” and noting that he was incarcerated during part of the time they identified.

The trial court found the relevant four-month period to be September 13, 2015, to January 13, 2016 and terminated Father’s parental rights.

Father appealed

On Appeal: The Court of Appeals reversed the trial court.

Basic due process requires notice reasonably calculated to apprise interested parties of a lawsuit and allow them to present their objections. In termination of parental rights cases, the touchstone of the due-process requirement is that the parent is placed on notice of the ground in order to prepare a defense.

The Court found notice lacking:

In its order terminating Father’s parental rights, the trial court found that, “The relevant period of time that the Court used was the period from September 13, 2015, to January 13, 2016.” These dates were never pled by [Mother and Stepfather] and were strictly derived from the proof adduced at the hearing concerning Father’s incarceration. Father’s attorney was correct that the relevant four-month time period should have been determined prior to the hearing and should have been specifically pled by [Mother and Stepfather]. It was not. As such, Father never had notice of the relevant time period.

* * * * *

[T]he amended petition is sufficient to put Father on notice of the grounds asserted for termination of his parental rights. [N]either the original petition, nor the addendum thereto lists the correct four-month period, which was ultimately determined by the trial court to be September 13, 2015, to January 13, 2016. Furthermore, although it is undisputed that Father was incarcerated for some period of time, [Mother and Stepfather] did not plead abandonment by an incarcerated parent. In fact, [their] pleadings it failed to cite the statutory provisions as required by Tennessee Rule of Civil Procedure 8.05(1). . . . By applying the time period of September 13, 2015, to January 13, 2016, which was prior to Father’s incarceration, the trial court (despite the fact that its order does not specifically cite the abandonment by an incarcerated parent statute) terminated Father’s parental rights on this ground. [Mother and Stepfather] never pled abandonment by an incarcerated parent, and the ground was not dried by consent of the parties. Furthermore, [Mother and Stepfather] pled incorrect four-month period in both their original petition and the addendum.

Because Father did not receive adequate notice to defend against the petition, the trial court’s judgment was reversed.

K.O.’s Comment: Congratulations to Father’s counsel, Amy Skelton, Esq., who demonstrated excellent lawyering in this appeal.

In re Justine J. (Tennessee Court of Appeals, Eastern Section, October 10, 2019).