Facts: Mother and Father are the parents of three children. Father died. Step-grandparents petitioned to terminate Mother’s parental rights and adopt the children.

Step-grandparents filed their petition in September 2020. They moved to amend the petition on September 24, 2021. The motion to amend the petition was granted in an order entered on November 18, 2021.

The trial court found the relevant four-month period preceding the filing of the supplemental petition to be July 17 to November 17, 2021.

The trial court terminated Mother’s parental rights on various grounds, including abandonment by failure to support during the relevant four-month period.

Mother appealed.

On Appeal: The Court affirmed the trial court but was divided on whether to address the relevant four-month period.

One ground to terminate parental rights is failing to provide financial support during the four months preceding the filing of the termination petition. The four-month period does not include the day the petition was filed.

Even though Mother did not dispute the four-month window used by the trial court, the Court addressed the issue:

The trial court examined a four-month period—July 17, 2021 through November 17, 2021—preceding the November 18, 2021 entry of its order granting Petitioners’ motion to amend. However, using that date, the correct four-month window to apply is July 18, 2021 through November 17, 2021. Nevertheless, the error was harmless in this instance.

The Court affirmed the trial court’s judgment terminating Mother’s parental rights.

Judge Usman issued a separate opinion concurring with the outcome but questioning (1) the propriety of addressing the four-month period and (2) the calculation of the four-month period:

I write separately to reflect a variance of view with the majority’s determination as to the appropriate four-month statutory time period for assessing the ground for termination for abandonment by failure to support…. The majority concludes that the correct four-month period to examine for the ground of abandonment by failure to support in this case is the four months prior to the granting of the motion to amend, running from July 18, 2021, to November 17, 2021, rather than the four months prior to the time the amended petition was filed on September 24, 2021. I do not necessarily disagree with the majority on this point. Where I respectfully diverge is that I do not think it is necessary to decide between these two time periods in this case and would reserve doing so for a more appropriate case.

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In the present case, none of the parties challenges the four-month period utilized by the trial court in assessing the termination ground of abandonment by failure to support. In performing the charged role of assessing the grounds for termination, the majority understandably, nevertheless, considers what the appropriate four-month time period is for determining abandonment by failure to support in the present case. The majority finds a one-day error by the trial court in terms of the four-month time period that is applied but concludes that this error was harmless.

After Judge Usman cites cases suggesting that the determinative date should be when the proposed amendment was filed, not when it was granted, he writes:

When a petitioner files for permission to amend and raises a claim specific to a time period, such as abandonment, he or she is alleging abandonment in the four months preceding the action of filing the amended petition with the court. Unless the petitioner is predicting the future, he or she is not alleging abandonment in the four months preceding the granting of permission to amend, but instead when the petition was filed. The petitioner has no control [over] when the trial court will act to grant permission to proceed under the amended complaint.

K.O.’s Comment: Generally, if an amended petition sets forth new grounds for relief or alleges more acts that occurred after the original petition was filed, Rule 15.03 contemplates that the amendment relates back to the original filing date such that the four-month period should remain the same as before the amendment. An amended petition can serve as the triggering date for a four-month period, provided its claims are separate and distinct from those in the original petition.

Judge Usman’s reasoning is sound. Some enterprising lawyer may want to use this concurring opinion as the starting point for challenging the calculation of the four-month period in a future case involving an amended petition.

Source: In re Skylith F. (Tennessee Court of Appeals, Middle Section, October 9, 2023).

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