Facts: Child was born in January 2018. Within days, Maternal Aunt brought Child and Mother to live with her.

A few months later, DCS took physical custody of Child, and the juvenile court later declared Aunt to be the Child’s custodian after finding the Child dependent and neglected. The juvenile court granted Father supervised visitation and ordered Father to pay ten dollars per month for child support.

In September 2023, Maternal Aunt and Uncle filed a petition to terminate Father’s parental rights and adopt Child, alleging grounds of failure to manifest an ability or willingness to assume custody, abandonment by failure to visit, and abandonment by failure to support.

At trial, the proof about Father’s incarceration timeline was messy. Father testified he was incarcerated from about the second week of January 2023 until July 2023, and then again from early August 2023 until late September 2023. The record was unclear whether Father was incarcerated on the day the petition was filed, but it was undisputed that he was incarcerated for at least part of the four months immediately preceding the filing. The trial court found:

I specifically find that the relevant consideration period . . . is hard to, I guess, to nail down precisely, but it — from the proof that I’ve heard . . . we have to go somewhere between the 15th and the 18th day of January 2023. And then we worked backward from that, which would be, I guess October — for a while we said September. But I think if you add it up, it’s actually — let’s say it’s that earliest day. October 15th, November 15th, December 15th, the following January of 2023. So there’s a range in there, maybe the 15th to the 18th, but the precise days are not relevant to our inquiry[.]

On the merits of abandonment, the parties disputed the date of the last visit. Aunt testified Father visited Child once in April 2018. Father testified that he last visited in August or September 2018.

On financial support, Father testified his support included buying a tablet that Aunt declined, buying an outfit and shoes in February 2020, and paying child support when he could. Aunt testified Father’s payments were never consistent and that she received about six payments over seven years.

The trial court found clear and convincing evidence of all three grounds for termination and that it was in Child’s best interest to terminate Father’s parental rights.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court’s findings that Father abandoned Child by failure to visit and support but affirmed the ground of failure to manifest an ability or willingness to assume custody and that termination was in Child’s best interest.

Tennessee termination of parental rights cases require proof, by clear and convincing evidence, of at least one statutory ground for termination and that termination is in the child’s best interest. Abandonment is one such ground, and when incarceration is involved, the statute requires courts to analyze a defined four‑month “determinative period” tied to the parent’s periods of incarceration and nonincarceration. Precision in identifying that period is critical.

When a child is four years old or older, Tennessee law has specific provisions for determining abandonment when a parent is incarcerated at the time the termination petition is filed, or when the parent is incarcerated during all or part of the four consecutive months immediately preceding the filing.

In that situation, the court must identify the correct four-month window for the abandonment analysis. If the parent was incarcerated for part of the four months immediately preceding the filing, the court must piece together the most recent 120 days of nonincarceration preceding the filing to determine the relevant four-month period.

After summarizing the applicable law, the Court of Appeals vacated the two abandonment grounds because the trial court’s determinative-period analysis was wrong and, given the state of the record, the Court could not determine what the determinative period actually was. The problem was not credibility or intent, but methodology: the statute requires courts to aggregate the parent’s most recent 120 days of nonincarceration before filing, not simply assume the four months immediately preceding a chosen incarceration date.

Instead of aggregating the most recent 120 days of nonincarceration preceding the filing of the petition, the trial court’s calculation disregarded Father’s periods of nonincarceration between July 2023 and September 2023, instead only looking to the four months immediately preceding January 2023. Moreover, the trial court did not specifically calculate the individual dates of nonincarceration when aggregating the four-month total.

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However, even the “stipulated” dates are unclear. The parties contradict each other as to the correct determinative period, with each listing different determinative periods in their respective appellate briefs…. It is unclear whether the trial court utilized the stipulated period in its calculation. Instead of using a stipulated period, the trial court appears to have found the determinative period to be between October 15, 2022 and somewhere from January 15, 2023 to January 18, 2023. The court subsequently found that Father neither visited nor supported the Child between these dates.

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In this case, however, the record on appeal is almost entirely devoid of any information as to how long Father was incarcerated during the summer of 2023. All we can ascertain is that Father was not incarcerated anywhere from 1 to 77 days between July and September 2023. Therefore, the closest we can get to establishing the correct determinative period is that it began somewhere between September 17, 2022 and October 23, 2022, and ended somewhere between January 15, 2023 and January 18, 2023. We simply cannot tell from this record what the determinative period is.

For this reason, the Court of Appeals vacated the trial court’s finding of abandonment by failure to visit and failure to support. Everything else was affirmed, including the termination of Father’s parental rights.

K.O.’s Comment: This opinion is a reminder that abandonment by an incarcerated parent can turn on a calendar, not just credibility. When incarceration is involved, petitioners bear the burden of proving not only willfulness, but the correct determinative period. If the record cannot support that math, the ground fails, even if the underlying conduct would otherwise support termination.

If you represent petitioners, build the determinative period as you would a foundation. Get jail records. Get release paperwork. If there were multiple jail stays, map them out and do the one hundred twenty-day non-incarceration math before you file, then plead the exact dates you intend to rely on.

If you represent a parent, do not treat the determinative period as an afterthought. This case shows why. The Court of Appeals vacated both abandonment grounds because the record did not allow the court to determine the correct period. That can be outcome-changing when petitioners do not have another ground that sticks.

Source: In re Ja’Kara K. (Tennessee Court of Appeals, Eastern Section, April 28, 2026).

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