Facts: Child lived with Mother until mid-June 2024, when Child was removed from Mother’s custody by court order and temporary custody was awarded to Petitioner, a prospective adoptive parent. Child was then three years old.

Mother visited Child once after the removal. On June 29, 2024, Mother met Child and Petitioner for a brief visit at a shopping mall. Mother made no further attempts to visit Child. Mother also provided no financial support after Petitioner assumed custody.

The original petition alleged several grounds against Mother, including abandonment by failure to visit. Mother did not file an answer.

On January 18, 2025, Petitioner filed an amended petition adding abandonment by failure to support as another ground. At the time of the original petition, Mother had been separated from Child for less than two months, so the failure-to-support ground was not yet available.

The case was tried on March 26, 2025. Mother did not appear, and Petitioner obtained a default judgment.

In a final order of adoption entered by default on July 2, 2025, the trial court terminated Mother’s parental rights after finding clear and convincing evidence of abandonment by failure to visit and failure to support. The trial court also found that termination was in Child’s best interest.

Mother appealed.

On Appeal: The Court of Appeals affirmed the termination of Mother’s parental rights on the ground of abandonment by failure to support, but reversed as to abandonment by failure to visit due to an error in calculating the determinative period.

Tennessee law defines abandonment as a parent’s failure to visit or support the child during a determinative period immediately preceding the filing of the termination petition. When the child is under four years old, the determinative period is “a period of three (3) consecutive months immediately preceding the filing of a petition for termination of parental rights.” For older children, the usual period is four months.

The day the petition is filed is excluded from the calculation. The period ends the day before the petition is filed.

The Court first addressed the proper determinative period:

We must begin our review of the abandonment grounds by addressing the applicable determinative period for each ground as outlined by statute. Because the Child was less than four years old when the Termination Petition was filed, the timeframe for calculating the ground of abandonment would normally be the three consecutive months prior to the filing of the Termination Petition. However, when, as here, a petitioner has filed an amended termination petition that includes “an entirely new ground,” the determinative period may be calculated relative to the filing date of the amended petition. This is especially true when the “condition precedent” to the newly alleged ground “did not exist at the time of the filing of the initial petition.”

For abandonment by failure to support, the ground first appeared in the amended petition filed on January 18, 2025. Thus, the correct determinative period was October 18, 2024, through January 17, 2025.

However, the trial court used the wrong period, March 5, 2024, through August 5, 2024. The Court of Appeals found the error harmless because the proof covered the correct period:

Accordingly, the proper determinative period for calculating the ground of abandonment by failure to support was the three months prior to the filing of the Amended Termination Petition, or October 18, 2024 to January 17, 2025 (“Determinative Period”). In its amended final order, the trial court erred by analyzing this ground using a determinative period from March 5, 2024 to August 5, 2024 (the five months preceding the filing of the original Termination Petition). However, because the trial court elicited testimony from Petitioner that Mother had not paid “any child support” during the period that Petitioner had custody of the Child (spanning from June 14, 2024 until March 24, 2025), we determine such error to be harmless because the trial court’s findings, relative to the proof presented at the trial, included the correctly calculated Determinative Period. Therefore, the evidence preponderates in favor of the trial court’s determination by clear and convincing evidence that Mother had abandoned the Child by failing to financially support the Child during the Determinative Period.

The Court affirmed the finding that Mother abandoned the Child by failing to support Child.

The result differed regarding abandonment by failure to visit. That ground was alleged in the original petition, filed on August 5, 2024. Because Child was under four years old, the determinative period was May 5, 2024, through August 4, 2024.

The trial court again used the wrong period, from March 5, 2024, through August 5, 2024. This time, the error mattered.

For a significant portion of the determinative period, May 5 through June 14, Child lived with Mother. After Child was removed from Mother’s custody, Mother visited once on June 29. Although the visit was brief, Petitioner did not prove abandonment by failure to visit during the determinative period..

The Court explained:

Hence, the correct determinative period for considering the statutory ground of abandonment by failure to visit was May 5, 2024, until August 4, 2024. Employing these dates, we determine that clear and convincing evidence does not support termination of [Mother’s] parental rights pursuant to the ground of abandonment by failure to visit because the Child was living with [Mother] for a significant portion of the determinative period, from May 5, 2024, until the Child was removed from her custody on June 14, 2024. We therefore determine that [Petitioner] did not meet her burden to establish this ground by clear and convincing evidence. Accordingly, we reverse the trial court’s determination and conclude that the ground of abandonment by failure to visit does not support termination of [Mother’s] parental rights.

Although the Court affirmed one ground for termination, the case was not over. The Court vacated the trial court’s best-interest finding because the order lacked sufficient findings of fact and conclusions of law. The case was remanded to the trial court to conduct the required best-interest analysis.

K.O.’s Comment: There is a practical lesson here for lawyers. In every termination petition, calculate the determinative period separately for each abandonment ground. If an amended petition adds a new ground, recalculate the period. Then plead the dates, prove the dates, and make sure the order uses them. Termination of parental rights is the “death penalty” of civil cases. The statutory safeguards are not technicalities. They are the process.

Source: In re Michael S. (Tennessee Court of Appeals, Eastern Section, May 28, 2026).

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