                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                            September 18, 2006 Session

  IN THE MATTER OF: B.G.J., A Child Under Eighteen (18) Years of Age,
  STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES,
      Petitioner, and GLENN and PATRICIA MULLINS, Intervening
            Petitioners/Appellees, v. S.R.J. Respondent/Appellant

                  Direct Appeal from the Juvenile Court for Monroe County
                        No. J98-232 Hon. Edwin C. Harris, Judge



                 No. E2005-02742-COA-R3-PT - FILED OCTOBER 12, 2006



In this case to terminate parental rights, the Trial Court entered a Default Judgment against the father
and terminated his rights as a parent without hearing any evidence. On appeal, we vacate and
remand.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Vacated and
Remanded.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Kevin W. Shepherd, Maryville, Tennessee, for appellant, Scott Richard Jackson.

John W. Cleveland, Sweetwater, Tennessee, for appellees.



                                              OPINION

               The minor child’s maternal grandmother and step-grandfather filed a Petition to
terminate the parental rights of the father, S.R.J. A summons was issued to father at his address in
Texas (a military base), but was returned “unclaimed”. However, attorney Kevin Shepherd filed a
Notice of Appearance on the father’s behalf, and subsequently, the father filed an answer to the
termination Petition, and the Court then entered an Order appointing a Guardian Ad Litem for the
child.
                A Default Judgment and Final Decree was entered on May 23, 2005, and the
Judgment recites that a hearing was held on April 7, 2005, and that arguments were heard from the
guardian ad litem and both attorneys, and that the Court based its decision on said arguments, and
on the pleadings and the record as a whole. The Court found the summons and petition were served
on father via certified mail and returned unclaimed., and found that the father’s attorney entered a
notice of appearance, and that the father had filed an Answer which did not raise any defense based
on insufficiency of process. Further that the father failed to answer the petition within thirty days
and the Court thus granted petitioners a default judgment, and found all allegations of the petition
to be true, thereby finding grounds existed to terminate the father’s parental rights.

                 The father then filed a Motion to Set Aside Default Judgment, asserting that he was
entitled to relief from default under the Service Members Civil Relief Act, because he was on active
duty in the military until the Fall of 2004.

                The parties then entered a Stipulation that the father had been discharged from the
military as of January 1, 2005. The Court found that the father was not in the military and had not
been for 90 days when he filed the application for relief under the SCRA, and thus was not entitled
to any relief under that Act, and denied the Motion to Set Aside.

               The father raises these issues on appeal:

               1.      Whether the trial court erred in granting a default judgment?

               2.      Whether the trial court abused its discretion in failing to grant the Motion to
                       Set Aside Default Judgment?

               3.      Whether the appellees’ Motion to Dismiss the appeal should be granted?

                  Appellees assert that their Motion to Dismiss the appeal should be granted due to the
father’s failure to comply with Tenn. R. App. P. 8, by failing to file a notice that no transcript would
be filed, and by the father’s failure to timely file his brief. On March 21, 2006, we ordered the father
to file his brief within 10 days or show cause why the appeal should not be dismissed, and the father
filed his brief on the tenth day. Subsequently, a transcript has been filed, and we hold the requisites
for an appeal are satisfied.

               The father argues that it was inappropriate for the Trial Court to grant default
judgment because he had made an appearance in the case, and he did not receive proper notice of
the hearing on the motion for default as required by Tenn. R. Civ. P. 55. Further, that he was not
properly served with process when the original Petition was filed.

              The father made an appearance in this case, but he did not file his Answer or
otherwise defend this suit within the time limits prescribed by the Tennessee Rules of Civil
Procedure, and he was therefore subject to a default judgment pursuant to Tenn. R. Civ. P. 55. See


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Dotson v. Dotson, 2004 WL 73269 (Tenn. Ct. App. Jan. 16, 2004); Pache Industries, LLC, v.
Wallace Hardware Co., Inc., 2003 WL 22668854 (Tenn. Ct. App. Nov. 12, 2003). The record
establishes that the father was notified of the default hearing, as he filed a Motion to Continue the
hearing date. The record also reveals the father waived his right to object to insufficient service of
process by filing his Answer without raising any objection or filing a motion regarding the same.
See Tenn. R. Civ. P. 12.

                The determinative issue on appeal was the propriety of the entry of default in this
case, wherein the Court terminated the father’s parental rights without hearing any proof. While the
father did not explicitly raise this issue in his brief, a parent has a fundamental, constitutional right
to the care, custody, and control of his children, and that right must be recognized and protected by
this Court. See Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972). Tenn. R. App. P. 13(b)
allows this Court to consider issues not specifically raised by the parties when such review can
“prevent injury to the interests of the public” and “to prevent prejudice to the judicial process.”

                Default judgments are allowed in termination cases. See, e.g., In re CAF, 114 S.W.3d
524 (Tenn. Ct. App. 2003). However, there must be proof presented from which the court can
determine whether grounds exist for termination, and whether termination is in the child’s best
interest. Tenn. DCS v. D.L.M.L., 2006 WL 1072155 (Tenn. Ct. App. Apr. 24, 2006). In the
D.L.M.L. case, DCS filed a petition to terminate the mother’s parental rights, and alleged the grounds
of abandonment for failure to visit and support, as well as other grounds for termination. Id. When
the mother failed to respond to the petition, DCS filed a motion for default. The Juvenile Court held
a hearing, and granted the motion for default which terminated the mother’s parental rights, with no
proof having been presented at the hearing. Id. The Referee entered an order which stated that
because the mother failed to appear, the allegations in the petition would be taken as true, and the
Juvenile Court then confirmed the Referee’s order, and the mother appealed to this Court.

                 We vacated the order terminating the mother’s parental rights, and remanded the case
for a hearing. We explained that since termination had to be based on a finding that (1) grounds
existed, as established by clear and convincing evidence, and (2) that termination was in the child’s
best interest, there could be no proper review where there was no proof presented. We specifically
held that, “when a parent does not respond to a petition to terminate parental rights and a default
judgment is sought, a trial court nevertheless must hear testimony and otherwise conduct a hearing
where sufficient evidence is offered for the trial court to determine if grounds for terminating the
parental rights have been proven by clear and convincing evidence, and whether it has been proven
by clear and convincing evidence that terminating the parental rights was in the best interests of the
children.” Id. at p. 3. We stated that without such “critical” evidence, there was no choice but to
vacate the trial court’s judgment. Id.

              In this case, a review of the transcript from the default judgment hearing, reveals that
no proof was heard by the Court. Rather, the Judge stated:

                I recall this previous hearing quite vividly. This young girl is a victim of severe child


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                abuse, severe sexual abuse. The allegations – although the father wasn’t here, the
                allegations involved him as well as the mother. And I’ll agree that this child
                shouldn’t have to go through all this. The Court is going to sustain the motion, grant
                default judgment. . . . Of course, this went up to the Court of Appeals. They
                sustained the judgment of this Court. And I recall what’s in these transcripts
                pertaining to the father as well as the mother.

                While a default judgment can be granted, proof must be presented. It was improper
in this case for the Trial Court to rely on his memory of proof presented at the earlier hearing
regarding the mother’s rights, because that transcript reveals the father was not present at that
hearing, was not represented at the hearing, and was not named as a party to those proceedings. As
the United States Supreme Court has explained, a “fundamental requisite” of due process of law is
the “opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). This requires “timely
and adequate notice”, and “an effective opportunity to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence orally.” Goldberg v. Kelly, 397 U.S. 254, 267
(1970). Since the father was not present at the earlier hearing and had no opportunity to confront
the witnesses or present his own evidence, to affirm the Trial Court’s ruling, which was based on
evidence presented at an earlier hearing, would be a denial of the father’s due process rights.
Accordingly, we vacate the Trial Court’s Default Judgment and remand for proof on any grounds
for termination, and proof of what is in the best interest of the child.

                 The father also argues that it was inappropriate for the Trial Court to fail to grant his
Motion to Set Aside the default judgment, because the default was not willful, and he had a
meritorious defense. This issue is rendered moot by vacating the Judgment terminating the father’s
parental rights.

                The cause is remanded, with the cost of the appeal assessed to Appellees.




                                                         ______________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.




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