                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                                 Assigned On Briefs October 25, 2004

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v.
                          C.M.

                       Appeal from the Juvenile Court for Hamblen County
            No. 12700, 12702, 12703, 12704, 12705, 12706   Mindy Norton Seals, Judge



                    No. E2004-00960-COA-R3-PT - FILED DECEMBER 13, 2004


This is an appeal of the trial court’s order terminating the mother’s parental rights to her six children.
The mother, who had appeared at earlier hearings, did not appear at the termination hearing. A
motion for default judgment was neither filed nor served on the mother. The trial court granted a
default judgment based upon the mother’s failure to appear at the termination hearing. We find that
the mother’s failure to appear did not constitute grounds for a default judgment in this case. We find
that the State did not comply with Rule 55 of the Tennessee Rules of Civil Procedure. The judgment
of the trial court is vacated and the cause is remanded.

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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
CHARLES D. SUSANO , JR., J., joined.

Edward L. Kershaw, Greeneville, Tennessee, for the Appellant, C.M.
                                                                    Í
Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee

                                          MEMORANDUM OPINION1



        1
            Tenn. Ct. App. R. 10 provides as follows:

                      M emorandum Opinion - This Court, with the concurrence of all judges participating in
            the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when
            a formal opinion would have no precedential value. W hen a case is decided by memorandum
            opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall
            not be cited or relied on for any reason in any unrelated case.
         On May 27, 2003, Appellee, the State of Tennessee, Department of Children’s Services
(“DCS”) filed a petition to terminate the parental rights of the Appellant, C.M. with respect to her
six biological children - L.W. (d.o.b. 7/14/91), M.W. (d.o.b. 3/18/94), G.W. (d.o.b. 4/7/95), F.M.
(d.o.b. 10/18/97), P.W. (d.o.b. 10/26/98), and D.W. (d.o.b. 4/26/00).2 The record indicates that C.M.
possesses an intelligence quotient of 55 and has been diagnosed as mildly mentally retarded. The
record further indicates that the children were removed from C.M.’s custody by DCS in May of 2001
and that the trial court subsequently found them to be dependent and neglected. The children have
remained in foster care since the time of their initial removal from the custody of their mother.

       The petition to terminate C.M.’s parental rights came on for final hearing on January 21,
2004. The record shows that C.M. was not present at this hearing and the following exchange took
place between the court and counsel for DCS with respect to the latter’s request that the court enter
a default judgment against C.M.:

                     THE COURT: And could you give a brief recitation of what has occurred
             with reference to trying to get the mother here for this hearing?

                     MS. PARSONS: Yes, Your Honor. We were here for a termination that
             was set for - - I don’t remember when it was set - - and the mother did not appear,
             and Mr. Kershaw was representing the mother at that time and there was some
             concern because [C.M.] has always come to all of the court hearings. The
             department last heard from her in October, and we’ve not heard from her since
             that time.

                     Subsequent to that court hearing, Your honor, we did publish four
             consecutive times in the paper in Knox County - - in the News Sentinel which is
             in Knox County which was [C.M.’s] last residence, and in the ad it informed her
             that this court date was set today, that if she did not appear today, that a default
             would be taken against her and a hearing on the termination of her parental rights
             would occur without further notice to her.

                    And so we find ourselves here today without [C.M.] here, and we’ve had
             no contact whatsoever with her since that time.

                    THE COURT: Does the State have a motion?

                    MS. PARSONS: Yes, Your Honor. We would move at this point that
             [C.M.] had been previously served with a copy of the petition to terminate her
             parental rights and informed that the last court date which she did not appear, we
             have taken efforts to inform her of this court date, and we would ask at this time


         2
         A petition to terminate the parental rights of the children’s biological father, G.W ., was also filed on the same
date. G.W .’s parental rights were terminated by judgment entered January 21, 2004 and no appeal was taken.

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         that she be held - - found to be in - - held to be in default and that we be allowed
         to continue ex parte.

                 ...

                 ... To back up a little on her, she had not even - - we had - - this had been
         set previously and she - - in fact, it had been continued because she had a medical
         emergency. She had a gallbladder that was removed, and she didn’t appear at that
         time either but there was obviously a reason for that.

                THE COURT: So we have the first time it was continued because it was
         reasonably medically necessary for her, of course, to recuperate from gallbladder
         surgery. The reset date, which was far enough off to get her to recuperate, she did
         not appear; but rather than to take a default at that time out of an abundance of
         caution, it was reset for today.

                MS. PARSONS: And then publication took place in the Knoxville News
         Sentinel.

                 THE COURT: Then the State’s motion for default judgment is granted.

        The trial court entered the default judgment against C.M. on March 17, 2004. The judgment
states as follows:

                In this cause, on motion of the Petitioner and it appearing to the Court that
         personal service was duly made upon Respondent [C.M.]; that service by
         publication of the default was duly made upon the Respondent, and that
         Respondent has failed to appear and make defense to the petition in this cause
         within the time required by law, IT IS ORDERED that this cause be taken as
         confessed by said Respondent and further hearing set ex parte.

        The issue we address in this opinion is whether the trial court followed requisite procedure
in entering its default judgment. This is a question of law and, therefore, our review is de novo with
no presumption of correctness regarding the conclusion of the trial court. Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

        Tenn. R. Civ. P. 55.01 governs the entry of default judgments and provides in pertinent part
as follows:

                  When a party against whom a judgment for affirmative relief is sought has
         failed to plead or otherwise defend as provided by these rules and that fact is made
         to appear by affidavit or otherwise, judgment by default may be entered as
         follows:


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                 The party entitled to a judgment by default shall apply to the court. All
         parties against whom a default judgment is sought shall be served with a written
         notice of the application for judgment at least five days before the hearing on the
         application, regardless of whether the party has made an appearance in the action.

        As best we can determine from our review of the above cited portions of the trial transcript
and the trial court’s judgment, DCS requested that a default judgment be entered in this case, and
the court decreed that a default judgment was proper, because of C.M.’s nonappearance at trial.
However, as the above rule specifies, default judgment is appropriate when a party “fails to plead
or otherwise defend.” The trial court’s judgment is not based upon a finding that C.M. “failed to
plead or otherwise defend.”

        We further note that the rule requires that the party entitled to a judgment by default shall
apply to the court and that written notice of the application is to be served upon the party against
whom the default judgment is sought. See also, Johnson v. Richardson, No. M2002-02968-WC-R3-
CV, 2004 WL 402670 (Tenn. Workers Comp. Panel March 25, 2003). Our review of the record
does not indicate that DCS submitted an application for default judgment to the trial court at any
time prior to its oral motion at the final hearing on January 21, 2004, and there is no indication that
C.M. was served with such an application.

        It also appears that DCS’s attempt to serve C.M. by publication does not meet the
requirements of relevant statutory authority. The Tennessee Rules of Juvenile Procedure are
applicable to a termination proceeding such as the one before us. Tenn. R. Juv. P. 10(c)(2) provides
that “[i]f after reasonable effort the party cannot be found or the party’s post office address
ascertained, whether the party is within or without this state, the court may order service of the
summons upon the party by publication in accordance with Tenn. Code Ann. §§ 21-1-203 and 21-1-
204(a) and (b).” Tenn. Code Ann. §21-1-203 further sets forth those cases in which personal service
may be dispensed with and states that to dispense with personal service in such a case “the facts
shall be stated under oath in the bill, or by separate affidavit, or appear by the return.” Tenn. Code
Ann. § 21-1-204(a) additionally mandates that “[i]n case personal service is not used, if the
defendant does not cause an appearance to be entered, the clerk, as soon as the necessary affidavit
is made, shall enter upon the rule docket an order requiring the defendant to appear at a certain day
therein named, being a rule day, and defend, or otherwise the bill will be taken for confessed.” The
record in this case does not show that DCS submitted the requisite statement of those facts which
would allow dispensing with personal service in compliance with Tenn. Code Ann.§21-1-203 or that
an order was entered by the trial court as required by Tenn. Code Ann. § 21-1- 204(a). In any event,
these statutes pertain to the initial service of a summons, not subsequent notice of an unfiled motion
for default judgment.

       Based upon our analysis as set forth above, it is our conclusion that the trial court erred in
entering the default judgment in this case. Although C.M. does not raise the issue of the procedural
propriety of the trial court’s entry of the default judgment, we conclude that this is an appropriate
matter for our review pursuant to Tenn. R. App. P. 13(b) which allows us to consider issues not


                                                 -4-
raised by the parties in order to “prevent injury to the interests of the public” and “to prevent
prejudice to the judicial process.”

        For the foregoing reasons, we vacate the judgment of the trial court and remand for further
action consistent with this opinion. Costs of appeal are adjudged against the State of Tennessee,
Department of Children’s Services.



                                             _________________________________________
                                             SHARON G. LEE, JUDGE




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