Facts: Child was born to an unmarried Mother.

After living with her Aunt, Mother eventually told Aunt she could no longer care for Child. Aunt agreed to take Child, and Mother left.

Mother later returned. Several of Mother’s relatives were concerned for Child’s well-being.

Maternal Grandfather moved to Tennessee to care for Child.

Grandfather petitioned the juvenile court to find Child dependent and neglected in Mother’s care and received temporary custody.

After passing a drug test, Mother was awarded eight hours of unsupervised visitation per week.

By the time of the adjudicatory hearing, Mother had stopped exercising visitation and paying child support. Child was found to be dependent and neglected because of Mother’s drug abuse while pregnant. The court also found Child was a victim of severe child abuse. Mother was limited to supervised visitation.

A few months later, Aunt and Uncle petitioned to terminate Mother’s parental rights and adopt Child.

After Mother failed to respond within 30 days of being served, Aunt and Uncle moved for a default judgment.

Mother appeared and applied for court-appointed counsel. A few weeks after the trial court found Mother did not qualify for court-appointed counsel, a default judgment was entered against Mother.

The case proceeded to trial. Mother appeared without counsel and did not request a continuance or more time to retain counsel. She tried to plead her case but was largely prohibited by the trial court from saying much.

The following month, the trial court entered an order terminating Mother’s parental rights.

Four days later, a lawyer representing Mother moved to set aside the default judgment because Mother appeared but could not afford an attorney, and no guardian ad litem was appointed to represent Child.

At the hearing on this motion, Mother testified she called 50 family-law attorneys but could not afford to hire them. She made an offer of proof where she explained that her funds were depleted by her efforts to complete the permanency plan ordered by the court.

The trial court denied Mother’s motion.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Rule 55.02 permits a Tennessee court to set aside a default judgment if good cause is shown under Rule 60.02, e.g., mistake, excusable neglect, misrepresentation, etc.

When determining whether to vacate a default judgment, Tennessee courts must consider the justifications provided under Rule 60.02 as well as:

• whether the default was willful;
• whether the defendant has a meritorious defense; and
• the level of prejudice that may occur to the nondefaulting party if relief is granted.

Tennessee courts must construe Rule 60.02 liberally to afford relief from a default judgment.

Tennessee law also requires the appointment of a guardian ad litem in all contested termination proceedings.

Here, Mother argued that excusable neglect explained her failure to respond to the petition, and the judgment was void because the trial court failed to appoint a guardian ad litem.

The Court found the trial court’s refusal to set aside the default judgment was “against logic”:

Mother’s failure to file a responsive pleading was excusable based on the following facts presented here: she appeared at the hearings, she attempted to secure appointed counsel, and she had prior dealings with the court system that did not require a responsive pleading. We recognize that pro se litigants should not be permitted to shift the burden of the litigation to the court or their adversaries. This Court has also repeatedly stated that parents have a fundamental right to the care, custody, and control of their children. Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and severing forever all legal rights and obligations of the parent. Few consequences of judicial action are so grave as the severance of natural family ties. At the very least, Mother should have been permitted additional time in which to issue a pro se responsive pleading and motion to set aside once her attempt to secure counsel was unsuccessful.

The record also overwhelmingly establishes that the default was not willful…. Mother informed the court of the progress she made to improve herself in her attempt to reunite with the Child and provided supporting documentation in support of her assertion. The level of prejudice that may occur to the nondefaulting party is minimal in comparison to the insurmountable injustice that occurred as a result of the termination here.

Relative to the failure to appoint a guardian ad litem, the court explained that the action was characterized as uncontested because no responsive pleading was filed. This action was “contested” at every stage of the proceeding through Mother’s presence, her verbal objection to the termination of her rights, and her attempt to seek legal counsel. We hold that the failure to appoint a guardian ad litem to protect [] Child’s interest also resulted in a voided judgment under the circumstances presented here.

The Court vacated the trial court’s judgment terminating Mother’s parental rights because “of the injustice caused.”

In re Abigail J.J. (Tennessee Court of Appeals, Eastern Section, March 15, 2021).

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