Facts: Child was born to Mother. There is no putative or legal father.

Child was found dependent and neglected and placed in the custody of the Tennessee Department of Children’s Services (“DCS”) because Mother was homeless and lacked the means to care for Child.

Forty days later (!!!), the guardian ad litem petitioned to terminate Mother’s parental rights and served Mother with process the next day. With no response from Mother in one and a half months, the guardian moved for a default judgment. DCS also joined the termination petition.

Fourteen minutes before trial, Mother, appearing pro se, filed an answer to the termination petition. The trial court questioned her about her delayed response. At first, Mother testified she delayed filing an answer because she “wasn’t sure how to do it.” Then, she explained that she only completed ninth grade and “can comprehend certain things but [has] comprehension problems as it is.”

Mother also testified that her court-appointed attorney in the underlying dependency and neglect proceedings told her she could file an answer any time before trial. She further said that her court-appointed attorney told her to bring the petition to him because he was unfamiliar with such documents. The trial court found Mother’s testimony was not credible because the trial court knew that attorney was experienced and knowledgeable about parental termination proceedings.

The trial court granted a default judgment against Mother. The trial court heard the evidence of grounds and Child’s best interest before ultimately terminating Mother’s parental rights, as Tennessee law requires in termination cases, and ruled that Mother’s parental rights should be terminated in an order entered on August 30.

On September 22—less than 30 days after the entry of the order terminating her parental rights—pro se Mother asked the court to set aside the default judgment, claiming, “This isn’t fair because I didn’t get to participate and give my side of the story.” She also requested and was appointed counsel in the termination matter.

The trial court found that Mother did not establish a legal basis or good cause to set aside the default judgment under Rule 60.02 and, therefore, denied Mother’s motion.

Mother appealed.

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

Like any other civil case, Tennessee law allows a court to enter a default judgment in a parental rights termination case when the party has failed to plead or otherwise defend the case.

Rule 60.02 allows a court to set aside a default judgment when it finds excusable neglect, among other reasons. Although courts must construe the rule liberally to afford relief from a default judgment, the moving party must show why they were justified in not avoiding the neglect.

Tennessee courts must also consider whether the default was willful, whether the defendant asserted a meritorious defense, and the prejudice that would result for the nondefaulting party. Willfulness is a threshold inquiry when a party seeks relief from a default judgment based on excusable neglect. If the court finds the defaulting party acted willfully, the default judgment cannot be set aside on “excusable neglect.” Making deliberate choices amounts to willful conduct.

The Court found no fault in the trial court’s reasoning:

In her motion, Mother requested the trial court to set aside the default judgment because, in her view, it was unfair that she “didn’t get to participate and give [her] side of the story” during the termination proceeding. On appeal, Mother argues excusable neglect based on the fact that she has a ninth-grade education and “did what she knew to do.” During the hearing on Mother’s Rule 60.02 motion, Mother testified that she stopped reading the petition to terminate parental rights because the allegations about substance abuse were upsetting to her. The trial court noted that the first mention of Mother’s drug use was on page four of the petition. Mother explained that she delayed filing an answer because she needed help understanding the petition and because counsel in the underlying dependency and neglect proceeding had advised that she could file the answer on the first day of trial, an assertion previously found incredible by the trial court. Mother admitted to understanding that she could have requested court-appointed counsel to represent her in the termination proceedings because she had such in two other proceedings. She thought she would be able to defend herself.

In its order denying the Rule 60.02 motion, the trial court credited Mother’s assertions, but did not find credible her reasons to excuse the significant delay in filing an answer. We affirm this finding. Moreover, the record demonstrates that Mother’s conduct was willful. By her testimony, she deliberately failed to read the petition to terminate parental rights in its entirety. With purpose, she consulted prior counsel regarding the pleadings and then deliberately ignored the pleadings until the morning of trial, offering no logical explanation for this course of action. Mother also deliberately chose to represent herself in the termination proceedings. Because the record demonstrates that Mother’s conduct was willful, we need not examine the other factors to determine whether she has established excusable neglect.

The Court affirmed the trial court’s decision and its finding that Mother did not establish a legal basis to set aside the default judgment.

K.O.’s Comment: Why was Mother’s motion analyzed under Rule 60.02 when it was filed within 30 days of the entry of the trial court’s order? Rule 60.02 applies to motions filed after 30 days of the entry of the trial court’s order. Rule 59.04 applies to motions filed before the expiration of 30 days since the entry of the final order.

The answer lies in Rule 55, the rule that covers default judgments. Rule 55.02 says, “For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02.” Despite this, there are many examples in Tennessee’s caselaw of default judgments being successfully challenged under Rule 59.04.

The analysis for setting aside default judgments is the same under Rules 59.04 or 60.02. Both require the moving party to prove their entitlement to relief by clear and convincing evidence.

But what are we to make of the many appellate cases in Tennessee that hold trial courts should grant relief “whenever a reasonable doubt exists” about whether a default judgment should be set aside?

Is the burden on the movant to show they are entitled to relief by clear and convincing evidence, or is the burden on the nonmovant to prove beyond a reasonable doubt that the movant is not entitled to relief?

And what should the burden be, particularly when the court is forever severing the parent-child relationship without a contested hearing on the merits?

In re Alessa H. (Tennessee Court of Appeals, Middle Section, August 12, 2022).

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