Facts: Child entered foster care at two years old after Mother tested positive for illegal drugs and Child tested positive for methamphetamine. Tennessee’s Department of Children’s Services (“DCS”) petitioned the juvenile court to find Child dependent and neglected, and developed a plan to reunify the family, but Mother made little progress. By December 2023, the juvenile court suspended Mother’s visitation until she completed certain tasks to ensure Child’s safety.

On April 30, 2024, Child’s guardian ad litem petitioned the chancery court to terminate Mother’s parental rights and the rights of an alleged Father. The petition alleged multiple grounds and asked the court to grant DCS full guardianship of Child after termination.

The guardian ad litem moved for a default judgment against Mother for failing to answer the petition or otherwise appear. Mother appeared in court and filed a Uniform Affidavit of Indigency. She requested a continuance so she could have a court-appointed attorney represent her. DCS and the guardian ad litem objected, arguing Mother waited too long and that any delay would harm Child’s interest in a prompt resolution. The trial court found that Mother was entitled to appointed counsel but denied her request for a continuance.

The trial court proceeded with the default hearing that day. After hearing the guardian ad litem’s proof, the trial court found clear and convincing evidence of several grounds for termination and concluded that termination of Mother’s parental rights was in Child’s best interest. The trial court entered a default judgment terminating Mother’s parental rights to Child. It noted Mother had been properly served and notified of the default hearing date, yet she “did nothing” in response. The court found her excuses for not responding “generalized and unconvincing.”

Within thirty days, Mother, now represented by an attorney, moved to set aside the default judgment and filed an answer to the petition. She argued that her due-process rights were violated when the court refused to continue the hearing after finding she was entitled to a lawyer. Mother also said she misunderstood the purpose of the default hearing and did not appreciate the gravity of the proceedings. The trial court refused to set aside the default judgment, finding Mother’s delay was willful. It ruled that she had been properly served and notified, and it found her misunderstanding was not a “feasible basis” for relief.

Mother appealed.

On Appeal: The Court of Appeals of Tennessee vacated the termination of Mother’s parental rights and remanded the case for a new hearing.

Tennessee law guarantees parents fundamentally fair procedures in cases involving termination of parental rights. A parent’s right to care and custody of their child is a fundamental right protected by the due-process clauses of the state and federal constitutions.

Indigent parents are statutorily entitled to a court-appointed attorney in termination proceedings, if they request one. TCA § 37-1-126 requires trial courts to appoint counsel for an indigent parent upon request in a termination case. Trial courts do have discretion to grant or deny a continuance, but that discretion must be exercised consistently with due process considerations, especially given the fundamental rights at stake. In deciding whether to continue a hearing, courts consider factors like how long the case has been pending, the reason for the continuance, the requesting party’s diligence, and any prejudice from a delay.

In this case, the Court of Appeals noted that Mother made her request for counsel at what appeared to be the first hearing in the termination case, less than three months after the petition was filed. This was well within the statutory six-month timeframe for deciding termination cases. While Tennessee law emphasizes speedy resolution of termination proceedings in the child’s best interest, that speed must remain “consistent with due process.” Mother had promptly asked for a lawyer to be appointed. Providing an indigent parent with counsel is a crucial safeguard to ensure a fair termination proceeding. By acknowledging Mother was entitled to counsel yet refusing to delay the hearing for her to consult that counsel, the trial court effectively denied Mother the fundamentally fair procedure the law requires.

The Court of Appeals held that denying Mother a brief continuance to obtain representation under these circumstances violated her right to due process and fundamentally fair proceedings. As a result, the default judgment terminating her parental rights had to be vacated and the case sent back for a new hearing with the opportunity for Mother to have counsel:

Prolonged uncertainty is not in a child’s best interest. Thus, Tennessee courts are statutorily required to expedite contested termination proceedings and avoid unnecessary delays. Yet pursuit of this statutory goal must be “consistent with due process.” Mother requested a continuance to consult with appointed counsel. The court did not find this reason “compelling” given the child’s age. But providing indigent parents with legal representation is a crucial procedural safeguard in termination proceedings. Mother had a constitutional right to fundamentally fair procedures, including a statutory right to appointed counsel, before the termination of her parental rights. The court recognized that Mother was entitled to appointed counsel. Given that finding, the failure to grant a continuance to consult with appointed counsel effectively denied Mother her constitutional right to fundamentally fair procedures.

K.O.’s Comment: The trial court likely thought it was serving Child’s best interest by moving the case along quickly, but that backfired. Ironically, by refusing to pause the hearing to allow Mother to meet with a lawyer, the trial court created a much greater delay — an appeal and a do-over hearing — than a short continuance would have. Trial judges in termination cases carry a mandate to expedite, but not at the expense of fairness. As this case shows, a brief continuance to safeguard a parent’s rights can ultimately save time and ensure the case is resolved correctly.

Consider cases where parents waited too long to engage with the process. For example, in In re Joshua M., a mother who ignored multiple opportunities to get a lawyer and failed to stay in contact with the court was deemed to have effectively waived her right to appointed counsel. In that scenario, proceeding without a parent’s attorney was allowed because the parent’s own inaction amounted to a waiver of counsel.

But here, Mother did the opposite—she showed up and asked for a lawyer at the first chance. There was no waiver.

Attorneys for DCS or guardians ad litem should remember that ensuring the parent has counsel when entitled isn’t just about fairness to the parent—it’s about making any termination decision more likely to withstand appellate scrutiny. In the long run, ensuring a parent’s right to counsel actually serves the child’s best interest by reducing the risk of a costly do-over.

Source: In re Remington B., No. M2024-01423-COA-R3-PT (Tenn. Ct. App. Sept. 26, 2025).

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