OPINION
delivered the opinion of the court,
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.
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
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 Dotson v. Dotson,
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,
Default judgments are allowed in termination cases. See, e.g., In re CAF,
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 pa
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 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,
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.