In Re Abigail J.J. ( 2021 )

03/15/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 26, 2021 Session
IN RE ABIGAIL J. J.1
Appeal from the Chancery Court for Anderson County
No. 19-CH-1147 M. Nichole Cantrell, Chancellor
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No. E2019-01832-COA-R3-CV
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This action involves the termination of a mother’s parental rights by default judgment. The
trial court found that clear and convincing evidence existed to establish four statutory
grounds of termination and that termination was in the best interest of the child. We vacate
the order of the trial court and remand for proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which THOMAS R. FRIERSON,
II and W. NEAL MCBRAYER, JJ., joined.
Channing R. Miller and Lauren R. Biloski, Clinton, Tennessee, for the appellant, Jessica J.
N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, James and Alicia W.
OPINION
I. BACKGROUND
In May 2015, Abigail J. J. (“the Child”) was born out of wedlock to Jessica J.
(“Mother”).2 During the pregnancy, Mother moved into the home of her half-sister, Alicia
W. (“Aunt”). Mother and the Child moved out briefly before Mother informed Aunt that
she could no longer care for the Child. Aunt agreed to take the Child. Mother later returned
1
This court has a policy of protecting the identity of children in parental rights termination
cases by initializing the last name of the parties.
2
The putative father did not appeal the termination of his parental rights.
and took the Child, believing that Aunt intended to obtain legal custody. Several of
Mother’s relatives, including Aunt and the Child’s grandfather, Michael J. (“Grandfather”),
all shared concerns for the Child’s well-being. Grandfather ultimately left his job in
Alabama to reside full time in Tennessee so he could care for the child.
On November 10, 2015, Grandfather petitioned the Anderson County Juvenile
Court for custody of the Child, alleging that she was dependent and neglected. He was
granted temporary legal custody. Mother’s whereabouts were unknown at the time. She
was not served and did not appear at the preliminary hearing. Mother eventually contacted
Grandfather and was informed of the proceedings. Mother was present for a Juvenile Court
hearing on March 21, 2016, and was served with the petition for custody. She executed a
waiver of the preliminary hearing and for legal counsel. Mother passed a drug test and was
awarded eight hours of unsupervised visitation with the Child per week. Between then and
the June 20, 2016, adjudicatory hearing, Mother completed five or six of the eight visits
that Grandfather arranged and paid approximately $600 in support.
Mother ceased her payments of support and no longer appeared for visitation after
June 2016. She did not appear at the adjudicatory hearing on June 20, where the Juvenile
Court adjudicated the Child as dependent and neglected and required supervision for any
further visitation.
Aunt married James W. (“Uncle”) (collectively the Petitioners”) in January 2017.
The two moved to Ohio but still assisted Grandfather. The Child, then two-years-old, lived
back and forth between Grandfather’s home in Tennessee and with the Petitioners in Ohio.
The Petitioners eventually returned to East Tennessee in February 2018.
Meanwhile, Mother birthed another child, Brielle, in August 2018. The Tennessee
Department of Children’s Services (“DCS”) petitioned for the removal of Brielle based
upon Mother’s drug use while pregnant. Brielle was placed with the Petitioners. On
February 12, 2019, the Juvenile Court adjudicated Brielle as dependent and neglected “due
to Mother’s substance abuse while pregnant.” The court also found that Brielle was a
victim of severe child abuse. Mother did not appeal this finding. The Petitioners
maintained physical custody of Brielle, who has never lived with Mother.
Grandfather, along with the Petitioners, then petitioned the Juvenile Court for a
change in the Child’s custody. Grandfather indicated that he simply wished to act as the
Child’s grandfather, not as a parent. A hearing was held on March 18, 2019, at which
Mother was present. The court awarded the Petitioners legal custody and awarded Mother
supervised visitation.
On April 24, 2019, the Petitioners filed a petition to terminate Mother’s parental
rights and to adopt the Child. On May 10, Mother was served in person at her workplace.
On July 1, the Petitioners moved for a default judgment after more than 30 days passed
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since service of process pursuant to Tennessee Rule of Civil Procedure 55.3 The motion
contained a notice of hearing for July 19.
Mother did not answer or otherwise plead in opposition to the petition. Mother
contacted opposing counsel, whose office advised her that he could not offer assistance as
the opposing party. Mother appeared at the hearing, where she was advised by the trial
court that a default judgment was warranted based upon her failure to respond. The court
instructed Mother to fill out the Uniform Civil Affidavit of Indigency to request counsel.
Opposing counsel indicated on the record that he would not oppose setting aside the entry
of default judgment, should counsel, once appointed, make an appropriate motion.
After the hearing, Mother filed the Affidavit of Indigency, attesting that her income
was $30,000 per year, after the deduction of federal income and social security taxes. The
same day, the trial court signed the “Determination of Nonindigency” portion of the
affidavit, finding that Mother was not indigent based upon her income. By order entered
August 6, the trial court entered judgment by default against Mother and scheduled an
evidentiary hearing on the petition for August 30. The trial court did not appoint a guardian
ad litem “because the proceeding [was] not contested.”
The case proceeded to trial, as scheduled. Mother appeared without counsel and did
not request a continuance or more time to retain counsel. At that time, she still had not
responded to the petition or challenged the entry of default judgment. She was not
permitted to testify or offer evidence to rebut the claims. Following the examination of
three witnesses, the following colloquy occurred between Mother and the trial court:
[Mother]: Do I get a chance to say anything?
Court: Not at this hearing. The Motion for Default that was previously
entered against you means that they can proceed basically Ex Parte, meaning
. . . you’re not even required to be here but the previous Order of Default
against you means they can proceed forward without your participation,
without any notice to you. So –
[Mother]: [Interrupting.] So the fact that they just set up here and lied
means nothing?
Court: Basically what I’m saying is there’s a previous Order of the
Court terminating your rights by default.
3
“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[.]”
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[Mother]: So that’s . . . that’s final? That’s it?
Court: The Ruling I’m getting ready to make based on the grounds
and the evidence that they just provided and these exhibits is going to be the
final Ruling.
[Mother]: This sucks.
[Counsel]: And I just want to remind the Court for the record, you were
ready to proceed with this hearing last time and I agreed, really just in
fairness to her to re-set this for a month to allow her to talk to a Lawyer and
if she found a Lawyer that she wanted to retain . . . and set it aside and so we
gave her an opportunity to do that and so she’s here without Counsel today
and I –
[Mother]: [Interrupting.]. And unfortunately I wasn’t informed until
[two] weeks in that I didn’t get granted a court appointed one and all the
Attorneys I talked to wanted [$10,000]. How do you come up with [$10,000]
in [two] weeks? How do you do that?
Court: Okay.
[Counsel]: And so I talked to one of the . . . one of the Attorneys that called
me was Ms. Whitfield and Ms. Whitfield was going to try to work with her
and I sent all of the exhibits. Nancy in my office scanned and emailed all of
the exhibits to Ms. Whitfield. And I think that Ms. Whitfield was interested
in taking the case but for whatever reason was not retained.
Court: Okay. So I –
[Mother]: [Interrupting.] Just for the record so I don’t get a bad name, I
have worked my butt off for the last year and a half to build . . . to rebuild
my life and better myself for my kids. I have completed every single thing
that was asked of me. I have been clean from all of my opiates and substances
for over a year and a half now.
***
Court: Alright. [Counsel], do you have any questions you wish to ask
[Mother] since she’s present today?
[Counsel]: No[,] Your Honor.
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Court: Alright. Is there anything else that you want me to know other
than what you’ve already stated?
[Mother]: I was told for [two years] of her life that I had no rights and no
visitations whatsoever! That’s why I started to make sure that I had set
visitation so custody got passed and I haven’t missed one ever since! I have
pay stubs on my phone where child support is [withheld from my check]
every time I get paid!
***
[Mother]: They took out [$900] from my income tax, [$900] from the
income tax the year before and [$78] gets [withheld] biweekly every time I
get paid[, starting] about [three] months ago.
Court: Okay. So that would have started in May of 2019?
[Mother]: I guess.
[Counsel]: And it’s my understanding that that is the State seeking
reimbursement for Family’s First and WIC benefits. . . . And that money goes
to the State.
The trial court then made its final ruling, which was later memorialized by order entered
September 16, 2019. The trial court made extensive factual findings and conclusions of
law and terminated Mother’s parental rights based upon the following four statutory
grounds: abandonment for failure to remit child support; the persistence of conditions
which led to removal; a prior finding of severe abuse and neglect of the Child’s sibling;
and failure to manifest an ability and willingness to care for the Child and placing the Child
in Mother’s custody would pose a risk of substantial harm to the physical or psychological
welfare of the Child. The court further found that termination was in the best interest of
the Child. The court awarded the Petitioners’ legal guardianship and ordered that they have
the right to consent to the Child’s adoption, pending the final adoption hearing. The court
directed entry of this order as a final order pursuant to Rule 54.02.4
On September 20, 2019, attorney Biloski, representing Mother, filed a notice of
appearance and moved to set aside the trial court’s order pursuant to Rule 60.02 of the
4
“When more than one claim for relief is present in an action . . . the court, whether at law
or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just reason for delay and upon
an express direction for the entry of judgment.”
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Tennessee Rules of Civil Procedure,5 arguing that relief from the judgment was warranted
when Mother appeared but was unable to afford an attorney and when no guardian ad litem
was appointed to protect the best interest of the Child. Mother filed her notice of appeal
on October 15, 2019. This court remanded the case for the trial court to resolve Mother’s
Rule 60 motion.
Upon remand, Mother testified by deposition that she was unsure how to respond to
the termination petition. She recalled visiting opposing counsel’s office to seek advice but
claimed that she was told his office could not respond to her inquiries as the opposing
counsel. She stated that she was unsure what to do next. However, she appeared at the
appointed time once she received notice of the default hearing. She stated that she
requested counsel at the hearing and that the court clerk advised her that she would be
notified if eligible for court appointed counsel. She explained that she called the clerk’s
office multiple times but was advised that they could not provide any information over the
telephone because it was a sealed case. She claimed that Aunt advised her that her request
had been denied and that she later confirmed this fact with the clerk when she appeared for
a different court date. She then began contacting attorneys.
Mother admitted that she made approximately $30,000 per year but explained that
she did not have the funds to pay the retainer fee for an attorney. She stated that her Google
search for family law attorneys yielded 50 different attorneys. She called “every single
one” but could not afford the consultation fees discussed. She finally met with one
attorney, who requested a $2,500 retainer fee, which she could not afford.6 Relative to the
hearing, Mother conceded that of the three witnesses, only her sister told an untruth related
to a conversation between them.
The trial court heard and denied Mother’s motion to set aside on February 14, 2020,
at which Mother argued that her prior dealings with civil and criminal court resulted in the
appointment of an attorney. She continued that she appeared at the default hearing and
requested an attorney but was not provided with one. Thereafter, Mother attempted to
secure her own attorney but was unable to afford the required retainer fee.
5
“On motion and upon such terms as are just, the court may relieve a party or the party’s
legal representative from a final judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment
is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment
should have prospective application; or (5) any other reason justifying relief from the operation of
the judgment.”
6
She claimed that she was only able to hire her present counsel once she received financial
assistance from a family member.
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Mother made an offer of proof in which she reiterated her arguments and explained
that her funds were depleted by her efforts to complete the DCS permanency plan
requirements for Brielle. She claimed that she completed a number of requirements and
had improved her life in an attempt to also reunite with the Child. This appeal followed.
II. ISSUES
We consolidate and restate the issues raised by Mother to the following dispositive
issues:
A. Whether the trial court erred in its denial of Rule 60 relief from the
default judgment.
B. Whether the trial court erred in terminating Mother’s parental rights
by default without the appointment of counsel.
C. Whether the trial court erred in terminating Mother’s parental rights
by default without the appointment of a guardian ad litem to protect the
Child’s interest.
III. STANDARD OF REVIEW
“A Rule 60.02 motion for relief from a judgment is within the sound discretion of
the trial court and the court’s ruling on a Rule 60.02 motion may not be reversed on appeal
unless it is determined that the court abused its discretion.” Holiday v. Shoney’s South,
Inc., 42 S.W.3d 90, 92 (Tenn. Ct. App. 2000) (citations omitted); see also Turner v. Turner,
473 S.W.3d 257, 268 (Tenn. 2015). Under this standard, we are not permitted to “substitute
[our] judgment for that of the trial court[,]” and the trial court’s ruling will be upheld unless
it affirmatively appears that the “decision was against logic or reasoning, and caused an
injustice or injury to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001); Battleson v. Battleson, 223 S.W.3d 278, 283 (Tenn. Ct. App. 2006).
IV. DISCUSSION
A.
Rule 55.02 of the Tennessee Rules of Civil Procedure provides that “[f]or good
cause shown the court may set aside a judgment by default in accordance with Rule 60.02.”
Rule 60.02 specifies the grounds upon which a party may be granted relief as follows:
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On motion and upon such terms as are just, the court may relieve a party or
the party’s legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (3) the judgment
is void; (4) the judgment has been satisfied, released or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or
it is no longer equitable that a judgment should have prospective application;
or (5) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1) and
(2) not more than one year after the judgment, order or proceeding was
entered or taken.
In determining whether a default judgment should be vacated, Tennessee courts also must
consider, in addition to the justifications provided under Rule 60.02, the following three
criteria: “(1) whether the default was willful; (2) whether defendant has a meritorious
defense; and (3) the level of prejudice that may occur to the non-defaulting party if relief
is granted.” Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)
(quoting Davis v. Musler, 713 F.2d 907, 915 (2d Cir.1983)). The Tennessee Supreme
Court has admonished trial courts to construe Rule 60.02 “with liberality to afford relief
from a default judgment.” Id.In the case before us, Mother’s motion to set aside the default judgment refers
generally to Tenn. R. Civ. P. 55.02 and requests relief “for good cause shown” but does
not specify the subpart under Tenn. R. Civ. P. 60.02 upon which relief is sought.
Specifically, Mother argued that she was unsure how to respond to the petition without an
attorney but that she appeared at the hearing, believing she would be appointed an attorney.
Once an attorney was not appointed, she attempted to secure one but was unsuccessful.
She further argued that the trial court’s failure to appoint a guardian ad litem to protect the
Child’s best interest was “reversible error.” In sum, Mother pled (1) excusable neglect for
her failure to respond to the petition and (2) that the judgment was void based upon the
failure to appoint a guardian. See generally Holley v. Holley, 420 S.W.3d 756, (Tenn. Ct.
App. May 31, 2013) (providing that reviewing courts “ultimately must look to the
substance of what has been alleged,” beyond the pleadings, to properly decide what
characterization an action takes).
The court generally rejected Mother’s claims, holding that it was not responsible for
trying Mother’s case and that the hearing properly proceeded as uncontested due to
Mother’s failure to issue a responsive pleading, thereby obviating the need for the
appointment of a guardian. This court has offered the following guidance for trial courts
to follow when a party appears unrepresented:
Parties who decide to represent themselves are entitled to fair and equal
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treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
The courts give pro se litigants who are untrained in the law a certain amount
of leeway in drafting their pleadings and briefs. Accordingly, we measure
the papers prepared by pro se litigants using standards that are less stringent
than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the litigation to
the courts or to their adversaries. They are, however, entitled to at least the
same liberality of construction of their pleadings that Tenn. R. Civ. P. 7, 8.05,
and 8.06 provide to other litigants. Even though the courts cannot create
claims or defenses for pro se litigants where none exist, they should give
effect to the substance, rather than the form or terminology, of a pro se
litigant’s papers.
Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App. 2003) (citations omitted).
Here, Mother’s failure to file a responsive pleading was excusable based upon 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. Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “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.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of natural
family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455
U.S. 745, 787 (1982)). 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. The
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Petitioners allege that relief should still not be granted because Mother cannot establish a
meritorious defense to the statutory ground of termination based upon a prior finding of
severe abuse. The Petitioners are correct that the existence of one statutory basis for
termination of parental rights will support the trial court’s decision to terminate. In re
C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re
Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). However, “a court must determine that
clear and convincing evidence proves not only that statutory grounds exist [for the
termination] but also that termination is in the child’s best interest.” In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c). 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 non-defaulting 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 the Child’s interest also
resulted in a void judgment under the circumstances presented here. See Tenn. Sup. Ct. R.
13(d)(2)(D) (providing that the court shall appoint a guardian ad litem in termination
proceedings, unless the termination is uncontested). See generally Turner v. Turner, 473
S.W.3d 257, 270-71 (Tenn. 2015) (holding that a judgment will be held void only when
the infirmity is apparent from the record or the proceedings); In re Aliyah, 604 S.W.3d 417,
420 (Tenn. Ct. App. 2019) (vacating the termination of parental rights when the appointed
guardian ad litem was not present at the hearing to represent the child).
With all of the above considerations in mind, we hold that the trial court’s refusal
to set aside the default judgment was against logic and that the court’s judgment in this
action must be vacated as a result of the injustice caused. Any remaining issues are
pretermitted by this court’s decision. Upon remand, Mother may request the appointment
of counsel based upon her current income.
V. CONCLUSION
The judgment of the trial court is vacated. The case is remanded for further
proceedings. Costs of the appeal are taxed to the appellees, James and Alicia W.
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JOHN W. McCLARTY, JUDGE
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