Assigned on Briefs May 1, 2017
from the Juvenile Court for Knox County No. 145098 Timothy E.
appeals the termination of his parental rights on the grounds
of abandonment by willful failure to visit, contending that
he was not properly notified of the hearing to terminate his
rights and was denied his right to counsel. Upon review of
the record, we vacate the judgment and remand for further
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Vacated; Case Remanded
M. Viglione, Knoxville, Tennessee, for the appellant, Allen
Herbert H. Slatery, III, Attorney General and Reporter;
Ellison M. Berryhill, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Mahar, Knoxville, Tennessee, Guardian Ad Litem.
Richard H. Dinkins, J., delivered the opinion of the court,
in which D. Michael Swiney, C.J., and J. Steven Stafford,
RICHARD H. DINKINS, JUDGE
appeal arises out of an action brought by the Tennessee
Department of Children's Services ("DCS") to
terminate the parental rights of Allen T., Jr.
("Father") to his son, Jayson M. The petition to
terminate Father's rights was filed on August 3, 2016,
and the return on the summons, signed by "Michael Cohan,
Private Investigator, " states that it was served by
hand delivery on Father at "6712 Central Avenue Pike,
Room 213, Knoxville, Tn." In the portion of the summons
form for entry of the "Respondent's mailing
address" is the notation "Moving tomorrow will call
Cohan with mailing address."
September 6, 2016, DCS filed a motion for a default judgment
and set a hearing on the motion for October 4. The
certificate of service on the motion states that it was
served on Father by mail at "6712 Central Avenue Pike,
Room 213, Knoxville, Tn." Father did not appear in
person or by counsel at the October 4 hearing and the court
proceeded to hear testimony in support of the petition for
termination from, inter alia, a representative of
DCS. At the conclusion of the hearing, the court rendered an
oral ruling terminating Father's rights on the grounds of
abandonment by failure to visit, persistence of conditions,
and substantial noncompliance with the permanency plan; the
ruling was memorialized in a document styled "Default
Judgment, " which includes a section entitled
"Termination of Parental Rights and Final Decree of
Guardianship." The certificate of service on the Default
Judgment states that on October 11 a copy of the judgment was
served on Father by mail at the 6712 Central Avenue Pike
address, as well as at 2561 E. 5th Avenue,
Knoxville. Father filed a Notice of Appeal pro
se on October 25.
disputes that he received notice of the proceedings to
terminate his parental rights and argues that "[the]
termination hearing was held in violation of his due process
rights [because] he was not properly notified and was denied
his right to counsel."
have a fundamental right to the care, custody, and control of
their children, a right that "must be recognized and
protected by this court." In the matter of
B.G.J., 215 S.W.3d 396, 398 (Tenn. Ct. App. 2006)
(citing Stanley v. Illinois, 405 U.S. 645 (1972)).
The record is not clear that Father was served with the
motion for default judgment, given notice of the hearing on
the motion, or given notice of the termination hearing. In
light of these deficiencies, we have determined that ...