64 So. 3d 1112
Ala. Civ. App.2010Background
- DHR filed a petition to terminate L.K.'s parental rights to R.K. and S.K. on October 30, 2009.
- The petition sought service by publication after attempting personal service at the mother's last known address and due to her transience.
- The juvenile court granted service by publication on December 2, 2009, directing publication in the Auburn Villager (Lee County).
- Notice stated the mother must answer within 14 days of publication or appear at the February 3, 2010 hearing; publication occurred December 10, 17, 24, and 31, 2009.
- DHR later admitted the notice was published in Lee County, not in Muscogee County, Georgia or Tennessee, where the mother resided.
- The trial court held a termination hearing on April 22, 2010 and terminated the mother's rights on June 24, 2010; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication complied with §12-15-318(d). | DHR contends publication complied with the statute. | Mother argues publication did not satisfy the last-known-address County requirement. | Publication did not meet §12-15-318(d); service by publication was improper. |
| Whether Rule 4.3, Ala. R. Civ. P., governs service by publication in termination cases. | DHR treated publication under Rule 4.3 as applicable. | Mother argues Rule 4.3 governs; publication was improper. | § 12-15-318 governs publication in termination cases, excluding Rule 4.3 applicability for these proceedings. |
| Whether the lack of publication in Muscogee County/Tennessee invalidates jurisdiction. | DHR maintains publication in Lee County suffices under statute. | Mother asserts failure to publish in last-known counties voids service. | Failure to publish in the last-known address counties defeats validity of service. |
| Effect of void service on the judgment and appeal. | Judgment should stand if service is deemed proper. | Void service voids the judgment; appeal must be dismissed. | Because service by publication was improper, the judgment was void and the appeal must be dismissed. |
Key Cases Cited
- MM. v. B.L., 926 So.2d 1038 (Ala.Civ.App. 2005) (failure to properly serve renders termination judgment void)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (termination of parental rights implicates fundamental liberty interests)
- Ex parte Beasley, 564 So.2d 950 (Ala. 1990) (termination actions are extreme and require due process)
- C.B. v. State Dep't of Human Res., 782 So.2d 781 (Ala.Civ.App. 1998) (termination judgments are permanent and must respect due process)
- Johnson v. Hall, 10 So.3d 1031 (Ala.Civ.App. 2008) (strict compliance with service of process rules required)
- Claridy v. Clandy, 43 So.3d 626 (Ala.Civ.App. 2010) (appellate dismissal of void judgments)