Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Prince J.

Court of Appeals of Tennessee, Knoxville

December 5, 2017

IN RE PRINCE J.

          Assigned on Briefs September 1, 2017

         Appeal from the Circuit Court for Hamilton County No. 13A204 J. B. Bennett, Judge

         The mother of twins seeks to set aside the termination of her parental rights on the ground the judgment is void for lack of personal service. In August 2013, relatives who had legal custody of the children filed a "Petition for Termination of Parental Rights and Adoption." After two failed attempts to locate the mother for service of process, she was served by publication. In December 2013, the trial court entered an Order of Default terminating her parental rights, and the children were adopted shortly thereafter. The mother received actual notice of the termination of her parental rights and the adoption no later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60 motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the 2013 judgment was void for lack of personal service but that the mother was not entitled to relief from the judgment based on "exceptional circumstances." The mother appealed. We affirm the trial court's determination that the mother is not entitled to relief based on exceptional circumstances, they being that she had actual notice of the judgment eighteen months prior to seeking relief, which manifested an intention to treat the judgment as valid, and that granting relief would impair the children's and the adoptive parents' substantial interests of reliance on the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Mindy M., Spencer, Virginia, Pro Se. [1]

          Michael S. Jennings and William H. Vetterick, Chattanooga, Tennessee, for the appellees, James and Ila C.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Thomas R. Frierson II and Brandon O. Gibson, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Mindy M. ("Mother") gave birth to twin boys, Prince and Brooklyn, in Virginia in 2010.[2] When Mother was incarcerated in early 2012, a court in Virginia awarded custody of the twins to Mother's grandmother, Peola R. ("Grandmother"). In May 2012, custody was transferred to members of the extended family, James and Ila C. ("the Adoptive Parents") with the expectation that they may adopt the children.[3]

         In June 2012, the Adoptive Parents and the children moved to Chattanooga, Tennessee. Thereafter, Grandmother used Skype to communicate with them on a regular basis. After Mother was released from jail, she was present on several occasions when Grandmother communicated with them through Skype; however, she chose not to be seen or to participate in any of the conversations. As Mother subsequently explained to the trial court, "I haven't Skyped with [the boys] but I have been around when my grandma has Skyped with [them] several times. And the reason why is because I didn't want no confusion or no disturbance going on during the Skyping."

         On August 13, 2013, the Adoptive Parents filed a "Petition for Termination of Parental Rights and Adoption" in Hamilton County Circuit Court, contending that Mother's parental rights should be terminated under Tenn. Code Ann. § 36-1-102 (1)(A) for willful failure to visit and willful failure to support. As of the filing of the petition, Mother had only visited with the children on one occasion-a family reunion in August 2012. Moreover, Mother had not provided any support while the children were in the Adoptive Parents' custody.[4]

         The Adoptive Parents made several inquiries with relatives in their attempts to locate Mother for service of process. They also engaged a professional process server who attempted to serve Mother at her two last known addresses, one belonging to Mother's aunt and the other belonging to her former boyfriend. Neither Mother's aunt nor her former boyfriend knew where Mother now lived. The professional process server provided two affidavits that detailed his efforts to serve Mother, which were filed with the trial court.

         After the first two summons were returned unserved, the Hamilton County Circuit Court Clerk issued a Publication Notice, although the Adoptive Parents had not filed a motion for publication with the court in accordance with Tenn. Code Ann. § 36-1-117. The publication ensued in the North Carolina area where Mother was last known to reside, and the notice ran weekly for four weeks in October 2013. On December 16, 2013, the trial court entered an Order of Default against Mother and terminated her parental rights to both children. The adoption of the children was finalized on December 30, 2013.

         It is undisputed that Mother learned of the termination of her parental rights and the adoption of Prince and Brooklyn on or before April 2014; yet, she took no action to set aside the termination of her parental rights until October 7, 2015. In her Motion to Set Aside, Mother contended that the order terminating her parental rights was void for lack of personal service. In January 2016, the trial court denied Mother's Motion to Set Aside, ruling that (1) the substituted service by publication was valid; (2) Mother "waited too long under Rule 60 to challenge the Order as a voidable order;" and (3) the statute of repose located at Tenn. Code Ann. § 36-1-122(b)(1) and (2) prohibited the court from setting aside the judgment because Mother filed her motion to set aside more than a year after the judgment was entered.

         Mother then filed a Motion to Alter or Amend, and the trial court entered an order requesting that the parties brief the following issues: (1) "The impact on [Mother's] motion…of the cases Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015), In re Landon T.G. et al., No. E2015-01281-COA-R3 (Tenn. Ct. App. filed March 9, 2016) and section 66 of the Restatement (Second) of Judgments;" and (2) "Assuming, arguendo, the January 27, 2016 Order is void ab initio, do the repose statutes at issue, T.C.A. §§ 36-1-113(q) and 36-1-122(b) bar the motion from being successful?"

         At the hearing on June 9, 2016, the parties agreed to treat the pending Motion to Alter or Amend as a Tenn. R. Civ. P. 60 motion, and Mother, Grandmother, and Adoptive Mother testified. In an order entered on September 21, 2016, the trial court ruled that the judgment terminating Mother's parental rights and granting the adoption was void ab initio for lack of personal service. Specifically, the trial court found that while the Adoptive Parents made diligent efforts to locate Mother, they failed to file a motion for publication of notice in accordance with Tenn. Code Ann. § 36-1-117. The trial court ruled, however, that Mother was not entitled to relief because both prongs of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.