Service Means Service. Really.

A party initiating a petition to modify a court decree must serve the other party, and sending a copy to the party’s attorney isn’t enough. That’s the holding of the Alabama Court of Civil Appeals in M.M. v. B.L. and M.L., Case No. 2040731 (Ala. Civ. App. October 21, 2005). The Appeals Court held that any action taken by the juvenile court without proper service of process was void.

The maternal grandparents of a minor child filed in juvenile court to terminate the parental rights of the father. To accomplish service, they sent a copy of the petition to modify by ordinary mail to the attorney who had previously represented the father. The father’s attorney appeared and stated that the father had not been served, but the juvenile court set a hearing and took testimony. After the hearing, the juvenile court not only terminated the parental rights of the absent father but went on to grant the maternal grandparents’ petition to adopt the child. The father appealed.

The Appeals Court distinguished between “pleadings and other papers,” which pursuant to Ala. R. Civ. P. 5 may be served by sending copies to the attorney for the party, and “summons or other process,” which pursuant to Ala. R. Civ. P. 4 must be served on the party unless the party or his attorney waives service. Because this case dealt with a new petition involving a changed case number (the addition of “.02” to denote a new case) and requiring the payment of a filing fee, the Court of Appeals held that it was subject to the requirements of Rule 4. Consequently, the juvenile court lacked personal jurisdiction unless and until the father had been properly served.

Because the juvenile court had no personal jurisdiction, its action terminating the father’s parental rights was void. Moreover, the juvenile court’s attempt to grant the maternal grandparents’ petition to adopt the child was also void, because primary jurisdiction over adoption proceedings is in the probate court rather than juvenile court.

2 comments

  1. Briana S. Felch says:

    I know this is an AL blog, but my sister’s situation is similar, but in TN (Jackson, Madison Co). Her ex has repeatedly harassed her with DHR investigations and they have never found cause after visiting the home until Sept 2005. Then they found “environmental neglect” (dirty home, no food in the house though she works in a restaurant and the kids were not malnourished). Kids were taken from her at that time, and rather than placed in foster care/DHR care, mother requested they be placed with father. DHR never notified her of her initial court date, which she subsequently missed. Father received temporary custody “by default” because mother did not show. This started a 2 year battle in which she has been required to fulfill DHR’s requirements to get custody back which she has completed and which she has since been denied even supervised visits or phone calls with the children or updates on the children and her mail to them is intercepted by the father. Many of her civil rights have been violated in the lengthy process. Her parental rights have not been terminated and they have not granted final permanent custody to the father. She has dropped off DHRs rader and no longer receiving visits, but case is not resolved and she is out of money after 2 lawyers were unable to help. Furthermore, Judge never signed 3 of the orders during the case, one being the one in which father initially received temporary custody. DHR even testified a year into case that HAD she been at the first court hearing, she would have received the kids back at that time. If we could get the case thrown out because they failed to serve her initially or even because judge did not sign the orders, she could get custody back. Her family is all in AL, his all in Jackson, TN. She has had custody since the youngest (now 9 1/2) was about 1. After the divorce, he even abandoned them, running to CA with no forwarding address or phone number and not paying child support. At time court gave him custody, he was over $12K in arrears with no job. They found him a job at the courthouse, now he is seeking custody. She makes maybe $15K a year as a waitress and now he has a nice job.

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