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.