Facts: Mother and Father married, had two children, and divorced. Mother could not be located at the time of divorce though Father was granted custody of the children by default.

Father subsequently remarried. Father’s new wife desired to adopt the children.

Father filed a petition to terminate Mother’s parental rights. A civil summons was issued and returned unserved because Mother had moved. Father filed a notice indicating that Mother’s current location was unknown. Notice was subsequently published in a local newspaper for four consecutive weeks. Nothing in the record indicates that Father requested to make substituted service or the trial court explicitly allowed service by publication.

The trial court ultimately entered a default judgment terminating Mother’s parental rights. Father’s new wife subsequently adopted the children.

Nine years later, Mother filed a petition to set aside the order terminating her parental rights for lack of personal jurisdiction flowing from Father’s failure to serve her with process. At the hearing, the proof showed — and the trial court found — Father failed to make diligent efforts to locate Mother to accomplish personal service of process.

The trial court entered an order setting aside the order terminating Mother’s parental rights on the basis of improper service of process, which defect rendered it void.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

A voided judgment is one that is invalid on its face because the issuing court either lacked subject matter or personal jurisdiction over the proceedings, or the judgment itself was outside of the pleadings. A voidable judgment, on the other hand, is one that is facially valid and requires proof beyond the face of the judgment to demonstrate its voidableness. The distinction between void and voidable judgments is critical as to whether a court order may be challenged directly or in a collateral proceeding.

Put simply, a voidable judgment is valid until it is invalidated by an order of the court. A void judgment, however, is a complete nullity.

Failure to adhere to the Tennessee Rules of Civil Procedure in giving notice and serving process have been held to deprive the court of personal jurisdiction over the defendant and result in a void judgment. In other words, improper notice of the lawsuit renders the judgment granted thereon void.

Tennessee Code § 21-1-203(a) requires “diligent inquiry” to attempt to determine the unserved defendant’s residence. Tennessee Code § 36-1-117(m)(3) requires that a plaintiff in a termination of parental rights and adoption case seek an order permitting publication from the trial court, which request is to be accompanied by a detailed affidavit attesting to that party’s efforts to locate the defendant. Constitutional due process requires actual notice if the interested party’s name and address are reasonably ascertainable. Constructive service is the last resort and is only permitted when the defendant’s residence is unknown. Only when diligent inquiry fails to ascertain the residence of the defendant may service by publication be used.

After reviewing the record, the Court concluded:

[W]e must [] conclude that the requirements for service by publication were not met, that the trial court never acquired jurisdiction over Mother, and that the resulting order terminating Mother’s parental rights was void….

We recognize that the resolution of this case results in profound consequences for not only the parties, but the minor children at issue. At the time Mother returned to court to assert her rights, Mother had been removed from the children’s lives, by her own hand, for nearly a decade. In that period of time, the children were adopted by Father’s wife, and presumably, worked to move forward with their lives in the face of Mother’s abandonment. We do not set aside the order terminating Mother’s parental rights lightly, nor do we ignore the havoc that this decision may create for the children in the future. Regardless of those issues, however, we cannot disregard the fact that the trial court failed to properly acquire jurisdiction prior to terminating Mother’s parental rights….

Here, Father failed to make diligent efforts to locate Mother before resorting to service by publication. As a result, the trial court never acquired jurisdiction over Mother. Accordingly, the order terminating Mother’s parental rights was void ab initio.

Accordingly, the trial court’s judgment was affirmed.

Concurring Opinion: Special Judge Summers wrote a very unusual concurring opinion in which he agreed that the law requires this outcome but notes he does “not agree with the results, which surely will damage these children and destroy a family.” He felt it appropriate to include his opinion Mother that “lost her privilege to be called a mother over ten years ago after abandoning her children….” Special Judge Summers concludes with this plea:

Surely this cannot be the law in Tennessee. If it is as my colleagues have convinced me, then it needs to change ab initio. The best way is for our Supreme Court to take this case on a Rule 11 application and reverse this Court’s decision. That might obviate any other cases of unintended consequences, many of which we are unaware. Tell us that this was a voidable judgment and was valid because of the statute of repose, laches, due process, or fundamental fairness to the children and the new family. We need to settle this important question of law to all Tennessee families. This is a case that cries out for the need to secure settlement of questions of public concern. It is a classic Rule 11 application for permission to appeal.

K.O.’s Comment: Special Judge Summers’s call for what some might term “judicial activism” or “legislating by the judiciary” is highly unusual, particularly since this “important question of law” is in fact well-settled. The Court clearly looked for any way to justify a different outcome but the well-settled law did not allow it. Disapproval of the result is not a valid basis for ignoring a parent’s constitutional right to due process. While Mother has been a terrible parent, the Constitution requires that her parental rights be afforded the greatest respect until they are terminated. A parent’s procedural due process rights cannot be — and should not be — dependent upon his or her personal qualities as a parent. Father had an obligation to follow the law in terminating Mother’s parental rights. Father’s failure to do that — and his failure alone — caused this result. I think Judge Summers’s call for an outcome-based approach to such an important matter of constitutional law is dangerous. The Supreme Court should respectfully pass on his invitation.

UPDATE: The Tennessee Supreme Court granted permission to appeal on November 20, 2014. I’ll blog on the opinion when it is released. Stay tuned.

Turner v. Turner (Tennessee Court of Appeals, Western Section, July 7, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.