Facts: The trial court terminated the parental rights of Mother and Father. Father appealed, and the Court of Appeals affirmed the trial court’s decision as to Father.

Although Mother did not appeal, the Court felt the need to address how her parental rights were terminated. Specifically, the record shows that Mother was never served with process.

When the trial began, Mother was not present. Counsel for the Department of Children’s Services represented that Mother, who was believed to reside in Illinois, had been served via substituted service, i.e., by leaving a copy of the summons and petition at Mother’s usual place of abode with someone else who resides there.

Predictably, she had no contact with her court-appointed lawyer, did not appear or otherwise participate in the trial, and did not appeal from the trial court’s decision terminating her parental rights.

An examination of Illinois law and the trial court record reveals that Illinois law requires “strict compliance with every requirement” when a party relies on substituted service, and all the procedural requirements were not met.

On Appeal: The Court of Appeals reversed the trial court’s termination of Mother’s parental rights.

Due process demands that defendants be given notice reasonably calculated to inform them of the pending lawsuit. Service of process on a biological parent in a termination action has constitutional implications.

The Court found that Mother was not correctly served by substitution under Illinois law:

Neither the return nor the accompanying affidavit of service reflects strict compliance with the requirements in Illinois for substituted service.

Although both the return and affidavit of service contain the word “abode,” there is no affirmative indication that the service address was Mother’s “usual place of abode” as opposed to an abode of the substituted recipient. Moreover, although there is a notation on the affidavit of service that something was “mailed” and a further representation that the process server “went to [the] post office and got a new address,” there is no affirmative writing sufficiently stating that the process server sent “a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode.” There is not even a clear indication that whatever was sent was addressed to Mother. The identified “Recipient Name” appearing on the line above the “mailed” notation is “Terrell Evans,” a purported acquaintance of Mother’s. Although the Illinois provision provides that “the certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so,” the affidavit contains no certification by the process server that he sent a copy of the summons pursuant to the provision. When considering this and the fact that there is no affirmative indication otherwise of strict compliance appearing, we conclude that the purported service on Mother was invalid.

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Mother was not provided any date regarding the initial hearing.

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In light of the absence of a date included in the summons, the absence of proper service on Mother, and Mother’s eventual absence at trial, we fail to see how the termination of her parental rights can presently stand. Fundamental fairness dictates that the termination of her parental rights be vacated and, as to her, that the case be remanded for further proceedings. Certainly, the Department is permitted to pursue the termination of Mother’s parental rights upon remand upon providing Mother her appropriate due process protections, including service of process and proper notice of the proceedings.

That wasn’t all. The Court also complained about the performance of Mother’s court-appointed counsel:

When asked by the Juvenile Court if he had made any effort to contact Mother by sending her a letter to the address where service had been attempted on her at Mr. Evans’s address in Illinois, Mother’s appointed counsel indicated that he had not done so . . . . This is troubling. Although we have held herein that the attempted service on Mother was invalid, we have serious concern that counsel did not even attempt to contact Mother at an address that he should have known was being relied upon by the Department for establishing service. Counsel’s comments reflect that he had not given Mother or the case filed any serious attention.

When the termination trial was subsequently reconvened in June 2019, Mother’s appointed counsel was not even present.

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The manner in which Mother’s case was handled at trial is both odd and of grave concern. . . . We need not belabor our concern about this matter any further in light of the service issues already detailed above, but suffice it to say, there would be a fundamental fairness concern here as well even if proper service had been achieved.

Dissent: Judge McBrayer dissented in part:

I share the majority’s concern over service of process on Mother, her lack of notice of the proceedings, and her appointed counsel’s efforts to contact his client. Mother seems to have been deprived of the fundamentally fair procedures. Still, I dissent from the decision to vacate the judgment terminating Mother’s parental rights because we have not given the Tennessee Department of Children’s Service[s] fair notice and an opportunity to be heard on the dispositive issues as they relate to Mother. I would have notified the parties of our concerns and invited briefing on the issues before acting. Such a step would not long delay permanency for the children in this case, and it would give the Court the benefit of the parties’ perspectives.

In re David S. (Tennessee Court of Appeals, Eastern Section, March 18, 2020).