Facts: The Tennessee Department of Children’s Services (“DCS”) petitioned to have Mother and Father’s two children declared dependent and neglected for various reasons, including severe abuse by Father.

Mother requested and received court-appointed counsel.

At the hearing, Father was not present because he was in jail. Mother was not present, and her lawyer had no reason for her absence. The juvenile court found the children dependent and neglected but reserved ruling on the issue of severe abuse. Mother’s contact with the children was suspended.

Nearly one year later, DCS petitioned to terminate the parental rights of Mother and Father. As to Mother, DCS alleged that she had no contact with the children, would not keep in contact with DCS, and continued to use illegal drugs. The petition stated her last known address but said she had not had a permanent address in many months and is homeless.

Nearly one year after that, DCS filed an affidavit of diligent search about Mother and a motion seeking permission to serve Mother by publication. According to the affidavit, Father claimed not to know Mother’s whereabouts. DCS’s search revealed 19 addresses for Mother and that she was incarcerated eight months earlier for possession of methamphetamine, but it did not state the length of Mother’s stay in jail. The affiant wrote that she tried to visit Mother at her most recent address, but Mother said she no longer lived there and would not provide a current address.

The trial court granted DCS’s request to serve Mother by publication. After a trial in Mother’s absence, her parental rights were terminated.

Eight months later, Mother filed a handwritten letter with the Court of Appeals explaining that she had been incarcerated and was not notified of the trial. Mother was appointed counsel, and her request was treated as a notice of appeal.

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

To have the lawful authority to decide a controversy, a court must have personal jurisdiction over a person. Courts obtain personal jurisdiction over a party defendant by service of process. A court without personal jurisdiction over the defendant is without power to proceed to an adjudication that binds that defendant, regardless of the specific reason such jurisdiction is lacking.

To obtain constructive service by publication in a parental-termination case, DCS must provide an affidavit detailing its diligent efforts to locate the parent.

Because of the constitutional implications of the service of process, a plaintiff who resorts to constructive service by publication must comply meticulously with the governing statutes.

The Court disagreed that DCS exercised the required diligence in finding Mother:

Despite the motion for publication alleging that service was attempted by a process server at [Mother’s last known address], the affidavit contains no such allegation. It is axiomatic that unsworn statements of counsel are not evidence. Therefore, the record contains no evidence that DCS ever attempted to serve Mother personally at even a single address.

Moreover, there is no indication that DCS followed up on the information that “[Mother] was incarcerated on August 2, 2020, for possession of meth.” DCS’s affidavit is devoid of clarifying information regarding this odd one-day incarceration for possession of methamphetamine. There is no detailing of DCS’s communication with law enforcement, the clerk’s office, bail bonding entities, or jail or prison officials in an attempt to locate Mother, who ultimately contacted this Court from prison.

The term “diligent” is defined as “careful; attentive; persistent in doing something.” With that in mind, actions taken to achieve service of process in these cases should not be merely perfunctory. This is particularly true where the identity of the parent is known. Here, Mother’s identity was known by DCS. By providing an easy means of being located, DCS has cited no law that states that Mother’s refusal to provide an address excused it from making a diligent effort to locate her.

The efforts that DCS did make simply do not rise to the level of diligence…. The record shows that DCS had at least two addresses that Mother was associated with around the time of the filing of the termination petition. DCS’s affidavit, however, does not state in detail that any efforts beyond Internet searches and asking Mother for an address were made it to personally locate and serve Mother. Indeed, the affidavit does not state that DCS ever sent even a single letter to Mother at any address that was returned, much less that notice of the termination petition was mailed to Mother’s last known address.

Based on the foregoing, we have substantial questions as to whether DCS exercised diligent efforts prior to resorting to service by publication in this case. It is true that vacating the judgment of the trial court will delay a permanent solution for the children at issue in this case, who sorely deserve stability. And the outcome of any future proceedings may very well be the same, given Mother’s alleged failure to be any part of the children’s lives for the totality of these proceedings. But we cannot ignore the simple fact that without personal jurisdiction over Mother, the termination order is void.

The Court vacated the trial court’s judgment terminating Mother’s parental rights and remanded the case to the trial court for further proceedings.

Source: In re Jimmy H. (Tennessee Court of Appeals, Middle Section, February 10, 2023).

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