In re Landon T.G.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 10, 2016 Session

IN RE LANDON T. G., ET AL.1

Appeal from the Chancery Court for Hamblen County
No. 2014CV441 Hon. Douglas T. Jenkins, Chancellor

No. E2015-01281-COA-R3-PT-FILED-MARCH 9, 2016

This appeal concerns a mother’s petition to set aside an order terminating her parental
rights and permitting the adoption of her minor children. The mother alleged that the
order is void for lack of personal jurisdiction because service of process was ineffective.
The trial court denied the petition. The mother appeals. We hold that the order is void
for lack of personal jurisdiction. We reverse the judgment of the trial court and remand
this case for further hearing to determine whether exceptional circumstances justify the
denial of relief in accordance with Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015).

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., J. and D. MICHAEL SWINEY, C.J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Shana B. M.

Daniel G. Boyd, Rogersville, Tennessee, for the appellees, Brant L. G. and Christy E. G.

1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
 OPINION

I. BACKGROUND

Landon T. G. and Elliott L. G. (collectively “the Children”) were born to Shana B.
M. (“Mother”) and Brant L. G. (“Father”) in July 2004 and July 2005, respectively.
Mother and Father were divorced by order of the court on May 25, 2006. Approximately
three years later, Father married Christy E. G. (“Stepmother”).2

Father later filed a petition for emergency custody of the Children based upon
allegations of Mother’s substance abuse. He was granted legal and physical custody of
the Children by order, entered on January 3, 2011. Following Mother’s completion of an
intensive outpatient substance abuse program, she requested visitation with the Children.
The parties agreed to a graduated supervised visitation schedule, set to begin on May 27,
2011. However, Mother only exercised her right to visitation on a few occasions.
Mother also failed to appear for a voluntary hair follicle drug test on June 28, 2011.

On July 18, 2011, Father and Stepmother (“Respondents”) filed a petition for
adoption and to terminate Mother’s parental rights based upon the statutory grounds of
abandonment for failure to visit and failure to support the Children. See Tenn. Code Ann.
§ 36-1-102(1)(A)(i).3 Respondents alleged that Mother had no permanent residential
address and had been consistently unemployed due to her substance abuse. Despite these
allegations, service of process was attempted by certified mail. On August 12, 2011, the
return receipt was stamped received with the following notations: “Return to Sender”,
“Unclaimed”, Unable to Forward”. That same day, the Clerk and Master of the Chancery
Court for Hamblen County signed and filed the following public notice:

PUBLIC NOTICE

To: [Shana B. M.]

It appearing from the complaint filed in this case, which is sworn to, that
you are not to be located so that ordinary Summons cannot be served upon
you; you are therefore commanded to serve on [Respondent’s attorney], an
answer to the complaint filed against you in this cause within 30 days from

2
We recognize that Christy G. is the legal mother of the Children as a result of the adoption proceedings.
In an effort to avoid confusion, we will refer to her as “Stepmother” for purposes of this appeal.
3
“For a period of [four] consecutive months immediately preceding the filing of a . . . pleading to
terminate the parental rights of the parent . . . of the child who is the subject of the petition for termination
of parental rights or adoption, that the parent . . . either [has] willfully failed to visit or [has] willfully
failed to support or [has] willfully failed to make reasonable payments toward the support of the child[.]”
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 the posting of this Notice as required by law; otherwise Judgment by
Default will be taken against you.

It is further ordered that this Notice be posted in three public places for four
consecutive weeks.

The notice was posted in the following locations: the Clerk and Master’s office in the
Hamblen County Courthouse; the front door of the Hamblen County Justice Center; and
the Public Notice Board located in the lobby of the Morristown City Courthouse.

Having received no response from Mother, Respondents filed a motion for default
judgment on September 21, 2011. The motion was supported by two affidavits, one
providing that service of process had been attempted by certified mail and another
providing that constructive notice by publication had been utilized by posting public
notice in three public places. On September 29, 2011, the court entered a final order of
adoption, terminating Mother’s parental rights and permitting the adoption of the
Children based upon the statutory grounds of abandonment for failure to visit and to
support the Children. The order provided that service of process had been attempted at
Mother’s last known addresses “based on a document received from [Mother’s] employer
and brother on June 3, 2011” and that a public notice had also been issued. The order
provided that Respondents had not been in contact with Mother since the filing, that an
appearance had not been made by counsel representing her, and that Respondents filed an
affidavit of reasonable and diligent efforts documenting their attempt to locate her.4

Approximately three years later, on October 1, 2014, Mother filed a petition to set
aside the order terminating her parental rights and permitting the Children’s adoption.
She argued that the order is void for lack of personal jurisdiction. Respondents alleged
that personal jurisdiction was accomplished by the initial service of process provided at
Mother’s last known address pursuant to Rule 4.04(11).5 They asserted that although not
required, they also provided constructive service of process by posting notice in three
public places. In the alternative, they claimed that the petition should be dismissed as
barred by the one-year statute of repose applicable in termination proceedings. See Tenn.
Code Ann. §§ 36-1-113(q), -122(b)(2). They also asserted that Mother had not filed her

4
The record before this court does not contain an affidavit of reasonable and diligent efforts.
5
“When service of a [process] is provided for or permitted by registered or certified mail under the laws
of Tennessee and the addressee or the addressee’s agent refuses to accept delivery and it is so stated in the
return receipt of the United States Postal Service, the written return receipt if returned and filed in the
action shall be deemed an actual and valid service of [process]. Service by mail is complete upon
mailing. For purposes of this paragraph, the United States Postal Service notation that a properly
addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of
the defendant’s refusal to accept delivery.”
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petition within a reasonable time pursuant to Rule 60.02 of the Tennessee Rules of Civil
Procedure.

Mother responded by asserting that she was not provided with proper notice
because she had not been personally served. She claimed that the attempt at constructive
service was ineffective because Respondents had failed to file a motion requesting
constructive service by publication with an accompanying affidavit detailing the diligent
efforts they had made to locate her, as required by Tennessee Code Annotated section 36-
1-117(m)(3).6 She further alleged that publication in three public places instead of in a
newspaper was insufficient. She asserted that her petition was not barred because the
judgment is void for lack of personal jurisdiction.

Following a hearing, the trial court denied the petition and upheld the orders by
stating, in pertinent part, as follows:

A Petition to Terminate Parental Rights of [Mother] was filed on July 18,
2011 in Hamblen County, Tennessee. Service on [Mother] was not
accomplished by personally handing the summons to [Mother]. The
summons was sent to [Mother] via Certified Mail and the same was
returned as “unclaimed” on August 12, 2011. [Respondents] then filed an
affidavit stating that they were unable to locate [Mother] on August 17,
2011. The [c]ourt subsequently entered an Order permitting [Respondents]
to serve [Mother] by posting notice in three public locations. . . . The
[c]ourt concedes that public notice may not be a proper form of publication
in a termination proceeding. However, the [c]ourt finds that under the
circumstances of this particular case, the notice afforded to [Mother] by
[Respondents] was sufficient to give the [c]ourt jurisdiction of [Mother].

The [c]ourt finds that the applicable statute of repose for questioning an
adoption proceeding was pled affirmatively by [Respondents]. The [c]ourt
finds that the applicable statute of repose bars any question as to the
validity of the adoption proceeding at issue.

This timely appeal followed.

6
“Any motion for an order for publication in these proceedings shall be accompanied by an affidavit of
the petitioners or their legal counsel attesting, in detail, to all efforts to determine the identity and
whereabouts of the parties against whom substituted service is sought.”
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 II. ISSUES

We consolidate and restate the issues raised on appeal as follows:

A. Whether the trial court erred in concluding that the order terminating
Mother’s parental rights and permitting the adoption of the Children is not
void for lack of personal jurisdiction.

B. Whether the trial court erred in further concluding that Mother’s
appeal is barred as untimely.

III. STANDARD OF REVIEW

A trial court’s award or denial of relief pursuant to Rule 60.02 of the Tennessee
Rules of Civil Procedure is generally reviewed under an abuse of discretion standard.
Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich
Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Ferguson v. Brown, 291 S.W.3d 381, 386
(Tenn. Ct. App. 2008). However, our Supreme Court recently held that a Rule 60.02(3)
motion to set aside a judgment as void must be reviewed under a de novo standard of
review with no presumption of correctness. Turner, 473 S.W.3d at 268-69. The Court
further determined that “[a]ny factual findings a trial court makes shall be reviewed de
novo, with a presumption of correctness, unless the evidence preponderates otherwise.”
Id. (citing Tenn. R. App. P. 13(d)).

IV. DISCUSSION

A.

A final judgment may be set aside pursuant to Rule 60.02 of the Tennessee Rules
of Civil Procedure when

On motion and upon such terms as are just, the court may relieve a party or
the party’s legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) fraud [ ], misrepresentation, or other misconduct of an adverse
party; (3) the judgment is void; (4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that a judgment
should have prospective application; or (5) any other reason justifying relief
from the operation of the judgment. The motion shall be made within a

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 reasonable time, and for reasons (1) and (2) not more than one year after the
judgment, order or proceeding was entered or taken.

Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
between the competing principles of finality and justice.” Banks v. Dement Constr. Co.,
Inc., 817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275,
280 (Tenn. 1976)). “Rule 60.02 is meant to be used only in those few cases that meet one
or more of the criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

Mother argues that the court erred in denying her motion to set aside the order
when Respondents failed to provide adequate service by mail or comply with the
statutory requirements for constructive service by publication, thereby rendering the
order void for lack of personal jurisdiction. During the pendency of this appeal, the
Supreme Court addressed the issue of whether a default judgment terminating a mother’s
parental rights was void when service of process had not been accomplished in
accordance with statutory requirements and therefore failed to provide the court with
personal jurisdiction. Turner, 473 S.W.3d at 270. The Court provided that “[a] judgment
rendered by a court lacking either personal or subject matter jurisdiction is void.” Id.
(citations omitted). The Court further provided,

Nevertheless, a judgment of a court of general jurisdiction is presumed to
be valid and will be held void only when its invalidity is disclosed by the
face of that judgment, or in the record of the case in which that judgment
was rendered.

Id. (citations omitted). Accordingly, our review of whether the court obtained personal
jurisdiction must be limited to the record before this court. Id. at 275.

“A court obtains personal jurisdiction over a party defendant by service of
process.” Id. at 271 (citations omitted). In this case, the court found that it obtained
personal jurisdiction over Mother through service of process by certified mail and
through constructive service by publication.

Service by Certified Mail

“Service of process in termination of parental rights cases in chancery and circuit
courts is accomplished pursuant to the Tennessee Rules of Civil Procedure and state
statutes.” Id. at 274 (citing Tenn. Code Ann. §§ 36-1-113(e), -117(m)(1)). Service of
process by certified mail is governed by Rules 4.04(10) and (11) of the Tennessee Rules
of Civil Procedure, which provide as follows:
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 (10) Service by mail of a summons and complaint upon a defendant may be
made by the plaintiff, the plaintiff’s attorney or by any person authorized
by statute. After the complaint is filed, the clerk shall, upon request,
furnish the original summons, a certified copy thereof and a copy of the
filed complaint to the plaintiff, the plaintiff’s attorney or other authorized
person for service by mail. Such person shall send, postage prepaid, a
certified copy of the summons and a copy of the complaint by registered
return receipt or certified return receipt mail to the defendant. If the
defendant to be served is an individual or entity covered by subparagraph
(2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return receipt mail shall
be addressed to an individual specified in the applicable subparagraph. The
original summons shall be used for return of service of process pursuant to
Rule 4.03(2). Service by mail shall not be the basis for the entry of a
judgment by default unless the record contains a return receipt showing
personal acceptance by the defendant or by persons designated by Rule
4.04 or statute. If service by mail is unsuccessful, it may be tried again or
other methods authorized by these rules or by statute may be used.

(11) When service of a summons, process, or notice is provided for or
permitted by registered or certified mail under the laws of Tennessee and
the addressee or the addressee’s agent refuses to accept delivery and it is so
stated in the return receipt of the United States Postal Service, the written
return receipt if returned and filed in the action shall be deemed an actual
and valid service of the summons, process, or notice. Service by mail is
complete upon mailing. For purposes of this paragraph, the United States
Postal Service notation that a properly addressed registered or certified
letter is “unclaimed,” or other similar notation, is sufficient evidence of the
defendant’s refusal to accept delivery.

(Emphasis added.).

Here, the return receipt provided the following notation,

Return to Sender
Unclaimed
Unable to Forward

While the return receipt may be deemed an actual and valid service of process, service by
mail without a return receipt showing personal acceptance cannot support the court’s
entry of a default judgment pursuant to Rule 4.04(10) of the Tennessee Rules of Civil
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Procedure which specifically states, “service by mail shall not be the basis for the entry
of a judgment by default unless the record contains a return receipt showing personal
acceptance by the defendant or by persons designated by Rule 4.04 or statute.”

Accordingly, we must conclude that the order entered in this case is void for lack
of personal jurisdiction unless the trial court acquired personal jurisdiction over Mother
through constructive service by publication.

Service by Publication

Constructive service by publication is permitted when a defendant’s residence is
unknown and cannot be ascertained by diligent inquiry. Tenn. Code Ann. § 21-1-
203(a)(5). Service by publication is governed by Tennessee Code Annotated section 21-
1-204, which provides, in pertinent part, as follows:

(a) In case personal service is not used, if the defendant does not cause
an appearance to be entered, the clerk, as soon as the necessary affidavit is
made, shall enter upon the rule docket an order requiring the defendant to
appear at a certain day named in the order, being a rule day, and defend, or
otherwise the bill will be taken for confessed.

(b) The clerk shall forthwith cause a copy of this order to be published
for four (4) consecutive weeks in the newspaper mentioned in the order or
designated by the general rules of the court.

(c) The order for publication in lieu of personal service may be made at
any time after the filing of the bill. The order of publication should contain
the names of the parties, the style of the court in which the proceedings are
had and the name of the place where the court is held, without any brief or
abstract of facts, unless directed by the court.

(Emphasis added.). Additionally, in termination proceedings,

[a]ny motion for an order for publication in these proceedings shall be
accompanied by an affidavit of the petitioners or their legal counsel
attesting, in detail, to all efforts to determine the identity and whereabouts
of the parties against whom substituted service is sought.

Tenn. Code Ann. § 36-1-117(m)(3).

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 Here, Respondents claim that the constructive service by publication was valid
because it was published in three public places pursuant to the general rules of the court.
While constructive service by publication may be accomplished pursuant to the general
rules of the court, the record before this court does not contain a motion requesting
service by publication or an affidavit “attesting, in detail, to all efforts to determine the
identity and whereabouts of the parties against whom substituted service is sought.”
Tenn. Code Ann. § 36-1-117(m)(3); see also Turner, 473 S.W.3d at 275 (“[W]hen
determining whether a judgment is void, a court must confine its review to the record of
the proceeding from which the judgment emanated.”).

The record before this court contains two affidavits, one attesting that service by
mail was unsuccessful and another attesting that service by publication was unsuccessful.
These affidavits were filed in support of the motion for default judgment and are facially
insufficient to satisfy the statutory requirements because the affidavits do not contain a
detailed description of any diligent inquiries or efforts made to locate Mother or her
residence. Id. (holding that a similar affidavit filed in support of a motion for default
judgment was facially insufficient). Accordingly, the order of default judgment
terminating Mother’s parental rights is void for lack of personal jurisdiction.

B.

Having determined that the order is void for lack of jurisdiction, we must now
consider whether Mother is entitled to relief when she sought relief approximately three
years after entry of the order.7 Rule 60.02 of the Tennessee Rules of Civil Procedure
provides that any motion for relief “shall be made within a reasonable time.” In Turner,
the Supreme Court addressed the applicability of the reasonable time filing requirements
to a motion seeking relief from a void judgment pursuant to Rule 60.02(3). The Court
held that a default judgment terminating a mother’s parental rights was void for lack of
personal jurisdiction because the constructive service by publication was ineffective for
failure to comply with the statutory requirements. Id. at 274-75. In determining whether
the mother was entitled to relief, the Court held, as a matter of first impression, that the
reasonable time filing requirements may not be applied to bar motions seeking relief from
void judgments pursuant to Rule 60.02(3) but that relief may still be denied if certain
exceptional circumstances exist. Id. at 279.

The Court adopted section 66 of the Restatement (Second) of Judgments as the
appropriate standard to consider in determining whether exceptional circumstances exist.
Id. at 282-83. The standard is as follows:

7
The trial court held that the applicable statute of repose also barred relief from the judgment.
Respondents do not advance this argument in their appellate brief.
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 Relief from a default judgment on the ground that the judgment is invalid
will be denied if:

(1) The party seeking relief, after having had actual notice
of the judgment, manifested an intention to treat the judgment
as valid; and

(2) Granting the relief would impair another person’s
substantial interest of reliance on the judgment.

Restatement (Second) of Judgments § 66 (1982). The record in this case has not been
sufficiently developed for this court to determine whether exceptional circumstances
justify the denial of relief.

Remand for Exceptional Circumstances Hearing

Accordingly, we remand this case to the trial court for a hearing to determine
whether the exceptional circumstances defined by section 66 as adopted by our Supreme
Court in Turner justifies denying Mother relief from the void judgment terminating her
parental rights. This hearing will afford the parties an opportunity to be heard and to
present proof relevant to the exceptional circumstances and the trial court will determine
whether exceptional circumstances justify denying Mother relief in this case.

V. CONCLUSION

This judgment of the trial court is reversed, and this case is remanded for further
proceedings consistent with this opinion. Costs of the appeal are taxed one-half to the
appellant, Shana B. M., and one-half to the appellees, Brant L. G. and Christy E. G., for
which execution may issue, if necessary.

_________________________________
JOHN W. McCLARTY, JUDGE

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