in Re E Mallett Minor ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re E. MALLETT, Minor. June 15, 2017
No. 335758
Ingham Circuit Court
Family Division
LC No. 15-001056-NA
Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.
PER CURIAM.
Respondent appeals the order that terminated his parental rights to his minor son under
MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), MCL
712A.19b(3)(c)(ii) (failure to rectify conditions leading to adjudication), MCL 712A.19b(3)(g)
(failure to provide proper care and custody), and MCL 712A.19b(3)(j) (reasonable likelihood of
harm). Because the trial court lacked personal jurisdiction over respondent, we vacate in part
and remand.
Respondent’s sole argument on appeal is that the trial court lacked jurisdiction because it
failed to follow the proper procedure when it ordered service of notice by publication. We
review this issue de novo. In re Terry, 240 Mich. App. 14, 20; 610 NW2d 563 (2000).
MCL 712A.13 provides for alternative service and states, in pertinent part:
[I]f the judge is satisfied that it is impracticable to serve personally such
summons or the notice provided for in the preceding section, he may order service
by registered mail addressed to their last known addresses, or by publication
thereof, or both, as he may direct. It shall be sufficient to confer jurisdiction if (1)
personal service is effected at least 72 hours before the date of hearing; (2)
registered mail is mailed at least 5 days before the date of hearing if within the
state or 14 days if outside of the state; (3) publication is made once in some
newspaper printed and circulated in the county in which said court is located at
least 1 week before the time fixed in the summons or notice for the hearing.
[Emphasis added.]
“While [the statute] allows for alternative methods of service of process, it still requires
that the trial court first determine that personal service is impracticable.” In re Adair, 191 Mich
App 710, 714; 478 NW2d 667 (1991). Consistent with this is MCR 3.920(B)(4)(b):
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If the court finds, on the basis of testimony or a motion and affidavit, that
personal service of the summons is impracticable or cannot be achieved, the court
may by ex parte order direct that it be served in any manner reasonably calculated
to give notice of the proceedings and an opportunity to be heard, including
publication.
And in determining that personal service would be impracticable, the trial court must first find
that reasonable efforts were made to locate respondent. In re Adair, 191 Mich. App. at 714-715.
Here, at the pretrial hearing, the referee ordered service by publication to notify
respondent of the termination hearing date. When doing so, the referee relied solely on the fact
that respondent’s counsel had not had any contact with respondent “in a number of months.”
There were no statements regarding what steps either petitioner or respondent’s attorney took to
locate respondent. And during the termination hearing, the trial court noted that the referee’s
decision to order service by publication was appropriate because respondent’s “whereabouts are
unknown.”1
During both the pretrial hearing and the termination hearing, no inquiry was made about
what reasonable efforts had been made by petitioner to locate respondent. Respondent’s counsel
recited her efforts at the trial court, but it is petitioner who “is charged with providing that
service of process is accomplished in accordance with the court rules. While others may be
required to assist in locating a respondent if they possess special information, the burden should
not fall solely on court-appointed counsel . . . .” Id. at 715.
Nor did the referee, when it ordered service by publication, determine on the record “that
personal service of the summons is impracticable or cannot be achieved.” And given the foster-
care case worker’s past involvement with respondent’s family, petitioner could have used these
contacts to determine whether respondent could have been located and served. See id. at 714
(stating that “it would have been reasonable to contact the [respondent’s] family . . . in an effort
to find respondent before resorting to substituted service”). Indeed, the practicality of such an
approach is borne out by the fact that respondent’s aunt provided the trial court with
respondent’s current address when the court made a request at the conclusion of the termination
hearing for assistance in serving the termination orders on respondent.
1
At the trial court, respondent’s counsel also detailed the efforts she undertook to locate
respondent.
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Accordingly, because the trial court did not have personal jurisdiction over respondent-
father, the termination order with respect to him is void. We vacate the portion of the order with
respect to respondent-father and remand for further proceedings. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O’Connell
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