T.L. v. Greene County Juvenile Office , 2005 Mo. LEXIS 503 ( 2005 )

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent.

This case is not a contract dispute. It is not a suit for damages. The interest involved is not simply financial or reputa-tional. Rather, the interest being adjudicated in this case is one of the oldest fundamental liberty interests recognized in our law; the right to be a parent to one’s child. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Given the fundamental interest at stake, cases involving the termination of parental rights are reviewed more closely than other civil cases. In the Interest of C.N.G., 109 S.W.3d 702, 705 (Mo.App.2003). A review of the record in this case raises serious doubts about the sufficiency of service and whether the alleged service gave adequate notice to T.L. of the pending termination of parental rights petition. Consequently, I would hold that the circuit court erred by not sustaining T.L.’s motion for a new trial.

I. Service of Process

Service of process is a prerequisite to personal jurisdiction, and a judgment entered against a party without proper service on that party is void for lack of jurisdiction. Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000). Actual notice is insufficient to confer jurisdiction. Id. T.L. was allegedly served by leaving a copy of the summons at T.L.’s “usual place of abode” with “some person of his or her family over the age of 15 years.” The purported service on T.L. fails to comply with the applicable procedural rules.

A review of the legal file reveals at least two service defects. First, the return.of service does not identify the individual upon whom the summons was served. Although there is a pre-printed line on the return indicating that the summons was left with “some person of [T.L.’s] family over the age of 15 years,” this critical fact cannot be verified because the line indicating the name of the person served was left blank. A return of service should not be deemed conclusive if it is incomplete and omits critical information, especially when the civil action instituted by the summons implicates fundamental constitutional rights. Speculative inferences of constructive notice should not suffice in termination of parental rights cases.

Second, Rule 54.14 requires that a person must be authorized by law to serve process. Rule 54.20 further requires that the officer making out of state service make an affidavit before the clerk or judge of the court of which affiant is an officer stating the time, place and manner of such service, the official character of the affiant, and the affiant’s authority to serve process in civil actions within the state or territory where such service was made.¹ No such affidavit is attached to the return or included anywhere else in the record. On the record before this Court, it appears that the rules for out-of-state service were not followed.

II. Notice

In addition to the lack of compliance with the rules for service of process, the summons allegedly served upon T.L. fails to provide adequate notice that T.L. is subject to the imminent termination of his parental rights. The summons advises only that a petition has been filed alleging that the child is subject to juvenile division jurisdiction for the reasons set forth in the petition. However, the petition is not attached to the summons and did not advise T.L. that the “petition” referred to was not simply the underlying abuse and neglect case, but instead was aimed at forever terminating his parental rights. Further confusion stems from the fact that the Rights Form attached to the summons states that any order will affect the child and his custodian. T.L. was not the custodian. On this record, it is difficult to conclude with any confidence that T.L. was adequately notified of the imminent termination of his parental rights.

The majority opinion correctly notes that T.L.’s appointed counsel did not raise service issues in his pleadings. The issues should have been raised.² However, given the fundamental liberty interests at stake and the service deficiencies that are apparent on the face of the record, it would be a manifest injustice to sweep aside these concerns based upon the technical failure of counsel to raise obvious issues. Holding otherwise renders the parent-child relationship and the attendant fundamental due process rights subservient to economy and forces parents, who justifiably rely upon counsel’s advice and expertise, to live with the consequences. In this ease, due process requires that T.L. have an opportunity to be heard.

I would reverse the judgment overruling T.L.’s motion for a new trial.

1 . Rule 54.20(b) provides in part that:

(1) Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant's authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

2 . Rule 54.22(b), for instance, permits the party served, to impeach the return of service and allows the circuit court to set aside or modify the judgment.