Petition of J.N.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 30, 2022
2022COA69No. 19CA1425, Petition of J.N. — Juvenile Court —
Dependency and Neglect; Civil Procedure — Process — Service
by Publication — Relief from Judgment or Order — Judgment is
Void
In this case arising from a dependency and neglect action,
father moved to vacate various juvenile court orders under C.R.C.P.
60(b)(3), arguing that service by publication was improper and
therefore the orders were void. A division of the court of appeals
relies on well-settled law to conclude that the juvenile court erred
by granting the department’s request to serve father by publication.
The department’s motion failed to describe any efforts to obtain
personal service (or to explain why efforts would have been futile),
as required by section 19-3-503(8)(b) and C.R.C.P. 4(g), and the
record does not support a finding of diligent efforts. Accordingly,
because father did not receive proper notice, the entry of certain
orders violated his due process rights, and the juvenile court was
therefore required to vacate the orders.
Because the case involves issues of public importance, the
division elects to publish the opinion.
COLORADO COURT OF APPEALS 2022COA69Court of Appeals No. 19CA1425
Jefferson County District Court No. 06JV377
Honorable Ann Gail Meinster, Judge
In the Matter of the Petition of J.N.,
Petitioner-Appellant,
In the Interest of C.G., a Child,
and Concerning Jefferson County Department of Human Services,
Respondent-Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE HARRIS
Yun and Graham*, JJ., concur
Announced June 30, 2022
Bachus & Schanker, L.L.C., J. Kyle Bachus, Denver, Colorado; The Kane Law
Officer, L.L.C., Bastion T. Kane, Lakewood, Colorado, for Petitioner-Appellant
Kimberly S. Sorrells, County Attorney, Eric T. Butler, Deputy County Attorney,
Rebecca P. Klymkowsky, Assistant County Attorney, Golden, Colorado, for
Respondent-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 Father, J.N., appeals the juvenile court’s order denying his
C.R.C.P. 60(b) motion to vacate orders entered in the dependency
and neglect proceeding regarding his child, C.G. We reverse the
order and remand the case to the juvenile court for further
proceedings.
I. Procedural History
A. The Dependency and Neglect Proceeding
¶2 On March 26, 2006, mother was arrested for child abuse. At
the time, she was with her two children — C.G. (the biological child
of father) and C.G.’s half-brother (the biological child of Jon
Phillips). A magistrate granted temporary protective custody of the
children to the Jefferson County Division of Children, Youth and
Families (Division).
¶3 Two days later, the Division filed a petition for temporary legal
custody, naming mother, Phillips, and “John Doe” as respondents.
At a shelter hearing held that same day, the juvenile court
magistrate granted the motion.
¶4 The next day, March 29, 2006 — three days into the case —
the Division moved for an order authorizing service on father and
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Phillips by publication. As grounds for the motion, the Division
stated only that
the above-named persons have no residence
within Colorado and his [sic] place of residence
is not known or the above-named persons can
not [sic] be found within Colorado after due
diligence, the subject children are present in
Colorado and the Colorado Children’s Code,
the Colorado Rules of Juvenile Procedure and
the Colorado Rules of Civil Procedure allow
jurisdiction to be conferred on the court under
these circumstances through the requested
service by publication.
The motion did not describe the Division’s efforts to obtain personal
service; nor did it assert facts to establish that such efforts would
have been futile.
¶5 Nonetheless, the magistrate granted the motion, finding that
“due diligence ha[d] been used to obtain personal service within
Colorado or that efforts to obtain personal service within Colorado
would have been to no avail.” The magistrate did not explain the
basis for the ruling.
¶6 The summons was published on April 6, 2006, in the High
Timber Times, a local newspaper in Conifer, Colorado.
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¶7 Father did not appear at any subsequent hearings. Phillips,
however, appeared at all subsequent hearings, as he was notified of
the proceedings by a caseworker.
¶8 In May 2006, the magistrate gave Phillips temporary legal
custody of both children under the protective supervision of the
Division. The permanency plan for C.G. (the child) was then
changed to adoption by a nonrelative.
¶9 In October 2006, the Division moved for a default judgment
adjudicating the child dependent and neglected as to father, still
identified as “John Doe.” The motion, which noted that father had
been served by publication in April, included an affidavit from the
ongoing caseworker, Alysse Nemecek. Nemecek averred that father
“is not an infant, not in the military, not incompetent, and not an
officer or agent of the State of Colorado.” See C.R.C.P. 121, § 1-
14(1)(c) (“The affidavit [attesting to the defendant’s status] must be
executed by the attorney for the moving party on the basis of
reasonable inquiry.”). Nemecek did not provide any basis for her
statement or attest to a reasonable inquiry.
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¶ 10 On November 1, 2006, the magistrate adjudicated the child
dependent or neglected as to father by default. The magistrate
declined to adopt a treatment plan for father, citing section
19-3-508(1)(e)(I), C.R.S. 2021, which applies when a child has been
abandoned — meaning, despite “reasonable efforts to identify and
locate the parent,” the identity of the parent remains unknown for
three months or more, see § 19-3-604(1)(a)(II), C.R.S. 2021. The
magistrate did not describe any efforts by the Division to identify
and locate father.
¶ 11 At a hearing on January 11, 2007, the magistrate allocated
parental responsibilities for both children to Phillips and relieved
the Division of protective supervision. In February, after the written
allocation of parental responsibilities order was certified in a
domestic case, see § 19-1-104(6), C.R.S. 2021, the juvenile court
terminated the dependency and neglect proceeding.
¶ 12 On May 6, 2007, the child died. Phillips was convicted of first
degree murder of the child and child abuse resulting in death. See
People v. Phillips, 2012 COA 176, ¶ 42.
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B. The C.R.C.P. 60(b) Proceeding
¶ 13 Following the child’s death, father, mother, and the personal
representative of the child’s estate initiated a federal court action
against multiple parties, including the Division.
¶ 14 In June 2014, father moved for C.R.C.P. 60(b) relief in the
dependency and neglect proceeding, seeking to vacate certain of the
court’s orders. Father asserted that the orders were void for lack of
proper service, see C.R.C.P. 60(b)(3), and had been obtained
through fraud on the court, see C.R.C.P. 60(b)(2).
¶ 15 The juvenile court dismissed father’s motion as moot because
the child had died. On appeal, a division of this court reversed the
order and remanded the case for a determination on the merits.
See People in Interest of C.G., 2015 COA 106, ¶ 2. The division
concluded the case was not moot because the orders are being used
to bar father from pursuing relief in federal court. Id. at ¶¶ 30-31.
¶ 16 On remand, the juvenile court held a half-day hearing and
admitted deposition testimony from the federal action. The
evidence established the following:
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 A Division intake caseworker opened the dependency and
neglect case on March 28, 2006.
 The intake caseworker did not recall “doing any work at all
to locate” father. If she had made any efforts, she would
have documented them, because that “was a requirement of
the job.”
 The intake caseworker agreed that her transfer form
indicated that she had not conducted a diligent search for
father.
 The intake caseworker was the only assigned caseworker on
March 29, 2006, when the assistant county attorney filed a
verified motion for service by publication. The intake
caseworker did not know the basis for the representation in
the verified motion that father could not “be found within
Colorado after due diligence.”
 The Division’s intake supervisor signed the verified motion
on behalf of the Division. When she signed the verification,
she had “no information” on whether a diligent search for
father had been conducted.
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 The intake supervisor relied on the caseworker to “provide
the factual basis” for the verification.
 The assistant county attorney acknowledged that “prior to
seeking permission to serve by publication . . . the state is
required to exercise due diligence in attempting to locate the
parent.”
 When she signed the verified motion to serve father by
publication, the assistant county attorney did not know
what efforts the Division had made to locate father. As a
general matter, she does not ask the caseworkers about
“what [has been] done to locate the parent.”
 Nemecek, the ongoing caseworker, became involved in the
case on April 6, 2006, the date father was served by
publication. She agreed that “somebody on behalf of the
county needed to make a diligent search for” father, but she
did not undertake a search, nor did she attempt to identify
the “actual name of the biological father.” She could not
think of anyone at the Division, with the possible exception
7
of the intake caseworker, who had “looked for” father. (The
intake caseworker did not look for father.)
 No one from the Division spoke to mother until April 6, the
date the notice was published.
¶ 17 The juvenile court denied the C.R.C.P. 60(b) motion on the
grounds that it was untimely and, in the alternative, that father had
not established either a lack of proper service or fraud on the court.
II. Father’s C.R.C.P. 60(b) Motion
¶ 18 On appeal, father contends that the juvenile court erred by
concluding that (1) the Division properly served him by publication;
(2) the Rule 60(b) motion was untimely; and (3) the Division did not
commit fraud on the court. Because we agree with father’s first two
contentions, we do not address the third.
A. Service by Publication
¶ 19 Father argues that because the Division failed to comply with
the statutory prerequisites to service by publication, he did not
receive proper notice of the proceedings, resulting in a due process
violation, and the juvenile court’s orders and judgments are
therefore void as to him.
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¶ 20 The burden to establish that a judgment is void is on the
moving party, who must demonstrate the invalidity of the judgment
by clear and convincing evidence. Minshall v. Johnston, 2018 COA
44, ¶ 12. We review de novo whether a judgment is void under
C.R.C.P. 60(b)(3) based on improper service of process. See
Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310,
314 (Colo. 2010).
1. The Division’s Verified Motion for Service by Publication Was
Procedurally Deficient
¶ 21 In dependency and neglect proceedings, notice shall be by
personal service. § 19-3-503(7), C.R.S. 2021. However, when the
person to be served “cannot be found within the state after due
diligence,” service may be by publication “pursuant to rule 4(g) of
the Colorado rules of civil procedure.” § 19-3-503(8)(b).
¶ 22 Under C.R.C.P. 4(g), a motion for service by publication must
be verified and must include the following information:
 the facts authorizing service by publication;
 the efforts, if any, that have been made to obtain personal
service; and
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 the address, or last known address, of the person to be
served or a statement that the address and last known
address are unknown.
¶ 23 The motion may be granted only if the party seeking service by
publication establishes that it exercised due diligence to obtain
personal service or that efforts to do so would have been to no
avail. C.R.C.P. 4(g); Rael v. Taylor, 876 P.2d 1210, 1223 (Colo.
1994). A conclusory statement that the department of human
services has exercised due diligence to locate a parent is insufficient
to warrant service by publication. See People in Interest of A.B-A.,
2019 COA 125, ¶ 53. Instead, the motion must describe what
efforts the department made to locate the parent and obtain
personal service. Id.; see also Owens v. Tergeson, 2015 COA 164,
¶ 37 (Rule 4 “unambiguously requires a party to show the efforts
made to obtain personal service within the state.”).
¶ 24 Because constructive service is in derogation of the common
law, there must be strict compliance with every requirement of
section 19-3-503(8)(b) and C.R.C.P. 4(g). See Coppinger v.
Coppinger, 130 Colo. 175, 177, 274 P.2d 328, 330 (1954).
10
Compliance must appear affirmatively from the record, and the
motion and affidavit upon which the order for constructive service
is entered take precedence over recitals in the court’s judgment. Id.¶ 25 The Division’s argument that it did not have sufficient
information to locate father when it moved for service by publication
is beside the point. The question is whether the motion satisfied
the requirements of section 19-3-503(8)(b) and C.R.C.P. 4(g). “What
the affiant knew or did not know, and might have stated in the
affidavit, but did not, is wholly immaterial. The important thing is
what was or was not stated therein.” Millage v. Richards, 52 Colo.
512, 514, 122 P. 788, 788 (1912).
¶ 26 The Division’s verified motion for service by publication
indisputably failed to satisfy the statutory requirements. The
motion simply parroted section 19-3-503(8)’s language. It did not
describe any diligent efforts by the Division to identify, locate, or
personally serve father. Nor did it explain why efforts would have
been futile.
2. The Division’s Verified Motion for Service by Publication
Was Substantively Deficient
11
¶ 27 In addition to being procedurally deficient, the motion was
substantively deficient. Contrary to the motion’s averments, the
record does not support findings that the Division exercised due
diligence to locate and obtain personal service on father before
moving for service by publication or that diligent efforts would have
been to no avail.
¶ 28 Though the moving party ordinarily bears the burden to
establish improper service resulting in a lack of personal
jurisdiction, when, as here, the motion is facially deficient, the
burden shifts back to the serving party to demonstrate adequacy of
service. Goodman, 222 P.3d at 315. Thus, the Division must show
that it made diligent efforts to serve father personally or, if it did
not, that any efforts would have been futile.
¶ 29 To satisfy that burden, the Division must show “that it
reasonably employed the knowledge at its command, made diligent
inquiry, and exerted an honest and conscientious effort appropriate
to the circumstance to acquire the information necessary to serve
[the party] personally.” Se. & Assocs., Inc. v. Fox Run Homeowners
Ass’n, 704 So. 2d 694, 696 (Fla. Dist. Ct. App. 1997); see also Dep’t
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of Hum. Servs. Rule 7.304.52(A)-(B), 12 Code Colo. Regs. 2509-4
(effective July 1, 1999-Aug. 6, 2009) (“Diligent search” means “the
timely good faith effort to locate any absent parent of a child[]
entering out-of-home placement.”); Black’s Law Dictionary 573
(11th ed. 2019) (Due diligence is “[t]he diligence reasonably
expected from, and ordinarily exercised by, a person who seeks to
satisfy a legal requirement or to discharge an obligation.”). The due
diligence inquiry is an objective one: we ask what actions a
reasonably prudent person would have taken under the
circumstances to ensure that interested parties would be identified
and personally served. Lobato v. Taylor, 70 P.3d 1152, 1161 (Colo.
2003).
¶ 30 The verified motion seeking service by publication was filed on
March 29, 2006. The question therefore is whether the record
supports a finding that the Division exercised due diligence to
identify and locate father before March 29.
¶ 31 The juvenile court did not make any findings in this regard.
The record definitively establishes that no one made any efforts,
much less diligent efforts, to find father before the motion was filed.
13
Before March 29, the only person who could have made such efforts
was the intake caseworker. But she did not recall doing anything to
locate father.
¶ 32 The Division argues, and the juvenile court found below, that
diligent efforts would have been to no avail because the Division did
not know father’s full name.
¶ 33 The problem with that argument is that there is no evidence in
the record that the Division asked anyone for father’s name.
Diligence that “stops just short of the place where if it were
continued might reasonably be expected to uncover” the identity of
the person on whom service is sought does not constitute due
diligence. Owens, ¶ 45 (quoting Abreu v. Gilmer, 985 P.2d 746, 749
(Nev. 1999)).
¶ 34 Mother testified that maternal grandmother knew father’s
name. That testimony was corroborated by father’s testimony that
he had spoken to maternal grandmother on the telephone during
his time in the Navy, shortly after the child’s birth. The initial
caseworker recalled taking the children to maternal grandmother’s
house after mother’s arrest. But there is no evidence that the
14
caseworker asked maternal grandmother if she knew father’s name
— not at the time she dropped off the children or at any time before
the Division filed its verified motion for service by publication.
Thus, on this record, the Division cannot meet its burden to show
that diligent efforts would necessarily have been unsuccessful in
identifying and locating father.
3. Because Service by Publication Was Improper, the Court
Lacked Personal Jurisdiction Over Father, Rendering Its
Orders and Judgments Void as to Father
¶ 35 If service does not conform to the requirements of C.R.C.P. 4,
the court does not obtain personal jurisdiction over the party and
any resulting judgment is void. Minshall, ¶ 13; Owens, ¶ 34; see
Jones v. Colescott, 134 Colo. 552, 553, 307 P.2d 464, 465 (1957)
(default judgment was void because motion for service by
publication did not describe efforts to obtain personal service on
defendants); see also Millage, 52 Colo. at 514, 122 P. at 788 (An
affidavit “containing the statements required by statute” is “an
essential prerequisite to give the court jurisdiction to proceed.”);
People in Interest of Clinton, 762 P.2d 1381, 1384 (Colo. 1988)
15
(noncompliance with statutory provisions pertaining to notice or
service of process deprives court of personal jurisdiction over party).
¶ 36 Likewise, when the court lacks personal jurisdiction over a
party based on deficient notice, a judgment entered against that
party constitutes a due process violation.1 See Burton v. Colo.
Access, 2015 COA 111, ¶ 11 (where plaintiff failed to serve
defendant with complaint, trial court lacked jurisdiction and the
entry of judgment constituted a due process violation), aff’d, 2018
CO 11; In re C.L.S., 252 P.3d 556, 559 (Colo. App. 2011) (where
court authorized service by publication on father based on false
statements by mother, service was deficient, father lacked notice,
and the entry of judgment constituted a due process violation).
B. Timeliness
1The only exception to this rule is that a default judgment is not
void for failure to provide notice if the defaulting party was
nonetheless aware that a default judgment was sought and had an
opportunity to be heard. In re C.L.S., 252 P.3d 556, 559 (Colo. App.
2011).
16
¶ 37 The juvenile court concluded, as an independent basis for
denial, that father’s Rule 60(b)(3) motion was untimely. The
Division does not defend the court’s order on this ground.
¶ 38 True, Rule 60(b) provides that a motion to set aside a
judgment or order “shall be made within a reasonable time.”
Nonetheless, because a void judgment is “without effect,” it “may be
attacked at any time.” Burton v. Colo. Access, 2018 CO 11, ¶ 35;
see also In re Marriage of Stroud, 631 P.2d 168, 170 n.5 (Colo. 1981)
(“[W]here the motion alleges that the judgment attacked is void,
C.R.C.P. 60(b)(3), the trial court has no discretion. The judgment
either is void or it isn’t and relief must be afforded accordingly.”).
¶ 39 Haskell v. Gross, 145 Colo. 365, 358 P.2d 1024 (1961), the
case on which the juvenile court relied, does not support a contrary
conclusion. In that case, the defendant, who had initially
participated in the proceedings, claimed he had not received notice
of the default judgment. Id. at 366, 358 P.2d at 1025. The record,
however, did not support his claim, and therefore the judgment was
presumed valid. Id. at 367-68, 358 P.2d at 1026.
17
¶ 40 But here, we have determined that father did not receive
proper notice of the proceedings because service by publication was
not authorized under the circumstances. Therefore, his motion to
vacate the juvenile court’s orders and judgments was timely.
III. Conclusion and Remand Order
¶ 41 The order denying father’s C.R.C.P. 60(b) motion is reversed,
and the case is remanded to the juvenile court. On remand, the
juvenile court must vacate the following orders and judgments2:
 The May 29, 2006, order transferring temporary legal
custody of the child from the Division to Phillips, with
protective supervision by the Division.
 The November 1, 2006, judgment adjudicating the child
dependent or neglected by default as to father, who was
identified as John Doe.
2 To the extent father argues that the April 20, 2006, default
judgment is void as to him, we disagree. That order did not apply to
father; it adjudicated the children dependent and neglected as to
mother only. We also disagree that the order adding Phillips’s
girlfriend as a special respondent in the case is void as to father;
that order did not implicate father’s rights at all.
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 The January 25, 2007, judgment allocating parental
responsibilities to Phillips and relieving the Division of
protective supervision.
 The February 7, 2007, judgment terminating the
dependency and neglect proceeding.
JUDGE YUN and JUDGE GRAHAM concur.
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