When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly or legally.
The first question a court must ask, in every time and place, is: “Do I have the power to decide this case?” I.e., “Does the Court have jurisdiction?”
In the Juvenile Court System, there are several prerequisites that must be present before the court obtains jurisdiction to decide a case. This article focuses on one of the most commonly used arguments by defense attorneys – that the court does not have power to decide the case because the legal parents have not been correctly or legally served.
In the case of M.W. v. Calhoun DHR, 2210093 (Ala. Civ. App. June 30, 2022), the Court of Civil Appeals (Civs) effectively reversed the Juvenile Court’s order granting Termination of Parental Rights. The Civs did not even reach the merits of the case before ruling that the Juvenile Court’s order was void.
What does that mean? What does it mean that the Civs ruled the Juvenile Court’s order is “void?” I find that the best way to understand the concept of a void judgment is to think of the expanse of space explored by the Starship Enterprise. It launches into the nothingness of the void. There’s nothing there. Never was and never will be.
Black’s Law Dictionary takes a slightly more scholarly approach when it defines a void judgement as having “no legal effect” and by implication, void ab initio “void from the beginning.”
The Court in M.W. explained that perfected service of the legal parent is necessary for the Juvenile Court to obtain personal jurisdiction. If that doesn’t happen, it’s game over. Okay, we all have that. Here’s where things get really interesting:
When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly or legally.
Burden shifting is a big deal. Think of it this way. Two people are walking up 30 flights of stairs. There’s one bag of bricks that has to make it to the top. Who is going to carry the bag of bricks? Oh yeah, you’re going to get in a fist fight with each other when you get to the top.
You definitely want the other person to carry the bag of bricks don’t you?
To make the Petitioner carry the bag of bricks, all the defendant has to do (or their attorney) is whisper a challenge to the propriety of personal service. After this initial contest to the validity of service, the Petitioner (either DHR or the Foster Parent) carries the burden of proof (the bag of bricks) to prove that service of process was performed “correctly or legally.”
Thus, it’s incumbent upon the Petitioner, whether DHR or the Foster Parent, to ensure that the legal parents have been properly served – well before the TPR trial.
P.S. The unscrupulous defense counsel may erroneously argue to the court that service of process has not been correct and legal because the legal parent might not have received a copy of the court’s recent order setting the hearing. This is a snipe hunt. After the legal parents have been served with the initial summons, and that parent is represented by counsel, the legal parent is not entitled to be served with any other notices, pleadings, motions, or orders:
Ala.R.Juv.P.13(A)(1) “After…a termination-of-parental-rights petition has been filed, summonses shall be issued to and personally served by a process server…upon…the parent or parents.”
Rule 13(A)(4) “The service of the summonses shall give the juvenile court jurisdictionover the persons served.”
Rule 14 “Retained counsel…or appointed counsel…shall receive copies of all notices, pleadings, motions, orders, and other documents required by statute or rule to be given to parties, and, in these cases, notices need not be given and pleadings, motions, orders, and other documents need not be made available…to the parties unless the juvenile court shall so order.”
How to Write a Proposed Order – Brevity is Best