Petition of J.N.
2022 COA 69. No. 19CA1425. Dependency and Neglect—Notice—Service by Publication—Due Process—CRCP 60(b)—Timeliness.
June 30, 2022
Mother was arrested for child abuse. At the time, she was with her two children, C.G. (father’s biological child) and C.G.’s half-brother (the biological child of Phillips). A magistrate granted temporary protective custody of the children to the Jefferson County Division of Children, Youth and Families (Division). The Division filed a petition for temporary legal custody of the children and moved to serve both fathers by publication. The motion did not describe the Division’s efforts to obtain personal service or assert facts to establish that such efforts would have been futile. Nonetheless, the magistrate granted the motion, and service was completed by publication. Thereafter, Phillips, who had been notified of the proceedings by a caseworker, appeared at all subsequent hearings, but father did not appear at any hearings. The court allocated parental responsibilities for both children to Phillips, relieved the Division of protective supervision, and terminated the dependency and neglect proceeding.
Several months later, C.G. died. Phillips was convicted of first degree murder of C.G. and child abuse resulting in death. Following C.G.’s death, father, mother, and the personal representative of the C.G.’s estate initiated a federal court action against multiple parties, including the Division. Father thereafter filed a CRCP 60(b) motion in the dependency and neglect proceeding to set aside the court’s orders for lack of service. The juvenile court denied the motion on 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.
On appeal, father argued 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 were therefore void as to him. Here, the Division failed to exercise due diligence to locate and personally serve father before moving for service by publication, and it did not explain why such diligent efforts would have been futile. Accordingly, service did not conform to CRCP 4, the court did not obtain personal jurisdiction over father, and the resulting judgment was void.
Father also argued that the juvenile court erred by concluding that the Rule 60(b) motion was untimely. A void judgment is without effect and may be attacked at any time. Here, father did not receive proper notice of the proceedings because service by publication was not authorized under the circumstances, so his motion to vacate the juvenile court’s orders and judgments was timely.
The order denying father’s CRCP 60(b) motion was reversed and the case was remanded to the juvenile court with instructions.