March 01, 2016

Service by Publication Not Sufficient Notice in Termination of Parental Rights Proceeding

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.M.S., 2016 WL 324607 (Mont.).

Mother and maternal grandfather filed a joint petition for termination of father’s parental rights to three children and adoption by grandfather. Father appealed the trial court’s default judgment terminating his parental rights and ordering adoption. The Montana Supreme Court found that service by publication could not be ordered by the clerk of court and such service did not put the father on notice that his parental rights would be terminated.

The parents of three minor children divorced, and the mother and children lived with the maternal grandfather in Billings, MT, while the father resided in Los Angeles, CA. Mother and grandfather filed a joint petition for termination of father’s parental rights and for grandfather to adopt the children. Under the petition, mother would keep her parental rights. The trial court issued a summons for father on the same day the petition was filed.

 After trying to serve father, whose exact whereabouts in California were not known, mother’s and grandfather’s counsel submitted an affidavit stating father could not be found and requesting that the court order publication of summons. Shortly thereafter, the clerk of court entered an order directing that service of the summons be made by publication in the Billings Times newspaper. Father did not respond to the summons, and several months later, mother and grandfather filed a motion for entry of default, which the clerk of court entered.

 When the trial court held a hearing several months later, grandfather and mother testified and submitted one exhibit that included: a letter from grandfather’s and mother’s counsel to a California-based process server, a letter about the proceedings to father at a Billings address, an e-mail to father about the proceedings, and a number of pictures of father from various social media sites. At the close of the hearing, the court issued combined orders terminating father’s parental rights and granting adoption decrees for each of the children.

The Montana Supreme Court found that service by publication could not be ordered by the clerk of court because the governing statute provides for alternate service “in any manner that the court may direct.” The trial court was required to direct the manner of service.

Furthermore, service by publication in the proceeding to terminate father’s parental rights was insufficient. Even though the publication informed him that a default judgment would be entered against him, it did not specify what relief was requested and did not put the father on notice that his parental rights would be terminated. 

In case service on the father was perfected on remand, the court also addressed the father’s contention that the mother and grandfather lacked standing to petition for termination of his parental rights and grandfather could not petition for adoption. The court concluded that mother had standing as the custodian of the children and because the children were the subject of proper adoption proceedings. In addition, maternal grandfather could be treated as a stepparent if good cause to do so was shown and he met the statutory qualifications for adoption.