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B.E.G. v. R.C.

Court of Appeals of Mississippi

July 16, 2019

B.E.G. APPELLANT
v.
R.C., AS NATURAL MOTHER AND BEST FRIEND OF J.L.C. AND BEST FRIEND OF A.L.G.C.APPELLEE

          DATE OF JUDGMENT: 02/22/2018

          WARREN COUNTY YOUTH COURT HON. JOHN S. PRICE JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: W. RICHARD JOHNSON

          ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR.

          BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

          McDONALD, J.

         ¶1. B.E.G.[1] appeals the Warren County Youth Court's denial of his Mississippi Rule of ¶1. Civil Procedure 60(b) motion for relief from the judgment terminating his parental rights. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. B.E.G. and R.C. were married, though the date of their divorce is not reflected in the record. B.E.G. was the legal father of both J.L.C., born in April 2016, and A.L.G.C., born in June 2012.

         ¶3. Pursuant to a Warren County Youth Court's order, the minor children were placed in the care and custody of the Warren County Department of Child Protective Services on or about May 2, 2016. On June 7, 2016, the court determined that the children had been abused and neglected on the basis of both parents' drug use. The children were placed in their maternal grandparents' custody and ultimately returned to R.C. on September 8, 2016, when she successfully completed drug treatment.

         ¶4. On May 16, 2017, R.C. filed a petition in the Warren County Youth Court to terminate the parental rights of B.E.G. She alleged that she was awarded custody and that a no-contact order had been entered against B.E.G. R.C. further alleged that B.E.G. had abandoned her and their daughter prior to the birth of their son. The matter was set for a hearing.

         ¶5. R.C. averred that B.E.G. could not be found. Therefore, service of process was accomplished by publication in The Vicksburg Post of Warren County on May 18, 2017; May 25, 2017; and June 1, 2017, notifying B.E.G. of the June 27, 2017 hearing.

         ¶6. On June 22, 2017, the court appointed a guardian ad litem to represent the children's best interest.

         ¶7. On June 27, 2017, a termination hearing was held in the youth court. B.E.G. appeared and objected to R.C.'s petition to terminate his parental rights. The guardian ad litem requested that the judge continue the hearing because she had not interviewed everyone in order to make a report and recommendation. The court announced the date of the hearing and had B.E.G. repeat the date to make sure he understood that the hearing was rescheduled for August 14, 2017, at 10:30 a.m. The court also informed B.E.G. that no further process or notice would be given to him.

         ¶8. A hearing was held on August 14, 2017, and B.E.G. did not appear. R.C. and her father testified. R.C. testified that B.E.G. had never seen the youngest child, J.L.C., and had not seen A.L.G.C. in over fourteen months. R.C. further testified that B.E.G. never provided any support for the children and that he had an ongoing drug problem. R.C.'s father testified that R.C. had lived with him and his wife for over a year. He also testified that they had not seen B.E.G. and that B.E.G. had not provided any financial or medical support for the children. In its ruling from the bench, the court stated it considered the guardian ad litem's report and the testimony of the witnesses. The court ruled that R.C. had proven at least one ground for the termination of parental rights, and B.E.G.'s parental rights were forever terminated as to J.L.C. and A.L.G.C. The court entered a written order on August 15, 2017.

         ¶9. Nearly six months later, on February 13, 2018, B.E.G., through counsel, filed a motion to set aside the order terminating his parental rights or, alternatively, reopen the time for an appeal. B.E.G. argued that the order should be set aside pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure because he was not afforded all of his rights under Mississippi Code Annotated section 93-15-113 (Rev. 2013). Additionally, he argued that the order was void because: (1) it included both children in one action; (2) it did not include specific findings as to the best interest of the children; (3) it did not state the grounds for termination; and (4) there was a possibility of reunification.

         ¶10. On February 22, 2018, the Warren County Youth Court found that it had no authority to enlarge the time for appeal or to reopen the case and therefore denied B.E.G.'s motion. On March 20, 2018, B.E.G. orally made the same motion. The court heard the motion and again denied the suggested relief in an order entered on the same day.

         ¶11. On April 5, 2018, B.E.G. timely appealed the youth court's March 20, 2018 order on the following grounds:

(1) The August 15, 2017 order terminating his parental rights is void for lack of personal jurisdiction.
(2) The petition to terminate his parental rights is flawed and any order generated therefrom is void.
(3)The order is void for not identifying and reciting the specific reason for termination of his parental rights.
(4)The involuntary termination of his parental rights was manifestly wrong and clearly erroneous based on the lack of supporting evidence.

         STANDARD OF REVIEW

         ¶12. We review a trial judge's refusal to grant relief under Mississippi Rule of Civil Procedure 60(b) under an abuse-of-discretion standard. M.A.S. v. Miss. Dep't of Human Servs., 842 So.2d 527, 530 (¶12) (Miss. 2003). "Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies." Id. (quoting City of Jackson v. Jackson Oaks Ltd. P'ship, 792 So.2d 983, 986 (¶5) (Miss. 2001)). "Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case." Id. (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984)).

         DISCUSSION

         ¶13. Rule 60(b)(4) provides for relief from a void judgment. Generally, the grant or denial of a Rule 60(b) motion is within the trial court's discretion. Clark v. Clark, 43 So.3d 496, 501 (¶21) (Miss. Ct. App. 2010). But if the judgment is void, the trial court has no discretion and must set the void judgment aside. Id. In defining a void judgment, our courts have stated that "a judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Overbey v. Murray, 569 So.2d 303, 306 (Miss. 1990); Clark, 43 So.3d at 501 (¶21).

         I. Whether the August 15, 2017 order terminating Grant's parental rights is void for lack of personal jurisdiction.

         ¶14. "Whether the chancery court had jurisdiction to hear a particular matter is a question of law, to which this Court must apply a de novo standard of review." Simmons v. Harrison Cty. Dep't of Human Servs., 228 So.3d 347, 350 (¶9) (Miss. Ct. App. 2017). Mississippi Code Annotated section 93-15-107(1)(b) (Supp. 2017) provides that service may be perfected by publication if, after a diligent search, the party's address is still unknown. Mississippi Rule of Civil Procedure 4(c)(4)(B) provides that "[t]he publication of said summons shall be made once in each week during three successive weeks in a public newspaper of the county where the . . . petition . . . is pending" and that the "defendant shall have thirty (30) days from the date of first publication in which to appear and defend."

         ¶15. R.C. served B.E.G. by publication in compliance with section 93-15-107 and Mississippi Rule of Civil Procedure 4. In R.C.'s petition she averred that B.E.G. had left the state and that after a diligent search and inquiry he could not be found. This assertion renders service by publication proper. The publication ran in The Vicksburg Post on May 18, 2017; May 25, 2017; and June 1, 2017. The publication summoned him to appear on June 27, 2017, and defend against a complaint or petition filed against him.

         ¶16. Additionally, when B.E.G. appeared at the June 27, 2017 hearing, the court continued the case. The court informed B.E.G. that he would not receive any additional notice and reiterated the importance of appearing at the August 14, 2017 hearing. An excerpt of the transcript provides:

COURT: . . . Ms. Walker is the attorney and guardian ad litem for the children. She has requested a continuance. She has not interviewed everybody, and the guardian ad litem is a critical person in a termination of parental rights case. Sir, are you alright?
B.E.G.: Yes, sir.
COURT: Okay. And so I've got to continue the case based on the . . .request of the guardian ad litem. She's required, under law, to do the investigation. She's the most essential personal in this case. Okay? Now what ...

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