R.C., AS NATURAL MOTHER AND BEST FRIEND OF J.L.C. AND BEST FRIEND OF A.L.G.C.APPELLEE
OF JUDGMENT: 02/22/2018
COUNTY YOUTH COURT HON. JOHN S. PRICE JR. TRIAL JUDGE
ATTORNEY FOR APPELLANT: W. RICHARD JOHNSON
ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR.
J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.
B.E.G. 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.
AND PROCEDURAL HISTORY
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.
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
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.
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
On June 22, 2017, the court appointed a guardian ad litem to
represent the children's best interest.
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.
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.
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
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.
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
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
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).
Whether the August 15, 2017 order terminating
Grant's parental rights is void for lack
of personal jurisdiction.
"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
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.
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 ...