Opinion
No. 27040
March 30, 2006
Appeal from the Circuit Court of Dade County, Honorable James R. Bickel, Judge.
Verna L. Haun, Attorney for Appellant.
Brandon B. Fisher, Attorney for Respondent.
This is a "Juvenile Court" case in which C.B.G. ("Father") appeals from an order denying his Rule 74.06(b) motion. Father's motion sought relief from a ruling and order by the Juvenile Court that it had jurisdiction over Father's son, C.J.G., a minor. By this filing, Father also challenged as void that part of the same order which placed custody of C.J.G. with the Division of Family Services ("DFS"). Father alleged these orders were void and violated his due process rights because of the lack of service of process on him. The Juvenile Court overruled his motion. Father appeals. We affirm.
The phrase "Juvenile Court" in this opinion refers to the juvenile division of the Dade County circuit court.
All rule references are to Supreme Court Rules (2005), unless indicated otherwise.
In this opinion, when referring to "due process rights," we mean those guarantees found in the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Missouri Constitution. Generally, both constitutions provide co-extensive guarantees. State v. Hill , 827 S.W.2d 196, 198 (Mo.banc 1992); State v. McCullum , 63 S.W.3d 242, 249 (Mo.App. 2001).
FACTS
On December 17, 2001, a petition was filed with the Juvenile Court alleging that C.J.G. was found within the county and needed care and treatment because Father "failed to protect" him from the physical abuse of his mother, C.W. On January 4, 2002, a summons was issued to the mother (but not to Father) setting a hearing for February 4, 2002. Although not summoned, Father was notified of the February 4 hearing via a January 10, 2002, letter sent to him by the circuit clerk. Father admits that he received this letter.
Father apparently ignored this letter and failed to appear for the hearing. A February 4 docket entry records that C.J.G's mother appeared in court that date, as did her lawyer, the juvenile officer, and a guardian ad litem. This docket entry also recites that the Juvenile Court found it had jurisdiction and ordered C.J.G. placed with DFS. On February 21, 2002, an "amended" order was entered to the same effect.
As best this court can discern, Father first appeared in the case on November 19, 2002. On that date, Father filed a motion for appointment of counsel. The Juvenile Court granted the motion and appointed a lawyer for Father. From that time until April 1, 2005 (a period of over 28 months), Father regularly participated in the litigation over his son. In April 2005, Father moved (per Rule 74.06(b)) to have the February 2002 jurisdictional finding and dispositional order set aside. He alleged those findings and orders were void because he "was never served with a Summons and a copy of the Petition filed in . . . Case No. 01JU6972207." Father claimed entitlement to such relief despite having actively participated in the case since November 19, 2002, without questioning the court's jurisdiction. He asserted his motion should be sustained because due process rights were violated when the February 2002 orders were entered without service of legal process.
In pertinent part, Rule 74.06(b) provides:
"(b) On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: . . . (4) the judgment is void."
The Juvenile Court disagreed and entered a judgment denying Father's motion. The court found, inter alia, that Father "was given notice of the hearing on the juvenile petition that was reasonably calculated to apprise him of the pendency of the action." This appeal followed.
DISCUSSION AND DECISION
Father's brief contains three points relied on, all of which contain arguments on how his due process rights were allegedly violated. In Point I, he claims the Juvenile Court lacked jurisdiction to enter a finding of jurisdiction and order of disposition because he was never served with a copy of the summons and petition filed by the juvenile officer. In Point II, Father argues that even if the January 10, 2002, letter from the circuit clerk could be construed as "actual notice," it was legally insufficient because it only notified him that a hearing was to be held regarding C.J.G., but failed to inform him of any details. Finally, in Point III, Father alleges that he did not waive his jurisdictional argument by appearing at later proceedings in the case. All of Father's points lack merit.
Successful intervention by the State into the parent-child relationship, such as proceedings to terminate parental rights, can only be accomplished by procedures that meet the requisites of due process. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982).
In describing such requisites, the highest court said:
"For all its consequence, `due process' has never been, and perhaps can never be, precisely defined. `Unlike some legal rules' . . . due process 'is not a technical conception with a fixed content unrelated to time, place and circumstances.' Rather, the phrase expresses the requirement of `fundamental fairness,' a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what `fundamental fairness' consists of in a particular situation. . . ."
Lassiter v. Department of Social Services of Durham County , 452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640 (1981) (citations omitted).
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests." Greene v. Lindsey, 456 U.S. 444, 451, 102 S.Ct. 1874, 1877, 72 L.Ed.2d 249 (1982). "Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding." Mullane, 339 U.S. at 313, 70 S.Ct. at 657.
In Missouri, several statutes enacted by the General Assembly and rules of procedure promulgated by the Supreme Court of Missouri speak to such notice requirements. Thus, section 211.101.1 (RSMo 2000) provides that after a petition has been filed in juvenile court, "unless the parties appear voluntarily, the juvenile court shall issue a summons . . . requiring the person who has custody of the child . . . to appear . . . at the time and place stated." Rule 115.01 has a similar mandate. Rule 115.02 provides that the summons "shall state the date, time and place of the hearing," that it shall be "substantially in the form set forth in Rule 128.11," and be accompanied by a copy of the petition. Rule 114.01 prescribes the content of the petition, including the requirement that it "set forth plainly and concisely, with reasonable particularity . . . the facts that bring the juvenile within the jurisdiction of the court."
Adherence to the foregoing would have afforded Father the requisite due process. However, Father is correct when he says these statutes and rules were not followed. This failure, however, did not inextricably deprive the Juvenile Court of jurisdiction on the basis that Father's due process rights were violated. Although the statutes and rules at issue sound in mandatory terms, we are not persuaded the lack of compliance here deprived the Juvenile Court of jurisdiction as Father contends. This follows because Father admittedly had actual notice of the hearing.
See, e.g., In re P.L.O. , 131 S.W.3d 782, 787-88 (Mo.banc 2004) (holding failure to follow certain procedures outlined in Chapters 210 and 211 of the juvenile code did not deprive court of jurisdiction even though mandatory language is used in statutes).
Specifically, Father received a notice sent by the circuit clerk on January 10, 2002, that informed him a hearing regarding his son would be held February 4, 2002. Although this is somewhat lacking in specificity, Father knew before receiving the letter that (1) C.J.G. had been taken into protective custody, i.e., out of Father's home, and (2) some sort of further action would be taken by the authorities. This letter told Father of the further action. It informed him that a juvenile case had been opened regarding his son and that a hearing would be held February 4. This gave Father adequate time to investigate and prepare for the hearing. Instead, he chose to do nothing.
Sans caption (which was letterhead of the Dade County circuit clerk), the notice read:
"January 10, 2002 "RE: C J G "Case Number: 01JU672207 "NOTICE OF HEARING
"A court hearing has been scheduled for the above case on February 4, 2002 at 9:00 a.m."
In so stating, we do not ignore that the case number listed in the clerk's notice did not wholly conform to the actual case number.
In Missouri, actual notice includes both express and implied notice, i.e., notice is regarded in law as actual where the person sought to be charged therewith knows of the existence of the particular fact in question or is conscious of having the means of knowing it, even though such means may not be employed by him or her. Walkenhorst-Newman v. Montgomery Elevator, 37 S.W.3d 283, 286[6] (Mo.App. 2000); Lamke v. Lynn, 680 S.W.2d 285, 288 (Mo.App. 1984). "Whatever fairly is sufficient to put an ordinarily prudent person on inquiry constitutes notice to him of such facts as would be disclosed by reasonable pursuit and proper inquiry." Id. at 288[11].
Upon receiving the circuit clerk's notice, Father had an obligation as a parent to inquire further. He failed in this duty. A person (especially a parent) cannot shut his or her eyes and ears to avoid information and then claim no notice; it simply will not do to remain wilfully ignorant of a thing readily ascertainable. Walkenhorst-Newman, 37 S.W.3d at 287[8]. Because Father received actual notice of the hearing that led to entry of the orders he now challenges, we find his due process rights were not violated. We so find even though certain procedures were not followed and the letter admittedly lacked specific details of the hearing.
Our decision here is fact-driven, i.e., Father had notice. This opinion should not be read as condoning or encouraging noncompliance with service of process statutes and rules in juvenile division cases.
Moreover, assuming arguendo that Father had a valid objection to the procedures employed, he waived this constitutional claim. This follows because he readily participated in the litigation for over two and one-half years before voicing his due process arguments. See In re T.N.H., 70 S.W.3d 2, 8-9[5] (Mo.App. 2002) (holding mother waived jurisdictional argument based on lack of service of process by participating in subsequent proceedings without raising an objection). Constitutional claims are waived if not raised at the first opportunity; here, that would have been in November 2002. Smith v. Shaw, 159 S.W.3d 830, 836[17] (Mo.banc 2005).
In so deciding, we do not ignore In the Interest of D.L.D., 701 S.W.2d 152 (Mo.App. 1985), the principal case cited by Father as support for his claims. Specifically, he characterizes D.L.D. as holding that the "lack of notice [to both parents] in the form required by statute amounted to a denial of due process, and that consequently the juvenile court had no jurisdiction to divest the parents of legal custody in the underlying juvenile case."
It is true that the D.L.D. court found the trial court lacked jurisdiction to terminate parental rights even though both parents had belatedly entered appearances in the case via lawyers who represented them. Id. at 155-159. However, the distinguishing factor in D.L.D. was that no hearing was ever held in that case on the original petition, yet the original petition and initial jurisdictional/disposition order formed the basis for the termination petition that was ultimately filed. Id. As the D.L.D. court explained it, "the juvenile court had jurisdiction of the subject matter, but until there had been a summons and hearing on the original petition, it did not have jurisdiction to later enter a judgment terminating parental rights." Id. at 159 (emphasis added). The D.L.D. court found that the lack of a hearing was of "particular importance." Id. at 156. This followed because "the two grounds for termination arise out of the initial change of custody." Id. See n. 9. Thus, the lack of notice to either parent of the filing of the original petition in D.L.D. and the absence of a hearing at the "jurisdictional and dispositional" stage of that case left those parents without an opportunity to ever challenge what were ultimately the grounds used to terminate parental rights. See n. 9. That is the import of D.L.D. but it is not the situation here.
Specifically, the amended petition for termination of parental rights alleged as grounds that (1) the "child has been within the jurisdiction of the juvenile court for one year immediately prior to the filing of the petition and parents have failed to rectify the conditions that formed the basis of the custody petition and order filed April 11, 1981; (2) . . . the parties have neglected the child and have failed to comply with court approved service agreements." 701 S.W.2d at 155.
Earlier in the opinion, the court determined that subject matter jurisdiction existed as to the initial custody question even though the summons and petition were defective. Id. at 156-58.
Both parents were given notice of this original jurisdictional/dispositional hearing, albeit Father's notice was not compliant with rules governing service of process. Moreover, there was a hearing held here and the hearing was in accordance with the notices given both parents. Consequently, the parents in this case had an opportunity to challenge what was alleged as a basis for assuming jurisdiction of C.J.G. These distinguishing facts make D.L.D., 701 S.W.2d 152, inapposite as support for Father's arguments. Father's points I-III are denied.
The judgment of the Juvenile Court is affirmed.
GARRISON, J. — CONCURS.
BATES, C.J. — CONCURS.