Opinion
No. 26390
April 8, 2005
Appeal from the Circuit Court of Greene County, Honorable Thomas E. Mountjoy, Circuit Judge.
John E. Kelly, Springfield, MO, for Appellant.
Bill Prince, Springfield, MO, for Respondent.
T.L. appeals from a judgment entered by the juvenile division of the Circuit Court of Greene County, Missouri, terminating his parental rights to H.L.L., the minor child. T.L. contends he was denied due process of law because he did not receive notice of the trial setting. We affirm.
The petition to terminate T.L.'s parental rights was filed by the Greene County Juvenile Office on October 29, 2003. On December 9, 2003, summons was issued to the Constable of McClennon County, Texas, for personal service on T.L. at 1609 Spring Street, Waco, Texas. The summons, which was addressed to T.L., contained the following information pertinent to the issue raised in this appeal:
You are hereby notified that a petition has been filed in the Circuit Court, Juvenile Division, of Greene County, Missouri, alleging that the above-named juvenile is subject to the jurisdiction of the court for the reasons set forth in the petition. A copy of the petition and Juvenile/Custodian's Rights Form is attached hereto. You are ordered to appear before this court at 1111 N. Robberson, Springfield, Missouri on Wednesday, the 25th day of February, 2004, at 9:00 o'clock a.m., for a hearing on the petition, and to have said juvenile with you then and there.
On January 7, 2004, a return of service on the summons issued to T.L. was filed. The return showed that T.L. had been served on December 30, 2003 by leaving "a copy of the summons, a copy of the petition, and Juvenile/Custodian's Rights Form, at the respective dwelling place or usual place of abode of said defendant with some person of his or her family over the age of 15 years."
On February 25, 2004, the trial court held the hearing scheduled for that date. The court found service had been made on all persons required to be served by § 211.453. The court's docket entry for that date states, in pertinent part: "Involuntary Termination of Parental Rights Hearing set for Monday, March 22, 2004, at 10:30 a.m."
All reference to statutes are to RSMo (2000).
On March 22, 2004, the dispositional hearing was held. The juvenile office appeared by a deputy juvenile officer and by its attorney. The juvenile appeared by her guardian ad litem, who was an attorney. The Children's Division appeared by one of its workers, and the court-appointed special advocate appeared in person. Evidence was adduced, and the trial court decided to terminate the parental rights of the juvenile's mother, T.L. and any unknown biological father. On April 14, 2004, attorney John Kelly ("Kelly") was appointed to represent T.L. for purposes of appeal. A formal judgment containing findings of fact and conclusions of law was executed and filed on April 27, 2004.
On May 21, 2004, Kelly filed a motion for new trial alleging T.L. had "received no notice of the trial setting in this cause." Kelly requested an evidentiary hearing so he could present oral testimony in support of the motion. The motion was heard on May 25, 2004, and Kelly appeared on T.L.'s behalf. The trial court denied the motion and the request for an evidentiary hearing.
On May 27, 2004, Kelly filed a second motion for new trial. This motion was accompanied by an affidavit from T.L. stating he did not receive notice of the March 22, 2004 court hearing. On June 3, 2004, the Juvenile Office filed a response to the second motion for new trial. The response was accompanied by an affidavit from Greene County Deputy Juvenile Officer Lisa Altis ("Altis"). Copies of the trial court's docket sheet and two letters were attached to the affidavit. Altis stated the summons had been served on T.L. on December 30, 2003 "at the address of 1609 Spring Street, Waco, Texas." She also noted the trial date of March 22, 2004 had been set by the court at the "service in compliance" hearing held on February 25, 2004. The affidavit then stated, in pertinent part, as follows:
6. On March 1, 2004, I mailed a Notice of Hearing to [T.L.] at 1609 Spring Street, Waco, Texas. A copy of that document is marked as Exhibit "B", attached hereto and by this reference incorporated herein.
7. On March 4, 2004 a letter was sent to [T.L.] at the above address transmitting to him a copy of the termination summary. That letter again indicated that trial was set on March 22, 2004. A copy of that letter marked as Exhibit "C", attached hereto and is by this reference incorporated herein.
8. None of the above referred to letters were ever returned to me at the Greene County Juvenile Office.
9. Hearing was held on March 22, 2004. [T.L.] did not appear at that time.
On June 4, 2004, Kelly filed suggestions and an affidavit indicating he had mailed a letter on May 20, 2004, addressed to T.L. at "1609 Spring St., Apt. 93, Waco, Texas, 76704," that was returned and marked "Addressee Unknown." On July 1, 2004, the trial court held a hearing on the second motion for new trial and overruled the motion. This appeal followed.
T.L. argues he was deprived of due process of law because he did not receive notice of the March 22, 2004 dispositional hearing. A fundamental requirement of due process is "notice reasonably calculated, under all the 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 (1950). Section 211.453.1 requires the summons in a termination of parental rights case be made in the manner prescribed in § 506.150. This statute, in turn, requires the summons and petition be served together and permits service to be made upon an individual by leaving a copy of the summons and of the petition at his dwelling house or usual place of abode with some person of his family over the age of fifteen years. The return of service indicates that T.L. was served with a copy of the summons and petition in this fashion. We also note the summons served upon T.L. ordered him to appear before the juvenile division of the Greene County Circuit Court at 9:00 a.m. on February 25, 2004, for a hearing. It was at this hearing, which T.L. failed to attend, that the trial court set the date of the dispositional hearing for March 22, 2004.
On appeal, T.L. does not challenge the validity of service that was made upon him at the address of 1609 Spring Street, Waco, Texas. Accordingly, service of the summons and petition upon T.L. provided him with notice that was reasonably calculated, under all the circumstances, to apprise him of the pendency of the action to terminate his parental rights and to afford him an opportunity to present his objections. This notice was sufficient to satisfy the requirements of due process.
Appellant argues, however, his rights to due process were violated because he did not receive written notification of the trial date from the court. His argument is foreclosed by the provisions of Rule 43.01, which states, in pertinent part, as follows:
(a) Service — When Required. Every pleading, subsequent to the original petition, every written motion, other than one that may be heard ex parte, and every written notice, appearance, demand, offer of judgment, order, and similar paper that by statute, court rule or order is required to be served shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.
. . . .
(c) Service — How and by Whom Made. Unless otherwise ordered by the court, service required by Rules 43.01(a) and 43.01(b) may be made in the following manner:. . . . (2) Upon a party, by . . . mailing a copy to the party. . . . Service by mail is complete upon mailing.
(Underlining added.) As noted above, T.L. failed to appear as ordered at the hearing on February 25, 2004. Pursuant to the plain and unequivocal language of Rule 43.01(a), the trial court was not required to notify T.L. of the March 22, 2004 trial date after T.L. was in default for failure to appear. There is ample authority to support this conclusion. See, e.g., Crain v. Crain , 19 S.W.3d 170, 174 (Mo.App. 2000) (once properly served, a party who defaults is charged with notice of all subsequent proceedings in the case); Bailey v. Bailey , 924 S.W.2d 512, 512 (Mo.App. 1996) (party in default was not entitled to notice of trial date); Bredeman v. Eno , 863 S.W.2d 24, 26 (Mo.App. 1993) (once properly served, a party in default is charged with notice of all subsequent proceedings in the case); Williams v. Williams , 488 S.W.2d 294, 296 (Mo.App. 1972) (defendant served with summons in the manner provided by statute and who is in default is not entitled to notice of a hearing date); Wade v. Wade , 395 S.W.2d 515, 517-18 (Mo.App. 1965) (invalidating a local court rule requiring that notice of a trial setting be sent to a defaulting litigant because the local rule was more onerous than the requirements of Rule 43.01).
Assuming, arguendo, the trial court was required to give T.L. notice of the hearing, his argument still fails. Before the trial court overruled the second motion for new trial, he was presented with Altis' affidavit. She swore two letters had been mailed to T.L. notifying him of the March 22nd trial date and neither of these letters had been returned to her. Rule 43.01(c) authorizes a court to serve notices on unrepresented parties by mail. The rule further provides that service by mail is complete upon mailing. Thus, T.L. was given proper notice of the hearing date. See In the Interest of J.M.B. , 939 S.W.2d 53, 55 (Mo.App. 1997). The trial court was not obligated to believe T.L.'s contrary affidavit disputing receipt of the letters.
T.L.'s due process rights were not violated because he received the constitutional notice to which he was entitled under the circumstances. The judgment of the trial court is affirmed.
SHRUM, J. and BARNEY, J., Concurs.