                                                                                                        12/05/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                            Assigned on Briefs September 1, 2017

                                     IN RE BROOKLYN J.

                    Appeal from the Circuit Court for Hamilton County
                            No. 13A205     J. B. Bennett, Judge


                                 No. E2016-00482-COA-R3-PT


The mother of twins seeks to set aside the termination of her parental rights on the ground
the judgment is void for lack of personal service. In August 2013, relatives who had legal
custody of the children filed a “Petition for Termination of Parental Rights and
Adoption.” After two failed attempts to locate the mother for service of process, she was
served by publication. In December 2013, the trial court entered an Order of Default
terminating her parental rights, and the children were adopted shortly thereafter. The
mother received actual notice of the termination of her parental rights and the adoption no
later than April 2014, but she waited until October 2015 to file a Tenn. R. Civ. P. 60
motion to set aside the 2013 judgment. Following a hearing, the trial court ruled that the
2013 judgment was void for lack of personal service but that the mother was not entitled
to relief from the judgment based on “exceptional circumstances.” The mother appealed.
We affirm the trial court’s determination that the mother is not entitled to relief based on
exceptional circumstances, they being that she had actual notice of the judgment eighteen
months prior to seeking relief, which manifested an intention to treat the judgment as
valid, and that granting relief would impair the children’s and the adoptive parents’
substantial interests of reliance on the judgment.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S. delivered the opinion of the Court, in which THOMAS
R. FRIERSON II and BRANDON O. GIBSON, JJ., joined.

Mindy M., Spencer, Virginia, Pro Se. 1

Michael S. Jennings and William H. Vetterick, Chattanooga, Tennessee, for the
appellees, James and Ila C.

        1
           This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
                                                   OPINION

       Mindy M. (“Mother”) gave birth to twin boys, Prince and Brooklyn, in Virginia in
      2
2010. When Mother was incarcerated in early 2012, a court in Virginia awarded custody
of the twins to Mother’s grandmother, Peola R. (“Grandmother”). In May 2012, custody
was transferred to members of the extended family, James and Ila C. (“the Adoptive
Parents”) with the expectation that they may adopt the children.3

        In June 2012, the Adoptive Parents and the children moved to Chattanooga,
Tennessee. Thereafter, Grandmother used Skype to communicate with them on a regular
basis. After Mother was released from jail, she was present on several occasions when
Grandmother communicated with them through Skype; however, she chose not to be seen
or to participate in any of the conversations. As Mother subsequently explained to the
trial court, “I haven’t Skyped with [the boys] but I have been around when my grandma
has Skyped with [them] several times. And the reason why is because I didn’t want no
confusion or no disturbance going on during the Skyping.”

       On August 13, 2013, the Adoptive Parents filed a “Petition for Termination of
Parental Rights and Adoption” in Hamilton County Circuit Court, contending that
Mother’s parental rights should be terminated under Tenn. Code Ann. § 36-1-102 (1)(A)
for willful failure to visit and willful failure to support. As of the filing of the petition,
Mother had only visited with the children on one occasion—a family reunion in August
2012. Moreover, Mother had not provided any support while the children were in the
Adoptive Parents’ custody.4


          2
              The identity of the biological father is unknown.
          3
         Grandmother signed an “Entrustment Agreement for Temporary Placement of Child.” The
entrustment agreement states in relevant part:

          The said party/parties of the first part hereby agree/agrees to surrender by the
          Entrustment Agreement and does/do hereby surrender all legal custody of and to the
          aforesaid party/parties of second part, hereby intending to effect a temporary separation
          from the said child and to give the party/parties of the second part[ies] full temporary
          custody over said child, with the right and duty of planning for his/her future, care,
          protection, and maintenance.

Grandmother then handwrote, “to develop nessecary [sic] rapport with said parties of the second part[ies]
before final adoption.”
          4
          Mother does not dispute that at the time the Adoptive Parents filed the petition, her only contact
with the children occurred in August 2012. Nor does Mother dispute the Adoptive Parents’ contention
that she did not provide monetary support.


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       The Adoptive Parents made several inquiries with relatives in their attempts to
locate Mother for service of process. They also engaged a professional process server
who attempted to serve Mother at her two last known addresses, one belonging to
Mother’s aunt and the other belonging to her former boyfriend. Neither Mother’s aunt nor
her former boyfriend knew where Mother lived. The professional process server provided
two affidavits that detailed his efforts to serve Mother, which were filed with the trial
court.

       After the first two summons were returned unserved, the Hamilton County Circuit
Court Clerk issued a Publication Notice, although the Adoptive Parents had not filed a
motion for publication with the court in accordance with Tenn. Code Ann. § 36-1-117.
The publication ensued in the North Carolina area where Mother was last known to
reside, and the notice ran weekly for four weeks in October 2013. On December 16,
2013, the trial court entered an Order of Default against Mother and terminated her
parental rights to both children. The adoption of the children was finalized on December
30, 2013.

        It is undisputed that Mother learned of the termination of her parental rights and
the adoption of Prince and Brooklyn on or before April 2014; yet, she took no action to
set aside the termination of her parental rights until October 7, 2015. In her Motion to Set
Aside, Mother contended that the order terminating her parental rights was void for lack
of personal service. In January 2016, the trial court denied Mother’s Motion to Set Aside,
ruling that (1) the substituted service by publication was valid; (2) Mother “waited too
long under Rule 60 to challenge the Order as a voidable order;” and (3) the statute of
repose located at Tenn. Code Ann. § 36-1-122(b)(1) and (2) prohibited the court from
setting aside the judgment because Mother filed her motion to set aside more than a year
after the judgment was entered.

        Mother then filed a Motion to Alter or Amend, and the trial court entered an order
requesting that the parties brief the following issues: (1) “The impact on [Mother’s]
motion…of the cases Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015), In re Landon T.G.
et al., No. E2015-01281-COA-R3 (Tenn. Ct. App. filed March 9, 2016) and section 66 of
the Restatement (Second) of Judgments;” and (2) “Assuming, arguendo, the January 27,
2016 Order is void ab initio, do the repose statutes at issue, T.C.A. §§ 36-1-113(q) and
36-1-122(b) bar the motion from being successful?”

       At the hearing on June 9, 2016, the parties agreed to treat the pending Motion to
Alter or Amend as a Tenn. R. Civ. P. 60 motion, and Mother, Grandmother, and
Adoptive Mother testified. In an order entered on September 21, 2016, the trial court
ruled that the judgment terminating Mother’s parental rights and granting the adoption
was void ab initio for lack of personal service. Specifically, the trial court found that
while the Adoptive Parents made diligent efforts to locate Mother, they failed to file a
motion for publication of notice in accordance with Tenn. Code Ann. § 36-1-117. The

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trial court ruled, however, that Mother was not entitled to relief because both prongs of
the “exceptional circumstances” test had been met. In its order,5 the trial court made the
following findings of fact related to the determination that exceptional circumstances
existed:

        1. The Biological Mother has known since 2012 that [Adoptive Parents]
            have wanted to adopt Brooklyn.
        2. Brooklyn’s prior custodian, [Grandmother], completed and signed an
            entrustment agreement in Virginia on May 29, 2012 entrusting
            Brooklyn…to the Adoptive Parents for the purpose of adoption.
        3. Brooklyn…[has] resided in the home of Adoptive Parents since June of
            2012.
        4. The Adoptive Parents filed for the adoption of Brooklyn…in this Court
            on August 13, 2013.
        5. The Biological Mother had actual knowledge of the completion of
            Brooklyn’s adoption by [Adoptive Parents] no later than April of 2014.
        6. On October 7, 2015, prior counsel for the Biological Mother filed a
            Notice of Appearance and a Motion to Set Aside the underlying
            adoption decree….
        7. By the time of this Court’s June hearing, Brooklyn had been physically
            residing in Chattanooga in the home of Adoptive Parents for
            approximately four years. In that four year period of time, the Biological
            Mother saw Brooklyn twice, once at a family reunion in August 2012,
            and once at a McDonald’s following a hearing in this case in November
            of 2015.
        8. In the four years that Brooklyn has been in the custody of the Adoptive
            Parents, the Biological Mother has paid no support of any type to the
            Adoptive Parents, and she has provided no Christmas gifts, birthday
            gifts or any type of support to or for Brooklyn’s benefit.
        9. The Biological Mother testified that there was no “reaching out to the
            [Adoptive Parents],” despite knowing that Brooklyn had been in their
            care since June of 2012.
        10. There has been four years of a loving, nurturing, stable relationship
            between Brooklyn and the Adoptive Parents, as well as four years of
            development and establishment of filial, as well as extended family
            relationships and socialization with the Adoptive Parents’ family and
            community here in Chattanooga.
        5
          For reasons unexplained by this record, the trial court had a separate case number for each child
and entered two separate final judgments, one pertaining to Brooklyn and the other pertaining to Prince.
Thereafter, Mother filed two separate appeals to this court. Therefore, we are filing separate but wholly
consistent opinions in each of these appeals. The other appeal is In Re Prince J., No. E2016-00479-COA-
R3-PT, 2017 WL ____, (Tenn. Ct. App. Dec. __, 2017).


                                                   -4-
       11. Brooklyn refers to the Adoptive Parents as mother and father, and he
           has used the [Adoptive Parents’] surname now for two and a half years.
       12. The Adoptive Parents have foregone any efforts to pursue child support
           of any type from the Biological Mother.

       Mother appealed the trial court’s ruling.

                                         ANALYSIS

       The parties raise several issues on appeal. We, however, have determined that the
dispositive issue is whether exceptional circumstances justify denying Mother relief from
the 2013 judgment terminating her parental rights.

      A party is not entitled to relief from a void judgment if the following “exceptional
circumstances” exist:

       (1) The party seeking relief, after having had actual notice of the judgment,
           manifested an intention to treat the judgment as valid; and

       (2) Granting the relief would impair another person’s substantial interest of
           reliance on the judgment.

Turner v. Turner, 473 S.W.3d 257, 280 (Tenn. 2015) (quoting Restatement (Second) of
Judgments § 66 (1982)).

       “A judgment purporting to determine the rights of the parties, though lacking
effect of its own force because of invalidity, can…be adopted as a consensual resolution
of the parties’ rights.” Id. at 281. The court will deem the resolution as consensual if both
parties manifest the intent to treat the judgment as valid. Id. A party against whom a
judgment is rendered manifests intent to treat the judgment as valid when the party
receives actual notice of the judgment and fails to express opposition. Id. at 282. In a
parental termination case, the court considers how long the party waited to seek relief
from the time he or she received notice of the judgment and whether the party, with
actual knowledge of the judgment, attempted “to contact, visit, or provide financial
support for the children.” Id.

       If the court determines that the party manifested an intention to treat the judgment
as valid, then the trial court must determine whether granting relief “would impair
another person’s substantial interest of reliance on the judgment.” Id. at 283 (quoting §
66). In parental termination cases, the court particularly considers the children’s
substantial “interests in status” and “interest[s] in repose from legal controversy.” Id.
(quoting § 66). Additionally, “the trial court may consider the relative equities between
the parties,” which would require the court to determine, among other relevant facts,

                                            -5-
whether the parent seeking relief from the judgment attempted to contact the children or
financially support the children. Id. at 284.

       Here, the trial court found that after receiving actual notice of the judgment against
her, Mother failed to oppose the judgment in any meaningful way for eighteen months.
The evidence fully supports this finding. Mother conceded in her testimony that she
learned about the judgment terminating her parental rights and granting the adoption in
March or April 2014, and it is undisputed that she did not file a motion to set aside the
judgment until October 2015. Mother also does not dispute that during those eighteen
months, though she possessed the information necessary to contact the Adoptive Parents,
she never attempted to contact, visit, or provide any financial support to Brooklyn.
Therefore, we agree with the trial court’s determination that Mother manifested an
intention to treat the judgment as valid.

       After the trial court determined that Mother manifested an intention to treat the
adoption as valid, the trial court determined that granting relief would impair the
substantial reliance interests of Brooklyn and the Adoptive Parents. We agree, noting that
the facts which led to this conclusion were also uncontested. For example, it is
undisputed that as of the time of the hearing, the Adoptive Parents had raised and
nurtured Brooklyn in their home for four years, and Brooklyn had almost no contact with
Mother during that time. Adoptive Mother testified that Brooklyn referred to the
Adoptive Parents as “mama” and “daddy” and used the Adoptive Parents’ surname. The
court concluded that Brooklyn “has a significant interest in maintaining the existing
family status and remaining in [the Adoptive Parents’] home.”

       The court also correctly concluded that the relative equities of the parties weighed
heavily in favor of the Adoptive Parents and Brooklyn. Mother conceded that Brooklyn
had been living in the home of the Adoptive Parents since June 2012 and that Mother had
only visited Brooklyn twice in a four-year period—once in August 2012 and once for
approximately one hour in November 2015. Otherwise, Mother had no contact with
Brooklyn. She also conceded that in the four years Brooklyn resided with the Adoptive
Parents, she had provided no financial support to Brooklyn in the form of money,
Christmas gifts, birthday gifts, or otherwise, and the Adoptive Parents never sought any
child support from Mother.

       Adoptive Mother testified that since Brooklyn came to live with the Adoptive
Parents in June 2012, they treated Brooklyn as if he were their own child. She testified
that Brooklyn attended a local elementary school, that he played baseball in a recreational
league, and that he regularly attended church with the family. She also testified that
Brooklyn had developed a bond with extended family members who lived in the
community. Based on Adoptive Mother’s testimony concerning Brooklyn’s four years in
the Adoptive Parents’ care, the trial court concluded that Brooklyn had “developed


                                            -6-
significant relationships with the Adoptive Parents, their extended family, their church
and their other communities.”

       For the foregoing reasons, we affirm the trial court’s determination that Mother is
not entitled to the relief she seeks, that being to set aside the 2013 judgment terminating
her parental rights.

                                         IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Mindy M.6


                                                        ________________________________
                                                        FRANK G. CLEMENT JR., P.J., M.S.




       6
           On July 18, 2017, the Adoptive Parents filed a motion to dismiss for lack of subject matter
jurisdiction. In light of the Supreme Court’s recent decision in In Re Bentley D., No. E2016-02299-SC-
RDO-PT, 2017 WL 5623577, at *6 (Tenn. Nov. 22, 2017), the motion is denied.


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