Termination of Parental Rights
Termination of Parental Rights- Service by Publication
Except as indicated, all indented material is copied directly from the court’s opinion.
Opinions of the Tennessee Supreme Court
Opinions of the Tennessee Court of Appeals
In re Jimmy H., No. M2021-01353-COA-R3-PT, p. 5-6, 7 (Tenn. Ct. App. Feb. 10, 2023).
The Tennessee Supreme Court has recognized that service by publication in the local newspaper “has been an accepted method of substituted service for well over a century.” Turner, 473 S.W.3d at 272 (citing Pennoyer v. Neff, 95 U.S. 714, 727, 24 L. Ed. 565 (1877)). However, “constructive service by publication is permissible only if it is accomplished in a manner reasonably calculated to give a party defendant adequate notice of the pending judicial proceedings.” Id. (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). Moreover, “constructive service by publication should be viewed as a last resort means of serving a party whose identity is known.” Id. at 273.
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Moreover, “[t]he statute permitting constructive service by publication in parental termination proceedings specifically ‘places the burden of demonstrating diligent inquiry upon the petitioners by requiring a detailed affidavit from the petitioners or their legal counsel attesting to all efforts made to determine the whereabouts of the unserved party.’” Id. at 274–75 (quoting In re Adoption of F.M.B.P.W., No. M2007-01691-COA- R3-PT, 2008 WL 821670, at *2 (Tenn. Ct. App. Mar. 26, 2008)). The issue of whether diligent inquiry was made prior to an attempt at service by publication under the above statutes “is a question of fact to be determined at trial.” Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 148 (Tenn. Ct. App. 2007) (quoting Freeman v. City of Kingsport, 926 S.W.2d 247, 250 (Tenn. Ct. App. 1996)).
