IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 10, 2016 Session

IN RE LANDON T. G., ET AL.

1

Appeal from the Chancery Court for Hamblen County

No. 2014CV441 Hon. Douglas T. Jenkins, Chancellor

No. E2015-01281-COA-R3-PT-FILED-MARCH 9, 2016

This appeal concerns a mother’s petition to set aside an order terminating her parental 

rights and permitting the adoption of her minor children. The mother alleged that the 

order is void for lack of personal jurisdiction because service of process was ineffective. 

The trial court denied the petition. The mother appeals. We hold that the order is void 

for lack of personal jurisdiction. We reverse the judgment of the trial court and remand 

this case for further hearing to determine whether exceptional circumstances justify the 

denial of relief in accordance with Turner v. Turner, 473 S.W.3d 257 (Tenn. 2015). 

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

Reversed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., J. and D. MICHAEL SWINEY, C.J., joined.

Thomas C. Jessee, Johnson City, Tennessee, for the appellant, Shana B. M.

Daniel G. Boyd, Rogersville, Tennessee, for the appellees, Brant L. G. and Christy E. G.

 

1

This court has a policy of protecting the identity of children in parental rights termination cases by 

initializing the last name of the parties. 
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OPINION

I. BACKGROUND

Landon T. G. and Elliott L. G. (collectively “the Children”) were born to Shana B.

M. (“Mother”) and Brant L. G. (“Father”) in July 2004 and July 2005, respectively. 

Mother and Father were divorced by order of the court on May 25, 2006. Approximately 

three years later, Father married Christy E. G. (“Stepmother”).

2

 

Father later filed a petition for emergency custody of the Children based upon 

allegations of Mother’s substance abuse. He was granted legal and physical custody of 

the Children by order, entered on January 3, 2011. Following Mother’s completion of an 

intensive outpatient substance abuse program, she requested visitation with the Children. 

The parties agreed to a graduated supervised visitation schedule, set to begin on May 27, 

2011. However, Mother only exercised her right to visitation on a few occasions. 

Mother also failed to appear for a voluntary hair follicle drug test on June 28, 2011. 

On July 18, 2011, Father and Stepmother (“Respondents”) filed a petition for 

adoption and to terminate Mother’s parental rights based upon the statutory grounds of 

abandonment for failure to visit and failure to support the Children. See Tenn. Code Ann. 

§ 36-1-102(1)(A)(i).3 Respondents alleged that Mother had no permanent residential 

address and had been consistently unemployed due to her substance abuse. Despite these

allegations, service of process was attempted by certified mail. On August 12, 2011, the 

return receipt was stamped received with the following notations: “Return to Sender”,

“Unclaimed”, Unable to Forward”. That same day, the Clerk and Master of the Chancery 

Court for Hamblen County signed and filed the following public notice:

PUBLIC NOTICE

To: [Shana B. M.]

It appearing from the complaint filed in this case, which is sworn to, that 

you are not to be located so that ordinary Summons cannot be served upon 

you; you are therefore commanded to serve on [Respondent’s attorney], an 

answer to the complaint filed against you in this cause within 30 days from 

 

2 We recognize that Christy G. is the legal mother of the Children as a result of the adoption proceedings. 

In an effort to avoid confusion, we will refer to her as “Stepmother” for purposes of this appeal. 

3

“For a period of [four] consecutive months immediately preceding the filing of a . . . pleading to 

terminate the parental rights of the parent . . . of the child who is the subject of the petition for termination 

of parental rights or adoption, that the parent . . . either [has] willfully failed to visit or [has] willfully 

failed to support or [has] willfully failed to make reasonable payments toward the support of the child[.]”
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the posting of this Notice as required by law; otherwise Judgment by 

Default will be taken against you. 

It is further ordered that this Notice be posted in three public places for four 

consecutive weeks.

The notice was posted in the following locations: the Clerk and Master’s office in the 

Hamblen County Courthouse; the front door of the Hamblen County Justice Center; and 

the Public Notice Board located in the lobby of the Morristown City Courthouse. 

Having received no response from Mother, Respondents filed a motion for default 

judgment on September 21, 2011. The motion was supported by two affidavits, one 

providing that service of process had been attempted by certified mail and another 

providing that constructive notice by publication had been utilized by posting public 

notice in three public places. On September 29, 2011, the court entered a final order of 

adoption, terminating Mother’s parental rights and permitting the adoption of the 

Children based upon the statutory grounds of abandonment for failure to visit and to 

support the Children. The order provided that service of process had been attempted at 

Mother’s last known addresses “based on a document received from [Mother’s] employer 

and brother on June 3, 2011” and that a public notice had also been issued. The order 

provided that Respondents had not been in contact with Mother since the filing, that an 

appearance had not been made by counsel representing her, and that Respondents filed an 

affidavit of reasonable and diligent efforts documenting their attempt to locate her.4

Approximately three years later, on October 1, 2014, Mother filed a petition to set 

aside the order terminating her parental rights and permitting the Children’s adoption. 

She argued that the order is void for lack of personal jurisdiction. Respondents alleged

that personal jurisdiction was accomplished by the initial service of process provided at 

Mother’s last known address pursuant to Rule 4.04(11).

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They asserted that although not 

required, they also provided constructive service of process by posting notice in three 

public places. In the alternative, they claimed that the petition should be dismissed as 

barred by the one-year statute of repose applicable in termination proceedings. See Tenn. 

Code Ann. §§ 36-1-113(q), -122(b)(2). They also asserted that Mother had not filed her 

 

4

The record before this court does not contain an affidavit of reasonable and diligent efforts. 

5

“When service of a [process] is provided for or permitted by registered or certified mail under the laws 

of Tennessee and the addressee or the addressee’s agent refuses to accept delivery and it is so stated in the 

return receipt of the United States Postal Service, the written return receipt if returned and filed in the 

action shall be deemed an actual and valid service of [process]. Service by mail is complete upon 

mailing. For purposes of this paragraph, the United States Postal Service notation that a properly 

addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of 

the defendant’s refusal to accept delivery.”
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petition within a reasonable time pursuant to Rule 60.02 of the Tennessee Rules of Civil 

Procedure. 

Mother responded by asserting that she was not provided with proper notice 

because she had not been personally served. She claimed that the attempt at constructive 

service was ineffective because Respondents had failed to file a motion requesting 

constructive service by publication with an accompanying affidavit detailing the diligent 

efforts they had made to locate her, as required by Tennessee Code Annotated section 36-

1-117(m)(3).6 She further alleged that publication in three public places instead of in a 

newspaper was insufficient. She asserted that her petition was not barred because the 

judgment is void for lack of personal jurisdiction. 

Following a hearing, the trial court denied the petition and upheld the orders by 

stating, in pertinent part, as follows: 

A Petition to Terminate Parental Rights of [Mother] was filed on July 18, 

2011 in Hamblen County, Tennessee. Service on [Mother] was not 

accomplished by personally handing the summons to [Mother]. The 

summons was sent to [Mother] via Certified Mail and the same was 

returned as “unclaimed” on August 12, 2011. [Respondents] then filed an 

affidavit stating that they were unable to locate [Mother] on August 17, 

2011. The [c]ourt subsequently entered an Order permitting [Respondents] 

to serve [Mother] by posting notice in three public locations. . . . The 

[c]ourt concedes that public notice may not be a proper form of publication 

in a termination proceeding. However, the [c]ourt finds that under the 

circumstances of this particular case, the notice afforded to [Mother] by 

[Respondents] was sufficient to give the [c]ourt jurisdiction of [Mother]. 

The [c]ourt finds that the applicable statute of repose for questioning an 

adoption proceeding was pled affirmatively by [Respondents]. The [c]ourt 

finds that the applicable statute of repose bars any question as to the 

validity of the adoption proceeding at issue. 

This timely appeal followed. 

 

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“Any motion for an order for publication in these proceedings shall be accompanied by an affidavit of 

the petitioners or their legal counsel attesting, in detail, to all efforts to determine the identity and 

whereabouts of the parties against whom substituted service is sought.”
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II. ISSUES

We consolidate and restate the issues raised on appeal as follows: 

A. Whether the trial court erred in concluding that the order terminating 

Mother’s parental rights and permitting the adoption of the Children is not 

void for lack of personal jurisdiction.

B. Whether the trial court erred in further concluding that Mother’s 

appeal is barred as untimely. 

III. STANDARD OF REVIEW

A trial court’s award or denial of relief pursuant to Rule 60.02 of the Tennessee 

Rules of Civil Procedure is generally reviewed under an abuse of discretion standard. 

Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich 

Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Ferguson v. Brown, 291 S.W.3d 381, 386 

(Tenn. Ct. App. 2008). However, our Supreme Court recently held that a Rule 60.02(3) 

motion to set aside a judgment as void must be reviewed under a de novo standard of 

review with no presumption of correctness. Turner, 473 S.W.3d at 268-69. The Court 

further determined that “[a]ny factual findings a trial court makes shall be reviewed de 

novo, with a presumption of correctness, unless the evidence preponderates otherwise.” 

Id. (citing Tenn. R. App. P. 13(d)).

IV. DISCUSSION

A.

A final judgment may be set aside pursuant to Rule 60.02 of the Tennessee Rules 

of Civil Procedure when

On motion and upon such terms as are just, the court may relieve a party or 

the party’s legal representative from a final judgment, order or proceeding 

for the following reasons: (1) mistake, inadvertence, surprise or excusable 

neglect; (2) fraud [ ], misrepresentation, or other misconduct of an adverse 

party; (3) the judgment is void; (4) the judgment has been satisfied, 

released or discharged, or a prior judgment upon which it is based has been 

reversed or otherwise vacated, or it is no longer equitable that a judgment 

should have prospective application; or (5) any other reason justifying relief 

from the operation of the judgment. The motion shall be made within a 
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reasonable time, and for reasons (1) and (2) not more than one year after the 

judgment, order or proceeding was entered or taken.

Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834 

S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance 

between the competing principles of finality and justice.” Banks v. Dement Constr. Co., 

Inc., 817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 

280 (Tenn. 1976)). “Rule 60.02 is meant to be used only in those few cases that meet one 

or more of the criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

Mother argues that the court erred in denying her motion to set aside the order

when Respondents failed to provide adequate service by mail or comply with the 

statutory requirements for constructive service by publication, thereby rendering the 

order void for lack of personal jurisdiction. During the pendency of this appeal, the 

Supreme Court addressed the issue of whether a default judgment terminating a mother’s 

parental rights was void when service of process had not been accomplished in 

accordance with statutory requirements and therefore failed to provide the court with 

personal jurisdiction. Turner, 473 S.W.3d at 270. The Court provided that “[a] judgment 

rendered by a court lacking either personal or subject matter jurisdiction is void.” Id.

(citations omitted). The Court further provided, 

Nevertheless, a judgment of a court of general jurisdiction is presumed to 

be valid and will be held void only when its invalidity is disclosed by the 

face of that judgment, or in the record of the case in which that judgment 

was rendered. 

Id. (citations omitted). Accordingly, our review of whether the court obtained personal 

jurisdiction must be limited to the record before this court. Id. at 275.

“A court obtains personal jurisdiction over a party defendant by service of 

process.” Id. at 271 (citations omitted). In this case, the court found that it obtained 

personal jurisdiction over Mother through service of process by certified mail and 

through constructive service by publication. 

Service by Certified Mail

“Service of process in termination of parental rights cases in chancery and circuit 

courts is accomplished pursuant to the Tennessee Rules of Civil Procedure and state 

statutes.” Id. at 274 (citing Tenn. Code Ann. §§ 36-1-113(e), -117(m)(1)). Service of 

process by certified mail is governed by Rules 4.04(10) and (11) of the Tennessee Rules 

of Civil Procedure, which provide as follows: 
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(10) Service by mail of a summons and complaint upon a defendant may be 

made by the plaintiff, the plaintiff’s attorney or by any person authorized 

by statute. After the complaint is filed, the clerk shall, upon request, 

furnish the original summons, a certified copy thereof and a copy of the 

filed complaint to the plaintiff, the plaintiff’s attorney or other authorized 

person for service by mail. Such person shall send, postage prepaid, a 

certified copy of the summons and a copy of the complaint by registered 

return receipt or certified return receipt mail to the defendant. If the 

defendant to be served is an individual or entity covered by subparagraph 

(2), (3), (4), (5), (6), (7), (8), or (9) of this rule, the return receipt mail shall 

be addressed to an individual specified in the applicable subparagraph. The 

original summons shall be used for return of service of process pursuant to 

Rule 4.03(2). Service by mail shall not be the basis for the entry of a 

judgment by default unless the record contains a return receipt showing 

personal acceptance by the defendant or by persons designated by Rule 

4.04 or statute. If service by mail is unsuccessful, it may be tried again or 

other methods authorized by these rules or by statute may be used.

(11) When service of a summons, process, or notice is provided for or 

permitted by registered or certified mail under the laws of Tennessee and 

the addressee or the addressee’s agent refuses to accept delivery and it is so 

stated in the return receipt of the United States Postal Service, the written 

return receipt if returned and filed in the action shall be deemed an actual 

and valid service of the summons, process, or notice. Service by mail is 

complete upon mailing. For purposes of this paragraph, the United States 

Postal Service notation that a properly addressed registered or certified 

letter is “unclaimed,” or other similar notation, is sufficient evidence of the 

defendant’s refusal to accept delivery.

(Emphasis added.). 

Here, the return receipt provided the following notation, 

Return to Sender

Unclaimed

Unable to Forward

While the return receipt may be deemed an actual and valid service of process, service by 

mail without a return receipt showing personal acceptance cannot support the court’s 

entry of a default judgment pursuant to Rule 4.04(10) of the Tennessee Rules of Civil 
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Procedure which specifically states, “service by mail shall not be the basis for the entry 

of a judgment by default unless the record contains a return receipt showing personal 

acceptance by the defendant or by persons designated by Rule 4.04 or statute.” 

Accordingly, we must conclude that the order entered in this case is void for lack 

of personal jurisdiction unless the trial court acquired personal jurisdiction over Mother 

through constructive service by publication. 

Service by Publication

Constructive service by publication is permitted when a defendant’s residence is 

unknown and cannot be ascertained by diligent inquiry. Tenn. Code Ann. § 21-1-

203(a)(5). Service by publication is governed by Tennessee Code Annotated section 21-

1-204, which provides, in pertinent part, as follows: 

(a) In case personal service is not used, if the defendant does not cause 

an appearance to be entered, the clerk, as soon as the necessary affidavit is 

made, shall enter upon the rule docket an order requiring the defendant to 

appear at a certain day named in the order, being a rule day, and defend, or 

otherwise the bill will be taken for confessed.

(b) The clerk shall forthwith cause a copy of this order to be published 

for four (4) consecutive weeks in the newspaper mentioned in the order or

designated by the general rules of the court.

(c) The order for publication in lieu of personal service may be made at 

any time after the filing of the bill. The order of publication should contain 

the names of the parties, the style of the court in which the proceedings are 

had and the name of the place where the court is held, without any brief or 

abstract of facts, unless directed by the court.

(Emphasis added.). Additionally, in termination proceedings, 

[a]ny motion for an order for publication in these proceedings shall be 

accompanied by an affidavit of the petitioners or their legal counsel 

attesting, in detail, to all efforts to determine the identity and whereabouts 

of the parties against whom substituted service is sought.

Tenn. Code Ann. § 36-1-117(m)(3). 
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Here, Respondents claim that the constructive service by publication was valid 

because it was published in three public places pursuant to the general rules of the court. 

While constructive service by publication may be accomplished pursuant to the general 

rules of the court, the record before this court does not contain a motion requesting 

service by publication or an affidavit “attesting, in detail, to all efforts to determine the 

identity and whereabouts of the parties against whom substituted service is sought.” 

Tenn. Code Ann. § 36-1-117(m)(3); see also Turner, 473 S.W.3d at 275 (“[W]hen 

determining whether a judgment is void, a court must confine its review to the record of 

the proceeding from which the judgment emanated.”). 

The record before this court contains two affidavits, one attesting that service by 

mail was unsuccessful and another attesting that service by publication was unsuccessful. 

These affidavits were filed in support of the motion for default judgment and are facially 

insufficient to satisfy the statutory requirements because the affidavits do not contain a 

detailed description of any diligent inquiries or efforts made to locate Mother or her 

residence. Id. (holding that a similar affidavit filed in support of a motion for default 

judgment was facially insufficient). Accordingly, the order of default judgment 

terminating Mother’s parental rights is void for lack of personal jurisdiction. 

B.

Having determined that the order is void for lack of jurisdiction, we must now 

consider whether Mother is entitled to relief when she sought relief approximately three 

years after entry of the order.

7

 Rule 60.02 of the Tennessee Rules of Civil Procedure 

provides that any motion for relief “shall be made within a reasonable time.” In Turner, 

the Supreme Court addressed the applicability of the reasonable time filing requirements 

to a motion seeking relief from a void judgment pursuant to Rule 60.02(3). The Court 

held that a default judgment terminating a mother’s parental rights was void for lack of 

personal jurisdiction because the constructive service by publication was ineffective for 

failure to comply with the statutory requirements. Id. at 274-75. In determining whether 

the mother was entitled to relief, the Court held, as a matter of first impression, that the 

reasonable time filing requirements may not be applied to bar motions seeking relief from 

void judgments pursuant to Rule 60.02(3) but that relief may still be denied if certain 

exceptional circumstances exist. Id. at 279.

The Court adopted section 66 of the Restatement (Second) of Judgments as the 

appropriate standard to consider in determining whether exceptional circumstances exist. 

Id. at 282-83. The standard is as follows: 

 

7

The trial court held that the applicable statute of repose also barred relief from the judgment. 

Respondents do not advance this argument in their appellate brief. 
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Relief from a default judgment on the ground that the judgment is invalid 

will be denied if:

(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.

Restatement (Second) of Judgments § 66 (1982). The record in this case has not been 

sufficiently developed for this court to determine whether exceptional circumstances 

justify the denial of relief. 

Remand for Exceptional Circumstances Hearing

Accordingly, we remand this case to the trial court for a hearing to determine 

whether the exceptional circumstances defined by section 66 as adopted by our Supreme 

Court in Turner justifies denying Mother relief from the void judgment terminating her 

parental rights. This hearing will afford the parties an opportunity to be heard and to 

present proof relevant to the exceptional circumstances and the trial court will determine 

whether exceptional circumstances justify denying Mother relief in this case.

 

V. CONCLUSION

This judgment of the trial court is reversed, and this case is remanded for further 

proceedings consistent with this opinion. Costs of the appeal are taxed one-half to the 

appellant, Shana B. M., and one-half to the appellees, Brant L. G. and Christy E. G., for 

which execution may issue, if necessary.

_________________________________ 

JOHN W. McCLARTY, JUDGE