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McMahan v. Arkansas Dep't of Human Servs.

Court of Appeals of Arkansas, Division IV

October 29, 2014

ROY McMAHAN, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD, APPELLEES

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. JV12-838-3. HONORABLE STACEY ZIMMERMAN, JUDGE.

Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.

DAVID M. GLOVER, Judge. HARRISON and WYNNE, JJ., agree.

OPINION

DAVID M. GLOVER, Judge

The issue in this case is whether service of a termination-of-parental-rights petition on appellant Roy McMahan was proper. We hold that it was not; therefore, we reverse and dismiss.

At the termination hearing, McMahan (who was incarcerated at the time the Department of Human Services (DHS) filed the petition to terminate his parental rights to his son, JM), raised the issue of

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improper service of the petition.[1] After taking testimony on the issue, the trial court found that he had been properly served; McMahan's parental rights were terminated by order filed on March 4, 2014. In that order, the trial court specifically found that on December 20, 2013, McMahan was served in person pursuant to the Rules of Civil Procedure.

Arkansas Code Annotated section 9-27-341(b)(2)(A) (Supp. 2013) provides:

The petitioner shall serve the petition to terminate parental rights as required under Rule 5 of the Arkansas Rules of Civil Procedure, except:

(i) Service shall be made as required under Rule 4 of the Arkansas Rules of Civil Procedure if the:

( a ) Parent was not served under Rule 4 of the Arkansas Rules of Civil Procedure at the ...

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