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T.S.B. v. Robinson

Court of Appeals of Arkansas, Division IV

September 4, 2019

T.S.B., a Minor, Appellant
v.
Elizabeth A. ROBINSON, Christopher Cook, Tammy A. Robinson (Now Wright), and B.R.C., a Minor, Appellees

          Rehearing Denied September 25, 2019

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[Copyrighted Material Omitted]

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          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-14-367], HONORABLE WADE NARAMORE, JUDGE

         Paul F. Miller, for appellant.

          One brief only.

         OPINION

         PHILLIP T. WHITEAKER, Judge

          The appellant, T.S.B., by and through her attorney ad litem (AAL), appeals an order issued by the Garland County Circuit Court in a family-in-need-of-services (FINS) case.[1] In this one-brief appeal from that FINS order, the AAL raises four procedural arguments on behalf of T.S.B.: (1) that T.S.B. was not properly served with the petition to change custody in the FINS case; (2) that her due-process rights were violated resulting in a denial of her liberty interest in living with her grandmother and her property interest in her survivor’s annuity; (3) that Arkansas Code Annotated section 9-27-312 (Repl. 2015) is ambiguous and should be interpreted to require service of the petition for change of custody in a FINS proceeding on a minor child under the age of ten; and (4) that her rights to equal protection were violated when her AAL was denied access to her juvenile records. These specific claims were either waived, not raised below, or are otherwise not preserved for our review.

          As the first issue on appeal, the AAL argues that the FINS order changing custody of T.S.B. is void because the petition for change of custody was not served on either T.S.B. or her AAL resulting in a lack of proper and adequate notice. It is true that a judgment rendered without notice to the parties is void. See

Page 653

Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994). When there has been no proper service and therefore no personal jurisdiction over the defendant in a case, any judgment is void ab initio. Id. However, such defects may be waived. Trelfa v. Simmons First Bank of Jonesboro, 98 Ark.App. 287, 254 S.W.3d 775 (2007).

         Here, in the initial FINS proceeding, T.S.B. was placed in the custody of her maternal grandmother, Elizabeth Robinson (Robinson). T.S.B.’s mother, the appellee Tammy Robinson-Wright (Wright), subsequently filed a petition in the FINS court seeking to change custody of T.S.B. back to her. However, the petition filed by Wright failed to contain a certificate of service. As a result, our review of the record reveals no real "proof" that any party was actually served with the petition. Despite this, the record shows that Robinson responded to the petition, and the certificate of service attached to that response shows service on the AAL representing T.S.B. at the time.[2]

         A FINS hearing was eventually held on Wright’s petition. At the hearing, the current AAL appeared on behalf of T.S.B.,[3] participated in the questioning of witnesses, lodged an objection, presented stipulations as to T.S.B.’s desires pertaining to custody, advised the court of his recommendations regarding same, partook in the custody negotiations held midhearing, and ultimately entered into an agreed order regarding custody arrangements of T.S.B. Not once during the hearing did the ...


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