Case No. 2022-CA-1319-ME
Caldwell Circuit Court
Decided by Dixon, Goodwine, and Karem, Judges.
Opinion by Goodwine, Judge
Date Rendered: August 4, 2023
Issue: Whether the Family Court erred in granting stepparent adoption when Father was not served with notice of the final hearing order pursuant to CR 5.02(1).
Stepmother filed a petition to adopt minor child without the consent of the biological Father. The Petition was served on Father at a half-way house. However, the record reflected the summons was signed by someone other than Father. Father filed an answer objecting to the adoption.
Both the Cabinet and Counsel for Mother reported that documentation and pleadings mailed to Father at the halfway house were returned as undeliverable. Despite this, the Court entered a final trial order, which was also returned to the court as undeliverable. At the trial, Stepmother presented evidence which reflected a new address for Father, although no attempts were made to serve the final hearing order on him at the new address. Father did not appear at the final hearing, and the Circuit court granted the adoption. Father appealed.
On appeal, Father argued that service was insufficient under CR 5.02(1) because the Court and Stepmother’s counsel knew he had not received copies of pleadings and orders mailed to the halfway house. CR 5.02(1) provides that “Every order required by its terms to be served…every written notice, appearance, demand, order of judgment, designation of record on appeal, and similar papers shall be served upon each party.” The rule further provides that “service is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served.”
The Court of appeals held that continuing to serve a party at an address only to have the mail repeatedly returned as undeliverable is insufficient under CR 5.02(1). The Circuit Court and Stepmother’s counsel clearly knew Father was not receiving mail at the halfway house when they proceeded with the final hearing.
Digested by Emily T. Cecconi