THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 31, 2017
In the Court of Appeals of Georgia
A17A1277. IN THE INTEREST OF R. C. et al., children.
RICKMAN, Judge.
In this termination of parental rights case, we granted the discretionary appeal
application filed by the mother of R. C., who was 7 years old at the time of the
termination, and C. C., who was 5 years old at the time of the termination. The mother
contends, among other things, that the DeKalb County office of the Georgia
Department of Human Services, Division of Family and Children Services (“the
Department”) improperly served her summons by publication because the Department
did not first exercise due diligence to locate her and personally serve her or otherwise
give her prior notice of the termination hearing. The mother contends that she was
denied due process. We agree and reverse.
On June 25, 2015, complaints were filed in juvenile court, alleging that R. C.
and C. C. were deprived because their mother had left them in the custody of their
“maternal grandmother.”1 Multiple hearings and bench conferences (some of which
were apparently not transcribed or recorded, and many in which various portions were
inaudible or unintelligible ) were held in this matter; the mother attended none. At the
preliminary protective hearing, there was testimony, some of which came from an
“unidentified speaker,” that the mother was last seen the week before the hearing, that
the mother had come from California with the children about one or two months
before the hearing, that the mother had chronic mental health problems and refused
to take her medication, and that the mother’s whereabouts where unknown. R. C. and
C. C. were placed in the legal custody of the Department and in the physical custody
of the “grandmother.”
At a later hearing that occurred in February 2016, before the termination
summons was served by publication in May 2016, a Department representative
testified that the mother had been receiving a Social Security or similar check which
had stopped going to the “grandmother’s” residence about six months earlier. At the
1
Although this individual is referred to as the children’s maternal grandmother
in transcripts of court proceedings, according to the mother’s post-termination
affidavit, this individual is not actually biologically related to the children.
2
termination hearing in July 2016, testimony was adduced that the Department had had
no contact with the mother during the pendency of the case, that her whereabouts
were unknown to the Department, and the mother had not provided any care for the
minor children since they had come into the Department’s custody. In her petition to
set aside the termination order,2 the mother attached a sworn affidavit and attached
proof indicating that in November 2015, she had been issued a Georgia identification
card that showed an address at which she had been receiving and continued to receive
mail, including from the Social Security Administration. Although the appellate
record reflects that summons for the termination hearing was served by publication
for the requisite four weeks,3 the record does not contain any motion for service by
publication, affidavit or other sworn testimony of diligence and/or the need for
publication, or an order from the court directing service by publication.
Pursuant to OCGA § 15-11-282 (d):
If, after due diligence, a party to be served with a summons cannot be
found and such party’s address cannot be ascertained, whether he or she
2
We note that the mother was also entitled to a hearing on her motion for new
trial. See In the Interest of A. F., _ Ga. App. _ (_ SE2d _) (Case No. A17A1171)
(decided October 18, 2017); Chandler v. Rohner, 323 Ga. App. 713, 714 (747 SE2d
870) (2013).
3
See OCGA § 15-11-282 (e) (1).
3
is within or outside this state, the court may order service of the
summons upon him or her by publication. The termination of parental
rights hearing shall not be earlier than 31 days after the date of the last
publication.
Indeed, in In the Interest of M. J. B., 238 Ga. App. 833, 834 (1) (520 SE2d 497)
(1999), decided under the former Juvenile Code, this Court held that “[a] juvenile
court may order service of process by publication in a termination proceeding if, after
reasonable effort, a party cannot be found and her address cannot be ascertained.”
(Emphasis supplied.).
The facts presented in this case are similar to those of In the Interest of A. H.,
339 Ga. App. 882 (795 SE2d 188) (2016), in which we reversed an order terminating
a mother’s parental rights to her children because the record did not reflect that the
service requirements of OCGA § 15-11-282 (d) were met. There, as here, the record
contained no evidence that the petitioner filed any motion requesting service by
publication, that the petitioner filed an affidavit or presented sworn testimony in
support of service by publication, that the trial court concluded that the petitioner
exercised due diligence in attempting to personally serve the mother, or that the trial
4
court issued an order permitting service by publication. Id. at 884-885. We held that
the mother was denied due process.4 Id. at 885.
Because of their sensitive nature and the infringement on
fundamental liberties they entail, judges in termination of parental rights
cases “must be vigilant to protect the parties’ rights and interests by
observing all formalities required by the law. In addition, it is well
settled that because notice by publication is a notoriously unreliable
means of actually informing interested parties about pending suits, the
constitutional prerequisite for allowing such service when the addresses
of those parties are unknown is a showing that reasonable diligence has
been exercised in attempting to ascertain their whereabouts.
(Citations and punctuation omitted.) In the Interest of A. H., 339 Ga. App. at 883.
Because the record in this case fails to demonstrate that the summons was served by
publication upon order of the court, after having been presented with evidence of due
diligence by the Department, and upon motion by the Department, we reverse the
juvenile court order terminating the mother’s parental rights. See id. at 882-885.
Judgment reversed. Ellington, P. J., and Andrews, J., concur.
4
The mother in the instant case asked in her notice of appeal that the clerk omit
nothing from the record on appeal.
5