In the Interest of A. H. Et Al., Children , 339 Ga. App. 882 ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS 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
December 13, 2016
In the Court of Appeals of Georgia
A16A1713. IN THE INTEREST OF: A. H., P. H., AND J. H.,
CHILDREN (MOTHER).
RICKMAN, JUDGE.
The juvenile court terminated the mother’s parental rights to two-year-old A.
H., eight-year-old P. H., and six-year-old J. H. after the mother failed to appear at the
termination hearing. The mother subsequently filed a motion for new trial and
reconsideration. The trial court denied the motion, and the mother filed an application
for discretionary appeal, which this Court granted. In her sole enumeration of error,
the mother asserts that service by publication was improper because the petitioner did
not exercise reasonable diligence to personally serve her with the summons or
otherwise provide her notice prior to the termination hearing. Because the record does
not demonstrate that the juvenile court ordered service by publication after finding
that the petitioner exercised due diligence in its attempt to personally serve the
mother, we reverse the juvenile court’s order terminating the mother’s parental rights.
“Due process requires notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Taylor v. Padgett, 300 Ga. App. 314,
316 (1) (684 SE2d 434) (2009) (punctuation omitted). Pursuant to OCGA §
15-11-282 (d), “[i]f, after due diligence, a party to be served with a summons [in a
termination of parental rights case] cannot be found and such party’s address cannot
be ascertained, . . . the court may order service of the summons upon him or her by
publication.” See In the Interest of M. J. B., 238 Ga. App. 833, 834 (1) (520 SE2d
497) (1999) (“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.”).
“[B]ecause 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 the Interest of C. I. W., 229 Ga. App. 481, 485 (2) (494 SE2d 291) (1997)
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(reversing termination order where superior court judge acting as juvenile court judge
failed to follow procedures in the juvenile code). In addition, it is well-settled that
[b]ecause 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.
Pierce v. Pierce, 270 Ga. 416, 417 (511 SE2d 157) (1999); see also Abba Gana v.
Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983). “[A]t a minimum, the
decision whether due diligence has been exercised cannot be left to the movant for
publication service.” Pierce, 270 Ga. at 418; see also Coker v. Moemeka, 311 Ga.
App. 105, 107-108 (2) (a) (714 SE2d 642) (2011). Rather,
it is the duty of the courts to determine whether the movant has
exercised due diligence in pursuing every reasonably available channel
of information. And, although it is the trial court which first passes upon
the legality of notice, the appellate courts must independently decide
whether under the facts of each case the search for the absentee
interested party was legally adequate.
Pierce, 270 Ga. at 418; see also Reynolds v. Reynolds, 296 Ga. 461, 463 (769 SE2d
511) (2015).
Due diligence is generally demonstrated by an affidavit. See OCGA § 9-11-4
(f) (1) (A) (authorizing service by publication in “all manner of civil actions” if a
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party “cannot, after due diligence, be found within the state, . . . and that fact shall
appear, by affidavit, to the satisfaction of the judge or clerk of the court”); see also
Pierce, 270 Ga. at 416 (husband filed affidavit supporting service by publication and
moved for such service in divorce action); Abba Gana, 251 Ga. at 340-341 (wife
presented sworn testimony that she could not pinpoint husband’s current residence
and moved court to order service by publication in divorce action); Coker, 311 Ga.
App. at 107-108 (2) (a) (father filed affidavit supporting service by publication and
moved for such service in custody proceeding); In the Interest of M. J. B., 238 Ga.
App. at 833-834 (1) (department filed affidavit showing efforts undertaken to locate
mother and moved for service by publication in termination proceeding).
Applying these legal principles to the record before us, we find that service of
process on the mother failed to comply with the law and, therefore, was insufficient.
The mother’s notice of appeal indicates that “[t]he clerk shall omit nothing from the
record on appeal.” However, there is nothing in the record showing that the petitioner
requested to serve the mother by publication or filed an affidavit or sworn testimony
in support of such service. Nor is there anything in the record indicating that the trial
court, prior to service by publication, concluded that the petitioner exercised due
diligence in attempting to personally serve the mother, or that the trial court issued
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an order permitting service by publication. See Taylor, 300 Ga. App. at 317-318 (1)
(reversing juvenile court order in deprivation proceeding because grandparents “did
not file a written motion for service by publication and supporting affidavit as
required by statute”). In addition, although the supplemental record in this case
includes the “Notice of Summons” which was published, the signature line is blank,
and it appears from the termination hearing that neither the juvenile court nor the
petitioner’s counsel knew that the parents had been served by publication.
The juvenile court concluded during the hearing on the motion for new trial
and reconsideration that the mother failed to keep anyone informed of her address and
denied the motion on that basis. However, a finding of due diligence at that juncture
of the case is not sufficient to authorize the prior service by publication. First, the
finding of due diligence must be made prior to permitting service by publication.
Second, the focus of the court’s due diligence inquiry must be on the petitioner’s
actions. The court made no finding in that regard.
For the reasons set forth above, we find that the mother was denied due process
because, without a motion and affidavit in support of service by publication, and a
court order granting service by publication, the mother was not properly served. We,
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therefore, reverse the juvenile court’s order terminating the mother’s parental rights.
See Taylor, 300 Ga. App. at 319 (3).
Judgment reversed. Barnes, P. J., and Boggs, J. concur.
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