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 thatservice 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, 300Ga. 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 thatservice 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 setforth 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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