GA Code § 15-11-282 (2021)
2021 Georgia Code|Title 15 - Courts|Chapter 11 - Juvenile Code|Article 4 - Termination of Parental Rights|Part 3 - Petition and Summons|§ 15-11-282. Service of Summons

  If a party to be served with a summons is within this state and can be found, the summons shall be served upon him or her personally as soon as possible and at least 30 days before the termination of parental rights hearing.   If a party to be served is within this state and cannot be found but his or her address is known or can be ascertained with due diligence, the summons shall be served upon such party at least 30 days before the termination of parental rights hearing by mailing him or her a copy by registered or certified mail or statutory overnight delivery, return receipt requested.   If a party to be served is outside this state but his or her address is known or can be ascertained with due diligence, service of the summons shall be made at least 30 days before the termination of parental rights hearing either by delivering a copy to such party personally or by mailing a copy to him or her by registered or certified mail or statutory overnight delivery, return receipt requested.   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 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.     Service by publication shall be made once a week for four consecutive weeks in the legal organ of the county where the petition to terminate parental rights has been filed and of the county of the biological father's last known address. Service shall be deemed complete upon the date of the last publication.   When served by publication, the notice shall contain the names of the parties, except that the anonymity of a child shall be preserved by the use of appropriate initials, and the date the petition to terminate parental rights was filed. The notice shall indicate the general nature of the allegations and where a copy of the petition to terminate parental rights can be obtained and require the party to be served by publication to appear before the court at the time fixed to answer the allegations of the petition to terminate parental rights.   The petition to terminate parental rights shall be available to the party whose rights are sought to be terminated free of charge from the court during business hours or, upon request, shall be mailed to such party.   Within 15 days after the filing of the order of service by publication, the clerk of court shall mail a copy of the notice, a copy of the order of service by publication, and a copy of the petition to terminate parental rights to the absent party's last known address.     Service of the summons may be made by any suitable person under the direction of the court.   The court may authorize the payment from county funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing.     (Code 1981, §15-11-282, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-20/SB 364; Ga. L. 2014, p. 866, § 15/SB 340.)   Cross references.   - Amendment to Juvenile Court petition, Uniform Rules for the Juvenile Courts of Georgia, Rule 6.6.   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 24-2406 and 24A-1702, pre-2000 Code Section 15-11-27, pre-2014 Code Section 15-11-39.1, pre-2000 Code Section 15-11-83, and pre-2014 Code Section 15-11-96, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.    There was no equal protection violation in framework of this former Code section since similarly situated residents and nonresidents were accorded equal treatment and it was only in cases when laws were applied differently to different persons under the same or similar circumstances that the equal protection of the law was denied. In re M.A.C., 244 Ga. 645, 261 S.E.2d 590 (1979) (decided under former Code 1933, § 24A-1702).   When service by publication sufficient in adoption proceeding.    - Service by publication was sufficient to bestow jurisdiction over putative fathers of children whose natural mothers wish to give the children up for adoption. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former Code 1933, § 24A-1702).    Service of summons and termination petition was ineffective since, even though the summons was left at the mother's residence, there was no evidence that the summons was left with a statutorily appropriate person, and service of the petition the day before the hearing was not timely. In re D.R.W., 229 Ga. App. 571, 494 S.E.2d 379 (1997) (decided under former O.C.G.A. § 15-11-27).    Order terminating an out-of-state incarcerated parent's parental rights was reversed as: (1) service of the termination petition and summons upon the parent via certified mail was insufficient under both O.C.G.A. § 9-11-4 and former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282); (2) a correctional officer who personally delivered the documents to the parent did not amount to sufficient and lawful personal service as the officer lacked the inherent authority to perfect service under O.C.G.A. § 9-11-4(c) and no court order existed to grant the authority; and (3) the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-39.1)   Service by publication in termination proceeding.    - Juvenile court may order service of process by publication in a termination proceeding if, after reasonable effort, a party cannot be found and the party's address cannot be ascertained. In re M.J.B., 238 Ga. App. 833, 520 S.E.2d 497 (1999) (decided under former O.C.G.A. § 15-11-39.1)    Juvenile court erred in terminating the parent's parental rights after the parent failed to appear at the termination hearing because the parent was denied due process based on service of process by publication as the parent was not properly served because there was nothing in the record showing that the petitioner requested to serve the parent by publication or filed an affidavit or sworn testimony in support of such service; and there was nothing 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 parent, or that the trial court issued an order permitting service by publication. In the Interest of A. H., P. H., & J. H., 339 Ga. App. 882, 795 S.E.2d 188 (2016).    Juvenile court erred in terminating the mother's parental rights because the record failed 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 Georgia Department of Human Services, Division of Family and Children Services and upon motion by the Department. In the Interest of R. C., 343 Ga. App. 682, 808 S.E.2d 39 (2017).   Service by publication in deprivation proceeding.    - Juvenile court erred in granting service by publication of the paternal grandparents' petition alleging that the mother's children were deprived because the grandparents failed to exercise reasonable diligence to find the mother, the juvenile court concluded that the mother could not be found with due diligence within the State of Georgia without any competent evidence to support that finding, and the juvenile court failed to place any burden on the grandparents to determine what notice the grandparents had given to the mother of the grandparents' deprivation petition and simply relied on evidence about the father's efforts to contact her; the grandparents did not file a written motion for service by publication and supporting affidavit as required by O.C.G.A. § 9-11-4(f)(1)(A), the grandparents had some means of communicating with the mother because the father had the mother's telephone number and was able to notify the mother by phone of the 72-hour hearing, the grandparents could have contacted the mother's relatives to ascertain the mother's whereabouts, and the grandparents could have attempted to serve the mother personally or by registered or certified mail at the mother's prior address. Taylor v. Padgett, 300 Ga. App. 314, 684 S.E.2d 434 (2009) (decided under former O.C.G.A. § 15-11-39.1)   Service by correctional officer on incarcerated parent.    - Personal service of a summons and a petition of deprivation, by a correctional officer upon an incarcerated parent, was sufficient as the service procedures in the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., were not adopted nor were binding on the juvenile court, and the correctional officer was acting under the direction of the court for the purposes of former O.C.G.A. § 15-11-39.1(c) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531). In the Interest of A.J.M., 277 Ga. App. 646, 627 S.E.2d 399 (2006) (decided under former O.C.G.A. § 15-11-39.1)   Service not perfected on incarcerated person.    - Deprivation order had to be vacated and the case remanded because service of the deprivation petition on the parent in question, who was incarcerated, was not perfected in accordance with former O.C.G.A. § 15-11-39.1(a) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531). The parent had not waived personal service and personal service was not waived simply by actual notice having been achieved. In the Interest of A. R., 296 Ga. App. 62, 673 S.E.2d 586 (2009) (decided under former O.C.G.A. § 15-11-39.1)   Requirement of "reasonable effort" to find party.    - Former statute required a showing by the department that a "reasonable effort" had been made to find a putative father or ascertain his address. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former O.C.G.A. § 15-11-39.1)   Permissibility of publication notice dependent upon investigation.    - Whether publication notice is permissible necessarily depends upon an investigation of whether the whereabouts of putative fathers were unknown and whether the fathers could be found with reasonable diligence. In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976) (decided under former O.C.G.A. § 15-11-39.1)    If there was no service of process and notice as required by the former provisions and there was no valid waiver of notice of the pending charge by service of process or otherwise, the entire hearing is a nullity. In re W.M.F., 180 Ga. App. 397, 349 S.E.2d 265 (1986) (decided under former O.C.G.A. § 15-11-39.1)   Waiver of right to notice.    - If neither the juvenile nor the juvenile's mother were represented by counsel at the dispositional hearing, neither party knew the nature of the charge filed against the minor, and neither party knew of the serious consequences which may result in the case of an adverse adjudication of the petition filed against the juvenile, it is highly unlikely that the parties understood the significance of waiving the parties right to prior notice of the pending charge. In re W.M.F., 180 Ga. App. 397, 349 S.E.2d 265 (1986) (decided under former O.C.G.A. § 15-11-39.1)   Timeliness of petition.    - Juvenile was entitled to a copy of the delinquency petition filed against the juvenile, and pursuant to former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), the juvenile had a right to receive the petition at least 24 hours prior to the adjudicatory hearing; however, the juvenile waived any objection the juvenile had on the grounds of improper service since the juvenile received the petition right before the hearing as the juvenile did not make an objection or request a continuance on the basis that the juvenile was unprepared. In the Interest of E.S., 262 Ga. App. 768, 586 S.E.2d 691 (2003) (decided under former O.C.G.A. § 15-11-39.1)    Permitting state's mid-trial amendment of petition to change the charge against the juvenile from a misdemeanor to a felony was error since the amendment was done without notice and provision of a continuance to allow additional time for preparation of a defense. In re D.W, 232 Ga. App. 777, 503 S.E.2d 647 (1998) (decided under former O.C.G.A. § 15-11-39.1)   Reliance on section by trial court misplaced.    - Because former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282) related specifically to service in termi- nation-of-parental-rights proceedings, the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced; moreover, for purposes of statutory interpretation, a specific statute prevailed over a general statute, absent any indication of a contrary legislative intent. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-39.1)   Constitutionality.    - Former O.C.G.A. § 15-11-96 (see now O.C.G.A. §§ 15-11-281,15-11-282, and15-11-283) was not unconstitutional because the statute required the biological father to exercise his interest in the child by filing a petition to legitimate. In the Interest of D.B., 243 Ga. App. 473, 533 S.E.2d 737 (2000) (decided under former O.C.G.A. § 15-11-96).    Requiring fathers of children born out of wedlock to legitimate their children in order to preserve their parental rights does not violate equal protection because unwed fathers and unwed mothers are not similarly situated. In the Interest of V.M.T., 243 Ga. App. 732, 534 S.E.2d 452 (2000) (decided under former O.C.G.A. § 15-11-96).   Construction with former provisions.    - Because former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282) related specifically to service in termi- nation-of-parental-rights proceedings, the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-400,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced; moreover, for purposes of statutory interpretation, a specific statute prevailed over a general statute, absent any indication of a contrary legislative intent. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-96).   Failure to file petition to legitimate.    - If the biological father received notice of a proceeding to terminate parental rights and failed to file a petition to legitimate the children, termination of his parental rights was authorized under former O.C.G.A. § 15-11-83 (see now O.C.G.A. § 15-11-96). In re D.B.G., 226 Ga. App. 29, 485 S.E.2d 575 (1997) (decided under former O.C.G.A. § 15-11-83).    Court correctly terminated a father's parental rights after he was personally served with a copy of the petition, which contained a notice that he would lose all rights unless he filed a petition to legitimate within 30 days, and he never filed such a petition. In re E.D.T., 233 Ga. App. 774, 505 S.E.2d 516 (1998) (decided under former O.C.G.A. § 15-11-83); In the Interest of D.M., 244 Ga. App. 361, 535 S.E.2d 7 (2000);(decided under former O.C.G.A. § 15-11-96).    Since the biological father of a child was notified nine months before a termination hearing that he had 30 days in which to file a petition to legitimate the child, and was further informed eleven days before the hearing that the paternity tests showed the child was his, but did not inform the court that he had received the paternity test results and wished more time in which to file a petition to legitimate, the court did not err in determining that his rights should be terminated. In re A.K.M., 235 Ga. App. 853, 510 S.E.2d 611 (1998) (decided under former O.C.G.A. § 15-11-83).    Biological father who fails to seek to legitimate his child following receipt of proper notice of termination proceedings may not thereafter object to the termination of his parental rights. In the Interest of A.W., 242 Ga. App. 26, 528 S.E.2d 819 (2000) (decided under former O.C.G.A. § 15-11-96).    Since the putative biological father failed to file a legitimation petition, despite having received two notices of his need to legitimate and having been given a continuance from the termination hearing so that he could comply with former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), the juvenile court did not err in determining that his parental rights should be terminated. In the Interest of D.B., 243 Ga. App. 473, 533 S.E.2d 737 (2000) (decided under former O.C.G.A. § 15-11-96).    Under former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), a petition to terminate parental rights must notify a biological father who is not the legal father that he must file, within 30 days of receipt of notice, a petition to legitimate his child; O.C.G.A. § 19-7-22 regulates a petition for the legitimation of a child, notice to the mother, a court order, the order's effect, and the intervention by the father. In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003) (decided under former O.C.G.A. § 15-11-96).    If a biological father fails to file a legitimation petition within 30 days of a petition under former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), he loses all rights to the child and will not be entitled to object to the termination of his parental rights; if no legitimation petition is timely filed, or if it is denied or dismissed, the trial court shall enter an order terminating the father's rights under former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. § 15-11-283). In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003) (decided under former O.C.G.A. § 15-11-96).    Order terminating a biological parent's parental rights was upheld on appeal as the parent failed to file for legitimation of the affected children within 30 days of being notified of the termination petition, despite repeatedly being notified to do so, and despite the appointment of an attorney in the termination proceedings. In the Interest of S.M.G., 284 Ga. App. 64, 643 S.E.2d 296 (2007) (decided under former O.C.G.A. § 15-11-96).    Because a father failed to give written notice to the juvenile court that a legitimation petition was filed, as required by former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-28), within 30 days of receiving notification of a termination proceeding, the juvenile court properly entered an order terminating the father's parental rights, and the father was thus denied the right to object. In the Interest of S.M.R., 286 Ga. App. 139, 648 S.E.2d 697 (2007) (decided under former O.C.G.A. § 15-11-96).    Trial court properly terminated a parent's parental rights to a child as a result of the parent failing to timely file a notice of the petition to legitimate the child with the juvenile court within 30 days. In the Interest of M.D., 293 Ga. App. 700, 667 S.E.2d 693 (2008) (decided under former O.C.G.A. § 15-11-96).    Because a father of a 7-year-old autistic child had not even attempted to legitimate his child, despite numerous warnings from the juvenile court, the father lacked standing to challenge the termination of his parental rights. Therefore, the father's argument that the juvenile court erred in denying his motion for a continuance was moot. In the Interest of T. B. R., 304 Ga. App. 773, 697 S.E.2d 878 (2010) (decided under former O.C.G.A. § 15-11-96).    Content of summons served upon father did not have to require him to appear in court on any fixed date in order to answer allegations in a petition to terminate his parental rights. In re W.R.S., 213 Ga. App. 616, 445 S.E.2d 367 (1994) (decided under former O.C.G.A. § 15-11-83).   Service of summons and petition.    - Subsection (c) of former O.C.G.A. § 15-11-83 (see now O.C.G.A. § 15-11-282) required only that a copy of the summons and petition be served on the parent at least 30 days before the time set for hearing on the petition. In re C.M., 194 Ga. App. 503, 391 S.E.2d 26 (1990) (decided under former O.C.G.A. § 15-11-83).    Service of a summons and termination petition was ineffective when, even though the summons was left at the mother's residence, there was no evidence the documentation was left with a statutorily appropriate person, and service of the petition the day before the hearing was not timely. In re D.R.W., 229 Ga. App. 571, 494 S.E.2d 379 (1997) (decided under former O.C.G.A. § 15-11-83).    Service of process on the mother was insufficient since there was no evidence that she was served personally with the summons and petition or by leaving a copy at her dwelling house or usual place of abode with a person of suitable age and discretion then residing therein, and the fact that she may have had actual notice of the termination proceeding would not cure the defective service. In the Interest of S.S., 246 Ga. App. 248, 540 S.E.2d 238 (2000) (decided under former O.C.G.A. § 15-11-96).    Within the context of a parental rights termination proceeding, a juvenile court had the discretion to determine whether to grant an extension of time for a putative father to serve the legitimation petition on the mother, pursuant to former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. §§ 15-11-283), and O.C.G.A. § 19-7-22(b), and Georgia case law that allowed application of the procedural rules set out in the Civil Practice Act, including O.C.G.A. § 9-11-4(c) relating to service and extensions thereto; accordingly, the juvenile court's refusal to hear the legitimation petition was error, as was the decision to terminate the putative father's parental rights under O.C.G.A. § 15-11-94 without first determining whether he had standing under the legitimation action. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006) (decided under former O.C.G.A. § 15-11-96).    An order terminating an out-of-state incarcerated parent's parental rights was reversed as: (1) service of the termination petition and summons upon the parent via certified mail was insufficient under both O.C.G.A. § 9-11-4 and former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282); (2) a correctional officer who personally delivered the documents to the parent did not amount to sufficient and lawful personal service as the officer lacked the inherent authority to perfect service under O.C.G.A. § 9-11-4(c) and no court order existed to grant the authority; and (3) the trial court's reliance on the service provisions of O.C.G.A. § 15-11-39.1, a statute dealing with service in juvenile court proceedings generally, was misplaced. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007) (decided under former O.C.G.A. § 15-11-96).   Failure to give notice not error.    - Failure to give notice to a father pursuant to subsections (e) and (g) of former O.C.G.A. § 15-11-83 (see now O.C.G.A. §§ 15-11-281 and15-11-282) was not error since such notice requirements related only to the availability of the abbreviated termination procedures contained therein and did not affect the jurisdiction of the court to consider a termination proceeding; the absence of an attempt by the father to legitimate the children did not contribute to the judgment terminating the father's parental rights. In re C.M.S., 218 Ga. App. 487, 462 S.E.2d 398 (1995) (decided under former O.C.G.A. § 15-11-83); In re J.K., 239 Ga. App. 142, 520 S.E.2d 19 (1999); In the Interest of L.S., 244 Ga. App. 626, 536 S.E.2d 533 (2000) (decided under former O.C.G.A. § 15-11-83);(decided under former O.C.G.A. § 15-11-83).   Waiver of issue of service of process.    - By failing to raise the issue at a termination hearing, mother waived the issue of insufficiency of process or service of process. In re S.J.M., 225 Ga. App. 703, 484 S.E.2d 764 (1997) (decided under former O.C.G.A. § 15-11-83).   Termination of parental rights mandatory.    - In the absence of standing to object to the termination of parental rights for an untimely filed legitimation petition, entry of an order terminating parental rights was mandatory under former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. § 15-11-283); the word "shall" as used in those provisions could be construed otherwise. In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003) (decided under former O.C.G.A. § 15-11-96).   RESEARCH REFERENCES   Am. Jur. 2d.   - 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 72, 73.   C.J.S.   - 43 C.J.S., Infants, § 195 et seq.   U.L.A.   - Uniform Juvenile Court Act (U.L.A.) § 23.