                              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).

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      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.

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