In re J.T. , 129 N.E.3d 946 ( 2019 )

[Cite as In re J.T., 2019-Ohio-465.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
IN THE MATTER OF: : Case No. 18CA9
:
J.T. : DECISION AND JUDGMENT
: ENTRY
ALLEGED UNRULY CHILD :
: Released: 02/05/19
APPEARANCES:
Dana E. Gilliland, Wellston, Ohio, for Appellant.
Timothy E. Forshey, Jackson, Ohio, for Appellee.
McFarland, J.
{¶1} Appellant, the child’s biological mother, appeals the trial court’s
judgment that granted Appellee, Jackson County Department of Job and
Family Services, permanent custody of her teenage son. Appellant raises
two assignments of error. She first contends that the trial court deprived her
of her parental rights without due process of law. Appellant asserts that the
trial court did not provide her with adequate notice and a meaningful
opportunity to be heard before the court granted Appellee permanent
custody of her child. We agree. The trial court did not comply with the
procedural protections developed to ensure that a parent facing termination
of parental rights receives adequate notice of the permanent custody hearing.
Jackson App. No. 18CA9 2
Accordingly, we sustain appellant’s first assignment of error and reverse the
trial court’s judgment. Appellant’s second assignment of error is moot.
I. FACTS
{¶2} On September 15, 2017, the child’s stepmother filed a complaint
that alleged the child is unruly. The complaint averred that the child
currently lives with his father and stepmother. The complaint made no
mention of Appellant, the child’s biological mother. The court later found
“that the Summons and Notice heretofore issued have been duly served upon
the parents of said child.”
{¶3} At a pretrial hearing, the court explained that it learned that the
father and stepmother had surrendered the child and stated that they could no
longer manage the child. The court stated that it would “be changing the
nature of the case” and entered a finding that the child is dependent. Thus,
although the case began as an unruly child complaint, the trial court
subsequently adjudicated the child dependent and placed the child in
Appellee’s temporary custody.
{¶4} About eight months later, Appellee filed a motion to modify the
disposition to permanent custody. Appellee alleged that the child should not
be placed with either parent. Appellee asserted that the child’s father and
stepmother told Appellee that they no longer want the child in their home.
Jackson App. No. 18CA9 3
Appellee claimed that the child’s biological mother, Appellant, “has been in
contact with [the] agency once.”
{¶5} Appellee’s motion for permanent custody included a certificate
of service stating that Appellee served the motion upon the child’s guardian
ad litem and upon “Josh Price, attorney for mother.” The record shows,
however, that the court appointed “Joshua Price” as counsel for the child.
{¶6} Appellee filed a request for service along with its permanent
custody motion and asked the clerk to serve Appellant “with a copy of the
motion requesting modification of temporary commitment to permanent
commitment by personal service, at 688 Ridge Gap Road, Rockwood, TN
37854.” The clerk’s office then sent a request for service to the Roane
County Sheriff’s Department to personally serve Appellant with the
“attached Summons, Motion Requesting Modification of Temporary
Commitment to Permanent Commitment, * * * and Notice of Permanent
Custody hearing set for September 28, 2018, at 9:00 a.m.”
{¶7} The “Notice of Permanent Custody” states that the court issued
the notice to the attorneys, guardian ad litem, Appellee, the father, and
Appellant that reads: “You are hereby notified that the Court has set the
above-captioned matter for permanent custody hearing on September 28,
2018, at 9:00 A.M.” A deputy clerk signed the notice. The notice does not
Jackson App. No. 18CA9 4
indicate how it was served upon the parties and does not contain any
addresses for the parties.
{¶8} The request to the Roane County Sheriff’s Department was
returned with a handwritten note that reads: “Address provided is not in
Roane County.” Another handwritten note indicates that the address is in
Cumberland County.
{¶9} On July 5, 2018, the clerk’s office issued a request for service to
the Cumberland County Sheriff’s Department, and asked the Sheriff’s Office
to make personal service upon Appellant at 688 Ridge Gap Road,
Rockwood, TN 37854.”
{¶10} On August 20, 2018, Appellee requested the clerk to serve
Appellant by publication. Appellee submitted an affidavit for service by
publication that reads:
Tara Gilliland, * * * states that the present addresses of [the
father and Appellant] are unknown to affiant and cannot with
reasonable diligence be ascertained. Affiant further states that efforts
made to learn the address of said parties include the following: the
computer database searches available. Affiant further states that
service of summons cannot be made * * *.
{¶11} The clerk requested “The Telegram,” located in Jackson, Ohio,
to publish a notice that reads as follows:
[The father, the stepmother, and Appellant] will take notice that
a Motion for Modification of Temporary Commitment to Permanent
Commitment has been filed in Jackson County, Ohio Juvenile Court
Jackson App. No. 18CA9 5
concerning the child * * * that said Motion will be set for hearing
before the said Court in Jackson County, Ohio on the 28th day of
September, 2018, at 9:00 a.m. at Juvenile Court, Jackson County
Court House, 350 Portsmouth Street, Ste. 101, Jackson, Ohio 45640;
and [the parties] are ordered to appear before said Court on said date
and show cause why the Motion should not be granted.
The notice also included the following statement:
Any party is entitled to a lawyer in all proceedings in Juvenile
Court. If a party cannot afford a lawyer and meets certain
requirements, the Court will appoint one upon request. If you wish to
have a lawyer, but believe you cannot afford one, call 740-286-6405
at Juvenile Court at Jackson, Ohio between the hours of 8:00 a.m. and
4:00 p.m. Monday through Friday.
{¶12} The Telegram later certified that it published the notice on
August 29, 2018.
{¶13} On September 28, 2018, the court held a hearing to consider
Appellee’s motion for permanent custody. At the start, Appellee’s counsel
stated that he did not “believe the child’s mother, [Appellant], has really had
any contact with [Appellee] other than once since the case has been going.”
The court stated: “Well, we’ve had no contact with her from the court to ask
for counsel or …other than… we haven’t had any contract from her, have
we?” The court reporter responded, “No.” The court then proceeded with
the hearing.
{¶14} At the hearing, caseworker Tara Gilliland stated that she had
one contact with Appellant. Gilliland explained that on May 29, 2018, she
Jackson App. No. 18CA9 6
sent a letter to Appellant that requested Appellant to contact the caseworker
about Appellant’s child. Gilliland stated that about one week later,
Appellant contacted her. Gilliland indicated that when Appellant called,
Gilliland had been preparing for a home visit and was not “able to verify any
information at that time.” Gilliland stated that Appellant “asked what was
happening with [the child]” and whether the father “was ok; if there was a
reason why he didn’t have [the child], but that was about as far as the
conversation had got.” Gilliland further explained that when she spoke with
Appellant, Appellant did not indicate that she would like to have custody of
the child.
{¶15} Gilliland related that Appellant spoke with Gilliland’s
supervisor, as well, but Appellant “refused to give us a call back number and
said that she would call back.” Gilliland testified that she later sent
Appellant another letter and asked Appellant to contact the agency.
Gilliland stated that Appellant did not have any additional contact with
Appellee.
{¶16} On October 9, 2018, a return of personal service was filed that
indicated that on September 25, 2018, the Cumberland County Sheriff had
personally served Appellant.
Jackson App. No. 18CA9 7
{¶17} On October 22, 2018, the trial court granted Appellee’s motion
for permanent custody. The court found that Appellant “was served, but did
not appear.” The court additionally determined that Appellant “only had
contact with the caseworker once and has not appeared at any hearings.”
The court further stated that “the mother has not attended any hearings, has
only contacted children’s services once during the course of the case and
appears to have had little, if any, contact with the child. The mother has
shown NO interest in [the child] and has, therefore, effectively abandoned
him * * *.” (Emphasis sic.).
{¶18} The court determined that the child’s father and stepmother
“decide[d] it is better to hike the Appalachian Trail than engage in case plan
services.” The court noted that the father and stepmother informed Appellee
that they did not want the child to return to their home. The court found that
the child could not be placed with either parent and that it is in his best
interest to place the child in Appellee’s permanent custody.
{¶19} On October 23, 2018, Appellee requested the court to enter a
reasonable efforts finding. Appellee asserted that the caseworker attempted
to contact Appellant “by sending letters.” Appellee alleged that Appellant
did call once, but she did not provide any contact information.
Jackson App. No. 18CA9 8
{¶20} Two days later, the court made the reasonable efforts finding
that Appellee requested and made its finding “effective as of September 27,
2018.” The court found that the caseworker attempted to contact Appellant
and that although Appellant called Appellee, the mother did not give
Appellee any contact information.
{¶21} On October 29, 2018, the court appointed counsel for the
mother for purposes of appeal. This appeal followed.
II. ASSIGNMENT OF ERROR
{¶22} Appellant timely appealed and raises two assignments of error:
First Assignment of Error:
“The trial court lacked personal jurisdiction over the mother to
proceed to trial violating the mother’s right to substantive and
procedural due process.”
Second Assignment of Error:
“The trial court’s decision to terminate mother’s parental rights was
an abuse of discretion and against the manifest weight of the evidence
as a result of the due process violations against the mother.”
III. ANALYSIS
A.
Procedural Issue
{¶23} We first observe that the mother filed a Civ.R. 59 new trial
motion. App.R. 4(B)(2)(b) states that a “timely and appropriate” new trial
Jackson App. No. 18CA9 9
motion filed in a juvenile proceeding tolls the time for filing a notice of
appeal until the trial court enters a judgment that disposes of the new trial
motion. The rule further provides:
If a party files a notice of appeal from an otherwise final
judgment but before the trial court has resolved one or more of the
filings listed in this division, then the court of appeals, upon
suggestion of any of the parties, shall remand the matter to the trial
court to resolve the post-judgment filings in question and shall stay
appellate proceedings until the trial court has done so.
{¶24} Here, none of the parties have suggested that we remand the
matter to the trial court to resolve Appellant’s new trial motion and stay the
appellate proceedings until the trial court has done so.1 We decline to do so
sua sponte under the circumstances present in the case at bar.
B.
Due Process
{¶25} In her first assignment of error, Appellant contends that the trial
court’s permanent custody decision violates her rights to substantive and
procedural due process. Appellant asserts that the trial court did not provide
her with adequate notice and an opportunity to participate in the permanent
custody proceedings. She thus asserts that the court’s permanent custody
decision deprives her of her fundamental parental rights without due process
1
We observe that Appellant sought a stay of the trial court’s judgment, but she did not seek to stay the
appellate proceedings in order to allow the trial court to rule on her motion for a new trial.
Jackson App. No. 18CA9 10
of law. Appellant contends that the court’s permanent custody decision is
therefore void.
{¶26} Appellant recognizes that Appellee issued notice by
publication, but she claims that the publication notice is defective.
Appellant argues that Appellee first had to attempt service by certified or
regular mail before resorting to service by publication. Appellant asserts
that service by publication is a method of last resort.
{¶27} Appellant additionally argues that the affidavit Appellee
submitted to support its request for service by publication is defective. She
points out that the affidavit avers that Appellee had been unable to locate
Appellant’s address, but the record shows that Appellee previously
requested personal service upon Appellant at a known address.
{¶28} The Due Process Clause of the Fifth Amendment to the United
States Constitution, as applicable to the states through the Fourteenth
Amendment, provides: “No person shall * * * be deprived of life, liberty, or
property, without due process of law.” “[P]arents’ interest in the care,
custody, and control of their children ‘is perhaps the oldest of the
fundamental liberty interests recognized by this Court.’ ” In re B.C., 141
Ohio St.3d 55, 2014–Ohio–4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed,
Jackson App. No. 18CA9 11
the right to raise one’s “child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (stating
that “natural parents have a fundamental right to the care and custody of
their children”). Thus, “parents who are ‘suitable’ have a ‘paramount’ right
to the custody of their children.” B.C. at ¶ 19, quoting In re Perales, 52 Ohio
St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St.
299, 310 (1877); Murray, 52 Ohio at 157.
{¶29} Additionally, the Ohio Supreme Court has described the
permanent termination of parental rights as “ ‘the family law equivalent of
the death penalty in a criminal case.’ ” Hayes, 79 Ohio St.3d at 48, quoting
In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991).
Consequently, courts must afford parents facing the permanent termination
of their parental rights “ ‘every procedural and substantive protection the law
allows.’ ” Id., quoting Smith at 16, 601 N.E.2d 45; accord B.C. at ¶ 19.
Thus, because parents possess a fundamental liberty interest in the care and
custody of their children, the state may not deprive parents of their parental
rights without due process of law. In re James, 113 Ohio St.3d 420, 2007–
Ohio–2335, 866 N.E.2d 467, ¶ 16; e.g., In re A.G., 4th Dist. Athens No.
Jackson App. No. 18CA9 12
14CA28, 2014-Ohio-5014, 2014 WL 5812193, ¶ 12; In re M.H., 4th Dist.
Vinton No. 11CA683, 2011–Ohio–5140, ¶¶ 49–50. Moreover, a parent’s
right to due process “does not evaporate simply because” that parent has
“not been [a] model parent[] or [has] lost temporary custody of their child to
the State.” Santosky, 455 U.S. at 753.
{¶30} Although “due process” lacks precise definition, courts have
long held that due process requires both notice and an opportunity to be
heard. In re Thompkins, 115 Ohio St.3d 409, 2007–Ohio–5238, 875 N.E.2d
582, ¶ 12, citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4
S.Ct. 663, 28 L.Ed. 569 (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348,
31 N.E. 602 (1892). “An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is 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.” Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); accord In re Thompkins at
¶ 13.
{¶31} Moreover, given the importance of the parent-child bond, “a
Juvenile Court cannot make a valid order changing temporary commitment
of a dependent child to a permanent one without a service of notice upon the
Jackson App. No. 18CA9 13
parent of the child, strictly in accordance with the law.” In re Frizl, 152 Ohio
St. 164, 173, 87 N.E.2d 583 (1949); accord In re S.S., 9th Dist. Wayne No.
10CA0010, 2010-Ohio-6374, 2010 WL 5541112, ¶ 43, quoting In re
Cowling, 72 Ohio App.3d 299, 500–501, 595 N.E.2d 470 (9th Dist.1991).
Accordingly, if a court fails to serve a summons to a parent in compliance
with the procedural rules, then it lacks personal jurisdiction over the parent.
In re Z.H., 2013–Ohio–3904, 995 N.E.2d 295, ¶ 14 (9th Dist.). “ ‘It is
rudimentary that in order to render a valid personal judgment, a court must
have personal jurisdiction over the defendant.” ’ State ex rel. Doe v. Capper,
132 Ohio St.3d 365, 2012–Ohio–2686, 972 N.E .2d 553, ¶ 13, quoting
Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). “ ‘[A]
judgment rendered without proper service or entry of appearance is a nullity
and void.’ ” State ex rel. Ballard v. O'Donnell, 50 Ohio St.3d 182, 183–184,
553 N.E.2d 650 (1990), quoting Lincoln Tavern, Inc. v. Snader, 165 Ohio St.
61, 64, 133 N.E.2d 606 (1956); e.g., Knickerbocker Properties, Inc. XLII v.
Delaware Cty. Bod. of Revision, 119 Ohio St.3d 233, 2008–Ohio–3192, 893
N.E.2d 457, ¶ 20; Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd.
of Revision, 87 Ohio St.3d 363, 366–367, 721 N.E.2d 40 (2000). “Thus, a
valid court judgment requires both proper service under the applicable Ohio
rules and adequate notice under the Due Process Clause.” In re A.G., 4th
Jackson App. No. 18CA9 14
Dist. Athens No. 14CA28, 2014-Ohio-5014, 2014 WL 5812193, ¶ 14, citing
Sampson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.3d 290, 293, 421 N.E.2d
522 (1981).
{¶32} When the state seeks to interfere with a parent’s liberty interest
in the care, custody, and management of his or her child, the Due Process
Clause requires the state to “attempt to provide actual notice” to the parents.
Thompkins at ¶ 14 (emphasis sic.), citing Dusenbery v. United States, 534
U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Due process does
not, however, require the state to undertake “‘heroic efforts’” to provide
actual notice. Id., quoting Dusenbery, 534 U.S. at 170. Additionally, due
process does not require that a parent receives actual notice before the state
may permanently sever the parent-child relationship. Id. Instead, the state
satisfies its due process obligation to provide notice and an opportunity to be
heard if the state employs means that are “reasonably calculated” to inform
the parent of the proceeding involving his or her child. In re A.G., 139 Ohio
St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, 2014 WL 2766200, ¶ 64.
Furthermore, the state must exercise “reasonable diligence in attempting to
notify [parents] that [their] parental rights [are] subject to termination.”
Thompkins at ¶ 15; In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-
6374, 2010 WL 5541112, ¶ 49.
Jackson App. No. 18CA9 15
{¶33} In general, “reasonable diligence” means “ ‘[a] fair, proper and
due degree of care and activity, measured with reference to the particular
circumstances; such diligence, care, or attention as might be expected from a
man of ordinary prudence and activity.’ ” Thompkins at ¶ 25, quoting
Sizemore v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), quoting
Black’s Law Dictionary (5 Ed.1979), 412. “[W]hat constitutes reasonable
diligence will depend on the facts and circumstances of each particular
case.” Sizemore, 6 Ohio St.3d at 332. Essentially, however, “ ‘[r]easonable
diligence requires taking steps which an individual of ordinary prudence
would reasonably expect to be successful in locating a defendant’s
address.’ ” Thompkins at ¶ 25, quoting Sizemore at 332. “ ‘Minimal efforts
do not constitute ‘reasonable diligence;’ rather it is demonstrated by such
diligence, care, or attention as might be expected from a person of ordinary
prudence and activity.’ ” S.S. at ¶ 49, quoting Cowling, 72 Ohio App.3d at
502.
{¶34} “[S]teps taken in the effort to exercise reasonable diligence
might include consulting a city directory, examining government records, or
making inquiries of possible acquaintances of the person sought.”
Thompkins at ¶ 26, citing Sizemore at 332. These steps are not, however,
“mandatory.” Instead, the steps “exemplify that reasonable diligence
Jackson App. No. 18CA9 16
requires [the use of] common and readily available sources” in the search.
Id.
{¶35} As a general matter, R.C. Chapter 2151 adequately protects the
due process rights of parents facing the termination of their parental rights.
In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶¶ 25-27
(rejecting claim that due process requires delayed appeal in permanent
custody proceedings and instead holding that “statutory protections already
ensure that a parent faced with termination of parental rights has the
opportunity to participate in the proceedings fully, with notice,
representation, and the remedy of an appeal”). R.C. 2151.414 governs the
procedure upon the filing of a permanent custody motion. The statute states
that upon the filing of a permanent custody motion, “the court shall schedule
a hearing and give notice of the filing of the motion and of the hearing, in
accordance with section 2151.29 of the Revised Code, to all parties to the
action.” R.C. 2151.414(A)(1). The statute additionally requires the notice
to contain a full explanation that the granting of permanent custody
permanently divests the parents of their parental rights, a full explanation of
their right to be represented by counsel and to have counsel appointed
pursuant to Chapter 120. of the Revised Code if they are indigent, and the
name and telephone number of the court employee designated by the court
Jackson App. No. 18CA9 17
pursuant to section 2151.314 of the Revised Code to arrange for the prompt
appointment of counsel for indigent persons. Id.{¶36} We begin our analysis by examining the requirement set forth
in R.C. 2151.414(A)(1) that the trial court give notice of the permanent
custody motion and hearing in accordance with R.C. 2151.29.
{¶37} R.C. 2151.29 states:
Service of summons, notices, and subpoenas, prescribed by
section 2151.28 of the Revised Code, shall be made by delivering a
copy to the person summoned, notified, or subpoenaed, or by leaving
a copy at the person’s usual place of residence. If the juvenile judge
is satisfied that such service is impracticable, the juvenile judge may
order service by registered or certified mail. If the person to be served
is without the state but the person can be found or the person’s
address is known, or the person’s whereabouts or address can with
reasonable diligence be ascertained, service of the summons may be
made by delivering a copy to the person personally or mailing a copy
to the person by registered or certified mail.
Whenever it appears by affidavit that after reasonable effort the
person to be served with summons cannot be found or the person’s
post-office address ascertained, whether the person is within or
without a state, the clerk shall publish such summons once in a
newspaper of general circulation throughout the county. The
summons shall state the substance and the time and place of the
hearing, which shall be held at least one week later than the date of
the publication. A copy of the summons and the complaint,
indictment, or information shall be sent by registered or certified mail
to the last known address of the person summoned unless it is shown
by affidavit that a reasonable effort has been made, without success,
to obtain such address.
A copy of the advertisement, the summons, and the complaint,
indictment, or information, accompanied by the certificate of the clerk
that such publication has been made and that the summons and the
complaint, indictment, or information have been mailed as required by
this section, is sufficient evidence of publication and mailing. When a
Jackson App. No. 18CA9 18
period of one week from the time of publication has elapsed, the
juvenile court shall have full jurisdiction to deal with such child as
provided by sections 2151.01 to 2151.99 of the Revised Code.
{¶38} R.C. 2151.29 specifically addresses the situation when, as here,
the parent to be served does not live in the State of Ohio.2 R.C. 2151.29
permits service upon an out-of-state parent to be made personally or by
registered or certified mail, so long as “the person’s address is known, or the
person’s whereabouts or address can with reasonable diligence be
ascertained.” Service may be by publication “[w]henever it appears by
affidavit that after reasonable effort the person to be served with summons
cannot be found or the person’s post-office address ascertained.” Id. Service
by publication thus “is reserved for those cases in which the residence of the
parent is unknown and is not ascertainable with reasonable diligence.” In re
R.P., 9th Dist. Summit No. 26271, 2012–Ohio–4799, ¶ 18; accord In re
R.L.P., 12th Dist. Butler No. CA2017-01-012, 2017-Ohio-7359, 2017 WL
3701165, ¶ 19. Service by publication essentially “is a method of last
resort.” Yeomans and Salvador, Ohio Juvenile Law, Section 13:4 (footnote
omitted); In re Miller, 33 Ohio App.3d 224, 226, 515 N.E.2d 635 (1986).
{¶39} Accordingly, in the case at bar, serving Appellant by
publication was a valid means of service if the state (Appellee and the trial
2
We note that the Juvenile Rules of Procedure contain similar provisions.
Jackson App. No. 18CA9 19
court)3 made reasonable efforts to locate Appellant or her post-office address
but could not. That is, serving Appellant by publication was a valid means
of notifying Appellant that her parental rights were subject to termination if
the state did not know Appellant’s address and could not ascertain it by
exercising reasonable diligence.
{¶40} Service by publication is a valid means of notifying a parent of
a permanent custody proceeding when a children services agency attempts
certified mail and the postal service returns the mailing as, “Attempted Not
Known.” Thompkins at ¶ 2. Therefore, when the postal service returns the
mailing as, “Attempted Not Known,” reasonable diligence does not require
an agency to attempt to serve a parent by ordinary mail before resorting to
service by publication.
{¶41} In Thompkins, the court held that the agency exercised
reasonable diligence in attempting to serve the parent even though the
agency had not attempted to serve the parent by ordinary mail before
resorting to service by publication. Id. The record in Thompkins established
that the agency first attempted to personally serve the parent at a Dayton
address. Id. at ¶ 4. The process server was not successful and reported that
the parent had not lived at the Dayton address for nearly one year. Id. The
3
We observe that R.C. 2151.414(A)(1) requires the trial court to give the parties notice of
Jackson App. No. 18CA9 20
agency then filed an affidavit for service by publication. Id. The agency
alleged that the parent could not be served by summons because his address
was unknown and the agency could not ascertain it with reasonable
diligence. Id. A newspaper of general circulation subsequently published a
notice of the upcoming hearing. Id.
{¶42} The agency also tried to serve the parent by certified mail sent
to a Columbus address. Id. at ¶ 5. The postmaster returned the certified
letter as “Attempted Not Known.” Id.
{¶43} Although the parent had not been located, the trial court
appointed counsel to represent the parent. Id. at ¶ 6. Counsel appeared at the
permanent custody hearing and asserted that the trial court lacked personal
jurisdiction over the parent due to a failure of service. Id. A magistrate
determined that the agency properly served the parent by publication and
proceeded with the permanent custody hearing. Id.
{¶44} After the court granted the agency permanent custody of the
child, the parent’s counsel objected to the magistrate’s decision. Id. Counsel
alleged that the court lacked personal jurisdiction over the parent. Id. The
trial court disagreed and adopted the magistrate’s decision. Id. The parent’s
counsel then filed a notice of appeal.
the filing of the motion and hearing.
Jackson App. No. 18CA9 21
{¶45} On appeal, the appellate court agreed that the trial court lacked
jurisdiction over the parent. Id. at ¶ 7. The court noted that when a children
services agency seeks to terminate parental rights, Juv.R. 16 requires the
agency to exercise reasonable diligence when attempting to serve the
parents. Id. The appellate court concluded that reasonable diligence requires
the agency to attempt to serve the parents in accordance with Civ.R. 4(A),
(C), and (D), 4.1, 4.2, 4.3, 4.5, and 4.6 before resorting to service by
publication. Id. The court determined that the “Attempted Not Known”
notation on the certified mail envelope required the agency to attempt
service by ordinary mail. Id. at ¶ 8. The court thus concluded that because
the agency did not attempt service by ordinary mail, the agency did not
exercise reasonable diligence in attempting to serve the parent before
resorting to service by publication. Id. The appellate court therefore
determined that service by publication was insufficient and that the trial
court lacked personal jurisdiction over the parent. Id.
{¶46} On further appeal to the Supreme Court of Ohio, counsel for the
parent again argued that the trial court lacked personal jurisdiction over the
parent. The Supreme Court disagreed. The court instead examined the
Juvenile and Civil Rules of Procedure, as well as R.C. 2151.29, and
concluded that service by publication satisfies due process when the agency
Jackson App. No. 18CA9 22
first attempts certified mail and the post office returns the mail as,
“Attempted Not Known.” The court explained:
When a postal return reads “Attempted Not Known,” no
purpose would be served by a follow-up ordinary mail letter sent to
the same address. The “Unclaimed” designation implies that the
person may in fact reside or receive mail at the designated address but
for whatever reason has chosen not to sign for the certified mail. In
that situation, a follow-up communication by ordinary mail is
reasonably calculated to provide the interested party with notice and
an opportunity to be heard. Such a communication, not returned,
bears a strong inference that the intended recipient received the letter.
This is not so, however, with ordinary mail following the return of a
certified letter with the endorsement “Attempted Not Known.” The
inference then is that the intended recipient does not reside or receive
mail at the designated address and is not known to the residents there.
A follow-up letter in these circumstances would not permit a similar
inference of receipt. Id. at ¶ 23.
{¶47} The Thompkins court thus concluded that the agency complied
with the rules by attempting to personally serve the parent, by attempting to
serve the parent by certified mail, and by publishing a notice in a newspaper
of general circulation. Id. at ¶ 24. The court disagreed that “the Due Process
Clause required the board to attempt service * * * by ordinary mail” before
it could obtain service by publication. Id. The court observed that the
endorsement on the returned certified letter, “Attempted Not Known,”
“clearly demonstrated that [the parent] did not reside and was not known at
the [listed] address.” Id. The court thus concluded that “any ordinary mail
addressed to him at that address could not be reasonably calculated to give
Jackson App. No. 18CA9 23
him notice and an opportunity to be heard at the permanent-custody
proceeding.” Id. The court hence reversed the appellate court’s judgment.
{¶48} Here, we do not believe that serving Appellant by publication
complied with the due process requirement that service be reasonably
calculated to provide her with notice and an opportunity to be heard at the
permanent custody hearing. Moreover, Appellee did not exercise reasonable
diligence in attempting to serve Appellant with notice that she faced the
termination of her parental rights. First, unlike the situation in Thompkins
where a returned certified mailing showed that the address for the parent was
“Attempted Not Known,” here the record does not contain any evidence that
Appellant’s address was attempted and not known. The first attempt to
personally serve Appellant was returned, not with a notation that the address
was unknown, but rather, with a notation that the clerk’s office sent the
request to the wrong county in Tennessee. The clerk’s office immediately
sent another request for personal service to the correct county in Tennessee.
{¶49} After approximately forty-five days, the second request for
service had not been returned. Appellee then requested service by
publication. Appellee submitted the caseworkers’ affidavit in support of its
request. The caseworker’s affidavit for service by publication avers that
Appellant’s address is “unknown to affiant and cannot with reasonable
Jackson App. No. 18CA9 24
diligence be ascertained.” It continues: “Affiant further states that efforts
made to learn the address of said parties include the following: the computer
database searches available.” The affidavit also asserted “that service of
summons cannot be made.”
{¶50} We do not think Appellee showed that Appellant’s address
could not with reasonable diligence be ascertained. First, although the
caseworker indicated in her affidavit for service by publication that
Appellant’s address was unknown, the caseworker testified at the permanent
custody hearing that on May 29, 2018, she sent Appellant a letter. The
caseworker stated that eight days later, Appellant called the caseworker in
response. The caseworker gave no indication that the letter was returned due
to an unknown address. This evidence suggests that the address where the
caseworker sent the letter was a valid post-office address. Thus, the
caseworker’s testimony shows that Appellee could reasonably ascertain, and
did in fact ascertain, Appellant’s post-office address. Because Appellee had
in fact ascertained Appellant’s address, R.C. 2151.29 required the state to
serve Appellant either personally or by registered or certified mail.
{¶51} Under R.C. 2151.29, service by publication is proper
“[w]henever it appears by affidavit that after reasonable effort the person to
be served with summons cannot be found or the person’s post-office address
Jackson App. No. 18CA9 25
ascertained.” Because the evidence shows that Appellant’s post-office
address not only could, but was, ascertained, we do not think the agency
properly invoked the service-by-publication rule. Dragich v. Dragich, 10th
Dist. No. 86AP–178, 1986 WL 10409, at *1 (“Service by publication based
upon a false affidavit is defective.”); see generally PHH Mtge. Corp. v.
Prater, 133 Ohio St.3d 91, 2012-Ohio-3931, 975 N.E.2d 1008, ¶ 12, quoting
Cent. Trust Co., N.A. v. Jensen, 67 Ohio St.3d 140, 143, 616 N.E.2d 873(1993) (stating that “ ‘[w]hen a party’s address is known or easily
ascertainable and the cost of notice is little more than that of a first-class
stamp, the balance will almost always favor notice by mail over
publication’ ”); Cent. Trust (holding that notice by publication to a person
with a property interest in a proceeding is insufficient when that person’s
address is known or easily ascertainable). Instead, according to Thompkins,
the agency first should have attempted service by certified mail. Service by
registered or certified mail would have been reasonably calculated to
provide Appellant notice of the permanent custody motion and hearing.
Moreover, when a children services agency has not received notice from the
process server or the post office that the address attempted is unknown,
ordinary prudence would seem to dictate that the agency attempt service by
registered or certified mail before serving by publication.
Jackson App. No. 18CA9 26
{¶52} We observe that on September 25, 2018, appellant was
personally served with notice of the permanent custody proceedings.
Unfortunately, the return was not filed with the clerk’s office until October
9, 2018, eleven days after the permanent custody hearing had concluded.
A requirement that notice be served of the time and place of
hearing in reference to a permanent commitment means a notice
reasonably in advance of such time so that the parent notified may
have ample opportunity to secure counsel and prepare to resist the
application to make the temporary commitment permanent.
In re Frinzl, 152 Ohio St. 164, 172–73, 87 N.E.2d 583, 587–88, 39 O.O. 456(1949) (concluding that one-hour notice insufficient). We question whether
three days’ notice to a parent who lives in Tennessee constitutes adequate
time to allow the parent to have ample opportunity to secure counsel and
prepare to resist the permanent custody motion. Nevertheless, even if we
overlook the timing of the personal service, more fundamentally, the notice
personally served did not comply with R.C. 2151.414(A)(1).
{¶53} As we stated earlier, R.C. 2151.414(A)(1) requires the court to
include in its notice each of the following: (1) “a full explanation that the
granting of permanent custody permanently divests the parents of their
parental rights,” (2) “a full explanation of their right to be represented by
counsel and to have counsel appointed pursuant to Chapter 120. of the
Revised Code if they are indigent,” and (3) “the name and telephone number
Jackson App. No. 18CA9 27
of the court employee designated by the court pursuant to section 2151.314
of the Revised Code to arrange for the prompt appointment of counsel for
indigent persons.” The record does not reveal that the notice personally
served upon Appellant contained any of the above information. The notice
that the court issued with its request for personal service states simply: “You
are hereby notified that the Court has set the above-captioned matter for
Permanent Custody Hearing on September 28, 2018, at 9:00 a.m.” The
notice is printed on the court’s letterhead, which contains a phone number,
but the notice does not advise Appellant of the legal effect of granting
permanent custody, of her right to counsel, or the name of an employee
designated to assist indigent parents.
{¶54} Moreover, although the request for service indicates that the
documents to be served included a summons, the record submitted on appeal
does not contain a copy of a “summons.” Additionally, none of the other
documents requested to be served upon Appellant appear to be a
“summons.” See Juv.R. 15(B) (describing contents of a summons). We thus
are unable to determine whether the summons contained any of the above
information.
{¶55} Thus, even if we presumed that three days’ advance notice of a
permanent custody hearing to an out-of-state parent constituted sufficient
Jackson App. No. 18CA9 28
notice, the notice actually served upon Appellant did not contain the
information that R.C. 2151.414(A)(1) requires. It therefore was deficient.
{¶56} Any claim that Appellant had adequate notice of the permanent
custody proceeding due to the caseworker’s one phone call with Appellant is
without merit. First, the phone call occurred before Appellee filed its
permanent custody motion. Second, even if the caseworker had informed
Appellant that Appellee intended to seek permanent custody of the child (no
evidence suggests that the caseworker did), “[n]otice by telephone or
conversation is not sufficient” to comply with the due process protections
afforded parents facing the termination of their parental rights. In re Frizl,
152 Ohio St. at 172; accord In re S.S., 9th Dist. Wayne No. 10CA0010,
2010-Ohio-6374, 2010 WL 5541112, ¶ 47 (citing Frizl and concluding that
caseworker’s testimony that caseworker told parent about permanent
custody hearing does not comply with due-process notice requirement).
{¶57} Consequently, we agree with Appellant that the trial court’s
decision placing the child in Appellee’s permanent custody deprives her of
due process of law. Even if Appellant has not been a model parent, she had
a constitutionally protected right to due process of law before the state
forever terminated her parental rights: “It is a mere truism to remark that
ordinarily there is no more sacred relationship than that between a mother
Jackson App. No. 18CA9 29
and her child; and that even though a mother may have been grievously at
fault at one time in her life, she has the right to have her character and fitness
judged as of the time of any hearing concerning her and her child.” In re
Frizl, 152 Ohio St. at 172. The failure to exercise reasonable diligence to
serve Appellant deprived her of her fundamental right to maintain a
relationship with her child. As such, we agree with Appellant that she did
not receive constitutionally sufficient notice of the permanent custody
hearing. We must reverse the trial court’s judgment granting Appellee
permanent custody.
{¶58} Accordingly, based upon the foregoing reasons, we sustain
Appellant’s first assignment of error and reverse the trial court’s judgment.
Appellant’s second assignment of error is moot, and we do not address it.
App.R. 12(A)(1)(c).
JUDGMENT REVERSED.
Jackson App. No. 18CA9 30
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and that costs be
assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.