Opinion
C. A. 30616 30617
07-12-2023
IN RE: D.F., S.F.
ALEXANDRA HULL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 21-07-534, DN 21-07-536
ALEXANDRA HULL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BETTY SUTTON, PRESIDING JUDGE
{¶1} Appellant, H.F. ("Mother"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed two of her minor children in the permanent custody of Summit County Children Services Board ("CSB"). This Court affirms.
I.
{¶2} Mother is the biological mother of several children, but only two of them are parties to this appeal: D.F., born January 14, 2007; and S.F., born December 6, 2018. The children's fathers were involved in the trial court proceedings, but they did not appeal the permanent custody judgment and facts pertaining to them will not be discussed.
{¶3} Because this appeal is resolved by a narrow procedural challenge, this Court will focus on the basic facts relevant to that issue. On July 12, 2021, CSB filed complaints, alleging that D.F. was an abused, neglected, and dependent child and that S.F. was a neglected and dependent child because D.F. had been the victim of physical and verbal abuse, Mother regularly drank alcohol and used THC while caring for the children, and she often left them alone for days at a time. The trial court later adjudicated the children as alleged in the complaint and placed them in the temporary custody of CSB.
{¶4} Throughout this case, Mother did not visit the children; work on the reunification goals of the case plan; or maintain consistent contact with CSB, the guardian ad litem, her trial counsel, or the trial court. The trial court later permitted Mother's original trial counsel to withdraw because he had been unable to maintain contact with Mother.
{¶5} On May 27, 2022, CSB moved for permanent custody of the children. The trial court continued the date originally set for the hearing to allow additional time to perfect service of the permanent custody motion on Mother. During most of these proceedings, the clerk's office repeatedly and unsuccessfully attempted to serve Mother at an Akron address on 16th Street, SW. At an attempted home visit in December 2021, people at that address informed the caseworker that Mother no longer lived there, but the 16th Street address was the only address that Mother provided to the court or the agency during this case.
{¶6} CSB eventually requested service by publication because it had been unable to perfect service at the 16th Street address and had been unable to find another address for Mother. CSB supported its request with an affidavit, which averred that Mother's address was unknown and that the agency had been unable to ascertain Mother's address with reasonable diligence. The affidavit also listed the efforts that CSB had made to ascertain her address and identified Mother's last known address as the same address on 16th Street, SW, in Akron.
{¶7} In its affidavit, CSB averred that it had made the following additional efforts to ascertain Mother's address:
Search of Ohio VineLink, ZabaSearch, Review of Statewide Automated Child Welfare Information System, Accurint Search, and Summit County Clerk of Courts Court Docket Search (Criminal and Domestic Relations).
The trial court approved CSB's request and the clerk's office served Mother by publication in the Akron Legal News on November 4, 2022. At the time the trial court authorized service by publication, there was nothing in the record to indicate that any of the parties had been in contact with Mother or knew where she was residing.
{¶8} By the time of the permanent custody hearing, although the trial court had been unable to reach Mother, it had appointed new trial counsel to represent her. Mother did not appear at the hearing, but her new counsel appeared on her behalf. At the commencement of the hearing, while the parties discussed whether service of the permanent custody motion had been perfected on the parties, counsel for CSB was apparently under the mistaken impression that the juvenile court clerk had served the parents by publication solely because personal service on them had been unsuccessful. The trial judge questioned the propriety of serving the parents by publication, emphasizing that service by publication "is reserved for those circumstances where the whereabouts of an individual is unknown." The trial judge asked the parties to weigh in on the issue. Counsel for Mother emphasized that, as far as she knew, Mother had been living at the same address on 16th Street, SW, throughout this case.
{¶9} The trial judge reviewed the record to determine whether the clerk's office had first unsuccessfully attempted to serve Mother at the 16th Street address by certified mail or similar commercial carrier service before CSB sought and obtained service by publication. See Civ.R. 4.1(A)(1)(a),(b). After the trial judge ascertained that such service had been attempted but was returned to the clerk's office because Mother was "unknown" at that address, she concluded that service by publication had been proper.
{¶10} Mother's counsel continued to object because she believed that CSB should have known where Mother resided. Notably, counsel did not dispute any aspect of service of the permanent custody motion except, implicitly, that CSB did not make sufficient efforts to ascertain Mother's address before or after requesting service by publication. Mother's counsel emphasized that "both [the] caseworker and [guardian ad litem] have had contact with [Mother] at that address, even after service was attempted and publication was completed[,] I believe."
{¶11} The trial court noted counsel's objection and proceeded with the permanent custody hearing. Following the hearing, the trial court terminated parental rights and placed D.F. and S.F. in the permanent custody of CSB. Mother appeals and raises one assignment of error.
I.
ASSIGNMENT OF ERROR
THE COURT ERRED TO MOTHER'S GREAT PREJUDICE AND DEPRIVED HER OF HER DUE PROCESS RIGHTS WHEN IT GRANTED [CSB'S] MOTION FOR PERMANENT CUSTODY WITHOUT PERFECTING SERVICE OF SUMMONS ON MOTHER.
{¶12} Mother's sole assignment of error is that the trial court deprived her of due process when it granted CSB's motion for permanent custody because she was not properly served by publication with the permanent custody motion. The Ohio Civil and Juvenile Rules of Procedure set forth comprehensive rules pertaining to service, which require the clerk's office to attempt service by several other means before it is permitted to serve a party by publication. Because Mother's trial counsel challenged only a narrow aspect of service of the motion by publication, and Mother does not argue plain error on appeal, this Court will confine its review to the issue she raised at the hearing. See In re L.A., 9th Dist. Summit No. 30572, 2023-Ohio-1877, ¶ 23.
{¶13} At the hearing, Mother disputed only whether CSB properly supported its request for service of the motion by publication, after the clerk's office had unsuccessfully attempted to serve Mother at the 16th Street address through other means. Specifically, Mother disputed only whether CSB exercised "reasonable diligence" in attempting to ascertain Mother's address before requesting service by publication.
{¶14} Juv.R. 16(A) provides that "when the residence of a party is unknown and cannot be ascertained with reasonable diligence, service shall be made by publication." R.C. 2151.29 similarly provides that "[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, * * * the clerk shall publish such summons once in a newspaper of general circulation throughout the county." Juv.R. 16(A) also requires that the request for publication be supported by an affidavit attesting that the address of the party is unknown and cannot be ascertained with reasonable diligence. Civ.R. 4.4(A)(1) further requires the affidavit to set forth "all of the efforts made on behalf of the party to ascertain the residence of the party to be served[.]"
{¶15} In In re Thompkins, 115 Ohio St.3d. 409, 2007-Ohio-5238, the Ohio Supreme Court addressed the "reasonable diligence" issue at length, within the context of service of a parent with the permanent custody motion. The Court recognized the fundamental parental rights at stake but emphasized that due process does not require that the parent receive "actual notice" of the permanent custody motion, nor does it require "heroic efforts" to locate the person to be served, but instead requires notice that is "reasonably calculated, under all the circumstances" to protect the parent's due process right to notice and an opportunity to be heard. Id. at ¶ 13-14.
{¶16} Addressing service facts similar to the facts of this case, the Thompkins Court concluded that the children services board exercised "reasonable diligence" because, before requesting service by publication, the clerk's office had attempted to serve the parent by certified mail and that mailing had been returned with a postal marking that service was "Attempted Not Known" at that address. Id. at ¶ 12. It explained that the "Attempted Not Known" postal designation, akin to the "unknown" designation in this case, "clearly demonstrated that [the parent] did not reside and was not known at [that] address." Id. at ¶ 24. Consequently, the Court concluded that there was no need to continue attempting to serve the parent at that address, as further attempts would be futile. See id. at ¶ 23-24.
{¶17} After its failed attempt to serve the parent by certified mail because he was "Not Known" at that address, the agency in Thompkins requested service by publication. In its affidavit requesting service by publication, as in this case, the agency averred that it had unsuccessfully searched numerous databases to attempt to find an alternative address for the parent. See id. at ¶ 28.
{¶18} On appeal, Mother does not attempt to distinguish the facts or circumstances of this case from those of In re Thompkins, Ohio's controlling precedent on this issue. Instead, without citing any legal authority, she asserts that CSB should have exerted additional efforts to ascertain Mother's address before requesting service by publication.
{¶19} Mother also argues that, after service had been perfected on her by publication, because the caseworker may have seen Mother at the 16th Street address, there was a legal obligation to serve her at that address. This Court is unaware of any legal requirement that, after perfecting service by publication on a parent, the agency has an obligation to continue to seek out the parent's residence, and request that the clerk's office again serve the motion there. Because Mother has failed to argue or demonstrate any legal deficiency in service of the permanent custody motion on Mother by publication, her sole assignment of error is overruled.
III.
{¶20} Mother's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
HENSAL, J., STEVENSON, J. CONCUR.