Tonya and Dan Padgett “the Padgetts”, paternal grandparents of the minor children, M.T. and K.T. “the children”, filed a deprivation petition in Catoosa County Juvenile Court. The children’s mother, Morgan Taylor, appeals from the juvenile court’s order of adjudication and disposition granting custody of her children to the Padgetts, arguing that the juvenile court erred in i authorizing service by publication on her without determining whether the Padgetts had made diligent efforts to find her, in violation of her rights to due process and counsel; ii exercising personal jurisdiction over her despite insufficient service of process; iii failing to set aside its adjudication order based on insufficient service of process; iv exercising subject matter jurisdiction over what is, in fact, a custody controversy, which is within the exclusive jurisdiction of the superior court; and v awarding custody to the Padgetts until the children reach the age of 18 in violation of OCGA § 15-11-58 i. Taylor also appeals from the juvenile court’s order denying Taylor’s motion for review and modification. Given that the Padgetts failed to exercise reasonable diligence to find Taylor, the trial court erred in granting service by publication, and we therefore reverse. The record shows that on March 30, 2007, the Padgetts filed a deprivation petition in juvenile court, alleging that the children were deprived because Taylor “is failing to provide necessities for the children” and their father, Michael Zachary Taylor “Zachary”, “has no driver’s license and is unable to transport said children , if necessary.” On the same day, the juvenile court held a 72-hour hearing on the Padgetts’ petition, in which the Padgetts, their counsel, and Zachary were present. Taylor was not present. Tonya Padgett “Tonya” testified that Zachary and his wife, Taylor, were separated, and Taylor was living in Rome with the children. According to Tonya, she and her husband had been caring for the children every other weekend, but a few days after Christmas 2006, Taylor called her and asked her to pick up the children. Tonya testified that the children’s stepfather told her that Taylor had left with a truck driver a couple of days before, and Taylor told him that Tonya “would be there to pick up M.T..” Thereafter, the Padgetts picked up both children from the stepfather with two garbage bags full of clothes and toys and two social security cards.
Zachary testified that he called Taylor to notify her about the 72-hour hearing, and she told him that she was not coming “without her papers being served.” When the Padgetts’ counsel asked Zachary whether he had an address where Taylor could be served, he stated that Taylor told him that she had been “living in a truck” for a while and that was another reason she could not attend the hearing. Thereafter, the juvenile court issued an order awarding temporary custody of the children to the Padgetts, and scheduled a date for an adjudicatory hearing. The juvenile court also granted the Padgetts’ motion for service by publication upon Taylor although no written motion for service by publication or affidavit in support had been filed with the juvenile court.
