COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71862 IN THE MATTER OF: : : Demonte Sitgraves, : : JOURNAL ENTRY A Minor : : AND : : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court, Case No. 9693099. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Cuyahoga County Department of Children and Family Services Lynn Stewart, Esq. 3955 Euclid Avenue Cleveland, Ohio 44115 For Defendant-appellant: Patricia J. Smith, Esq. Doughten & Smith 4403 St. Clair Avenue Cleveland, Ohio 44103 2 SWEENEY, JAMES D., C.J.: Appellant Derek Jackson appeals from the order of the Cuyahoga County Common Pleas Court, Juvenile Division, which granted permanent custody of Demonte Sitgraves to the Cuyahoga County Department of Children and Family Services (CCDCFS). Derek Jackson is the alleged father of the child. Demonte Sitgraves was born to Marian Sitgraves on August 24, 1996. Prior to the birth of her child, Ms. Sitgraves was admitted to the hospital and tested positive for cocaine, alcohol, and marijuana. On September 3, 1996, CCDCFS filed a complaint in Juvenile Court alleging that Demonte Sitgraves was a dependent and neglected child as defined in R.C. 2151.04(C) and R.C. 2151.03(A)(2). A hearing was held on September 5, 1996, at which time the court granted CCDCFS emergency custody of the infant. At this time the court also appointed a guardian ad litem. During the hearing held on September 5, 1996, the court questioned CCDCFS social worker Pamela Gaffny: THE COURT: Any relatives? MS. GAFFNY: None that we know of. THE COURT: What about the father? MS. GAFFNY: At this time, I don't know. It doesn't appear he's the alleged father. He hasn't established paternity THE COURT: Mm-hmm. MS. GAFFNY: And, you know, he has a drug abuse problem also. (T.2, hearing held 9/5/96) ****** 3 THE COURT: Okay. And were you able to contact mother and/or father for this hearing? MS. GAFFNY: I believe so. THE COURT: You believe that you contacted them? MS. GAFFNY: I didn't it's not my case. THE COURT: Okay. Do you know if anybody in your agency contacted them? MS. GAFFNY: I believe that Lisa, when she found out yesterday about the hearing, contacted them, because I know she does. And I talked to my supervisor. She said the mother might be here, which would make me think that they knew about it. (T. 3-4, hearing held 9/5/96) On November 11, 1996, a permanent custody hearing was held before the court. The court heard the testimony of Patricia Varanese, a supervisor at CCDCFS. On direct examination the following testimony was given; Q Have do you know who the father of this child is? A Mother alleges that the father is a Derrek Jackson. Q Do you have any contact with him? A I had contact with Mr. Jackson in `95 when we had the case open previous, `94 and `95, and he was alleged to be Mother's pimp. And he had she would reside with him on and off, and we had tried very hard to get him to either allow her have her in treatment or and stay with him, and if she's not in treatment, she would have to leave his home in order for her to, you know but her never did that. And that Q Does has he ever come to the Agency to inquire about this child? 4 A No, he has not. Q And do we know his whereabouts? A I do not know his whereabouts. (T.7-8. Hearing held 11/11/96) The record does not reflect that an affidavit was filed by a party or by counsel which would indicate that appellant's address was unknown and the affiant, with due diligence, was unable to discover the whereabouts of the appellant. The record does reflect that two attempts were made to personally serve the appellant with notice of a hearing held on January 14, 1997, subsequent to the termination of parental rights. The address used was 11115 Notre Dame/up, Cleveland, Ohio 44104. At the bottom of the notice form, the serving officer indicated that the house appeared empty and the telephone was temporarily disconnected. Notification of the permanent custody hearing was made on the appellant by publication. Neither parent of Demonte Sitgraves attended the hearing. The appellant asserts one assignment of error: THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY OF DEMONTE SITGRAVES TO THE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES WHERE IT WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT DOES NOT PROVIDE CARE, SUPPORT OR A STABLE HOME FOR THE CHILD. The appellant asserts that the testimony presented to the court did not show by clear and convincing evidence that he does not provide care, support or a stable home for Demonte Sitgraves. Requirements for service for publication are specified in 5 Juv.R. 16(A) which states in pertinent part: (A) Summons; Service, Return. Except as otherwise provided in these rules, summons shall be served as provided in Civil Rules 4(A), (C) and (D), 4.1, 4.2, 4.3, 4.5 and 4.6. The summons shall direct the party served to appear at a stated time and place. *** Except as otherwise provided in this rule, when the residence of a party is unknown, and cannot be ascertained with reasonable diligence, service shall be made by publication. *** Before service by publication can be made, an affidavit of a party or party's counsel shall aver that service of summons cannot be made because the residence of the person is unknown to the affiant and cannot be ascertained with reasonable diligence. Upon the filing of the affidavit, the clerk shall serve notice by publication in a newspaper of general circulation in the county in which the complaint is filed. *** The publication shall contain the name and address of the court, the case number, the name of the first party on each side, and the name and last known address, if any, of the person or persons whose residence is unknown. *** A Juvenile Court is without jurisdiction to make permanent a temporary commitment of a dependent or delinquent child unless notice of the time and place of the hearing upon such matter is served on the parent. In re Frinzl (1949), 152 Ohio St. 164, syllabus one. It is well established that jurisdiction of the Juvenile Court does not attach until notice of the proceedings has been provided to the parties. In re Mullenax (1996), 108 Ohio App.3d 271; In re Cowling (1991), 72 Ohio App.3d 499; In re Miller (1986), 33 Ohio App.3d 224. If the parties do not receive notice of the proceedings, the judgment of the court is void. Id. This court has specifically held that service by publication is a method of last resort; therefore, the requirements of Juv.R. 16(A) are mandatory and shall be strictly enforced. In re Miller, supra.Service on a parent is defective where notice is published 6 without including the last known address. Id. 226. Failure to include such information results in defective service. In re Miller, supra. See also In the Matter of McAllister (Feb. 16, 1996), Franklin App. No. 94APF07-1100, unreported. In the case sub judice, the notice of publication failed to include the last known address of the appellant. It is clear that since the requirements of Juv.R. 16(A) have not been followed, service on the appellant was invalid, and the judgment of the trial court awarding permanent custody of Demonte Sitgraves to CCDCFS is void. Further, this court feels compelled to comment that the record does not indicate that CCDCFS demonstrated that due diligence was used to locate the appellant. The record contains no affidavit of counsel or of a representative of CCDCFS setting forth the steps taken to locate the appellant. Such affidavit demonstrating due diligence in the attempt to locate a parent is required under Juv.R. 16(A) prior to the use of service by publication. Here, the record is devoid of evidence that CCDCFS made even minimal attempts to locate appellant. For example, there is no evidence that CCDCFS inquired of Miriam Sitgraves, or any member of her family, as to the whereabouts of the appellant. The court heard testimony on two occasions. The testimony at the hearing on September 5, 1996 by Pamela Gaffny was largely hearsay, and the testimony of Patricia Varanese on November 11, 1996, did not reveal any attempt to locate the appellant. Ms. Varanese testified that the last contact CCDCFS had with the appellant was, perhaps, in 7 1994 or 1995, well before this pregnancy of Miriam Sitgraves. Given the lapse of time between the agency's last contact with the appellant and the date of birth of a child who was two months premature, CCDCFS failed to demonstrate that the appellant was even aware of the pregnancy. CCDCFS failed to demonstrate that any attempted was ever made to contact the appellant regarding the care and custody of Demonte Sitgraves. Such lack of evidence precludes a finding that due diligence was used to locate the appellant, and service by publication must be considered ineffective under the circumstances. The appellant's assignment of error is well taken. Judgment reversed and remanded for permanent custody hearing. 8 This cause is reversed and remanded for permanent custody hearing. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA, J., and TIMOTHY E.McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .