44 S.E.2d 500 | Ga. Ct. App. | 1947
Under the adoption laws of this State the written consent of the living parent or parents is required before a court may grant a prayer for the adoption of a child, where there is no question of abandonment involved; and, in carrying into effect the letter and spirit of the law, the court may inquire into the question of whether the consent was given freely, deliberately and voluntarily in considering whether it is to the best interest of the child — the paramount purpose of the law — that the adoption be decreed; and, in such a proceeding, a contract to adopt is of no force or effect, save whatever bearing it may have upon the question of consent; and where on the final hearing the court finds that the consent was not freely given and in the interest of the child revokes the temporary order awarding custody and denies the prayer for adoption his discretion in the matter will not be disturbed, unless as a matter of law it can be shown that the court has abused its discretion.
The testimony of David E. Morgan was merely a reaffirmance of his wife's testimony and it is unnecessary to repeat it here in detail.
Mrs. Edith Dwyer, grandmother of the child, testified that while she had been of assistance to the Morgans in locating the child and in finding legal aid her assistance was financial only and that she had not insisted upon the child's being returned.
Before the final hearing Miss Mary E. Poindexter, Director, Chatham County Department of Public Welfare, reported to the court on the case which was, in brief, that in her opinion neither the Allens nor the child would have security in the relationship and that continued effort on the part of the Morgans to regain the custody of their child would eventually have serious effect on his welfare. Both the Georgia and the North Carolina Departments were of the opinion, on final recommendation, that the adoption should not be approved. The Allens excepted to the *746
revocation of the temporary order and to the judgment denying the adoption.
Assuming but not deciding that the contract between the Allens and the Morgans was signed by the respective parties with knowledge of who the other parties were, or that under the circumstances the contract was binding without such knowledge, the big question in this case is what questions the court has before it in an adoption proceeding, and what are its functions and powers. The Allens contend that a binding contract of adoption was made and that it is irrevocable and that it cannot be avoided by a showing of duress to which they were not parties. This contention may have been valid before the passage of the revised adoption laws of 1941. The act provides: "Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child." Ga. L. 1941, p. 301; Code (Ann. Supp.), § 74-403. Under the old law and the rulings of the Supreme Court thereunder the contentions of the Allens might be well taken, but we think that the letter and spirit and purpose of the new law is to give to the court full and unrestricted power to examine into the nature and kind of consent by parents to an adoption, not only because it is absolutely prerequisite to the validity of an order granting a prayer for adoption, but because the wisdom of the grant, the welfare of the child and of the other parties, as well as the public policy of the State is involved. So it is our view that whether the consent to an adoption is contained in a contract to adopt, or in a separate instrument, it is the duty of the court trying the case, to examine into the reality and voluntariness and freedom of the consent, and if the court finds from competent evidence that the consent was not freely and voluntarily given because of circumstances which justified the conclusion, or that it was produced through coercion or under undue influence, it is its duty to deny the adoption; it matters not by whom the coercion or undue influence is exerted. The rules in adoption cases are quite different from those involving custody alone and from cases involving virtual adoption. Our law does not provide for the enforcement of a contract to adopt. It does not provide that the child shall *747
be declared to be adopted by those who have a clear legal and equitable right to adopt it under a contract. It provides that the parents must consent to the adoption in spite of any contract they may have made which is binding on both parties in an action between them testing its validity. The action of the court in an adoption case is not controlled by the rules determining whether a contract of adoption should be enforced or not. Otherwise the requirement of consent of the parents is superfluous, because a contract agreeing for a child to be adopted would be determinative on the question of consent. If the parents sought to avoid the contract they would have to attack it for fraud, duress or undue influence on the part of the other party, etc. Furthermore, the contract of adoption is absolutely irrelevant and immaterial in an adoption case other than on the question of consent. The contract otherwise has no bearing on the determination of the case. If consent not embodied in a contract can be inquired into by the court and found not to exist if induced by the duress of anyone, it may do so where the consent is embodied in a contract, and this is because the contract is relevant so far as consent is concerned. The only questions before the court are (1) do the parents consent, (2) are the adopting parents worthy and able to care for the child, and (3) is the adoption for the best interests of the child. The court is not required to declare the adoption unless all three facts unequivocally appear. (Were there evidence or question of abandonment, which is not in this case, our law, of course, dispenses with the consent of the parent or parents.) If there is no parental consent the court is required to deny the adoption. If either or both of the other factors are absent he may deny the adoption, and, of course, should, no matter how valid or binding a contract may have been entered into. Persons are presumed to know the law and parties contracting to adopt children in Georgia are bound to know that adoption can only be actually accomplished by judicial action under existing law. The vital question here is the genuineness of the consent and whether it was freely and voluntarily given. Under the quoted facts of this case we are of the opinion that the court was authorized to find that the consent of the parents was not freely and voluntarily given and to deny the adoption. Under this view the principle that an ordinary contract may not be avoided by duress which is not the duress of the other party *748
or his agent, or imposed with his knowledge and taken advantage of by him for the purpose of obtaining the agreement, does not apply to this contract made for the purpose of granting consent to an adoption to be petitioned for under the act of 1941. Numerous custody cases have been cited but they are not applicable to contracts of consent made with a view of adoption under the 1941 law. The act of 1941 is to be construed strictly against the applicant and in favor of the parent. Glendinning
v. McComas,
We cannot say as a matter of law that the court did not have the power and authority to find, under the facts of this case, that it was to the best interests of the child itself that it should be with and returned to its natural parents. Such is the most vital and paramount question to be considered, and as unfortunate as the result will be to splendid and innocent people, the authorized discretion of the court in this case cannot be disturbed.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.