IN RE M. A. F. IN THE INTEREST OF M. A. F.
Supreme Court of Georgia.
Frаnk S. Ney, Vicky O. Kimbrell, Mary R. Carden, John L. Cromartie, Jr., Phyllis J. Holmen, for appellant.
Ben F. Hendricks, Eugene W. Dabbs, Michael J. Bowers, Attorney General, for appellee.
SMITH, Justice.
MAF is an eight-year-old, illegitimate child who has lived with and been loved and supported by the appellant since he was four weeks old. He was removed from her custody without notice or a hearing based on a petition filed on behalf of the appellee, Newton County Department of Family and Children Services (NCDFCS), after the biological parents, who had abandoned the child years earlier, attempted to surrender their rights to the NCDFCS. We reverse.
The events leading to this appeal that reached us by way of certiorari are both procedurally and factually complex.[1] When MAF was less than two years old his biological mother gave him to the appellant to keep permanently. When the appellant was told that she would have to have a document indicating that she had custody of MAF to enroll him in school, she petitioned for his permanent custody in the Newton County Superior Court. The biological mother and the appellant entered into a consent agreement. The cоnsent agreement was incorporated in an order of the Newton County Superior Court and subsequently adopted by the juvenile court after the case was transferred to it.[2] The biological mother later entered into a formal written agreement giving permanent custody to thе appellant. The agreement was witnessed by the child's court-appointed guardian ad litem and filed in the juvenile court. After an investigation by the *749 NCDFCS that was favorable to the appellant, the juvenile court awarded custody to the appellant. The order stated that "thе father has not supported the child and the mother has not properly cared for the child."
A year later, the biological parents attempted to release their parental rights to the NCDFCS and the NCDFCS filed a deprivation petition. Without notice to the appellant or a hearing, custody was placed in the NCDFCS and MAF was removed from his home and placed in a foster home, where he has remained since April 1984.
The appellant filed a petition for habeas corpus in the superior court. After it was transferred to the juvenile court, shе filed a motion there to dismiss the order of April 19, 1984, which gave custody to the NCDFCS. She alleged lack of notice and hearing as required by OCGA § 15-11-26.
A hearing on the petition to terminate the parental rights of the biological mother and father and the legal father[3] was held on May 10, 1984. Issues to be rеsolved at the hearing were: a) The appellant's motion to set aside the order of April 19, 1984; b) The appellant's petition for habeas corpus; and c) The NCDFCS' petition to terminate the parental rights. During the hearing, the court orally set aside the April 19 order because of lack of notice, and custody was returned to the appellant. The court then dismissed the appellant's petition for habeas corpus reasoning that there was no longer an issue as to custody. But, at the end of the day's hearing, the court awarded temporary custody to the NCDFCS.
At the beginning of the hearing, the attorney for the appellant asserted and the attorney for the NCDFCS denied that he had represented to the attorney for the appellant that he would only bring up the termination of the parental rights at the hearing and that there would be a later hearing in which any issue of deprivation of the child in the appellant's custody would be addressed. After a discussion, the judge stated that he intended to proceed with the hearing even though it might not dispose of all the issues. After direct examination of an expert witness the following conversation took place between the attorney for the appellant and the judge. "Your Honor, we are going to decline examination of the witness at this point, but we would like to reserve the right to recall her at a subsequent hearing after we have had time to prepare rebuttal. THE COURT: I think *750 that would be proper. You have the same right as any other party to request her presence by way of subpoena." The court order recited, "The hearing held this date, pursuant to the petition for termination for parental rights is continued and to allow the parties to present briefs of law." Two months later the court entered an order granting the appellant's motion for a psychological evaluation of the child and attached to the motion was a letter from the attorney for the NCDFCS in which he requested the opposing attorney to furnish him with the names and addresses of "any witnesses that you desire to call on behalf of [the appellant] at the final hearing." But, on October 16, 1984, six months after MAF was originally removed from his home without notice or a hearing, the judge without a further hearing entered an order terminating the parental rights of the natural parents. Once the termination order was entered the court was of the opinion that it was required to award custody to the NCDFCS under the language of OCGA § 15-11-54.[4] It is from that order that the appellant brings this appeal.
Case Nos. 42128 and 42171
1. The biologiсal mother, the only parent entitled to custody of MAF, OCGA § 19-7-22, and the only parent with parental control, OCGA § 19-7-25, made a voluntary contract, OCGA § 19-7-1 (b) (1), that was clear, definite, and certain, Blackburn v. Blackburn,
Both biological parents of this illegitimate child had an obligation to support him, Thorpe v. Collins,
It seems difficult to think of a case in which the parents could more clearly exhibit actual desertion accompanied with an intention *751 to entirely sever, as far as possible to do so, the parental relation, and throw off all obligations growing out of that relation. Crumb at 840. The child was left in the care of the appellant from the time he was four weeks old and the appellant was his sole provider, the biological mother gave the child away when he was less than two years old, later, she entered into two separate formal agreements in which she affirmed her clear desire to give up all her pаrental rights and duties, and finally both biological parents indicated their strong desire to sever all ties when they attempted to surrender their rights to the NCDFCS.
Generally, a child remains under the control of his biological parents until he reaches majority, unless parental power is lost by any оf the ways recognized by law. Ways in which parental power may be lost include: a) "Voluntary contract releasing the right to a third party." OCGA § 19-7-1 (b) (1); and b) "Failure to provide necessaries for the child or abandonment of the child," OCGA § 19-7-1 (b) (3). Parental power and control were given to the appellant by a clear, definite, and certain agreement, made over six years ago. It was followed by the biological parent's abandonment of the child. When "duty and control is lost or alienated to a third person by any of the means recognized by law, then such third person stands in loco parentis to the child," Waldrup v. Crane,
2. The biological mother relinquished any rights she had to custody of MAF by virtue of the voluntary contract with the appellant.[5] The biological parents' voluntary efforts to abandon the child resulted in loss of their power to either consent to or veto any future adoption of the child. See McComas v. Glendinning, 59 Ga. App, 234, 238 (
*752 3. Professor Samuel M. Davis, an outstanding authority on juvenile law, stated in his most recent edition of Rights of Juveniles, The Juvenile Justice System, "The adjudicatory hearing is essentially a fact-finding hearing at which the court determines whether the child . . . is or is not a [deprived] child, etc. Such a hearing, cоmparable to the fact-finding phase of an ordinary trial, must be conducted with certain recognized safeguards and procedures." At 6-3. The juvenile court failed to acknowledge the appellant's rights, and undoubtedly failed to provide her with the safeguards and procedures of the juvenile code when her rights were ignored and when she was denied an opportunity to be heard at a later hearing. The comments from the bench, the correspondence between the attorneys, and the court order all indicated that the hearing was not final оn May 10, 1984.
4. The juvenile court judge felt that it was mandatory for him to give custody to the NCDFCS upon the entry of the termination of the biological parent's parental rights under the language of OCGA § 15-11-54. But given: a) the clearly enunciated purpose of the juvenile code that "[t]his chapter shall bе liberally construed to the end; . . . (2) That each child coming within the jurisdiction of the court shall receive preferably in his own home, the care, guidance, and control that will be conducive to his welfare and the best interests of the state," (emphasis supplied); OCGA § 15-11-1, b) the fact that "`[i]n loco parentis' means a quasi-parental relationship inferred from and implied by the fact that a child or youth has been taken into a family and treated like any other member thereof, unless an express contract exists to the contrary." (emphasis supplied); OCGA § 49-5-3 (11), and c) the fact that we have equated those in loco parentis with parents, see Cleghorn v. Janes,
*753 Case No. 42129
Appellant filed a pauper's affidavit, but the Department of Human Resources traversed it alleging that because she owns a home with a fair market value in excess of $4,000 she does not qualify as an indigent person. The juvenile court agreed.
Our legislature provided special protection for the needy under the juvenile code, by defining an "indigent person," as "one who at the time of requesting counsel is unable without undue financial hardship to provide for full payment of legal counsеl and all other necessary expenses for representation." OCGA § 15-11-30 (a). The appellant was a necessary party to the proceeding, OCGA § 15-11-26 (b), and the summons was required to state that a "party is entitled to counsel in the proceeding and that the court will appoint сounsel if the party is unable without undue hardship to employ counsel." OCGA § 15-11-26 (e). See also D.C.A. v. State of Ga.,
Judgment reversed in Case Nos. 42128, 42129, and 42171. All the Justices concur.
NOTES
Notes
[1] Appellant filed a direct appeal in the Court of Appeals, (Case No. 42128) and also filed an application for a discretionary appeal. The apрlication was denied and she applied to us for certiorari which was granted upon motion for reconsideration (Case No. 42171). Thereafter, Case No. 42128 was transferred to this Court.
[2] The juvenile court has exclusive jurisdiction in proceedings involving the termination of the legal parent-child relationship when it is not in connection with an adoption. OCGA § 15-11-5 (2) (c).
[3] The biological mother and the legal father were married but living apart at the time MAF was conceived and born. MAF, as the issue of adulterous intercourse of the wife during marriage is an illegitimate child. OCGA § 19-7-23 (2). The legal father never lived with the child, never supported him, or made an effort to communicate with him. After a diligent effort to locate him failed, he was served by publication, but never answered. The biological father did not support the child.
[4] "If, upon entering of an order terminating the parеntal rights of a parent, there is no parent having parental rights, the court shall commit the child to the custody of the Department of Human Resources . . ." OCGA § 15-11-54 (a).
[5] "The fact that the law recognizes such a contract does not mean that the child may become the object of barter or sale; the child is not property, and a contract in which it appears that someone other than the child is to benefit therefrom is contrary to sound public policy and will not be enforced." (Citations omitted.) § 107 at 202 Stubbs, Georgia Law of Children, 1969.
[6] Skipper v. Smith,
[7] "For ten years now this has been her home, these her only parents."