KIRKLAND v. LEE
61778
Court of Appeals of Georgia
DECIDED NOVEMBER 20, 1981
160 Ga. App. 446 | 287 S.E.2d 365
CARLEY, Judge.
The trial court, after conducting a hearing on the adoption petition, found that appellant had not visited or supported his child since June of 1979 and that appellee, a “fit and proper person to have ... custody,” was “capable of assuming the responsibility for the care, supervision, training and education of [the] minor child...” The trial court further concluded that appellant had “failed significantly for a period of more than one (1) year immediately prior to the filing of the Petition” to communicate or to make a bona fide attempt to communicate with his child and to provide for her care and support and that it would be in the best interest of the child to be adopted by appellee. It is from the trial court‘s decree of adoption terminating all the rights of appellant to the child that the instant appeal is taken.
1. Appellant urges that the final judgment of adoption must be vacated and the casе remanded because the trial court made no specific finding that the failure to communicate and support was “without justifiable cause.” That phrase appeared in former
In 1979, however, former
While it is unclear from the facts, apparently Burch v. Terrell, 154 Ga. App. 299 (267 SE2d 901) (1980) involved adoption proceedings instituted after the effective date of existing
Subsequently, in Baker v. Nicholson, 158 Ga. App. 267 (279 SE2d 717) (1981), Burch was interpreted “as holding that the trial court must make a finding of fact that the failure to support or communicate was without justifiable cause in order to demonstrate a
It is readily seen that if the interpretation of
Applying the foregoing rules of statutory construction to existing
Under this interpretation of the statute, no trial court should grant and no appellate court should affirm an order of adoption where the uncontroverted evidence demands a finding that the natural parent was entirely blameless in failing to communicate with or to provide support for his child. In such a case the presumption that it would be in the best interest of the child to maintain the existing relationship with his natural parent remains unrebutted. However, under the existing statute if, after hearing all the evidence, including that concerning the natural parent‘s justification for his actions or inactions, the trial court determines that there was a “significant failure” to communicate with or to provide support for the child and that it would be in the “best interest” of that child to be adopted, the trial court should make appropriate findings in that regard and enter an order granting the adoption. On appeal the natural parent is entitled to urge that the order is erroneous for whatever reasons believed to be meritorious. Citing evidence to support the assertion that he was “justified,” the natural parent is entitled to enumerate as error on appeal the trial court‘s evidentiary finding that it was in the “best interest of the child” to have the parental relationship terminated. If there is any evidence to support the trial court‘s finding that the adoption was in the child‘s “best interest,” a judgment based upon that finding will be affirmed on aрpeal. Beverly v. Kennedy, 153 Ga. App. 149, 150 (2) (264 SE2d 690) (1980). However, it is apparent that in enacting Ga. L. 1979, pp. 1182, 1187, the General Assembly intended that no order of adoption ever be reversed for the reasons expressed in Burch and Baker, and the failure of the trial court to make a further specific finding on the issue of “justifiable cause” is no longer a meritorious ground for reversal. Accordingly, those two decisions are overruled insofar as they hold that, in the full exercise of his discretion the trial court must make a specific finding that the parent‘s failure was “without justifiable cause” before granting a petition of adoption under existing
Under the proper construction of the statute, an order granting an adoption need only contain specific and articulated findings that the parent “has failed significantly” for a one year period to communicate with or provide support for his child and that the аdoption would be in the child‘s “best interest.” These findings were made in the instant case. Pretermitting appellant‘s assertion on appeal, these findings are not rendered erroneous by the fact that he
2. After the petition for adoption was filed in the instant case, appellant‘s ex-wife, the child‘s mother, filed garnishment proceedings to collect delinquent child support payments due to her pursuant to a prior divorce decree on which a fi. fa. had been issued. At the date of the hearing on the adoption no answer was due or had been filed by the garnishee. Appellant testified at the adoption hearing that he did not plan to contest or to intervene in the garnishment proceeding. Appellant asserts on appeal that the trial court erroneously concluded that “[t]he Garnishment proceedings by the mother to collect past due support for said minor child having been initiated subsequent to the filing of the Petition for Adoption, has no bearing on the matter [of the adoption].” Appellant contends that to the contrary “the payment of the funds held by the [garnishee] to the mother would have reducеd [appellant‘s] arrearage from [$1,160.00] to approximately [$140.00], which would mean that he will have paid to the mother all but seven out of the fifty-eight weeks that he is alleged to be behind. It means that one ground upon which appellant‘s parental rights were terminated, non-payment of support, will no longer exist.”
We find appellant‘s argument to be without merit.
Judgment affirmed. Quillian, C. J., Birdsong and Pope, JJ., concur. McMurray, P. J., Shulman, P. J., and Birdsong, J., concur specially. Deen, P. J., Banke and Sognier, JJ., dissent.
SHULMAN, Presiding Judge, concurring specially.
When I first reviewed Baker v. Nicholson, 158 Ga. App. 267 (279 SE2d 717), I considered it an appropriate procedural adjunct to Burch v. Terrell, 154 Ga. App. 299 (267 SE2d 901), and concurred without reservation. Now, however, I find myself convinced by the majority opinion that the better course is to refrain from judicial legislation while preserving for a parent faced with a prima facie showing of a significant failure to support or communicate, the opportunity to demonstrate that the failure is not properly attributable to the parent‘s fault and an opportunity to urge on the appellate level that an adverse decision on that issue is erroneous.
The majority overrules Burch only insofar as it has been interpreted to hold that a specific finding of a lack of justifiable cause is required in every order granting a contested adoption. There still remains in effect the holding in Burch that a trial judge has the discretion to determine “whether the action of the parent was in fact legally justifiable.” Id., p. 300. The reservation of such discretion in the trial court is demanded by concepts of justice and fairness and is “necessary and desirable.” Chandler v. Cochran, 247 Ga. 184, 187 (275 SE2d 23). Where the courts are called upon to sever the strongest relationship known to humankind, no legal safeguards or requirements should be abandoned, curtailed or limited. However, the majority is correct in pointing out that the establishment of legal standards such as those here involved is properly within the province of the legislature, not the courts. As I read the majority opinion in this case, it protects the rights of parents without encroaching on the
I believe that the fears expressed in the dissent regarding the application of the “any evidence” rule are unfounded. In the first place, the application of that appellate review standard is not new. In the second place, the application of that rule by the majority is not inconsistent with its holding that evidence of justification must be considered at the trial and appellate levels. Under the majority‘s interpretation of the phrase “the best interests of the child,” lack of justification becomes an element of “the best interests of the child” in every case in which evidence of justification is offered. Therefore, in such a case, if there is no evidence of a lack of justification, a finding that the adoption is in the best interests of the child could not be affirmed under the “any evidence” rule. It may be seen, then, that the parent is afforded the same protection under the amended statute as under the previous statute.
I also find myself unable to share the concern expressed in the dissent that this court will be unable to determine whether a trial judge has exercised the discretion involved in these cases unless a particular phrase is used in an order granting an adoption. This court must have confidence in the trial judges of this state. From the date of this decision onward, they will be on notice of the correct standard to apply in cases such as this one. The majority clearly places on the trial judges the duty to consider whatever evidence the natural parent may offer in justification. If such evidence is offered and the adoption is still granted, it may be presumed that the trial court has done its duty — has exercised its discretion — and appellate review would proceed on that basis. Of course, it must be remembered that, although we will have the evidence before us in support of justification and in rеbuttal thereof, the trial court will have had the opportunity to view the witnesses and to assign weight to their testimony based on demeanor and other intangible factors not available to us. Our review will be limited, as it was under the former statute, to the sufficiency of the evidence.
Although I would have preferred that the legislature not change the former statutory provision to remove the phrase, “without justifiable cause,” it has been done. We in the judiciary must not take license with the handiwork of the legislature. Our role is to work within the framework provided by that branch of government to ensure that justice is done. It is my opinion that the majority, by making a lack of justifiable cause an element of the phrase, “best interests of the child,” has accomplished that goal: the statute is now interpreted in a way consistent with the rules of statutory construction and the rights of natural parents are preserved. For that
After a thorough review of the record in this case, I concur also in the conclusion in the majority opinion that the evidence in this case supports the trial judge‘s finding that adoption is in the best interests of the child, bearing in mind that that statement includes a finding that appellant‘s failure to support or communicate with his child was not justified.
For all the reasons expressed herein, I concur in the majority opinion‘s interpretation of
I am authorized to state that Presiding Judge McMurray and Judge Birdsong join in this special concurrence.
DEEN, Presiding Judge, dissenting.
I.
As to Burch
I must respectfully beg to differ from the majority opinion in its construction of Burch v. Terrell, 154 Ga. App. 299 (267 SE2d 901) (1980), to the extent that it holds that ”Burch stands for the proposition that under existing
II.
As to Parental Rights
Parental and family rights are fundamental unalienable immutable superior rights acting as limitations when colliding against the inferior powers of the legislative, executive and judicial branches of the state. The latter, in order to supersede the former, must have a “compelling interest” (free exercise) or there must exist a “clear and present danger” (free speech) and other similar burdensome tests on the state in areas of public health, safety and morality wherein these fundamental rights of citizens are sought to be sevеred, curtailed or denied. “... The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” (Emphasis supplied.) Pierce v. Society of the Sisters, 268 U. S. 510, 535 (45 SC 571, 69 LE 1070) (1925). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” (Emphasis supplied.) Prince v. Commonwealth of Massachusetts, 321 U. S. 158, 166 (64 SC 438, 88 LE 645) (1943). The rights of parents, child and family are found in the “Right of Privacy” contained in and around the periphery, penumbras and emanations of the 1st Amendment in addition to the procedural and substantive due process safeguards of the 14th Amendment and 3rd, 4th, 5th and 9th Amendments. Griswold v. Connecticut, 381 U. S. 479 (85 SC 1678, 14 LE2d 510) (1965).
The whole court case of Chancey v. Dept. of Human Resources, 156 Ga. App. 338
III.
(1) & (2) of
The majority opinion is predicated upon the presupposition that the additional wording in the statute “and the court is of the opinion that the adoption is for the best interest of the child” is applicable to both Sections (1) and (2) of
It is indisputable that the General Assembly specifically elected to delete language preceding Sections (1) and (2) and the new wording omitted from the location of the wording deleted and likewise specifically placed the new wording under Section (2). It
In applying the above rules of statutory construction to this code section, the majority cannot engraft a new test of whether “the natural parent was entirely blameless” in failing to communicate with his child as somehow included and a part of a presumption existing in favor of the continued rights of the natural parent when the court concludes his finding relating to the “best interest of the child.” The majority in effect erroneously concludes that the “best interest of the child” presupposes a finding of “justifiable cause” or unjustifiable cause, but it obviates the need for the court to make a specific finding on this issue. As pointed out by Judge Sognier in his dissent, the majority‘s construction and new rule of obscure vague verbiage dilutes and erodes the parent-child defense and constitutes no less judicial usurpation of a legislative prerogative than continued use of with or without justifiable cause. In addition, it compounds the work of the trial and appellate courts with complex guidelines with which I must respectfully disagree. Were this a case involving a routine dog-bite civil case or a peeping tom criminal case, the parties would be entitled to a trial by jury as a matter of right while presenting their defense. Where, as here, parental rights are hanging in the balance and may be terminated, the parent is not entitled to a jury trial, but, this in no way requires us to narrow the guidelines as to permitting a broad, complete and full opportunity to have their day in the trial court and for the appellate court in making its review to clearly understand the findings of the court below of parental defense justifications.
IV.
As to Baker
It is my belief that Presiding Judge Shulman and Judges Birdsong and Sognier were correct in extending the use of “... without justifiable cause in order to demonstrate a full exercise of the trial court‘s discretion...” even without statutory authority, in the case of Baker v. Nicholson, 158 Ga. App. 267, 268 (279 SE2d 717) (1981), in order to see that justice was done. Green v. Coast L. R. Co., 97 Ga. 15, 36, 37 (24 SE 814) (1895). It has been said that when an issue is once clearly stated the answer is immediately aрparent and forthcoming. It is fair to state the question: Should this court adopt and approve as guidelines (1) the natural parent was partially or “... entirely blameless in failing to communicate with...” plus the justifiable cause material issue subsumed into “best interest of the child” irrespective of the ambiguity as to the latter modifying “failing to communicate” (Carley); (2) “... not properly attributable to the parent‘s fault,” plus, justifiable cause subsumed into “best interest of the child,” plus, “there still remains in effect the holding in Burch that a trial judge has the discretion to determine ‘whether the action of the parent was in fact legally justifiable ‘” (Shulman); (3) “without justifiable cause” (Sognier); (4) gross or “.. intentional or unintentional misconduct...” (Banke in Chancey, supra)? None of the above phrases per se are set forth in the statute. It might be further argued that the words “or to make a bona fide attempt to communicаte” and “without justifiable cause” are synonymous, that is, if the parent fails to do the former he has failed in the latter. The former is a minimum requirement of a specific act a parent must meet and the latter is a guideline for the weight or quantum of evidence relative to the success or failure of the parent as to this statutory charge of conduct.
It is my opinion we should not overrule the safer and sounder rule set forth in Baker, supra, as it is a clear, concise court guideline.
V.
Evidence in this Case
The defense of with or without justification was raised by appellant but not addressed by the court. The record reflects testimony by the mother to the effect that appellant was evicted from his apartment because he brought a black woman home, that he would take a bath with the minor child, and that the child would come back to the mother with kinky, frizzy pigtails in her hair put there by Daddy‘s black friend. The father testified that he ceased paying child support when he was refused visitation. He further testified he put the support money into a Bible for the child when the mother might call for it, producing it to the court for examination. He claims he did
SOGNIER, Judge, dissenting.
I respectfully dissent from that portion of the majority‘s opinion which overrules Baker v. Nicholson and Burch v. Terrell, and also dissent from the majority‘s interpretation of
The majority opinion holds that the trial court need not make a specific finding that a parent responding to a petition for adoption is without justifiable cause in failing to communicate with or support his child for a period of 12 months, reasoning that because the phrase “without justifiable cause” was stricken from the language of the statute (Ga. L. 1979, pp. 1182, 1187), there is no longer a requirement that the trial court make a finding in this regard when parental rights are terminated pursuant to an adoption. I do not agree.
Burch held that although the legislature deleted the phrase “without justifiable cause” from
In 1979 the legislature amended
As the majority opinion points out, the law presumes that it is in the best interest of a child to be with his natural parent. This presumption can be rebutted under the provisions of
While the majority opinion recognizes the presumption in favor of the nаtural parent and includes the defense of justifiable cause as a part of the judgment of the trial court in deciding whether the adoption is in the child‘s best interest, the end result of the opinion is to dilute the defense and undercut the presumption. The majority would hold that once the trial court finds that the adoption is in the child‘s best interest, it has automatically found that there was no justifiable cause for the parent‘s failure to communicate with or
First, the “any evidence” rule applies to appellate review of adoptions. Beverly v. Kennedy, 153 Ga. App. 149, 150 (264 SE2d 690) (1980). If there is any evidence to support the trial court‘s finding that the adoption is in the child‘s best interest, it will be affirmed. The danger in applying this rule without a requirement that a specific finding be made on justifiable cause is that the trial judge would hаve unrestricted discretion to determine what is in the best interest of the child. It is inconsistent to hold, on the one hand, that appellate review includes consideration of evidence on justifiable cause and the case is reversible if it is not considered, and on the other hand, to hold that the case will be affirmed if there is any evidence to support the judgment. How can an appellate court know whether evidence of justifiable cause has been considered by the trial court without some indication of this in the trial court‘s findings of fact? If there is uncontroverted evidence of justifiable cause and there is no finding in this regard, under the majority‘s view the appellate court must reverse. However, an appellate court cannot reverse if there is any evidence that the adoption is in the best interest of the child. Such an inconsistency may create confusion in the required standard of review to be followed by appellate courts, as well as confusion in guidelines for the trial courts making decisions in adoption cases.
Second, the majority opinion, while recognizing that a parent‘s justifiable cause for failure to communicate with or support his child is a material issue in the granting of an adoption (albeit “subsumed” into the “best interest of the child” language), then holds that there is no need for the trial court‘s findings to reflect that it considered this material issue. Again, how can an appellate court know if such evidence was considered and rejected, or considered and found wanting, if there is no finding to this effect? Under the majority‘s reasoning, if there is uncontroverted evidence that the natural parent has a justifiable reason for his failure to communicate with or support his child, the appellatе court must reverse, unless there is any evidence to support the trial court‘s findings that the adoption is in the best interest of the child. Once again, I find confusion and inconsistency in the majority‘s requirements. A finding by the trial court regarding justifiable cause would not only clarify the decision of the trial court, but give appellate courts a more precise decision to review.
“‘Where the trial court fails to make findings, or to find on a material issue, and an appeal is taken, the appellate court will normally vacate the judgment and remand the action for appropriate findings to be made’ 5A Moore, Federal Practice Par. 2718, 52.06[2],
Third, the facts in the instant case illustrate the deficiency of a failure to find justifiable cause. According to the majority opinion, the appellant has the benefit of a presumption that it is in his child‘s best interest not to terminate appellant‘s parental rights and grant the adoption. Appellee presented evidence that appellant had failed to communicate with or support his child in the 12 months preceding the adoption petition. Appellant then presented evidence that he had been told by the child‘s mother that she didn‘t need support from appеllant, that she did not want appellant around in any way, and that she had denied appellant his visitation rights. Such evidence has been held to be justifiable cause for failure to communicate with and support a child. See Crumb v. Gordon, 157 Ga. App. 839 (278 SE2d 725) (1981); Richey v. Cothran, 140 Ga. App. 580 (231 SE2d 572) (1976). These allegations were not denied by appellee; i.e., they remain uncontroverted. No findings of fact were made regarding this evidence. Rather, the trial court simply found that appellant had “failed significantly” for a period of 12 months to communicate with or support his child and that the adoption was in the best interest of the child.
If we apply the majority‘s reasoning, we must reverse because there is uncontroverted evidence that appellant was justified in failing to communicate with or support his child. I believe the case should be reversed and remanded to the trial court, not only because thе evidence fails to support the judgment, but also because there was no finding with regard to a material issue in the case.
While the majority has implicitly restored the “without justifiable cause” standard via the “best interest of the child” language of the statute, it has at the same time sufficiently undercut the requirement so as to make it meaningless. Therefore, I would restore the standard explicitly and give our trial courts clear and consistent guidelines to follow in making decisions regarding adoptions where parental rights are terminated.
I am authorized to state that Presiding Judge Deen and Judge Banke join in this dissent.