In Case No. A13A0757, Anthony Shane Ray appeals from orders of the Superior Court of Floyd County granting Johnny Hann, Jr.’s stepparent petition to adopt Ray’s minor child, A. C. R., and terminating Ray’s parental rights to the child. In Case No. A13A0821, Ray appeals from an order of the Superior Court of Floyd County denying his petition to legitimate A. C. R.
Case No. A13A0821
1. Ray contends the trial court erred in denying his petition to legitimate A. C. R. Because this issue affects Ray’s legal status with respect to the child, we address it first. For the following reasons, we reverse the superior court’s order denying Ray’s legitimation petition.
“We review a trial court’s ruling on a legitimation petition for abuse of discretion. We review the court’s factual findings, however, for clear error and will only sustain such findings if there is competent evidence
The record shows the following relevant facts. On May 27, 2008, Nancy Peterson (now Nancy Hann) gave birth to A. C. R. at Floyd Medical Center. It is undisputed that Ray, who was never married to Peterson, is A. C. R.’s biological father, and he attended the birth. On the official birth certificate, the hospital listed Ray as the child’s father, and the child was given Ray’s surname.
On May 29, 2008, before leaving the hospital, Ray and Peterson both signed a form entitled “Paternity Acknowledgment — State of Georgia.” In addition to acknowledging Ray’s biological paternity, the form contained a statement by both Ray and Peterson in which they agreed and consented that Ray’s relationship with A. C. R. “shall be considered legitimate for all purposes under the law pursuant to OCGA § 19-7-22 (g) (2).”
Months later, Peterson and Ray ended their relationship. In September 2010, Peterson married Hann; in May 2012, Hann filed a petition to adopt A. C. R. Ray filed a petition to legitimate A. C. R. and opposed the adoption. After a hearing, the trial court denied Ray’s petition to legitimate A. C. R., terminated Ray’s parental rights, and granted Hann’s petition to adopt the child.
In Georgia, legitimation is the statutory legal process through which a biological father becomes the legal father of a child born out of wedlock.
In any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19-7-46.1, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.5
We note that the court below was critical of the legitimation acknowledgment form at issue in this case because it failed to comply with all of the requirements of OCGA § 19-7-21.1, andit appears that the form used in this case indeed did little to inform the parties of the legal consequences of signing it.
Case No. A13A07S7
2. Ray contends that the trial court erred in terminating his parental rights and granting the petition for adoption, arguing that there was insufficient clear and convincing evidence to support the court’s rulings. We do not reach the merits of Ray’s claims, however, because the trial court did not make the requisite findings of fact and conclusions of law in either its order terminating Ray’s parental rights or in the adoption decree.
Generally, a stepparent may adopt his or her spouse’s child only if the biological parent whose rights will terminate with the adoption “voluntarily and in writing surrenders all of his [or her] rights to the child to [the stepparent] for the purpose of enabling [the stepparent] to adopt the child[.]” OCGA § 19-8-6 (a) (1). If the biological parent refuses to surrender his or her parental rights, OCGA § 19-8-10 provides that the court may nevertheless terminate the biological parent’s rights and grant the stepparent’s petition to adopt the child if it finds, among other things, that there is clear and convincing evidence that the parent has abandoned the child,
for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) To provide for the care and support of that child as required by law or judicial decree [.]
OCGA § 19-8-10 (a) (1), (a) (4); 19-8-10 (b).
[T]he words “without justifiable cause” as used in [OCGA] § 19-8-10 (b) are constitutionally significant. The Due Process Clause gives a parent substantial protection of his or her parental rights requiring that clear and convincing evidence of unfitness be shown before a natural parent’s rights in his child may be terminated.
(Punctuation and footnote omitted.) Id. We note that
justifiable cause for the failure to pay child support may be found in situations where the parent has been unable to earn income due to incarceration, mental illness, mental incapacity, hospitalization, or other circumstances beyond his or her control. Each case must be decided on its own circumstances. . . . Incarceration does not per se give rise to justifiable cause for failure to pay support; rather it is simply one factor to be considered.
(Citation and punctuation omitted.) In re Marks,
If the petitioner meets that burden of proof and the court finds that one of the above circumstances exists, then the court must also determine whether the proposed adoption is in the best interest of the child. OCGA § 19-8-10 (a) (1), (b).
With regard to the best interest test in adoption cases, the trial court has very broad discretion with which this Court will not interfere except in cases of plain abuse. However, a court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational or even moral advantages elsewhere. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. The requirements of Georgia’s adoption statutes are mandatory and must be strictly construed in favor of the natural parents, because the application thereof results in the complete and permanent severance of the parental relationship.
(Citations, punctuation and emphasis omitted.) In re Marks,
We are unable to evaluate whether the court erred in terminating Ray’s parental rights pursuant to OCGA § 19-8-10 (b) because the trial court did not make specific factual findings and conclusions of law with respect to these criteria. Although the court concluded that Ray had not communicated with A. C. R. or provided support for a period of time given the fact that Ray had been incarcerated, the court did not conclude that Ray had abandoned A. C. R. within the meaning of the law or make specific factual findings or conclusions of law concerning the issue of justifiable cause. The court did not address any of the criteria for termination pursuant to OCGA § 15-11-94. The court’s conclusion that adoption was in the child’s best interest is also lacking in particularity.
Further, OCGA § 19-8-18 (b) provides: “In all cases wherein Code Section 19-8-10 is relied upon by any petitioner as a basis for
In the absence of specific findings of fact to support the trial court’s conclusion that the requisites of OCGA § 19-8-10 (b) have been met, we are constrained to vacate the court’s order terminating Ray’s parental rights, as well as the adoption decree, and to remand this case to the trial court with the direction that it enter a new decree with specific findings of fact and conclusions of law as required by OCGA § 19-8-18(b). We therefore do not reach Ray’s contentions with regard to the termination and adoption, and we express no opinion upon the merits of those contentions.
Judgment vacated and case remanded in Case No. A13A0757. Judgment reversed in Case No. A13A0821.
Notes
This Court granted Ray’s application for discretionary review of the orders appealed.
When a live birth occurs in a hospital within the state, the hospital is required to file a birth certificate with the State Office of Vital Records within 72 hours of the birth. OCGA § 31-10-9 (a), (b). If the mother is unmarried at the time of conception or birth, the hospital may not list the putative father’s name on the birth certificate without the written consent of the mother and the putative father. OCGA § 31-10-9 (e) (2). Except as otherwise provided, “[w]hen a paternity acknowledgment is completed, the surname of the child shall be entered as designated by both parents.” OCGA § 31-10-9 (e) (5).
See 1-V Georgia Domestic Relations Forms 5.1 (“[The Paternity Acknowledgment Form] is maintained by Vital Records as part of the permanent record in support of the Certificate of Live Birth, so the practitioner can request a copy from Vital Records to determine if a child’s relationship to a man has been administratively legitimated.”).
See In re Pickett,
OCGA § 19-7-22 (g) (2) was enacted in 2005 “to provide for legitimation by a voluntary acknowledgment of paternity in certain circumstances.” See Ga. L. 2005, p. 1491, § 1. See also 1-V Georgia Domestic Relations Forms 5.1. A new Code section, OCGÁ § 19-7-21.1, became effective on July 1,2008, over a month after A. C. R. was born. See Ga. L. 2008, p. 667, § 4. This Code section provided for rights and remedies in the administrative legitimation process similar to those that applied to acknowledgments of paternity; it also added new limitations on administrative legitimation. For example, the acknowledgment of legitimation must be made before the child’s first birthday, OCGA § 19-7-21.1 (b); the legitimation will not be recognized if certain conditions are present, OCGA § 19-7-21.1 (c); and the rights and remedies applicable to acknowledgments of paternity contained in OCGA § 19-7-46.1, also expressly apply to acknowledgments of legitimation, OCGA § 19-7-21.1 (b). The new Code section provides that “(Vjoluntary acknowledgment of legitimation shall not authorize the father to receive custody or visitation until there is a judicial determination of custody or visitation.” OCGA § 19-7-21.1 (e). See Sauls v. Atchison,
OCGA § 19-7-46.1 (c) provides that, after the expiration of the 60 day rescission period, the signed voluntary acknowledgment of legitimation “may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.”
See Sauls v. Atchison,
It is well settled that
legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively. The distinction is that a substantive law creates rights, duties, and obligations while a procedural law prescribes the methods of enforcing those rights, duties, and obligations.
(Citations omitted.) Fowler Properties v. Dowland,
In order to authorize a finding of abandonment under that Code section, there must be clear and convincing evidence of an “actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations growing out of the [parent/child relationship], and forego all parental duties and claims.” (Punctuation and footnote omitted; emphasis in original.) Hall v. Coleman,
The General Assembly amended OCGA § 19-8-10 (a) (4) in 2013, effective January 1, 2014. Ga. L. 2013, p. 127, §§ 4-25; 5-1.