*1 guilt of proof appellant’s to find authorize a rational trier of fact Virginia, beyond a reasonable doubt. Jackson malice murder (99 SC 61 LE2d U. S. 307 court, appellant filed an appeal to this filing
4. After his notice Any issue raised extraordinary motion for new trial the trial court. An from the beyond scope appeal. of this motion is independently pursuant pursued motion must be final on that Anderson v. (a) (7). App. 540 351) concur. All the Justices affirmed. Jr., Hurl R. appellant. Slaton, Greenberg, Attorney, Carl P. Assistant
Lewis R. District Bowers, General, Attorney Susan V. Attorney, Michael J. District Groves, General, D. Attorney Michael As- Boleyn, Senior Assistant General, Attorney appellee. sistant
S94A1722, S94X1732. al.; vice versa.
WELCH et al. v. WELCH et and 445) 1960’s, placed into the appellant-plaintiffs Although court. Mr. and Mrs. Cecil Welch order of the they reached remained in the of the Welches until adopt ap- proceedings initiated majority, the Welches never probate after the pellants formally. no wills were offered for When seeking action children’s Welches died filed an adoption.” After alleged based on “virtual shares of the estates trial, a bench presented lants their evidence at ground for the dis- appellees’ motion for dismissal. The conclusion, that a con- as a matter of missal was the trial court’s adop- and the tract be between conclusion that parents, support that case law did not tive enter into such a con- court was a appeal. appellants bring the main tract. It is from that dismissal that Appellees cross-appeals. have filed defensive (1994),
In adoption must principle that a contract court reiterated the disposition of the child. parties competent to contract for the question is for resolution this case whether can, custody, par- one of such by entry awarding become order
ties. We conclude that the stated in O’Neal should not be authority. extended so far as to court such employed broadly, Virtual doctrine to be why. Appellants’ the facts of this case demonstrate suit asked the merely trial court to create contract out of an order which estab- legal gave approval proceed lished with dence is clear that is to the custodians to *2 statutory adoption proceedings they chose to do so. The evi-
they so, did not choose to do and while the record non-action, silent as to the reason for that it is also silent as to the taking custody intent of the in The trial court expressed opinion here that the contract of must be con- only sidered oral because court the order and the signed anything memorializing had not adopting appellants. danger their intent at that time of of famil- being by judicial ial ties created action such as in the absence of great evidence of such an intent is too to order to give have the effect which would have us it. The Welches longer speak following up are no able to to their reasons for not pre-approval given by court, and we cannot assume they from their silence that had such an intent to that a court equity of adoption. accomplished should cause that intent to mature into an permitted While it is true that our former law certain parents’ parental courts to take of children whose had been and to in and as of such recognized authority children,1 and case law has of such courts to give adoption,2 properly consent be limited statutory to the in arose, context which it The trial in present holding case was in correct its that there was no case law permitting court’s order to be considered the contract un- derlying important supervising The courts regulating have in role adoption process in this case and should not become mere con- parties process. appropriate tractual in While it is in circum- surrounding stances such as those the custodial give encouragement lants for the court custodians adopt, appropriate superior subsequently encouragement transmute that binding into a contract which became on one side after the death of that side. The trial court was cor- rect in that the in order could not serve as a contract of granting appellees’ motion for Ga. L. 21§ affirmed, cross-appeals are moot the defensive Since that must be dismissed. Appeals No. S94A1722. dismissed in in Case All the and S94X1732. Case Nos. JJ., concur, Sears, who dis- Carley, Hunstein and except Justices sent. Justice, dissenting.
Sears, dissent, I Carley in given by For the reasons Justice his ra- must be reversed even under the the trial court’s Wilkes, (1) O’Neal in Ga. 850 opinion majority tionale of the 490) (1994), I also believe that to which dissented. principles set in reversed based on the this case should be Wilkes, in 853-856. there- my 263 Ga. at forth dissent present majority opinion case. respectfully fore dissent Justice, dissenting. Carley,
Because, court, unduly restricts affirming the trial orders, I respectfully dis- and misconstrues my mo- opinion, granting the trial court erred *3 (b). involuntary tion for dismissal case, adoption adoption 1. In a virtual a contract must be proven adoption is that first essential of a contract “[t]he persons competent to contract disposition of made between Wilkes, supra at child. the [Cits.]” (1). are Ordinarily, parents will be the ones who However, adoption child. “competent to contract” for the of their may invariably parents The natural be deceased the case. or, parental Accordingly, if living, they may rights. have lost their adoption case has been determining whether this element of a virtual party with proven, upon competency must be the of the the focus lack of party’s contracted. That whom the necessarily dispositive. not parent status as a natural of the child is custody appellants placed into the of the At the time that were Welches, that, provided applicable the former law the termina- circumstances warrant conditions and
[w]hen parental rights, tion may [juvenile] take suitable or of the child or children involved for pertain- in matters adoption and all In such cases the court shall act as ing to their interests. person property of the child or children of the involved. (3). Thus,
(Emphasis where supplied.) Ga. L. § parental rights juvenile had been a court could consent to “in adoption parent[s].” lieu of the consent of the I agree cannot with majority’s position authority possessed by statutory adop- court at the time of the orders was limited to inordinately tion. It is an unwarranted and fine distinction to hold party adoption that a has to consent to an but is not com- petent adoption. to contract for that that,
Accordingly, applicable under law at the time of the orders proceeding, possible involved this it was for a parents parental child whose natural had lost their to become virtually adopted consequence as a adoption agreement purported adoptive court and the parents. hereby do not expansion but, advocate an existing of the law of virtual contrary, merely recognize apply long-standing principle purported with whom the adoptive parents contracted must be one competent who was disposition contract for the of the supra child. applicable provi- at 851 Under the sions of former competent to contract with appellants’ the Welches for adoption parental if the rights of parents their natural Therefore, had been in my opinion, terminated. incorrectly concluded that could not recover on their claims in the absence of a contract between and, thus, natural and the Welches in granting erred (b) motion §
2. not concludes that court could party competent become a disposition ap- contract pellants, questions but also any existence of intent part of the Welches.
The trial court found court was contract with the Welches appellants, then the constituted, clear, orders in a convincing and manner, strong a contract for In my opinion, not erroneous. Both custody orders state that being placed with the purpose
It is true in order to be enforceable under the doctrine comprehend the contract must and in- tend legal adoption according This, to statute. how- [Cit.] ever, say that having meaning that under the circumstances, attendant and surrounding though precise not containing legal phraseology, would be insuffi- cient. Goodin, (4) (37 Toler SE2d Maddox, SE2d Anderson
609) (1946). See also retained Furthermore, accepted and 590) (1987). the Welches because orders, the absence Taylor v. by immaterial. them is any document 874) (1961). 20, 22-23 Ga. cannot be involuntary dismissal grant of an
3. The trial court’s prove that failed to ground on the pro- have ever been The fact that no wills Welches died intestate. died intestate and to show that the Welches pounded is sufficient evidence to coming with some appellees the burden of forward shift to the Welches had wills. authorize a reversed. of the trial court should be The in this dis- joins Justice Hunstein I am authorized to state that Reconsideration denied March McFarland, P. Robert Johnson, III, Stubbs, Lipscomb, S. Stubbs
Banks & Robert Bettis, Sleister, Rice, Bottoms Sleister, Boling, Michael R. Ashway & III, Bagley, T. McClelland appellees. Bagley, Jeffrey & S. Russell KING v. HAWKINS. S94A1267. petition for granting Hawkins’
This is an from a not rule on the corpus. The habeas court did the writ of habeas petition appellee’s petition, but grounds asserted guilty plea hearing did appellee’s the record of ground Head v. plea.1 See demonstrate a factual basis appeal that complains on The Warden factual adequacy put on notice that the issue of he was not afforded a plea litigated and was not guilty basis per- record the issue. Our review of the proper opportunity to address only men- position. of the Warden’s suades us of the correctness habeas court based its on which the ground tion of the cross- Following the habeas court. single observation came from a Accuracy Determining Superior of Plea. Court Rule 33.9. Uniform plea guilty, judge Notwithstanding acceptance not enter a of a satisfy making inquiry judgment upon plea such on the record as such without plea. him that there is a factual basis