Opinion
34043.
DECIDED JUNE 4, 1952.
Adoption; from Ware Superior Court — Judge Thomas. February 9, 1952.
Kopp Peavy, Clarence D. Blount, for plaintiff in error.
William H. Young Jr., contra.
Under the facts of this case and the law applicable thereto, the judge erred in denying the motion of counsel for the father of the child sought to be adopted to dismiss the petition for adoption, at the interlocutory hearing on the petition.
DECIDED JUNE 4, 1952.
Gene Clyde Woodford filed a petition in Ware Superior Court for the adoption of Billy Martin Murray Jr., the son of the petitioner's wife and Billy Martin Murray Sr. The original petition alleged that it was not necessary to attach the consent of the child's father because he had lost his parental rights, the same having been terminated by Ware Superior Court on August 26, 1948. The material part of the divorce and alimony decree was as follows: "It is further ordered and decreed that the said Billy M. Murray Sr. shall pay to Sue C. Murray the sum of Seven ($7.00) Dollars weekly for the support and maintenance of Billy M. Murray Jr., said payments being a continuation of the temporary allowance for this purpose made by the court by order dated June 5, 1948, and shall be in lieu of all other alimony. It is further ordered that Sue C. Murray shall have the custody of Billy M. Murray Jr., except at two-week intervals each three (3) months, beginning August 1, 1948. Custody of said child for said two-week periods beginning August 1, 1948, is awarded to Mrs. J. M. Wildes, mother of Billy M. Murray Sr., so that said Billy M. Murray Sr. shall have the right to see and enjoy his said child. Said Mrs. Sue C. Murray is authorized to deliver the said Billy M. Murray Jr. to Mrs. J. M. Wildes only. The custody herein granted to Mrs. J. M. Wildes is conditioned on Billy M. Murray Sr. paying regularly the support herein fixed for Billy M. Murray Jr., and should the said Billy M. Murray Sr. Default in payment, the custody to Mrs. J. M. Wildes as herein fixed shall be suspended until the default is removed by paying all amounts due. The court hereby specifically retains jurisdiction of the matter of the custody of Billy M. Murray Jr., and for all purposes."
The following amendment to the petition was allowed and filed: "That the mother of said child was formerly married to Billy Martin Murray Sr., father of said child, on October 27, 1944, and thereafter secured a divorce during the July term, 1948, in the above-mentioned court. That an order was issued by said court thereby awarding custody of said child to the mother, Sue C. Murray except for two-week intervals each three (3) months, custody of said child for said two weeks being in the mother of said father. The order further states that the said father shall pay to Sue C. Murray the sum of seven (7) dollars weekly for the support and maintenance of said child, a certified copy of said order being attached to this petition and made a part thereof. That, subsequently, a hearing was had at the mother's instance pertaining to the custody of said child, and the above said court, which has retained jurisdiction of said matter, modified the original order as to custody, thereby placing custody of said child completely in said mother. However, said father and grandmother have the right to see the child at reasonable hours at the home of its mother. All of the above being more readily viewed in the certified copy of said modified order, dated April 22, 1949, which is hereto attached and made a part thereof. Also attached is a certified copy of said mother's petition for modification which is also made a part of this amendment. It is not necessary to attach the consent of the father, Billy Martin Murray Sr., of said child because said parent abandoned the child on or about the 1st day of April, 1949, having not complied since that date with that portion of the original order of said court, dated July 26, 1948, which in substance did order said father to pay to Sue C. Murray, mother of the child, the sum of seven (7) dollars weekly for the support and maintenance of the child." "The matter of the petition of Sue C. Murray against Billy M. Murray Sr. filed on April 19, 1949, wherein Sue C. Murray sought to modify the decree of the court dated July 26, 1948, in awarding custody of Billy M Murray Jr., and, Whereas, after the issuing of a rule nisi and service on the said Billy M. Murray Sr. and after hearing evidence in said matter, it is ordered that the decree of July 26, 1948, be modified by striking therefrom the provision of granting the custody of the said Billy M. Murray Jr. to Mrs. J. M. Wildes, so that the said Billy M. Murray Sr. could see and enjoy his said child. It is, therefore, ordered that under the terms of this decree the custody of Billy M. Murray Jr. is hereby awarded to Sue C. Murray and she shall not be required to deliver said child to the said Mrs. J. M. Wildes; however, Mrs. J. M. Wildes and Billy M. Murray Sr. shall have the right to see said child at reasonable hours and at the home of Sue C. Murray. The court however retains jurisdiction of said matter for any further order relating to the custody of Billy M. Murray Jr."
Upon the conclusion of the evidence, counsel for Billy Martin Murray Sr. moved the court to refuse the interlocutory order and to dismiss the petition as amended. The court denied the motion and granted the interlocutory order. The father of the child excepted to these rulings.
1. The evidence did not show that the relationship between the father and son had been terminated by court decree.
2. The evidence did not show that the father had abandoned his child ( Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562), and it did not show that he had wantonly and wilfully failed to comply with the order of Ware Superior Court ordering the father to pay $7 a week for the support of the child, so as to render his consent unnecessary as provided in the act of 1950 (pp. 289, 290; Code, Ann. Supp., § 74-404), which provides: "Consent of the parents shall not be required where a child has been abandoned by its parents, or where the parents of the child cannot be found, after a diligent search has been made, or where a parent is insane or otherwise incapacitated from giving such consent, and the court is of the opinion that the adoption is for the best interest of the child, or where the parents have surrendered all of their rights to said child to a licensed child-placing agency, or court of competent jurisdiction for adoption, or to the State Department of Public Welfare through its designated agents, or in the case of parents whose parental rights have been terminated by order of a juvenile or other court of competent jurisdiction, or where both parents are dead. Where a decree has been entered by a superior court ordering the father to support the child and the father has wantonly and wilfully failed to comply with the order for a period of 12 months or longer, consent of said father shall not be required and the consent of the mother alone shall suffice." Ga. L. 1941, p. 304 (Code, Ann. Supp., § 74-413), provides: "Upon the day appointed by the court for a hearing of the petition for adoption, or as soon thereafter as the matter may be reached for a hearing, the court shall proceed to a full hearing on the petition and the examination of the parties at interest in chambers under oath with the right of adjourning the hearing and examination from time to time as the nature of the case may require. The court at such time shall give consideration to the investigation report and to the recommendations therein contained, if such a report has been made. If the court is satisfied that the natural parents have just cause to be relieved of the care, support and guardianship of said child, or have abandoned the said child, or are morally unfit to retain the custody of said child, and that the petitioner or petitioners is or are financially able and morally fit to have the care, supervision, training and education of the child, and that the child is suitable for adoption in a private family home, and that the adoption requested is for the best interest of the child, it shall enter an interlocutory order granting the temporary custody of the child to the petitioner or petitioners; or if it is not so satisfied, to refuse such an order and to dismiss the petition."
Our interpretation of the above provision of law is that on such interlocutory hearing the judge has jurisdiction and it is his duty to inquire into whether both parents have consented to the adoption, and whether, if one parent has not consented, the necessity for such consent has been rendered unnecessary under the law providing for such cases. Since the evidence did not show that the relationship of father and son had been terminated by court decree, and since it did not show abandonment or that the father had wantonly and wilfully failed to comply with the decree ordering him to pay $7 per week for the support of the child, the court erred in denying the motion to dismiss the petition for adoption.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.