Opinion
31382.
DECIDED SEPTEMBER 19, 1946.
Adoption; from Franklin Superior Court — Judge Edwards. June 1, 1946.
J. T. Sisk, for plaintiff in error.
Ben F. Cheek, and R. Howard Gordon, contra.
The petition for the adoption of a minor child of living parents — under the provisions of Chapter 74.4 of the Code of 1933, as amended by the act of March 27, 1941 (Ga. L. 1941, p. 300), requiring the written consent of the living parents except where the child has been abandoned by the parents — alleging that the father had consented to the adoption and that the mother had abandoned the child, was good as against a general demurrer.
( a) Allegations that the mother voluntarily deserted and abandoned the child (a girl two years of age), leaving her without care, undernourished, and without a home, making it necessary for welfare agencies to take charge of her, were sufficient allegations of abandonment as against a special demurrer.
DECIDED SEPTEMBER 19, 1946.
Hubert Massey and Cordie Lee Saylors Massey, husband and wife, filed a petition on November 10, 1945, in the Superior Court of Franklin County for the adoption of Hazel Phillips, the two-year-old child of W. E. Phillips and Ethel Scarboro Phillips. The petition as amended alleged that on May 27, 1945, the mother of said child had entered pleas of guilty on two indictments for misdemeanor statutory offenses, and had been sentenced to serve twelve months in each case at the State prison farm, the sentences to run consecutively, and that she was then confined in prison serving said sentences. The amended petition also alleged that Ethel Scarboro Phillips, the mother, "did voluntarily abandon said Hazel Phillips and refused to care for her before being taken into custody by the law;" and that she "did desert and abandon the said Hazel Phillips and left her uncared for, undernourished, and without any home, thereby making it necessary for the county welfare department to take charge of said child for her protection against neglect and starvation."
It appears that W. E. Phillips, the father, acknowledged service of the petition and the rule nisi issued thereon, and the receipt of copies, and consented in writing to the adoption of said child by the petitioners, on December 10, 1945; but that in February or March, 1946, he was overpersuaded by another person to deny the signing of the acknowledgement and consent. Just what he did by way of denial does not appear. On April 11, 1946, W. E. Phillips was adjudged mentally incompetent by a commission appointed by the ordinary, and Judge T. Phillips was duly appointed and qualified as his guardian, and said guardian confirmed the acknowledgment of service and consent to the adoption made by his ward, and consented also and urged the court to grant the petition. The guardian was made a party defendant in the case, as prayed in the amendment.
Ethel (Scarboro) Phillips, the mother, demurred to the petition, because it appeared therefrom that consent of both the parents of Hazel Phillips to the adoption had not been secured, and no facts were alleged which would be sufficient to dispense with the necessary consent of both parents; because the allegations did not show an abandonment of the child by the mother, they being merely conclusions of the pleader and insufficient to show desertion or abandonment; because the allegations did not show abandonment by the father also, abandonment by both parents being necessary to dispense with their consent; and because the guardian of the father was an improper party defendant, and his will and desire could not be substituted for that of the father.
The demurrer was overruled and the exception here is to that judgment. The only question to be decided is whether the amended petition was sufficient as against the demurrer.
The Code, § 74-403, as amended by the act approved March 27, 1941 (Ga. L. 1941, p. 300), provides in part that, "Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child." And § 74-404, as amended by the act of 1941, supra, provides that "Consent of the parents shall not be required where a child has been abandoned by its parents, . . 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." These are the pertinent provisions of the law controlling in this case. After carefully considering these statutes, it is our opinion that the demurrer to the petition was properly overruled.
It will readily be observed that as a general rule the law requires the consent of the parents to the adoption of their child. One of the exceptions to the general rule is "Where a child has been abandoned by its parents." The general requirement and the exceptions do not mean that both parents must be in the same category respecting the adoption of their child, that is, both consenting or both being in the position of having abandoned the child. If either parent consents, that is sufficient to meet the requirements of the statute as to consent so far as that parent is concerned; and if either parent has abandoned the child that, too, would meet the requirements of the exception to the statute as to that parent. Therefore, if one parent consents to the adoption and the other parent has abandoned the child so that consent of such parent is not necessary, the essential provisions of the law relating to parental rights are satisfied. This must be the reasonable and common-sense view to take of the statutes.
As to the father of the child involved, it appears that he consented in writing to the adoption. Although it also appears from the petition that he was thereafter persuaded by another person to deny the signing of such written consent, his mere denial of a manifest act would not change the fact established by the act. Whether or not a consent once given by a father to the adoption of his minor child could be withdrawn, is questionable under the decision of this court in Jordan v. Smith, 5 Ga. App. 559, 562 ( 63 S.E. 595). It is not necessary to determine that question at this time, because under the record it is clear that the most the father did after consenting was to deny that he had consented. We do not think that this can be construed as a withdrawal of the consent nor as an effectual or legal repudiation of the consent.
As to the mother, a different situation appears, but one no less effectual than a consent would have been in depriving her of parental rights over the child. It appears from the allegations of the amended petition, that she voluntarily abandoned and deserted the child, leaving her without care, without proper nourishment, and without a home, making it necessary for welfare agencies to take charge of said child; and that this abandonment and desertion took place before the mother was put in prison to serve the sentences of the court. These allegations were not mere conclusions of the pleader, but were sufficient to charge an abandonment on the part of the mother, which dispensed with the necessity of obtaining her consent to the adoption of the child.
One ground of the demurrer complains of the allegation that the guardian appointed for the father had confirmed the father's consent and joined with the petitioners in praying for the adoption, on the basis that the guardian's will can not be substituted for the will of the natural father. Since it appears that the father had consented to the adoption before he was adjudged mentally incompetent, it was unnecessary for the guardian to do anything in the matter. And, the allegations as to what the guardian did being unnecessary and useless, there is no merit in this ground of the demurrer.
It appears from the petition that the father consented to the adoption, and that the mother had abandoned the child, and thereafter her consent was not necessary. We think that the requirements of the law were amply set out in the allegations of the petition, and that the court properly overruled the demurrers. Finally, whether the father consented to the adoption, and whether the mother abandoned the child so that her consent was not necessary, are matters to be ascertained and determined by the judge in hearing the case, as was said in Jordan v. Smith, supra; and our ruling now is that the allegations of the amended petition were sufficient to state a case upon which a hearing could be had.
Judgment affirmed. Sutton, P. J., and Felton, J., concur.