Opinion
23807.
ARGUED DECEMBER 12, 1966.
DECIDED JANUARY 5, 1967.
Habeas corpus. Colquitt Superior Court. Before Judge Lilly.
Edward Parrish, for appellants.
Sam J. Gardner, Jr., for appellee.
The trial judge properly sustained the plea of res judicata to the petition for habeas corpus to obtain the custody of a minor child.
ARGUED DECEMBER 12, 1966 — DECIDED JANUARY 5, 1967.
Miles Rogers and his wife, Levada Rogers, brought a petition for habeas corpus against Mrs. Carrie Smith, as Director of the Department of Welfare of Colquitt County, asserting that they are "the foster parents" of Barbara Jean Rogers, a minor child, and entitled to the custody of the child. They alleged that the child was taken from their custody and placed in the custody of the defendant in a proceeding brought against Miles Rogers, and that "since the time of such hearing there has been a change in the condition of your petitioners, in that your petitioner Levada Rogers was confined in an insane hospital at the time of the said hearing but is now well and able to care for said children."
Mrs. Carrie Smith, as Director of the Colquitt County Family and Children Services Department, filed a plea of res judicata, asserting that judgments had been previously rendered in the matter which were final and conclusive of the issue in the present case. The plea of res judicata had attached copies of proceedings showing the following:
On April 4, 1963; a petition was filed in the Juvenile Court of Colquitt County by Fred Baker, asserting that the minor child was in the custody of Miles Rogers, and that she was a neglected child, being reared in a manner detrimental to her health and well-being and in an environment not conducive to her well-being. An order was entered in the proceeding on May 16, 1963, committing the child to the custody of the Family and Children Services Department of the State of Georgia for adoption.
Thereafter Miles Rogers brought a petition for habeas corpus in the Court of Ordinary of Colquitt County against D. H. Alderman, Sheriff, Fred Baker, and Mrs. Carrie Smith, as Director of the Colquitt County Family and Children Services, seeking custody of the child. A plea of res judicata was filed, and on July 27, 1964, Mattie Lou Ingram, Ordinary, sustained the plea, reciting in her order that the evidence adduced on the hearing showed that Miles Rogers was duly served with a copy of the petition filed in the juvenile court, that a hearing was duly held and Miles Rogers was represented at the hearing by counsel, and that the child was committed to the custody of the Family and Children Services Department of the State of Georgia for adoption. She recited that the evidence further disclosed that Miles Rogers and his wife petitioned the Superior Court of Colquitt County for the legal adoption of the child, that the superior court judge verbally denied the adoption at a hearing on April 11, 1963, and thereafter formally denied the adoption by appropriate order.
The trial judge in the present case entered an order in which he recited that the parties had stipulated that the case be presented to him on the pleadings, "it being agreed that the statements of fact contained in the plea of res judicata are true," and ordered that the plea be sustained and the petition dismissed. The appeal is from this order.
In the brief of counsel for the appellant it is stated that he "insists that the only question for adjudication is whether the change in circumstances of Levada Rogers is sufficient to remove this case from within the scope of the adjudication of the former cases."
The general rules as to the conclusiveness of judgments apply in habeas corpus proceedings for the custody of a minor child or children, unless a change of circumstances is alleged materially affecting the welfare of the child or children. Kirkland v. Canty, 122 Ga. 261 ( 50 S.E. 90). Code §§ 30-127 and 74-107, dealing with the custody of minor children between parents, were amended by Ga. L. 1957, pp. 412-414, by the addition, after the provision that the court might consider all the circumstances, the words, "including the improvement of the health of the party seeking a change in custody provisions." Since the petitioners in the present case allege only that they are "the foster parents" of the minor child whose custody they seek, the provisions of the 1957 Act are not applicable to them.
The only allegation of the petition asserting a change of circumstances concerns the improvement in health of one of the petitioners, and this allegation by a person not a parent of the child does not show a change of circumstances material to the welfare of the minor child which will prevent the bar of res judicata by the previous adjudications. The trial judge therefore properly sustained the plea of res judicata and dismissed the petition.
Since the only issue dealt with by the trial judge was that made by the plea of res judicata, no question was made by this appeal as to the sufficiency of the petition to show any right in the petitioners, alleging only that they are "foster parents," to bring a petition for habeas corpus to obtain the custody of a minor child.
Judgment affirmed. All the Justices concur.