2020 Georgia Code
Title 19 - Domestic Relations
Chapter 8 - Adoption
Article 1 - General Provisions
§ 19-8-10. When Surrender or Termination of Parental Rights of Living Parent Not Required; Service on Parents in Such Cases; Involuntary Termination of Rights

1. Surrender or termination of rights of a living parent pursuant to Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the granting of a petition for adoption of a child of such living parent pursuant to Code Section 19-8-13 when the court determines by clear and convincing evidence that the:
   1. Child has been abandoned by that parent;
   2. Parent cannot be found after a diligent search has been made;
   3. Parent is insane or otherwise incapacitated from surrendering such rights;
   4. Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the biological mother of his child or when the biological mother is less than ten years of age; or
   5. Parent, without justifiable cause, has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section 15-11-310,

      and the court is of the opinion that the adoption is in the best interests of that child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

2. A surrender of rights of a living parent pursuant to Code Section 19-8-6 or 19-8-7 shall not be required as a prerequisite to the granting of a petition for adoption of a child of such living parent pursuant to Code Section 19-8-13, when the court determines by clear and convincing evidence that the parent, 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,

      and the court is of the opinion that the adoption is in the best interests of that child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

3. 1. Whenever it is alleged by any petitioner that surrender or termination of rights of a living parent is not a prerequisite to the granting of a petition for adoption of a child of such parent in accordance with subsection (a) or (b) of this Code section, such parent shall be personally served with a conformed copy of the adoption petition, together with a copy of the court's order thereon specified in Code Section 19-8-14, or, if personal service cannot be perfected, notwithstanding subsection (a) of Code Section 9-10-12 which authorizes the use of certified mail, by registered mail, return receipt requested, or statutory overnight delivery, one-day service not required, at his or her last known address.If service cannot be made by these methods, such parent shall be given notice by publication once a week for three weeks in the official organ of the county where such petition has been filed and of the county of his or her last known address.In the interest of time, publication may be initiated simultaneously with efforts to perfect service personally, by registered mail, or by statutory overnight delivery.The court shall continue to have the inherent authority to determine the sufficiency of service.A parent who receives notification pursuant to this paragraph shall not be a party to the adoption and shall have no obligation to file an answer, but shall have the right to appear in the pending adoption proceeding and show cause why such parent's rights to the child who is the subject of the proceeding should not be terminated by that adoption.Notice shall be deemed to have been received on the earliest date:
      1. Personal service is perfected;
      2. Of delivery shown on the return receipt of registered mail or proof of delivery by statutory overnight delivery; or
      3. Of the last publication.
   2. No prior order of court shall be required to publish notice pursuant to this Code section; provided, however, that before publication may be relied upon as a means of service, it shall be averred that, after diligent efforts, service could not be perfected personally, by registered mail, or by statutory overnight delivery.
4. Consistent with the requirement of paragraph (7) of subsection (a) of Code Section 19-8-13, when the petitioner is seeking to involuntarily terminate the rights of a parent as a prerequisite to the granting of the petition for adoption, the petitioner shall, in lieu of obtaining and attaching those otherwise required surrenders of rights, acknowledgments, and affidavits, allege facts in the petition seeking to involuntarily terminate parental rights that demonstrate the applicability of the grounds set forth in subsection (a) or (b), or both, of this Code section and shall also allege compliance with subsection (c) of this Code section.

(Code 1981, §19-8-10, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1991, p. 94, § 19; Ga. L. 1996, p. 474, § 5; Ga. L. 1999, p. 252, § 7; Ga. L. 2000, p. 20, § 11; Ga. L. 2000, p. 1589, § 3; Ga. L. 2013, p. 294, § 4-25/HB 242; Ga. L. 2016, p. 219, § 3/SB 331; Ga. L. 2018, p. 19, § 1-1/HB 159.)

The 2016 amendment, effective July 1, 2016, in subsection (a), in the introductory language, substituted "when" for "where", deleted "or" at the end of paragraph (a)(3), added paragraph (a)(4), and redesignated former paragraph (a)(4) as present paragraph (a)(5).

The 2018 amendment, effective September 1, 2018, rewrote this Code section.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Continuing Confusion in the Georgia Adoption Process," see 20 Ga. St. B.J. 62 (1983). For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 127 (2016). For a note on the role of a judicial determination of paternity in the inheritance rights of illegitimate children in Georgia, see 16 Ga. L. Rev. 171 (1981). For comment discussing Johnson v. Eidson, 235 Ga. 820, 221 S.E.2d 813 (1976), and advocating a "deprived child" exception to the parental consent requirement in the adoption laws, see 28 Mercer L. Rev. 553 (1977).

ANALYSIS

• General Consideration
• Abandonment
• Significant Failure to Communicate or Support

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1941, p. 300, § 9 and former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5, are included in the annotations for this Code section.

- Due process clause of the Fourteenth Amendment requires that before a state may sever the rights of a parent in the parent's natural child, the state must support its allegations of the parent's unfitness "by at least clear and convincing evidence." Thorne v. Padgett, 259 Ga. 650, 386 S.E.2d 155 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Because former subsection (b) foreclosed an inquiry into the reasons for a parent's failure to provide care and support, thus depriving that parent of a meaningful opportunity to be heard, it denies due process of law. Thorne v. Padgett, 259 Ga. 650, 386 S.E.2d 155 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Trial court erred by applying O.C.G.A. § 19-8-10(b), instead of § 19-8-10(a), in determining the father's parental rights, given it had been determined that petitioner wife was not related to the child's paternal grandmother as she believed and that § 19-8-10(b) did not apply to the petitioner pursuing adoption under O.C.G.A. § 19-8-5. Hooper v. Hedgepath, 340 Ga. App. 163, 796 S.E.2d 779 (2017).

- Since a trial court failed to make any specific findings of fact in support of the court's recitation under O.C.G.A. § 19-8-10 that a child's father had failed without justifiable cause to communicate with the child for a period of one year immediately prior to the filing of the adoption petition, the order did not comply with the requirements of O.C.G.A. § 19-8-18, and the court had to remand the matter to the trial court to make the appropriate findings of fact and conclusions of law. Sauls v. Atchison, 316 Ga. App. 792, 730 S.E.2d 459 (2012).

Trial court erred by terminating a biological father's parental rights and ordering adoption because the court failed to set forth specific findings of fact to support the conclusion that the requisites of O.C.G.A. § 19-8-10(b) as to abandonment of the child had been met. Ray v. Hann, 323 Ga. App. 45, 746 S.E.2d 600 (2013).

- Mother was entitled to order vacating the grant of the stepmother's petition for adoption because the final order did not include findings of fact and conclusions of law as required to support the termination of parental rights. Dell v. Dell, 324 Ga. App. 297, 748 S.E.2d 703 (2013).

Superior court's order was deficient because the order did not address any of the criteria for termination of parental rights pursuant to O.C.G.A. § 15-11-94, it did not include specific findings of fact showing that the mother abandoned the child, and the order did not include specific factual findings showing that the mother failed to provide care and support for the child without justifiable cause. Moreover, the superior court's conclusion that adoption was in the child's best interest also lacked particularity and, therefore, the mother was entitled to an order vacating the grant of the stepmother's petition for adoption. Dell v. Dell, 324 Ga. App. 297, 748 S.E.2d 703 (2013).

- Former § 19-8-6 did not deny due process and equal protection by discriminating against incarcerated persons. It would emasculate child-support laws to relieve parents of natural and statutory child-support obligations because they have voluntarily committed offenses resulting in their imprisonment and possible inability to earn funds with which to support their children. Chandler v. Cochran, 247 Ga. 184, 275 S.E.2d 23, cert. denied, 454 U.S. 872, 102 S. Ct. 342, 70 L. Ed. 2d 177 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Trial court properly terminated a father's parental rights to the daughter pursuant to O.C.G.A. § 15-11-94(b); the child was deprived as the father had made no attempts to help care for the child, who was born with Fetal Alcohol Syndrome, and the adoption of the child by the mother's relatives pursuant to O.C.G.A § 19-8-10 was in the best interest of the child. Rokowski v. Gilbert, 275 Ga. App. 305, 620 S.E.2d 509 (2005).

- When applicable, parental rights need not be surrendered or terminated prior to filing of a petition for adoption, but facts demonstrating the applicability of former § 19-8-6 must be alleged. Chandler v. Cochran, 247 Ga. 184, 275 S.E.2d 23, cert. denied, 454 U.S. 872, 102 S. Ct. 342, 70 L. Ed. 2d 177 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Compliance with service and notice provisions of former § 19-8-6 must be alleged in petition for adoption. Chandler v. Cochran, 247 Ga. 184, 275 S.E.2d 23, cert. denied, 454 U.S. 872, 102 S. Ct. 342, 70 L. Ed. 2d 177 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Because the natural father was not afforded the 30-day period mandated as a prerequisite to the termination of his parental rights and the subsequent stepparent adoption of his natural child, vacation of the decree of adoption was required. McKinney v. Jennings, 246 Ga. App. 862, 542 S.E.2d 580 (2000).

Trial court erred by granting a stepparent's petition to adopt an eight-year-old child and by terminating the parental rights of one of the child's natural parents as the trial court failed to make any finding as to whether the natural parent's lack of communication with the child was without justifiable cause as required by O.C.G.A. § 19-8-18(b). Further, the trial court erred by basing the court's adoption decision, in part, on O.C.G.A. § 19-8-10(a)(4) as the stepparent's petition did not assert any claim pursuant to § 19-8-10(a) and, instead, relied exclusively on § 19-8-10(b). The natural parent was not served with a petition making allegations under subsection (a) and, therefore, received no notification that the natural parent had to prepare to show cause why the natural parent's parental rights should not be terminated. Smallwood v. Davis, 292 Ga. App. 173, 664 S.E.2d 254 (2008).

- Even when father fails to make child support payments as a result of mother telling him that he need not make further payments or the mother and father agreeing that continuance of payments is not required, father has no legal excuse not to pay. Hix v. Patton, 147 Ga. App. 14, 248 S.E.2d 28 (1978) (decided under Ga. L. 1941, p. 300, § 9).

- Determination that the adoption is for the best interest of the child, in addition to and separately from the finding of the unfitness of a parent, is a statutory condition precedent to the application of former § 19-8-6. Cain v. Lane, 168 Ga. App. 405, 309 S.E.2d 401 (1983) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- For purposes of determining the existence of "justifiable cause", within the meaning of subsection (b) of O.C.G.A. § 19-8-10, incarceration is merely one relevant factor to be considered by the trial court; incarceration does not per se give rise to justifiable cause, although in certain circumstances "justifiable cause" can be shown to arise therefrom. Jones v. Sauls, 213 Ga. App. 55, 443 S.E.2d 693 (1994) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

If any evidence supports findings of trial judge in adoption proceedings, Court of Appeals must affirm. Crumb v. Gordon, 157 Ga. App. 839, 278 S.E.2d 725 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- In the absence of a transcript of the evidence in the record on appeal, it was assumed that the findings of the trial court as to adoption were supported by the evidence. Gaskins v. Fowler, 171 Ga. App. 681, 320 S.E.2d 890 (1984) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Father's failure to provide a transcript of the trial court proceedings, in which the father's parental rights were terminated under O.C.G.A. § 19-8-10(a), required the appellate court to assume that the evidence supported the trial court's findings. Farley v. Hawkins, 277 Ga. App. 880, 627 S.E.2d 913 (2006).

Husband of woman at time of conception or birth is party at interest when another man claims fatherhood of the child in a legitimation proceeding; therefore, due process requires that the "legal father" must be served but that service may be perfected in the same manner as provided for in adoption proceedings. In re White, 254 Ga. 678, 333 S.E.2d 588 (1985) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Although a couple's brief in an adoption case filed under O.C.G.A. § 19-8-10 did not comply with Ga. Ct. App. R. 25(c)(1) because the couple did not number their arguments in their brief so as to correspond with their enumerations of error, the court would address their enumerations of error because the best interest of the child was the overriding concern in an adoption case. Thaggard v. Willard, 285 Ga. App. 384, 646 S.E.2d 479 (2007).

- Superior court properly dismissed a grandmother's adoption petition on collateral estoppel grounds based on the juvenile court's previous order granting temporary custody to the maternal grandfather and grant of visitation rights to the grandmother; as a result, the superior court was not authorized to readjudicate the issue of permanent custody involving the child at issue. Smith v. Hutcheson, 283 Ga. App. 117, 640 S.E.2d 690 (2006).

- Trial court erred in granting the stepfather's petition for stepparent adoption under O.C.G.A. § 19-8-10(b) because the father's due process rights were violated when, during the presentation of the stepfather's evidence, the trial court sua sponte ended the matter and refused to allow the father to present witnesses and other evidence to show cause why the father's parental rights should not be terminated. Hafer v. Lowry, 320 Ga. App. 76, 739 S.E.2d 84 (2013).

- In a step-father's appeal, a trial court erred by denying the step-father's petition for adoption because the adoption petition did not address the issue of whether the biological father was a parent of the child for purposes of the adoption statutes, O.C.G.A. §§ 19-7- 21.1(a)(2)(F) and19-8-1(6). Allifi v. Raider, 323 Ga. App. 510, 746 S.E.2d 763 (2013).

- Denial of the stepmother's adoption petition and termination of the parental rights of the child's biological mother was upheld because the trial court acted within the court's discretion in finding that the termination of the biological mother's parental rights was not in the child's best interests as the biological mother had been sober for years, had recently attained a job, was a good mother to children in her care, and made efforts to communicate and develop a relationship with the child. Price v. Grehofsky, 349 Ga. App. 214, 825 S.E.2d 594 (2019).

- Superior court's order in termination of parental rights action was deficient because the order did not include specific findings of fact showing that the mother abandoned the child, and the order did not include specific factual findings showing that the mother failed to provide care and support for the child without justifiable cause. Moreover, the superior court's conclusion that adoption was in the child's best interest also lacked particularity. Dell v. Dell, 324 Ga. App. 297, 748 S.E.2d 703 (2013).

- Evidence was insufficient to terminate the mother's parental rights and grant an adoption petition of the maternal grandparents because any continued dependency experienced by the child was not shown to likely cause the child serious physical, mental, emotional, or moral harm as the mother was progressing with stabilization, the child had a stable lifestyle with the care of maternal grandparents and extended family, and the mother and child maintained a positive, healthy bond. Hewlett v. Hewlett, 349 Ga. App. 267, 825 S.E.2d 622 (2019).

Cited in Lanning v. Fiveash, 147 Ga. App. 290, 248 S.E.2d 553 (1978); Young v. Foster, 148 Ga. App. 737, 252 S.E.2d 680 (1979); Moser v. Ehrman, 244 Ga. 112, 259 S.E.2d 634 (1979); Farmer v. Pressley, 152 Ga. App. 288, 262 S.E.2d 499 (1979); Bentley v. McSwain, 153 Ga. App. 451, 265 S.E.2d 360 (1980); Burch v. Terrell, 154 Ga. App. 299, 267 S.E.2d 901 (1980); Hinkins v. Francis, 154 Ga. App. 716, 270 S.E.2d 33 (1980); In re Hilyer, 158 Ga. App. 17, 279 S.E.2d 232 (1981); Hill v. Kaminsky, 160 Ga. App. 630, 287 S.E.2d 639 (1981); In re C.C.B., 164 Ga. App. 3, 296 S.E.2d 198 (1982); Lumpkin v. Cook, 166 Ga. App. 259, 304 S.E.2d 425 (1983); In re C.C.P., 168 Ga. App. 918, 310 S.E.2d 776 (1983); Sapp v. Solomon, 252 Ga. 532, 314 S.E.2d 878 (1984); Jessee v. Nash, 169 Ga. App. 746, 315 S.E.2d 260 (1984); Boyd v. Harvey, 173 Ga. App. 581, 327 S.E.2d 551 (1985); In re Y.R.V., 179 Ga. App. 18, 345 S.E.2d 121 (1986); Baugh v. Robinson, 179 Ga. App. 571, 346 S.E.2d 918 (1986); Tapley v. Veal, 182 Ga. App. 880, 357 S.E.2d 268 (1987); Griffith v. Brooks, 216 Ga. App. 401, 454 S.E.2d 602 (1995); Battaglia v. Duke, 230 Ga. App. 667, 497 S.E.2d 250 (1998); Coleman v. Grimes, 250 Ga. App. 880, 553 S.E.2d 185 (2001).

Abandonment is a separate issue from failure to pay child support which, though admittedly a type of abandonment, constitutes a separate ground for terminating parental rights under the law. Findley v. Sanders, 153 Ga. App. 146, 264 S.E.2d 659 (1980) (decided under Ga. L. 1941, p. 300, § 9).

Finding of abandonment pursuant to former subsection (a) of former § 19-8-6 was not a prerequisite to a consideration of the elements of former subsection (b). Abandonment was a separate issue from the failure to pay support. Dubose v. Richardson, 193 Ga. App. 104, 387 S.E.2d 156 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Standard to be used in abandonment cases is whether alleged abandonment is such as to show a settled purpose to forego all parental duties and claims; there must be an actual desertion, accompanied with intention to entirely sever, so far as possible to do so, the parental relation, and throw off all obligations growing out of the relationship. Crumb v. Gordon, 157 Ga. App. 839, 278 S.E.2d 725 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Appellate standard of review of a finding of abandonment is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody were lost in the manner found. Griffith v. Brooks, 193 Ga. App. 762, 389 S.E.2d 246 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Evidence sufficient to support abandonment. In re A.J.A., 164 Ga. App. 210, 296 S.E.2d 103 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Evidence insufficient to show abandonment. Griffith v. Brooks, 193 Ga. App. 762, 389 S.E.2d 246 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

When a child's parent pursued litigation concerning the petition of the child's prospective adoptive parents to adopt the child, it was incorrect to grant the petition on the basis of the parent's abandonment, under O.C.G.A. § 19-8-10(a) because the parent's pursuit of litigation did not show the parent's intent to entirely sever the parent's relations with the child as was a prerequisite for a finding of abandonment. Hall v. Coleman, 264 Ga. App. 650, 592 S.E.2d 120 (2003).

Trial court erred by allowing a stepfather to adopt a child based on subsection (a) of O.C.G.A. § 19-8-10 because the evidence did not show abandonment: the father paid child support, provided proof of a clean drug screen, sent gifts to the child, requested visitation, and attempted to contact the child on an almost daily basis for a year. Woodall v. Johnson, 348 Ga. App. 820, 823 S.E.2d 379 (2019).

In applying former subsection (b) of Ga. L. 1941, p. 300, § 9, superior courts have very broad discretion which will not be controlled by appellate courts except in cases of plain abuse. Johnson v. Taylor, 153 Ga. App. 15, 264 S.E.2d 512 (1980) (decided under Ga. L. 1941, p. 300, § 9).

§ 19-8- 18(b). - When the trial court denied a couple's petition to adopt a child and to terminate the parental rights of the child's legal father, it was not required to enter findings in accordance with O.C.G.A. § 19-8-18(b), which applied when an adoption petition was granted and parental rights terminated. The court had entered findings and conclusions sufficient to satisfy O.C.G.A. § 19-8-10(b) when the court found that the father had paid child support and had communicated with the child and that the adoption was not in the child's best interest. Thaggard v. Willard, 285 Ga. App. 384, 646 S.E.2d 479 (2007).

Failure to support the child financially was not dispositive of the issue of adoption because subsection (b) of former § 19-8-6 required the trial court to determine, prior to the grant of an adoption, whether adoption was in the best interests of the child, when a natural parent has failed to support his/her child. Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Paragraph (b)(2) of former § 19-8-6 was applicable in a case where no court order has been entered. Pacella v. Sanchez, 191 Ga. App. 611, 382 S.E.2d 371 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Father's failure to dispute the stepfather's claim that the father had failed to pay $ 7,249 in support for the daughter for at least a year before the stepfather's adoption petition was filed provided clear and convincing evidence to support the finding that the father had failed for over a year to provide for the care and support of the daughter under O.C.G.A. § 19-8-10(b)(2). Meeks v. Thompson, 277 Ga. App. 346, 626 S.E.2d 564 (2006).

- In an action for adoption by a step parent, the evidence authorized the trial court's determination that the biological mother failed, for the requisite period and without justification, to communicate with the child or provide for care and support of the child. Steele v. Steele, 346 Ga. App. 196, 816 S.E.2d 327 (2018).

Phrase "failed significantly" allows a degree of latitude for the trial judge's discretion, but such discretion is necessary and desirable in adoption proceedings and was intended by the legislature to be applied to particular facts in each individual case. Chandler v. Cochran, 247 Ga. 184, 275 S.E.2d 23, cert. denied, 454 U.S. 872, 102 S. Ct. 342, 70 L. Ed. 2d 177 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Former § 19-8-6 did not require proof of wanton and willful failure to communicate with a child prior to adoption, but "clear and convincing" evidence was required. In re S.D.S., 166 Ga. App. 344, 304 S.E.2d 85, cert. denied, 464 U.S. 997, 104 S. Ct. 496, 78 L. Ed. 2d 689 (1983) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- In seeking to establish that the father failed significantly to communicate with the child or to provide for the child's support, it was not necessary to demonstrate that he willfully failed in these respects. Proof of willfulness was not necessary in order to find a significant failure under subsection (b) of former § 19-8-6. Allen v. Helewski, 184 Ga. App. 450, 361 S.E.2d 711 (1987) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Order granting adoption need only contain specific and articulated findings that parent "has failed significantly" for one-year period to communicate with or provide support for that parent's child and that adoption would be in the child's "best interest." Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981); Keys v. Ankerich, 193 Ga. App. 107, 386 S.E.2d 736 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Adoption decree terminating the father's parental rights failed to set forth mandatory findings of fact and conclusions of law, pursuant to O.C.G.A. § 19-8-18(b), based on the criteria of O.C.G.A. § 19-8-10(b)(1) as to whether the father's failure to communicate with the child for two years occurred immediately prior to the filing of the petition for adoption, whether the father made a bona fide attempt to communicate with the child, whether the father's failure to communicate was without justifiable cause, and the basis for the opinion regarding the best interests of the child. Maynard v. Brown, 276 Ga. App. 229, 622 S.E.2d 901 (2005).

- Question of significant failure to communicate or to provide support for a one-year period, as well as an additional question of best interests of child, are all threshold matters of discretion with the trial court who has opportunity to observe parties and hear evidence. Westberg v. Stamm, 162 Ga. App. 369, 291 S.E.2d 439 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

While the trial judge might determine in the court's discretion that the evidence did not authorize an adoption, and thus deny the adoption, it was improper to grant a directed verdict to the mother and to then say no exercise of discretion was authorized. Westberg v. Stamm, 162 Ga. App. 369, 291 S.E.2d 439 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Because the evidence showed that the child's needs could be equally met in either the mother's or the grandparent's home, the trial court abused the court's discretion in terminating the mother's parental rights under O.C.G.A. §§ 15-11-94(b)(4) and19-8-10(a), (b)(1), (2), and in granting the grandmother's and the step-grandfather's petition for adoption under O.C.G.A. § 19-8-2. McCollum v. Jones, 274 Ga. App. 815, 619 S.E.2d 313 (2005).

Trial court did not abuse the court's broad discretion in finding the adoption of a child by a stepparent to be in the child's best interest and thereby terminating a biological parent's parental rights as the evidence established that the biological parent failed to see the child for over five years, never provided financial support for the child, and failed to communicate with the child with no justifiable cause for such failure shown. Johnson v. Taylor, 292 Ga. App. 354, 665 S.E.2d 49 (2008).

- Intent of legislature in enacting Ga. L. 1979, p. 1182 clearly was to omit any requirement of a specific finding that a parent's "significant failure" was without justifiable cause as an absolute prerequisite to entry of decree of adoption and to substitute best interest of child as criterion for adoption determination. Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- General Assembly intended that no order of adoption ever be reversed for failure of the trial court to make a specific finding on issue of "justifiable cause." Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

It must be presumed that the legislature when reenacting Ga. L. 1979, p. 1182 had knowledge of requirement of preexisting provisions found at Ga. L. 1977, p. 201 and intended to delete requirement that a parent's significant failure to communicate with or to provide support for the parent's child further be "without justifiable cause" and that such a finding is no longer a prerequisite to adoption without the consent of the natural parent. Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Since the language "without justifiable cause" was no longer in former § 19-8-6, it is not necessary that the trial judge find that the father's failure to support or communicate was without justifiable cause. Curtis v. Jones, 160 Ga. App. 904, 288 S.E.2d 615 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- It is apparent that in enacting Ga. L. 1979, p. 1182, the legislature intended that in adoption proceedings any issue of natural parent's justification for parent's significant failure to support or communicate with the parent's child be subsumed into and resolved in the context of whether severance of the parental relationship would be in the best interest of the child. Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- While divorce decree wherein mother waived child support was ineffective to modify statutory duty imposed upon father by § 19-7-2, his good faith reliance upon it constitutes a reasonable excuse for failing to provide for care and support of the child; if an excuse is reasonable, although not legal, the absence of a legal excuse does not demand a finding that paragraph (b)(2) of former § 19-8-6 had been violated. Crumb v. Gordon, 157 Ga. App. 839, 278 S.E.2d 725 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Intent of phrase "failed significantly . . . to provide . . . support" contained in subsection (b) of former § 19-8-6 was to require more, or significant, support before parental consent would be required as provided in former § 19-8-3. Prescott v. Judy, 157 Ga. App. 735, 278 S.E.2d 493 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- In determining whether "significant" steps have been taken with regard to support and communication, "sporadic and de minimis" efforts do not require the court to find that there have been significant steps. In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843 (1986); Dubose v. Richardson, 193 Ga. App. 104, 387 S.E.2d 156 (1989) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Order terminating a father's parental rights and allowing adoption pursuant to O.C.G.A. § 19-8-10 was supported by sufficient evidence as the father made no child support payments for the one year immediately before the filing of the petition, and, while the father was incarcerated for a part of that period, the support payments were sporadic even before the incarceration; testimony showed that the adoptive parent and the child were close and that the adoptive parent was capable and willing to take parental responsibility of the child. Ray v. Denton, 278 Ga. App. 69, 628 S.E.2d 180 (2006).

- Payment of delinquent child support coming after filing of adoption petition is too late to rely upon it as evidence that the parent did not significantly fail to provide child support. Kirkland v. Lee, 160 Ga. App. 446, 287 S.E.2d 365 (1981) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- Trial court did not err in denying a couple's petition to adopt a child and to terminate a father's parental rights under O.C.G.A. § 19-8-10; although the father had not provided a stable or wholesome relationship with the child based on his drug violations and repeated incarcerations, he had paid some child support and had communicated with the child. Thaggard v. Willard, 285 Ga. App. 384, 646 S.E.2d 479 (2007).

- Parents are not relieved of natural and statutory child support obligations because they have voluntarily committed offenses resulting in their imprisonment and possible inability to earn funds with which to support their child. Curtis v. Jones, 160 Ga. App. 904, 288 S.E.2d 615 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Trial court properly granted a stepmother's petition to adopt a biological mother's child because under O.C.G.A. § 19-8-10(b) there was sufficient clear and convincing evidence that the mother failed to provide for the child's support; although the mother had been incarcerated, the mother received social security disability payments but did not use those payments to pay child support. Sellers v. Sellers, 277 Ga. App. 814, 627 S.E.2d 882 (2006).

- Parental rights could not be terminated to permit adoption without the father's consent since the evidence sustained a finding that the failure of the father, who was incarcerated, to provide support for the child was not without justifiable cause. Jones v. Sauls, 213 Ga. App. 55, 443 S.E.2d 693 (1994).

- Stepmother seeking adoption of an incarcerated mother's child failed to carry her burden of proving by clear and convincing evidence that the mother failed to attempt to communicate with the child and that such failure was without justifiable cause under O.C.G.A. § 19-8-10(b)(1); the mother wrote to the child frequently, but the father confiscated the letters. In re Marks, 300 Ga. App. 239, 684 S.E.2d 364 (2009).

- It was error to base denial of adoption petition on failure to prove "willful failure" of father to communicate and support since the 1977 amendment to former § 19-8-6 removed that requirement. In re S.B.P., 164 Ga. App. 50, 296 S.E.2d 236 (1982) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

- See In re D.P.T., 176 Ga. App. 409, 336 S.E.2d 330 (1985); In re C.D.B., 182 Ga. App. 263, 355 S.E.2d 759 (1987); Curde v. Matson, 190 Ga. App. 782, 380 S.E.2d 71 (1989); Cafagno v. Hagan, 213 Ga. App. 631, 445 S.E.2d 380 (1994); Bateman v. Futch, 232 Ga. App. 271, 501 S.E.2d 615 (1998) (decided under former § 19-8-6, as last amended by Ga. L. 1979, p. 1182, § 5).

Adoption was properly granted based on a parent's failure to have contact with or support the child, under O.C.G.A. § 19-8-10(b), since the parent, despite pursuing litigation concerning the petition of the child's prospective adoptive parents to adopt the child, had almost no contact with the child, despite opportunities to do so, and willfully refused to provide for the child's support as long as the child was not in the parent's custody. Hall v. Coleman, 264 Ga. App. 650, 592 S.E.2d 120 (2003).

In a stepparent adoption case, the evidence showed that the mother failed to have any contact with the child and failed to support the child for a period longer than a year immediately prior to the filing of the termination and adoption petition, supporting the termination and adoption under O.C.G.A. § 19-8-10(b). Dell v. Dell, 334 Ga. App. 520, 780 S.E.2d 348 (2015).

- Trial court erred in granting a stepfather's adoption petition and in terminating a natural father's parental rights because there was not clear and convincing evidence that the father's failure to communicate with and care for the child was without justifiable cause under O.C.G.A. § 19-8-10(b), and the stepfather failed to present any evidence of the father's financial condition during the year prior to the filing of the petition; the mother confirmed that she refused to let the father visit the child, and the stepfather failed to present any evidence contradicting the father's evidence that the father was unable to earn sufficient income because of his back injuries. Weber v. Livingston, 309 Ga. App. 665, 710 S.E.2d 864 (2011).

Trial court erred in terminating a parent's rights and allowing the maternal aunt to adopt a two-year-old child because the parent had completed the parent's reunification plan and there was no deprivation or any factors in O.C.G.A. § 19-8-10(a) or (b); the trial court relied on improper factors such as the parent's non-citizen status, the parent's lack of a driver's license, and the verifiability of the parent's income. Alizota v. Stanfield, 329 Ga. App. 550, 765 S.E.2d 707 (2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 2 Am. Jur. 2d, Adoption, §§ 76, 81 et seq., 120. 41 Am. Jur. 2d, Illegitimate Children, § 64.

- 2 C.J.S., Adoption of Persons, §§ 49, 57, 63, 67.

- Sum set apart in connection with self-insurance as deductible in computing income tax, 76 A.L.R. 1067.

Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 138 A.L.R. 1038; 156 A.L.R. 1011.

Sufficiency of parent's consent to adoption of child, 24 A.L.R.2d 1127; 15 A.L.R.5th 1.

What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 A.L.R.2d 662; 78 A.L.R.3d 712.

Consent of natural parents as essential to adoption where parents are divorced, 47 A.L.R.2d 824.

Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R.2d 497.

What constitutes undue influence in obtaining a parent's consent to adoption of child, 50 A.L.R.3d 918.

Postadoption visitation by natural parent, 78 A.L.R.4th 218.

Validity of birth parent's "blanket" consent to adoption which fails to identify adoptive parent, 15 A.L.R.5th 1.

Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443.

Natural parent's indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 A.L.R.5th 375.

Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - factors other than employment status, 84 A.L.R.5th 191.