2021 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, by certified mail or 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 certified mail or 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 certified mail or 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 certified mail, 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; Ga. L. 2021, p. 151, § 5/HB 154.)

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.

The 2021 amendment, effective July 1, 2021, substituted "perfected, by certified mail or" for "perfected, notwithstanding subsection (a) of Code Section 9-10-12 which authorizes the use of certified mail, by" in the first sentence in paragraph (c)(1), and inserted "certified mail or" in the third sentence in paragraph (c)(1) and in paragraph (c)(1)(B) and inserted "by certified mail,” near the end of paragraph (c)(2).

- 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

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.