X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Barnes, Presiding Judge. Sharon O’Connor, the maternal grandmother of K. G. V., appeals from the order of the Superior Court of Gwinnett County dismissing her petition to adopt the minor child. For the reasons discussed below, the trial court erred in concluding that the grandmother could not seek to adopt the child because she was the child’s permanent guardian. Accordingly, we reverse. We begin with the procedural history forming the context for this case. In January 2016, the grandmother of the then four-year-old child filed a petition to terminate the parental rights of the mother and father or, in the alternative, a petition for permanent guardianship in the Juvenile Court of Gwinnett County. The juvenile court had previously found that the child was dependent and had placed the child in the temporary custody of the grandmother in March 2014. In November 2016, the juvenile court entered an order denying the grandmother’s petition to terminate parental rights but granting her petition for permanent guardianship. The juvenile court found that the mother and father had abandoned the child and that the child was dependent as a result of, among other things, the parent’s chronic unrehabilitated substance abuse, felony convictions, and history of incarceration. However, the court found that there was not clear and convincing evidence that termination of parental rights would be in the child’s best interest. The juvenile court placed the child under the permanent guardianship of the grandmother, concluding that reasonable efforts to reunite the child with the parents would be detrimental to the child, the grandmother could provide a safe and permanent home for the child, the appointment of a permanent guardian would be in the child’s best interests, and the grandmother was the individual most appropriate to serve as the child’s permanent guardian, taking into consideration the best interests of the child. See OCGA § 15-11-240 (a). The court also required the parents to pay child support, among other requirements, and granted them scheduled phone calls and supervised visitation with the child.[1] See OCGA §§ 15-11-240 (b); 15-11-242 (a) (3). In October 2017, the grandmother filed in the juvenile court a second petition seeking to terminate parental rights or, in the alternative, to modify the conditions of the permanent guardianship. The juvenile court dismissed the petition on res judicata grounds in June 2018. In July 2018, the grandmother filed a petition in the Superior Court of Gwinnett County seeking to adopt the child.[2] In her petition, the grandmother, as a relative of the child under OCGA § 19-8-7 (a), sought to terminate the mother and father’s parental rights under OCGA § 19-8-10 (a) (1), (3) and (5) on the grounds that the parents had abandoned the child; that the father had suffered a recent traumatic brain injury that rendered him incapable of surrendering his parental rights; and that the child was dependent due to lack of proper parental care and control based on, among other things, the parents’ chronic unrehabilitated substance abuse, felony convictions, and history of incarceration. The petition further alleged that continued contact between the child and parents was causing harm to the child. The mother filed a motion to dismiss the grandmother’s petition for adoption on the ground of res judicata. The trial court denied the motion, concluding that there had been changes in the law that might affect “the ultimate decision and [that] there are allegations that, if proven, could show a change in condition since the last case.”[3] The mother filed a second motion to dismiss the grandmother’s petition for adoption, but on a different ground, namely, that dismissal was appropriate because the grandmother had already been granted a permanent guardianship and had custody and control of the child. The mother argued that “[t]he appointment of a permanent guardian ended the child’s abandonment and cured her dependency,” that “[t]he child’s support, stability, and care [were] now the responsibility of [the] grandmother,” and that “all claims of abandonment and dependency” with respect to the mother had been rendered moot. Consequently, the mother argued that the grandmother could not show that the child was in a present state of abandonment or dependency vis a vis the mother, and thus could not satisfy the conditions for terminating her parental rights under OCGA § 19-8-10 (a) (1) and (5) as part of the adoption process. At the hearing conducted on the mother’s motion to dismiss, the guardian ad litem who had been appointed to represent the father because of his recent brain injury asked the trial court to grant the motion and dismiss the adoption petition. In contrast, the child’s guardian ad litem asked the trial court to deny the motion to dismiss, arguing that “[a] guardianship does not preclude a party, if they fit the statutory requirements, to file an adoption.” After the hearing, in November 2019, the trial court granted the motion to dismiss the adoption petition based on the mother’s argument regarding the permanent guardianship that had been granted to the grandmother. This appeal by the grandmother followed. On appeal, the grandmother contends that the trial court erred in dismissing her adoption petition based on the fact that she had been granted a permanent guardianship over the child. We agree. In her adoption petition, the grandmother sought to adopt the child based on OCGA §§ 19-8-7 (a) and 19-8-10 (a). OCGA § 19-8-7 (a) of Georgia’s current adoption code[4] provides: A child may be adopted by a relative who is related by blood or marriage to the child as a grandparent, greatgrandparent, aunt, uncle, great aunt, great uncle, or sibling only if each living parent and guardian of such child has voluntarily and in writing surrendered to that relative and any spouse of such relative all of his or her rights to the child for the purpose of enabling that relative and any such spouse to adopt the child. In lieu of obtaining a voluntary surrender of parental rights, a petitioner pursuing an adoption as a relative of the child under OCGA § 19-8-7 (a) may obtain the adoption by satisfying the requirements of OCGA § 19-8-10 (a). See Hooper v. Hedgepath, 340 Ga. App. 163, 166 (1) (796 SE2d 779) (2017). OCGA § 19-8-10 (a) provides: Surrender or termination of rights of a living parent pursuant to Code Section 1984, 1985, 1986, or 1987 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 19813 when the court determines by clear and convincing evidence that the: (1) Child has been abandoned by that parent;[[5]] (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 1511310,[[6]] 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. Nothing in the language of these statutes disqualifies a permanent guardian from seeking to adopt a child. Rather, OCGA § 19-8-3 (a) sets out the eligibility requirements for petitioning for adoption: Any individual may petition to adopt a child if he or she: (1) Is at least 25 years of age or is married and living with his or her spouse, or is at least 21 years of age and is a relative of the child; (2) Is at least ten years older than the child, except such tenyear requirement shall not apply when the petitioner is a stepparent or relative and the petition is filed pursuant to Code Section 1986 or 1987; (3) Is a bona fide resident of this state at the filing of the petition for adoption or is a bona fide resident of the receiving state when the adoptee was born in this state and was placed in compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children; and (4) Is financially, physically, and mentally able to have permanent custody of the child. A relative who meets these eligibility requirements is entitled to pursue an adoption under OCGA § 19-8-10 (a), irrespective of whether the relative might also be the permanent guardian of the child. Concluding otherwise would require us to engraft a provision disqualifying permanent guardians from petitioning for adoption onto the otherwise plain language of the pertinent statutes, which we decline to do. See Allen v. Allen, 265 Ga. 53, 53 (1) (452 SE2d 767) (1995) (declining to “rewrite” statute to graft a new requirement not reflected in the plain language of the statute); Mullis v. Bone, 143 Ga. App. 407, 409 (1) (238 SE2d 748) (1977) (noting that new requirements should not be engrafted onto a statute “by judicial fiat”). As repeatedly explained by our Supreme Court, “where the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning ends.” (Citation and punctuation omitted.) Patton v. Vanterpool, 302 Ga. 253, 254 (806 SE2d 493) (2017). In seeking to dismiss the adoption petition, the mother argued that a permanent guardian cannot petition for adoption specifically under OCGA § 19-8-10 (a) (1) or (5), as the grandmother did in this case,[7] because all issues of abandonment and dependency with respect to the parents are rendered moot once a permanent guardian is granted custody and control of the child. Neither the pertinent statutory language nor our precedent support the mother’s argument. “Although a permanent guardianship indisputably works a limitation of the parental power of a legal parent by vesting that parental power in the guardian, see OCGA § 15-11-242 (b), it does not forever terminate the parental rights of a parent.” In the Interest of M. F., 298 Ga. 138, 142 (2) (780 SE2d 291) (2015). Moreover, an order granting a permanent guardianship must “[e]stablish a reasonable visitation schedule which allows the child adjudicated as a dependent child to maintain meaningful contact with his or her parents through personal visits, telephone calls, letters, or other forms of communication or specifically include any restriction on a parent’s right to visitation.” OCGA § 15-11-242 (3). And, such an order also can include a provision requiring the parents to pay child support. OCGA § 15-11-240 (b). Hence, even after custody of the child is awarded to a permanent guardian, the relationship between the parent and child is not completely severed, and parental claims and duties are not entirely eliminated. A parent therefore can still be found to have thereafter abandoned the child under OCGA § 19-8-10 (a) (1), and a permanent guardian thus is not foreclosed from petitioning for adoption on that statutory ground. Nor does the grant of custody to the permanent guardian prevent the guardian from proving that the child is dependent under OCGA § 19-8-10 (a) (5). That statutory paragraph requires the adoption petitioner to establish that the “[p]arent 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 1511310.” If relying on OCGA § 15-11-310 (a) (5), as the grandmother did in this case, the adoption petitioner must show, among other things, that the child is a “dependent child due to lack of proper parental care or control by his or her parent.”[8] OCGA § 15-11-310 (a) (5). And, “the record must contain evidence of present dependency, not merely past or potential future dependency.” In the Interest of H. B., 346 Ga. App. 163, 165 (1) (816 SE2d 313) (2018). Notably, however, when the child has been removed from the custody of the parent, present dependency can be shown through proof that, if the child was returned to the parent at the time of the hearing, the child would be dependent. See In the Interest of B. R. J., 344 Ga. App. 465, 473 (1) (a) (810 SE2d 630) (2018). Thus, the fact that a permanent guardian has custody of the child rather than the parent does not prevent the guardian from establishing the present dependency of the child for purposes of OCGA § 19-8-10 (a) (5) and OCGA § 15-11-310 (a) (5). Lastly, we note that the trial court pointed out in its dismissal order that a permanent guardianship constitutes a “permanent placement” under OCGA § 15-11-2 (54) (C). It is true that a permanent guardianship is defined as a permanent placement under that statutory paragraph[9] and that “for so long as an order of permanent guardianship remains effective, permanent custody of the child is committed to the permanent guardian as a matter of law.” In the Interest of M. F., 298 Ga. 138, 140 (1) (780 SE2d 291) (2015). But that does not mean that a permanent guardian is precluded from petitioning for and obtaining an adoption. Indeed, Georgia law contemplates that a permanent guardianship can be terminated as the result of an adoption. See OCGA § 29-2-30 (a) (“The guardianship of a minor shall terminate on the date upon which the earliest of the following occurs: the minor reaches age 18, the minor is adopted, the minor is emancipated, the minor dies, or a court order terminating the guardianship is entered. . . .”) (emphasis supplied).[10] For all of the aforementioned reasons, we conclude that a permanent guardian who otherwise meets the eligibility criteria for adoption is not disqualified from petitioning to adopt a child under OCGA §§ 19-8-7 (a) and 19-8-10 (a). See In re Goudeau, 305 Ga. App. 718, 724-726 (700 SE2d 688) (2010) (noting that “OCGA § 19-8-3 establishes the legal requirements for an adoptive parent” and concluding that nothing in adoption code “prohibited unmarried couples from adopting children”); In re D. J. F. M., 284 Ga. App. 420, 421-422 (643 SE2d 879) (2007) (concluding in case where relatives sought to adopt child pursuant to OCGA § 19-8-7 (a) that there was no statutory requirement under adoption code that either the petitioner or adopted child be United States citizens; rather, a relative who met eligibility requirements of OCGA § 19-8-3 (a) could seek adoption under OCGA § 19-8-7 (a)). Because the trial court erred in concluding that the grandmother could not petition for adoption of the child based on her status as a permanent guardian, we reverse the court’s order dismissing the adoption petition. Judgment reversed. Gobeil and Markle, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›