386 S.E.2d 155 (Ga. 1989), S89G0218, Thorne v. Padgett

Docket Nº:S89G0218.
Citation:386 S.E.2d 155, 259 Ga. 650
Opinion Judge:GREGORY, Justice
Attorney:R. Andrew Bips, Bips & Bips, Atlanta, for David Lamar Padgett, Jr. Paul E. Kauffmann, Phyllis J. Holmen, Vicky O. Kimbrell, John L. Cromartie, Jr., for appellant. Bips & Bips, R. Andrew Bips, for appellee.
Judge Panel:All the Justices concur, except MARSHALL, C.J., and WELTNER, J., dissent. WELTNER, Justice, dissenting.
Case Date:December 05, 1989
Court:Supreme Court of Georgia

Page 155

386 S.E.2d 155 (Ga. 1989)

259 Ga. 650




No. S89G0218.

Supreme Court of Georgia.

December 5, 1989

R. Andrew Bips, Bips & Bips, Atlanta, for David Lamar Padgett, Jr.

GREGORY, Justice.

Johnnie Thorne is currently incarcerated in the Augusta Correctional Medical Institute, serving a fifteen-year sentence for his conviction of armed robbery. He and his former wife are the parents of a minor child. The former wife's new husband, appellee David Padgett, filed a petition to adopt the child pursuant to OCGA § 19-8-6(b). Thorne received notice of the adoption petition, and filed objections to it.

Relying on OCGA § 19-8-6(b), the trial court granted Padgett's petition to adopt the child, finding that Thorne had failed significantly for a period of one year prior to the filing of the adoption petition to provide support for the child. The trial court further concluded that the adoption was in the best interests of the child. It is not disputed that Thorne is without any financial resources.

OCGA § 19-8-6(b) provides in pertinent part,

Surrender or termination of parental rights, as provided in Code Section 19-8-3, shall not be required as a prerequisite to the filing of a petition for adoption ... in the case of a parent who has failed significantly for a period of one year or longer immediately prior to the filing of the petition for adoption ... (2) to provide for the care and support of the child as required by law or judicial decree, where the court is of the opinion that the adoption is for the best interests of the child.

Page 156

In affirming the trial court, Thorne v. Padgett, 191 Ga.App. 814, 383 S.E.2d 160 (1989), the Court of Appeals held that under OCGA § 19-8-6(b), "a simple finding of 'significant failure' to support is sufficient." Id. at 815, 383 S.E.2d 160. As the evidence showed without dispute that Thorne had not provided financial support for his son in the year before the adoption petition was filed, the Court of Appeals held the trial court did not err in granting Padgett's petition for adoption.

The evidence before the trial court showed that during his imprisonment, Thorne has continuously attempted to communicate with his son, sending him letters and handmade birthday cards. The evidence showed that many of these letters were returned to Thorne or destroyed by his former wife before the child could see them. There was no evidence before the trial court that Thorne intended to abandon the child.

The predecessor to OCGA § 19-8-6(b), former Code Ann. § 74-405, Ga.Laws 1977, pp. 201, 211, provided that termination of parental rights was not a prerequisite to adoption where it was found that a [259 Ga. 651] parent had failed significantly "without justifiable cause" to provide support for a period of one year prior to the filing of the adoption petition. In 1979 the legislature amended the statute and omitted the language "without justifiable cause." Ga.Laws 1979, pp. 1182, 1187. The Court of Appeals has recognized the harshness of the statute, but has concluded that once a trial court finds that the parent has failed to support the child for a year, and also finds the adoption would be in the best interests of the child, the trial court may grant the petition for adoption without determining the reasons for the parent's failure to provide support. Curtis v. Jones, 160 Ga.App. 904, 288 S.E.2d 615 (1982). Compare, Kirkland v. Lee, 160 Ga.App. 446, 287 S.E.2d 365 (1981). The granting of the adoption petition, of course, terminates the parental rights of the parent who has failed to support the child.

It is undisputed that the due process clause of the Fourteenth Amendment requires that before a state may sever the rights of a parent in his natural child, the state must support its allegations of the parent's unfitness "by at least clear and convincing evidence." Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Only under compelling circumstances may the state sever the parent-child relationship. Blackburn v. Blackburn, 249 Ga. 689, 694, 292 S.E.2d 821 (1982). We have held that even an unwed father who demonstrates a commitment to parenthood by participating in the life of his child "acquires substantial protection under the Due Process Clause" of his parental rights. In re Baby Girl Eason, 257 Ga. 292, 295, 358 S.E.2d 459 (1987). Yet, OCGA § 19-8-6(b) permits a court to effectively sever the rights of a natural parent in his child where the trial court concludes that the natural parent has failed to provide financial support in the year preceeding the filing of the adoption petition, and the adoption is in the "best interests" of...

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