Burrell v. Wood, 30634

• Decision Date: 30 June 1976
• Docket Number: No. 30634,31113,30634
• Citation: 227 S.E.2d 60,237 Ga. 162
• Parties: Mary Frances BURRELL v. Waymon Junior WOOD et al. (two cases).
• Court: Georgia Supreme Court

Page 60

227 S.E.2d 60

237 Ga. 162

Mary Frances BURRELL v. Waymon Junior WOOD et al. (two cases).

No. 30634, 31113.

Supreme Court of Georgia.

June 30, 1976.

James W. Smith, Athens, for appellant.

Grady C. Pittard, Jr., Athens, for appellees.

HALL, Justice.

Appellant, the natural mother of the child whose adoption is here in dispute, brought two suits against the adoptive parents (the maternal grandparents) seeking to have the adoption declared void. After losing both cases in the trial court, she brings these appeals which we have consolidated. We affirm the trial court's rulings in both cases.

The mother first filed a petition for declaratory judgment, asking that the 1968 adoption be declared invalid. By later amendment, the petition was also cast as a complaint in equity to declare the adoption void. The trial court held an extensive hearing, attended by all parties and numerous witnesses, at which great latitude was allowed in presenting evidence of the fitness of all concerned. Thereafter, on August 26, 1975, the court sustained the grandparents' motion to dismiss that complaint. On September 2, 1975, the mother filed a habeas corpus petition collaterally attacking the adoption, alleging that the grandparents were unlawfully detaining the child because of the claimed invalidity of the adoption, and further asserting that they were unfit. By final order dated January 5, 1976, the trial court directed that the child should remain with the grandparents as her placement there was in her best interests.

Our affirmance of both judgments rests on an elementary legal ground. In effect, the mother seeks to attack the adoption judgment by means other than those allowed in Code Ann. § 81A-160, and such an attempt must be unsuccessful.

The mother attempts to show that the adoption judgment is void on its face, which would allow her to attack it collaterally as well as directly at any time. See Code Ann. § 81A-160(a) and (f). The evidence taken at the hearing included the mother's admission that she was served with notice of the adoption hearing and chose not to attend. The grandmother testified that at the adoption hearing she had given evidence to the court of the mother's abandonment of the child. There was also some evidence of the mother's unfitness before the adoption court. The mother's main contention here is that the grandparents stated in paragraph 9 of their adoption petition that the mother's consent was unnecessary because her parental rights had been terminated; and that this was factually erroneous, because the prior order granting custody to the grandparents had stopped short of terminating the mother's parental rights; and in his final order of adoption the judge listed no finding of abandonment, but merely stated that no reason appeared why the adoption should not be granted. She claims that these facts render the judgment void on its face for lack of subject matter jurisdiction, arguing that the court is without authority to grant adoption where all the elements required by Code Ann. § 74-407 to be pleaded do not correctly appear.

Appellant's argument is without merit. An adoption proceeding is governed by the notice pleading concepts of the Civil Practice Act. See Code Ann. § 81A-181. A factual error in an adoption petition in no way deprives the court of subject matter jurisdiction. Basically the alleged irregularities the mother urges are unrelated to subject matter jurisdiction; they concern only whether the court did or did not err in concluding after hearing evidence that the adoptive parents had proved their case for adoption (see Code Ann. § 74-414). Any such alleged error should have been contested in the trial court or on appeal, and not...