Chandler v. Cochran

• Decision Date: 03 February 1981
• Docket Number: No. 36938,36938
• Citation: 275 S.E.2d 23,247 Ga. 184
• Parties: CHANDLER v. COCHRAN et al.
• Court: Georgia Supreme Court

Page 23

275 S.E.2d 23

247 Ga. 184

CHANDLER v. COCHRAN et al.

No. 36938.

Supreme Court of Georgia.

Feb. 3, 1981.

Joseph Marion Chandler, Sr., pro se.

Leonard H. Conger, Bainbridge, for Eugene Clark Cochran, et al.

MARSHALL, Justice.

The appellees filed a petition for the adoption of the natural children of the appellant and the appellee wife, the former wife of the appellant. Our jurisdiction is predicated on constitutional attacks on Code Ann. § 74-405 (Ga.L.1977, pp. 201, 211; 1979, pp. 1182, 1187).

1. Enumerated error 1 is the overruling of the appellant's motion to dismiss on the ground of improper venue, in that the petition was filed in the county in which the adopting parents reside, as provided by Code Ann. § 74-401 (Ga.L.1977, pp. 201, 202), rather than "in the county where the defendant resides," as provided by Art. VI, Sec. XIV, Par. VI of the Georgia Constitution (Code Ann. § 2-4306) and Code § 3-201. Code Ann. § 74-401, supra, is not in conflict with the above provisions of the Constitution and the Code, however, in that the natural parent (appellant here) is not a party defendant to the statutory adoption proceeding.

"Where the proceeding involves only the termination of parental rights, the parents have the constitutional right to defend such a suit in the county in which they reside. Code Ann. § 2-4306, supra." (Emphasis supplied.) Quire v. Clayton County Dept. of Family, etc., Services, 242 Ga. 85, 249 S.E.2d 538 (1978). Adoption proceedings, however, no not involve only the termination of parental rights. Where Code Ann. § 74-405, supra, (b), is applicable, as it is here, "the parental rights need not be surrendered or terminated prior to the filing of the petition but petitioner(s) shall allege facts demonstrating the applicability of Code section 74-405 and allege compliance with the provisions of Code section 74-405(c) (service or notice of the adoption proceeding)." These provisions adequately protect the appellant's right to contest (although not in the county of his residence) the allegation of his forfeiture of his parental rights. This enumerated error is without merit.

2. Enumerated error 2 is the overruling of the appellant's motion for continuance until such time as the investigation and report were made by the Department of Human Resources, as provided by Code Ann. §§ 74-409(a), 74-410 (Ga.L.1977, pp. 201, 215, 216). At the time the motion was made, the trial judge did not know whether such a report had been made, having taken the case over from another judge, but he indicated that he would check to see if one had been filed. As far as the record shows, no investigation or report was ever made.

Section 74-409(a) provides that it is the duty of the department in adoption proceedings to "verify the allegations in the petition," make "a complete and thorough investigation of the entire matter, and to report its findings and recommendations in writing to the court ..." It is further provided that, if the department is unable to make or arrange for such report, it shall so notify the court, which "may take such other steps as in its discretion are necessary to have the entire matter investigated."

We have found no case holding that it is reversible error not to have such a report made if the department can do so (which, as far as the record shows, it could do here). It is true that Code Ann. § 74-412(a)(1) (Ga.L.1977, pp. 201, 217) provides that the court at the hearing of the petition for adoption "shall give consideration to the investigation report ... and the recommendations therein contained." (Emphasis supplied.) The cases hold that it is mandatory to consider the report; however, they all involved situations in which a report had been made. Ward v. Dept. of Human Resources, 149 Ga.App. 99 (2), 253 S.E.2d 463 (1979); Wellfort v. Bowick, 147 Ga.App. 565 (3), 249 S.E.2d 363 (1978).

As we have noted above, § 74-409(a) gives the trial judge discretion to take other steps deemed necessary to have the entire matter investigated when a report is unavailable. What steps this may include we do not here decide. The issue is whether the steps taken here were sufficient. A hearing was conducted, at which there was testimony by both of the adoptive parents, the natural father, and the latter's mother, sister and niece. While most, if not all, of the testimony was self-serving or biased, and while it is much better to comply with the statutory provisions for an investigation and report by the department, a review of the transcript reveals that sufficient circumstances as to the proposed adoption were developed on which to base the judgment. "It has been said that the judge hearing an adoption case has a wide discretion which will not be overturned unless it has been abused ..." Owens v. Griggs, 151 Ga.App. 730 (2), 261 S.W.2d 463 (1979) and cits. We find no abuse of discretion in the present case, in which the judge had evidence that the father is imprisoned, unemployed, with no significant income, and had failed to support his children for a year before the adoption proceedings, whereas the adoptive parents were the children's mother and her husband, an employed minister, who provided a stable and healthful home environment, according to all of the evidence adduced.

Since we do not approve the failure to obtain the required report, we find the error under the facts of this case to be harmless.

3. Enumerated errors 3 and 4 complain of the denial of the opportunity to collaterally attack the appellee mother's decree of divorce from the plaintiff on the ground that it was entered by default less than 30 days after service of the petition for divorce on the appellant. However, the record reveals that, although one such decree was prematurely entered, another decree was timely entered thereafter, which reaffirmed the earlier, premature decree. (See Division 9, hereinafter.) These enumerations of error are without merit.

4. There was no impermissible substitution of a different cause of action or claim by the amendment substituting the present Code Ann. § 74-405, supra, for the equivalent § 74-403(2) (Ga.L.1941, pp. 300, 301; as amended, 1967, pp. 107, 108), which was alleged in the petition and was repealed by Ga.L.1977, p. 201, which reenacted the Code chapter on adoption. The trial judge correctly identified the law in effect at the time the petition was filed, and based his findings of fact and orders on the correct, existing law. Enumerated error 5 is without merit.

5. Enumerated error 6 contends that § 74-405, supra, is impermissibly and unconstitutionally vague, in that it gives the appellant no direction, standard or base as to what is to fail "significantly" in giving support or as to what constitutes "justifiable cause" in that regard. In his brief, the appellant refers to subsection (a) of § 74-405, and quotes the following purportedly from that provision: "... in the case of a parent who failed significantly without justifiable cause ..." Reference to present § 74-405(a) reveals no such language.

Section 74-405(b) provides as follows: "Surrender or termination of parental rights as provided in Code section 74-403 shall not be required as a prerequisite to the filing of a petition for adoption pursuant to subsections (a)(3) or (a)(4) of Code section 74-403 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 (1) to communicate, or to make a bona fide attempt to communicate with the child, or (2) to provide for the care and support of the child as required by law or judicial decree, and the court is of the opinion that the adoption is for the best interest of the child." (Emphasis supplied.) Assuming that this is the statutory provision the appellant seeks to attack, it is clear, contrary to his contention below, that the statute does specify the period of time, i. e., "one year or longer immediately prior to the filing of the petition for adoption." The alleged words, "without justifiable cause," do not appear in the statute.

As for the phrase "failed significantly," this admittedly allows a degree of latitude for the trial judge's discretion, but we believe that such discretion is necessary and desirable in adoption proceedings, and was intended by the legislature to be applied to the particular facts in each individual case. From the evidence, it is clear that the appellant came within the purview of this provision, by having furnished little or no child support within the one-year period. Of course, if the appellant has reference to a Code section which has been repealed, its constitutionality is no longer relevant. This enumeration of error is without merit.

6. Enumerated error 7 contends that § 74-405, supra, (a) ((b)?) denies the appellant due process and equal protection of law by discriminating against incarcerated persons. The appellant pleaded guilty to two counts of aggravated sodomy and was sentenced to 10 years' imprisonment. It is well settled that no person can object to the natural consequences of his own act voluntarily performed. It would emasculate our child-support laws to relieve parents of their 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. This enumeration of error is without merit.

7. Enumerated error 8 attacks the sufficiency of service of the petition on the appellant. Code Ann. § 74-405, supra, (c), provides: "Whenever it is alleged by the petitioner(s) that surrender or termination of parental rights is not a prerequisite to the filing of a petition for adoption in accordance with provisions of subsection (a) or (b) above, the parent(s) shall be personally served with a confirmed copy of the adoption petition together with a copy of the court's order thereon specified in Code ...