Herrin v. Graham, 34250

• Decision Date: 15 October 1952
• Docket Number: No. 34250,No. 2,34250,2
• Citation: 87 Ga.App. 291,73 S.E.2d 572
• Parties: HERRIN et al. v. GRAHAM
• Court: Georgia Court of Appeals

Page 572

73 S.E.2d 572

87 Ga.App. 291

HERRIN et al. v. GRAHAM.

No. 34250.

Court of Appeals of Georgia, Division No. 2.

Oct. 15, 1952.

Rehearing Denied Nov. 25, 1952.

Syllabus by the Court

There being evidence authorizing the court to find that the home of the petitioners for the adoption of a child was not a suitable or proper place for the child, and evidence that it would be to the best interests of the child to be returned to its natural mother, the trial court did not err in denying the prayer of the petition for adoption and in dismissing the petition, nor did it err, after dismissing the petition, in awarding custody to the natural mother, notwithstanding a prior decree of a Tennessee court by which custody of the child was awarded to the petitioners for adoption.

Kimzey & Kimzey, Cornelia, for plaintiffs in error.

Glenn W. Ellard and Ellard & Frankum, Clarkesville, Bess Blake, Nashville, Tenn., for defendant in error.

CARLISLE, Judge.

The Supreme Court, in determining its jurisdiction and in transferring this case to this court, excised the attempted constitutional question and gave a brief history of the case. See Herrin v. Graham, 209 Ga. 281, 71 S.E.2d 550. The only questions with which we are here confronted are the validity of the trial court's judgment denying the prayers of the petition for adoption and the validity of the judgment awarding custody of the child to its natural mother.

1. The modern tendency is to give adoption statutes a liberal construction in order to effect their benevolent purposes and to promote the welfare of the child sought to be adopted. Under the Georgia statute, the only questions before the court in a proceeding for the adoption of a child are: (1) do the natural parents consent to the adoption of the child, or, in some instances have they abandoned the child so as to dispense with their consent as a prerequisite; (2) are the adopting parents worthy and able to care for the child; and (3) is the adoption for the best interest of the child? The court is not required to declare the adoption unless all three of these factors unequivocally appear. If there is no parental consent and the natural parents have not abandoned the child, the court is required to deny the adoption. If either or both of the other factors are absent, the court may deny the adoption. Allen v. Morgan, 75 Ga.App. 738, 747, 44 S.E.2d 500.

There was evidence that the childwelfare worker of Habersham County, the county of the residence of the child and the petitioners for adoption, investigated the home of the petitioners, and, in her opinion, the petitioners' home was not a suitable and proper one for the child. There was evidence that the adopting father had been convicted in the Superior Court of Habersham County of fornication in 1932 and of seduction in 1943. This evidence alone was sufficient to warrant the trial court's denial of the prayers of the petition for adoption, whether or not the parents of the child had consented to the adoption or abandoned the child. Allen v. Morgan, supra.

2. The validity of the court's action in divesting the petitioners of the custody of the child and in awarding custody to the natural mother presents for solution a question of somewhat greater difficulty, at first glance.

It would seem that in order for a superior court of Georgia to have jurisdiction of an adoption proceeding, the child to be adopted must be domiciled in, or be a resident of this State. See Code Ann.Supp. § 74-401; Portman v. Mobley, 158 Ga. 269, 123 S.E. 695. A proceeding for adoption in which the child was not domiciled in this State would be void. Portman v. Mobley, supra. It appears that the child here under consideration was born in the State of...