In re Stroh, A99A1234.

• Decision Date: 20 October 1999
• Docket Number: No. A99A1234.,A99A1234.
• Citation: 240 Ga. App. 835,523 S.E.2d 887
• Parties: In re STROH et al.
• Court: Georgia Court of Appeals

523 S.E.2d 887

240 Ga. App. 835

In re STROH et al.

No. A99A1234.

Court of Appeals of Georgia.

October 20, 1999.

Reconsideration Denied November 17, 1999.

Saliba, Edwards & Moore, George M. Saliba II, Valdosta, for appellants.

Charles R. Reddick, Homerville, for appellee.

ELDRIDGE, Judge.

This case involves the Echols County Superior Court's denial of an adoption petition filed by an Alabama couple, Allan G. and Brenda Stroh, appellants. For the reasons stated herein, we affirm the trial court's denial of the adoption of the child, T.M.G.,¹ but reverse the trial court's refusal to grant custody of the child to the appellants while they pursue an adoption in Alabama.

The undisputed facts of this case are as follows: T.M.G. was born in Georgia on January 30, 1996. His mother, C.L.G., was not married to the child's putative father, K.J. In 1993, C.L.G. had given birth to a girl, A.D.S., in Alabama. The appellants adopted the girl as an infant.

When T.M.G. was approximately two months old, the Georgia Department of Human Resources ("DHR") obtained temporary custody of the child; the record is not perfected as to the basis for such custody. The DHR placed the child with a foster family, the Edmonsons (hereinafter "foster family"). The DHR, through the Echols County Department of Family & Children Services ("DFCS"), worked with C.L.G. in developing a reunification plan. Six months later, at a September 1996 hearing pursuant to a DFCS motion to extend temporary custody for one year, C.L.G. signed a document entitled "Acknowledgment of Surrender of Rights," allegedly surrendering her parental rights to T.M.G. and releasing him for adoption. The circumstances surrounding the signing of the alleged surrender (hereinafter "DHR surrender") are in dispute. However, it is undisputed that no surrender document was executed; the acknowledgment form was not dated; and the required affidavit from the DHR official supervising the DHR surrender was not attached. See OCGA §§ 19-8-4(h); 19-8-26(a), (j). Further, the record shows that, even though the DHR asserted that it had a valid surrender of C.L.G.'s parental rights in September 1996, the DHR did not pursue a permanent placement for this child or the termination of the putative father's rights, nor did the foster family pursue an adoption, during the next six months.

In the meantime, in July 1996, the appellants became aware of the birth of T.M.G. through the half-sister's former guardian ad litem, with whom they had worked during that adoption. The couple began adoption proceedings in Georgia and filed a petition for adoption in February 1997.² In the same petition, the appellants asked the trial court for a temporary restraining order to prevent the DHR from placing the child for adoption or participating in any adoption proceedings on anyone else's behalf until their adoption petition could be ruled upon. The temporary restraining order was issued on February 27, 1997.

On March 5, 1997, C.L.G. signed a surrender of parental rights and release for adoption pursuant to OCGA § 19-8-5 (hereinafter "Stroh surrender"). The Stroh surrender clearly identified the appellants as the individuals to whom C.L.G. released her parental rights, giving the appellants 60 days during which to file an adoption petition. See OCGA § 19-8-5(k). As such petition previously had been filed, the appellants filed an amendment to the petition on April 11, 1997, attaching the Stroh surrender and accompanying affidavits by C.L.G.

A notice was published in April and May 1997, notifying the putative father, K.J., of the pending adoption action. K.J. subsequently was personally served while incarcerated in Florida. On May 9, 1997, K.J. responded to the service by denying paternity of T.M.G. and demanding a blood test. On June 2, 1997, the DHR moved to intervene in the adoption petition under OCGA § 9-11-24(a)(2), asserting that, "unless it is allowed to intervene, the State's interest in protecting the best interests of the minor child, [T.M.G.], will not be adequately represented by the existing parties to the action."³ The DHR claimed that, because it had temporary custody of the child pursuant to the March 1996 juvenile court order, it

had an interest in the outcome of this pending adoption case[,] has insufficient information to determine if [the appellants] are the fit and proper persons for adoption of the minor child, [T.M.G.], and whether or not it would not [sic] be in this child's best interests for the adoption to proceed.

On the same date, the DHR moved the trial court to appoint a guardian ad litem, alleging that "the child's interests are in conflict with the [appellants'] interest and it would be in the best interest of the child for a guardian ad litem to be appointed." See OCGA § 19-8-17(c).

A hearing was conducted on June 23, 1997. During the hearing, the appellants requested that the trial court consider the adoption a "private adoption" premised upon the mother's surrender of rights to them. The appellants also asked the trial court to exclude the DHR and the foster family from the case and proceed exclusively on the private adoption petition.

The trial court denied the appellants' request to declare their petition a private adoption, granted the DHR's motion to intervene, and appointed a guardian ad litem. The trial court also told the foster family that, if they wanted to adopt T.M.G., they had permission to either move to intervene in the current petition or file a separate adoption petition.

On August 6, 1997, the appellants filed a second amendment to the petition requesting, as an alternative to granting the Georgia adoption petition, that the trial court grant custody of T.M.G. to the appellants for one year so that they could complete an adoption in Alabama. Five months later, the trial court scheduled a final trial on the adoption petition for February 16, 1998. However, in January 1998, the trial was stayed indefinitely so that the DHR could file a petition for termination of both parents' rights to the child, even though the DHR continued to assert that C.L.G. had validly surrendered her parental rights to them in September 1996.⁴

On May 12, 1998, the foster family filed a petition to adopt T.M.G., 11 months after having received permission to do so by the trial court. The final hearing on both the appellants' petition and the foster family's petition was held on July 16, 1998. During the hearing, the trial court heard testimony from both couples, as well as numerous friends and neighbors. The appellants presented evidence which showed the following: they had been married to each other for 22 years; they adopted T.M.G.'s half-sister in 1993 in Alabama; they own a five-bedroom house on five acres in Montgomery, Alabama; Mr. Stroh owns and operates several radio stations; Mrs. Stroh is a homemaker; they are active in their church; they are both in good health; and they are financially stable, with adequate health insurance coverage. The foster family also presented evidence regarding their adoption petition.

After the close of evidence regarding the fitness of the two families, the trial court remarked that

I feel comfortable in saying to everyone here today that regardless of what the ruling of the court is, that ruling will not depend on the fitness or unfitness of one party as opposed to the other necessarily. I don't think there's been any evidence submitted today to suggest in any way that neither one of these couples would make an excellent parent for the child.

The trial court then heard evidence regarding the validity of the mother's DHR surrender and the subsequent Stroh surrender. The mother, C.L.G., testified that, at the time she signed the DHR surrender, she was told by the DHR representative that the appellants would be able to adopt T.M.G. once she signed the papers. She stated that "I signed [the DHR surrender] because I wanted my son to be with his sister with the Strohs[,]" and that she would not have signed the DHR surrender otherwise. She then testified that she assigned to the appellants her rights to T.M.G. and gave permission to adopt him on March 5, 1997, and that she still wanted the appellants to adopt him. The DHR countered this evidence with testimony from the DHR representative who supervised the DHR surrender in September 1996. The DHR representative testified that C.L.G. did not request any specific placement when she signed the DHR surrender.

The trial court denied the foster family's adoption and dismissed the petition on August 26, 1998, finding that the petition failed to comply with the statutory requirements under OCGA § 19-8-4, § 19-8-5, or § 19-8-13.

In a separate order dated the same day, the trial court denied the appellants' petition, finding that the fact that the appellants were not Georgia residents for the six-month statutory period under OCGA § 19-8-3(a)(3)⁵ mandated denial of the petition. In its order, the trial court specifically found that the appellants had adopted T.M.G.'s half-sister, presented evidence that they could provide T.M.G. a good home, and had secured a surrender from C.L.G. The trial court also found that C.L.G. preferred that the appellants adopt T.M.G. The trial court's order did not address the appellants' request for temporary custody of T.M.G. so that they could pursue an Alabama adoption.

On September 22, 1998, the appellants filed a motion for reconsideration, asking the trial court to address their request for custody pending an Alabama adoption. In December 1998, the trial court granted the motion to reconsider, voided the previous order, and issued a new order. In the revised final order, the trial court denied the appellants' request for custody, finding that, because C.L.G. had "executed all documents necessary for the placement of [T.M.G. with DFCS]," custody should remain with the DHR/DFCS and the agency should proceed with placing T.M.G. for...