In Re The Petition Of Theresa Goudeau To Adopt A Minor Child ., A10A1720

Decision Date27 August 2010
Docket NumberNo. A10A1720,A10A1721.,A10A1720
Citation700 S.E.2d 688,305 Ga.App. 718
PartiesIn re the Petition of Theresa GOUDEAU to Adopt a Minor Child (two cases).
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Thurbert E. Baker, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Shalen S. Nelson, Senior Asst. Atty. Gen., Elizabeth M. Williamson, Asst. Atty. Gen.; Glover & Blount, Gary A. Glover, Augusta, for appellant.

Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Augusta, Alice W. Padgett, Evans, for appellee.

BARNES, Presiding Judge.

The superior court denied the petition of Theresa Goudeau to adopt her foster daughter and ordered the Department of Family and Children Services to remove the child from Goudeau's foster care, finding that placing the child with Goudeau violated this state's “public policy” because Goudeau was not married to the man with whom she lived. We reverse that portion of the trial court's order directing DFACS, the child's legal guardian, to remove the child from Goudeau's home and “place her with an appropriate custodian.” Further, because all of the evidence presented to the court showed that the adoption would be in the child's best interest, the court abused its discretion by denying the adoption petition, and we reverse that portion of the order also.

DFACS took the child, A.C., into custody after she was born in July 2007 with cocaine in her system, and immediately placed her into foster care with Goudeau, where she has remained since she was two days old. Goudeau and Mortimer Lovett were approved as foster parents in 2001, after DFACS conducted an extensive background investigation, and Goudeau and Lovett fostered many children in their home over the next eight years. After A.C. remained in DFACS custody for more than a year, the Department's permanent plan was for her to be adopted. In an order effective March 10, 2009, the juvenile court terminated the parental rights of A.C.'s unknown biological father, found that no suitable relative existed with whom the child could be placed, and re-committed her to the custody of DFACS for adoption. The juvenile court also noted that the child's guardian ad litem recommended that the rights of both parents be terminated, and that A.C.'s biological mother planned to surrender her parental rights and release A.C. to DFACS for adoption. The court specifically noted that the child had “been placed with foster parents who want to adopt and who have been investigated and approved. The child is doing well in current placement.”

A.C.'s mother surrendered her parental rights to DFACS and released the child for adoption on March 12, 2009. In November 2009, with DFACS's consent, Goudeau petitioned the superior court to adopt A.C. The petition included the juvenile court's order terminating the biological father's parental rights and the biological mother's surrender of her parental rights to DFACS and consent to adoption. As required by OCGA § 19-8-16(a), DFACS conducted “a complete and thorough investigation of the entire matter, including a criminal records check” of the petitioner. Although the superior court initially issued an order to show cause why the petition should not be granted, in January 2010 the court issued another order directing Goudeau to show cause in February 2010 why her petition should not be dismissed and why she should not lose custody of A.C. “because petitioner is and has been living in a meretricious relationship with a man to whom she is not married.”

Shortly before the scheduled hearing the trial court appointed a guardian ad litem to represent A.C.'s interests, as allowed by OCGA § 19-8-17(c) (“If at any time it appears to the court that interests of the child may conflict with those of any petitioner, the court may, in its discretion, appoint a guardian ad litem to represent the child....”).

At the hearing, the guardian ad litem appointed by the court testified that she had interviewed Goudeau, Lovett, and Goudeau's adult daughter; that Goudeau had cared for Lovett's children when they were young; and that 80 foster children had lived with the couple since they were approved as foster parents in 2001. She saw no problems with the family unit or family dynamics, which included aunts, uncles, and other extended family members. The court-appointed guardian ad litem testified that removing A.C. from the only family she had ever known would have a negative impact on her.

Goudeau, 66, testified that she and Lovett, 46, were in a committed relationship and had been together 20 years, treating each other as husband and wife. He was a father figure to her son, and she was a stepmother to his children. They attended the same training programs before being approved to foster children in their home, and had cared for A.C. since she was two days old. She further explained that she had been married twice before, both times to abusive men, and did not want to marry again, although later she clarified that she meant she did not want to marry “by going to a preacher [and] getting it on paper.”

The trial court had directed DFACS to present a witness regarding the requirements for adoption, apparently expressing its concern before the hearing about the fact that only Goudeau sought to adopt A.C. and that Goudeau and Lovett were living together but not married. A DFACS adoption coordinator specialist testified that the adoption statute provided that if a person were single, he or she had to be at least 25 years old to adopt, and if married, the petition had to be filed in the name of both spouses. The adoption code does not, however, address other live-in relationships within the household. Absent any statutory directive regarding adoption by single people living with “a significant other,” DFACS developed a policy that in such a case, if the single person sought to adopt, the significant other had to attend the same training as the person seeking to adopt. The specialist further noted that the “Foster Parents Bill of Rights” (OCGA § 49-5-280 et seq.), gave a foster parent the right to be considered, where appropriate, as the first choice for a permanent parent if the child became available for adoption. The specialist testified that once a child had been with a foster parent for 12 months, the foster parent had a right to file a grievance if DFACS tried to move the child to other care. Upon questioning by the court, the specialist noted that he could not address the Department's guidelines for foster parents, as his specialty was adoption.

The court asked the specialist if he knew what the court was concerned about, and the specialist replied, “I'm honestly not sure except I think it's the fact that they're not married.” The court responded, “Absolutely,” and the specialist again noted that the adoption code did not address this situation. He further testified that to remove the child from the only stable family she had ever known “would be devastating to that child.” Further, the relationship between Goudeau and Lovett was stable and long-term. The court expressed its opinion that it was “standing in the gap because there is nobody to protect this child in a DFACS adoption” once it got to the superior court, and while the relationship between Goudeau and Lovett was of 20 years, “the next week it's 15, and the next year it's 10, and before you know it, we're down to short term meretricious relationships ... and there is no commitment,” with the child “being bounced around” with different adults coming into and leaving her life. The court further expressed its concern that DFACS was allowing unmarried couples to become foster parents, which then allowed one of them to “boot strap” herself into being able to adopt after a year of fostering the child.

In a written order issued a few weeks later on March 12, 2010, the superior court denied the petition for adoption and held that Goudeau and Lovett should not have physical custody of A.C. because of their relationship with each other. The court found no common law marriage existed between Goudeau and Lovett and found that clear and convincing evidence established they were “living in an immoral, meretricious relationship, ... and that the adoption and their continued custody is inappropriate.” Quoting from cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery, the court held that allowing a child to be adopted by an unmarried person living with someone else violates Georgia's “public policy,” which favors the institution of marriage. The court continued:

DFACS has adopted a policy, in contravention of Georgia law, that persons living in meretricious relationships may serve as foster parents and adoptive parents. DFACS' Adoption Services Manual (March 2007) expressly confirms this by requiring “ significant others ” to attend [adoption orientation and training]. DFACS' policy violates the established public policy and laws of this state favoring the institution of marriage, and declaring meretricious relationships as immoral. Georgia recognizes the legitimacy of married couples and single individuals. It does not recognize

any other status, regardless of the mores of some members of society who have thrown off long-standing social, moral, ethical and religious constraints. DFACS' policy offends the laws of this state, the sensibilities of this court, and the common conscious [sic] of the moral, ethical and religious citizens of this state.

(Emphasis in original.) The superior court then stated that it had to rely on DFACS to place a child with qualified adoptive parents, because once a DFACS adoption reached the court no one represents the child, but that in this case it would not rely on the Department's recommendation. “The trial court must not only protect the child's best interest, but it must also ensure that an adoption does not violate the public policy or laws of this state....

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