Johnson v. Strickland
| Decision Date | 27 May 1953 |
| Docket Number | No. 2,No. 34468,34468,2 |
| Citation | 88 Ga.App. 281,76 S.E.2d 533 |
| Parties | JOHNSON v. STRICKLAND et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The petitioners in this adoption proceeding having failed to attach to their petition the written consent of the living father of the children sought to be adopted, and the evidence being insufficient to show an abandonment of the children by the father, the father being personally in court and objecting to the adoption, the trial court erred in entering the interlocutory order and in denying the father's motion to dismiss the proceeding.
J. Edwin Peavy, Kopp & Peavy, Waycross, for plaintiff in error.
Lea & Lea, W. Orrin Lea, Waycross, for defendant in error.
Mathew Strickland and Ella Griffin Strickland instituted a proceeding in the Superior Court of Ware County to adopt John Henry Johnson and Jennie Irene Johnson. They alleged that the said children were their grandchildren, that their daughter, the mother of the children was dead, having died in October 1943, and that the father of the children, John Henry Johnson, had abandoned them, making it unnecessary that his consent to the adoption be attached to the petition. The father filed an answer in which he denied that he had abandoned the children.
At the interlocutory hearing evidence was introduced by the petitioners and by the father on the question of abandonment, the father made a motion that the interlocutory order be refused and that the petition be dismissed, but after the hearing the trial court denied that motion and entered an order granting temporary custody of the children to the petitioners and finding that the father 'has just cause to be relieved of the care, support, and guardianship of said children.' To this order the father excepted and filed his bill of exceptions to this court.
The sole question presented by the record in this case and argued by counsel for both parties is whether or not the evidence was sufficient to authorize a finding that the father had abandoned the children in question so as to make his consent to the adoption unnecessary under the provisions of the adoption statute. Code (Ann.Supp.) Ch. 74-4, particularly §§ 74-403 and 74-404. The material facts as shown by the evidence are not in actual dispute, and when such evidence is viewed in the light most favorable to support the finding of the trial judge it would authorize him to find that the children sought to be adopted were the offspring of the petitioners' daughter and the plaintiff in error, that their mother, the petitioners' daughter, was killed in an accident in October, 1943, in which accident the father received severe burns, which temporarily incapacitated him; that, immediately after that accident, the petitioners took custody of the boy and the father's sister took custody of the girl, who at that time was a very young infant; that after nine months the father's sister delivered the girl to the petitioners, and they have had custody of both children for the entire time since then except for a period of some 23 months from June, 1949, to May, 1951, when the children lived with the father and his wife in Washington, D. C. (the father having remarried in 1947); that during that period the petitioners had furnished food, clothing, medical care, and shelter for the children and had sent them to school and in all other ways made a home for them; and that the father had furnished nothing more than perhaps bringing them Christmas gifts of toys and some small items of clothing; that the children, one or the other or both of them, had visited the father and his wife on a few occasions other than that mentioned above; that the father had asked the petitioners to permit the children to visit him but never asked that they come and live with him, and had on one occasion made the statement that 'he didn't want the children.' There was evidence that the little girl had had a tonsilectomy not long before the commencement of the adoption proceeding and that the father had promised to pay some of the expense thereof, but had not done so.
'Except as otherwise specified in the following sections, no adoption shall be permitted except with the written consent of the living parents of a child.' Code, (Ann.Supp.) § 74-403. 'Consent of the parents shall not be required where a child has been abandoned by its parents'. Id., § 74-404. These provisions of the Act of 1941, p. 300, which revised our adoption laws, leave no room for interpretation other than that either consent or the abandonment of the child by the living parent or parents must be shown by the petitioners for adoption. Somewhat similar wording of the old law was held in McComas v. Glendinning, 59 Ga.App. 234, 235, 200 S.E.2d 304, to require a showing of either consent or abandonment by the living parents.
It has been held that adoption laws are...
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Hamrick v. Seward, 46898
...as Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562, affirming McComas v. Glendinning, 59 Ga.App. 234, 200 S.E. 304, Johnson v. Strickland, 88 Ga.App. 281, 76 S.E.2d 533, and Wheeler v. Little, 113 Ga.App. 106, 147 S.E.2d 352, but these cases are inapposite. As to Glendinning and Johnson, ......
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Beatty v. Wilkerson
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Mattox v. Mattox, A--505
...418, 90 Mass. 418, 419 (Sup.Jud.Ct.1864); Stone-burner v. Theodoratos, 30 P.2d 1001, 1003 (Cal.App.1934); Johnson v. Strickland, 88 Ga.App. 281, 76 S.E.2d 533, 535 (Ct.App.1953) ; 26A C.J.S. p. 861; Black's Law Dictionary (4th ed.); cf. McComas v. Glendinning, 59 Ga.App. 234, 200 S.E. 304, ......