Kirkland v. Lee

• Citation: 287 S.E.2d 365,160 Ga.App. 446
• Decision Date: 20 November 1981
• Docket Number: No. 61778,61778
• Parties: KIRKLAND v. LEE.
• Court: United States Court of Appeals (Georgia)

Page 365

287 S.E.2d 365

160 Ga.App. 446

KIRKLAND v. LEE.

No. 61778.

Court of Appeals of Georgia.

Nov. 20, 1981.

Daniel MacDougald III, Albany, for appellant.

Willard H. Chason, Cairo, for appellee.

CARLEY, Judge.

Appellant is the natural father of a minor child and the ex-husband of the child's mother. Appellee is the current husband of the child's mother and the stepfather of the child. Appellee filed a petition seeking to adopt the child, alleging that the surrender or termination of appellant's parental rights was unnecessary because "[h]e has failed significantly for a period of more than one (1) year immediately prior to the filing of this petition to communicate with the child, or to provide for the care and support of the child as required by a decree of this Court ..." Appellant answered, opposing the petition and alleging that his attempts to communicate with and to support the child had been frustrated by her mother.

The trial court, after conducting a hearing on the adoption petition, found that appellant had not visited or supported his child since June of 1979 and that appellee, a "fit and proper person to have ... custody," was "capable of assuming the responsibility for the care, supervision, training and education of [the] minor child ..." The trial court further concluded that appellant had "failed significantly for a period of more than one (1) year immediately prior to the filing of the Petition" to communicate or to make a bona fide attempt to communicate with his child and to provide for her care and support and that it would be in the best interest of the child to be adopted by appellee. It is from the trial court's decree of adoption terminating all the rights of appellant to the child that the instant appeal is taken.

1. Appellant urges that the final judgment of adoption must be vacated and the case remanded because the trial court made no specific finding that the failure to communicate and support was "without justifiable cause." That phrase appeared in former Code Ann. § 74-405 (Ga.L.1977, pp 201, 211) which provided in part: "Surrender or termination of parental rights as provided in Code section 74-403 shall not be required as a prerequisite to adoption ... pursuant to subsections (a)(3) or (a)(4) of Code section 74-403 in the case of a parent who has failed significantly without justifiable cause for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate, or 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." (Emphasis supplied.) The phrase "justifiable cause" was judicially construed to be "substantially the same as 'justifiable reason' as it appears in Code § 30-219 providing for attachment for contempt for failure to pay alimony ..." Ehrman v. Moser, 148 Ga.App. 857, 858, 253 S.E.2d 216 (1979), aff'd 244 Ga. 112, 259 S.E.2d 634 (1979). Thus, in an adoption proceeding governed by the former statute if the natural parent demonstrated a "justifiable reason" for his failure to communicate or support, any possibility of a finding that his failure was "without justifiable cause" was thereby negated and a petition to adopt his child had to be denied. Ehrman, supra.

In 1979, however, former Code Ann. § 74-405 was stricken in its entirety and a new code section substituted in lieu thereof. Ga.L.1979, pp. 1182, 1187. Code Ann. § 74-405(b) as re-enacted in 1979 and as applicable in the instant case contains essentially the same language as the former statute with two exceptions. The new statute omits the former requirement that the parent's failure be "without justifiable cause" and, unlike the former statute, existing Code Ann. § 74-405(b) has the additional requirement that "the court [be] of the opinion that the adoption is for the best interest of the child" whose parent has "failed significantly" to communicate with or provide support for him.

While it is unclear from the facts, apparently Burch v. Terrell, 154 Ga.App. 299, 267 S.E.2d 901 (1980) involved adoption proceedings instituted after the effective date of existing Code Ann. § 74-405(b) but in which the trial court in its final order had specifically found as a fact that the natural father's failure to communicate with or provide support for his child was "without justifiable cause." This court, interpreting such a final order of adoption in light of existing Code Ann. § 74-405(b), found that "[w]hatever the reason for dropping [the phrase 'without justifiable cause' in the statute], we do not construe it as depriving the trial court of a discretion in determining whether the action of the parent was in fact legally justifiable." Burch, 154 Ga.App. at 300, 267 S.E.2d 901, supra. Turning then to the trial court's specific finding that the failure to support had been "without justifiable cause," this court held in Burch that, as that clause in former Code Ann. § 74-405 had been interpreted, the finding was erroneous. Then, because it could not be determined what the decision of the trial court would have been had it not considered the parent's failure to support, the judgment granting adoption was vacated and the case remanded for the trial court to reconsider his original finding that there had been no justifiable cause for the parent's failure to make a bona fide attempt to communicate with his child within the appropriate time period. Burch, 154 Ga.App. at 300-301, 267 S.E.2d 901, supra.

Subsequently, in Baker v. Nicholson, 158 Ga.App. 267, 279 S.E.2d 717 (1981), Burch was interpreted "as holding that the trial court must make a finding of fact that the failure to support or communicate was without justifiable cause in order to demonstrate a full exercise of the trial court's discretion in adoption matters where parental rights are terminated." Relying on this interpretation of Burch, Baker reversed a final order of adoption which had not specifically made a finding of fact that the parent's failure to communicate with or provide support had been "without justifiable cause" and remanded the case with direction that the trial court make a finding "regarding justifiable cause." Thus, Baker and Burch stand for the proposition that under existing Code Ann. § 74-405(b) the trial court must make a specific finding that the parent's failure to communicate with or support his child was "without justifiable cause" in a final order granting adoption. If this interpretation of Code Ann. § 74-405(b) in Baker and Burch is correct appellant is likewise correct in his assertion that the final order in the instant case granting the adoption of his child must be vacated and remanded. The trial judge found only that appellant had "failed significantly" to communicate with or to support his child and that adoption by appellee would be in the best interest of the child. We believe, however, that Baker and Burch misinterpreted Code Ann. § 74-405.

It is readily seen that if the interpretation of Code Ann. § 74-405(b) in Baker and Burch is correct the "without justifiable cause" language is again part of the statute, though an unwritten part, and the child of a parent who has "failed significantly" to communicate with or provide support for him may not be adopted unless that significant failure is also specifically found to be "without justifiable cause." However, it is indisputable that the legislature specifically omitted any requirement that a parent's significant failure in this regard be found to be "without justifiable cause." It must be presumed that the legislature when enacting existing Code Ann. § 74-405(b) had knowledge of the requirement of former Code Ann. § 74-405 and intended to delete the requirement that a parent's significant failure to communicate with or to provide support for his child further be "without justifiable cause" and that such a finding is no longer a prerequisite to an adoption without the consent of the natural parent. See generally Webb v. Alexander, 202 Ga. 436(1), 43 S.E.2d 668 (1947). The rule applicable to the interpretation of a reenacted statute such as Ga.L.1979, pp. 1182, 1187, is that " '... this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the State, absolutely controls ...' " Osborne v. Ridge View Associates, 238 Ga. 377, 378, 233 S.E.2d 342 (1977). It is the "cardinal or preeminent rule" of statutory construction that this legislative intent be given effect. Ford Motor Co. v. Abercrombie, 207 Ga. 464(1), 62 S.E.2d 209 (1950). "The new statute made no attempt to re-enact the old provision, although the legislature knew at the time that the old law [required the failure to be found to be "without justifiable cause."] Could it be said that the legislature intended to abandon its own language, ..., and take the chance that the [new statute] would be construed to mean the same thing, and this notwithstanding the fact that the members of the General Assembly knew that the rules of construction require that [the language of the new statute] be given its natural and ordinary meaning which [does] not include ["without justifiable cause"]? ... The purpose or wisdom in repealing and refusing to re-enact [former Code Ann. § 74-405 as worded] is a matter for the exclusive determination of the legislature and is no legitimate concern of the judiciary. [Cits.]" Thompson v. Eastern Air Lines, 200 Ga. 216, 223-224, 39 S.E.2d 225 (1946). "[I]t is the province of the General Assembly, and not of the courts, to declare what shall be the public policy of this State..." Hightower v. Hollis, 121 Ga. 159, 161-162, 48 S.E. 969 (1904). "[T]he courts in construing a statute can neither add to nor take away from it. [Cits.]" State Revenue Com. v. Alexander, 54 Ga.App. 295, 296, 187 S.E. 707 (1936).

Applying the foregoing rules of statutory construction to existing Code Ann. § 74-405(b...