Matherly v. Kinney
| Decision Date | 14 July 1997 |
| Docket Number | No. A97A0471,A97A0471 |
| Citation | 489 S.E.2d 89,227 Ga.App. 302 |
| Parties | , 97 FCDR 2724 MATHERLY v. KINNEY et al. |
| Court | Georgia Court of Appeals |
Rubin, Winter, Rapoport & Hall, Robert E. Hall, Atlanta, Jeffrey C. Hamling, Roswell, for appellant.
Walbert & Mathis, David A. Webster, Atlanta, Lauren G. Alexander, Oxford, MS, Christopher J. McFadden, Decatur, for appellees.
Mr. & Mrs. Daniel T. Kinney sought adoption of Mrs. Kinney's orphaned niece. Lois Matherly, the mother of the child's deceased father, appeals the grant of that adoption. We affirm.
1. Matherly contends the trial court abused its discretion in granting the adoption. In an adoption case, (Citations and punctuation omitted.) Barkley v. Painter, 157 Ga.App. 236, 237(1), 276 S.E.2d 903 (1981). In this case, because no natural parent survives, the only considerations are whether the adopting parents are worthy and able to care for the child and whether the adoption is in the best interest of the child. Id.; OCGA § 19-8-18(b).
Construed in favor of the trial court's decision, the evidence showed that the child's parents were divorced in 1992, with custody placed in the child's mother, Deborah Crawford King. Evidence was presented that the child's father, Stephen King, failed to pay child support for a substantial period of time and that Deborah was unable to locate him or enforce his obligations. In 1994, Deborah became ill with brain cancer, and the Kinneys took Deborah and her child into their home, moving to a larger house with a separate suite for Deborah and the child. In the summer of 1995, Deborah learned that her illness was terminal and, in contemplation of adoption, executed a surrender of parental rights in favor of the Kinneys. She also executed a will in which she expressed her wish that the Kinneys assume guardianship of the child. She died in October 1995.
The day after Deborah's death, Stephen picked up the child at the Kinneys' home and said "she was never coming back." The Kinneys were unable to locate Stephen or the child. Shortly after taking the child from the Kinneys, Stephen consented to a temporary guardianship in Matherly, his mother, which was granted without a hearing by the clerk of the probate court. Matherly testified that Stephen gave the child to her because he was arrested for a drug offense and wanted her to take care of the child "until he saw what was going to happen to him and got his head on straight and got married." Stephen told his mother he was going into drug rehabilitation, but he first traveled to Jamaica, where he was murdered.
Ms. Kinney sent a certified letter to Matherly asking to see the child, but Matherly responded that Ms. Kinney would not be allowed to see the child under any circumstances. Matherly acknowledged that she did not allow the child to see the Kinneys from the time Stephen took the child until the court ordered visitation in April 1996.
The guardian ad litem appointed by the court on behalf of the child expressed concern that the child had been removed without warning from the Kinneys' home, where she had lived for a year with her dying mother, and that she had been denied all contact with them until the court intervened. The guardian was troubled at Matherly's attempts to conceal the child's past, for example, from the child's new school and to create "this new life as though this other family didn't exist." She saw Matherly's exclusive focus on the child as "unhealthy and unnatural" and "obsessive." She was also concerned about the child's exposure to Matherly's other son, because of his violent behavior, drug use, and the presence of vicious dogs on his property. Another witness testified that Stephen and this son had been involved in an argument and "chain fight," Stephen was injured, and the police were called.
In her brief, Matherly does not contend or point to any evidence that the Kinneys are unfit to adopt the child. Instead, she argues only that the trial court abused its discretion because its order will "exclude the child from one side of her extended family." The Kinneys, however, stipulated that visitation with Matherly was appropriate, and the trial court provided for visitation in the adoption order. See generally OCGA § 19-8-15.
(Citations omitted.) Peterson v. Spence, 146 Ga.App. 209, 245 S.E.2d 871 (1978); see also Lee v. Stringer, 212 Ga.App. 401, 403, 441 S.E.2d 861 (1994).
2. Matherly also complains that the trial court erred in dissolving the temporary guardianship of the child's person granted to her by the clerk of the probate court before her son's death. OCGA § 29-4-4.1(a)(1). Matherly contends that this guardianship, although temporary in character and obtained without a hearing or a judge's approval, continues to exist in perpetuity after the death of her son and prevents any adoption from taking place over her objection. The record in this case, however, reveals that Matherly has filed a new guardianship petition in the probate court, which would appear unnecessary if the temporary guardianship in fact remained in force after her son's death.
But we do not reach this issue because the temporary guardianship of the child's person was also an issue in a separate custody action between the same parties. The permanent custody order issued by the superior court, the final order in that action, also declared Matherly's temporary guardianship over the child's person dissolved, and Matherly's application for discretionary review of the custody order was denied. Matherly v. Kinney, A97D00...
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