Sastre v. McDaniel

• Decision Date: 23 September 2008
• Docket Number: No. A08A1485.,A08A1485.
• Citation: 293 Ga. App. 671,667 S.E.2d 896
• Parties: SASTRE, et al. v. McDANIEL, et al.
• Court: Georgia Court of Appeals

293 Ga. App. 671

667 S.E.2d 896

SASTRE, et al. v. McDANIEL, et al.

No. A08A1485.

Court of Appeals of Georgia.

September 23, 2008.

Clark & Williams, Jason R. Clark, Brunswick, James L. King, II, Frances W. Dyal, for appellants.

Charles B. O'Neill Jr., for appellees.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, amici curiae.

MILLER, Judge.

Iane and Lydia Sastre appeal from the trial court's order dismissing, without prejudice, their petition for adoption of A.L.R. (the "child"), arguing that the trial court erred in finding that the Sastres were not Georgia residents and in allowing the Lamar County Department of Family and Children Services (the "Department") to object to the adoption proceedings. Discerning error, we reverse.

"In matters of adoption, the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse." (Citation and punctuation omitted.) Smith v. Hutcheson, 283 Ga.App. 117, 118, 640 S.E.2d 690 (2006). When, as here, an appeal involves questions of law, we owe no deference to the trial court and apply the "plain legal error" standard of review. Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000).

The record shows that after the child's birth on March 1, 2006, the Sastres were recognized by her biological parents as the child's godparents. In that capacity, the Sastres assisted in caring for the child for a period of two months while the biological mother coped with a substance abuse problem. On January 16, 2007, nunc pro tunc December 20, 2006, the Juvenile Court of Lamar County (the "juvenile court") issued a written order finding the child to be deprived as to her biological mother and father (the "parents") and placed the child in the temporary custody of the Department. In August 2007, while the child remained in the custody of the Department, the parents executed separate surrenders of their parental rights to the child in favor of the Sastres. These surrenders served as the basis for the instant petition for adoption filed by the Sastres in the Superior Court of Lamar County (the "superior court") on September 17, 2007. The Department filed its objection to the petition on October 15, 2007, alleging that the parents' surrenders of their parental rights and the Sastres' adoption petition represented efforts to avoid their responsibilities under a case plan ordered by the juvenile court and to thwart any court-ordered termination of their parental rights.

On November 5, 2007, the Department filed a petition for the termination of the parents' parental rights in the juvenile court. The Sastres moved to intervene in the termination proceeding a month later, and in early January 2008, the Department filed a motion in the superior court to remand the case to the juvenile court for consolidation of the adoption and termination proceedings. The Department subsequently placed the child with the child's "foster to adopt" parents,¹ Charles S. and Kimberley A. McDaniel. On February 11, 2008, the McDaniels filed their answer, defenses, and motions to intervene and dismiss the Sastres' petition for adoption. Like the Department, the McDaniels asserted that the parents' surrenders of parental rights should be disregarded as executed to avoid and circumvent an involuntary termination of their parental rights in the juvenile court. Following a hearing, the superior court dismissed the Sastres' petition for adoption without prejudice, finding that the Sastres, who had moved to Tennessee from Georgia to permit Mr. Sastre to attend a seminary, were nonresidents of Georgia "as contemplated by OCGA § 19-8-3(a)(3)." The superior court also declined to stay the termination proceedings in juvenile court and found that all other issues pending in connection with the adoption action were moot.

1. The Sastres contend that the superior court erred in dismissing their petition for adoption upon finding that they were nonresidents of Georgia within the meaning of OCGA § 19-8-3(a)(3). We agree.

OCGA § 19-8-3(a)(3) provides that a person petitioning to adopt a child in Georgia must show that he or she "[h]as been a bona fide resident of this state for at least six months immediately preceding the filing of the petition." By their appellate brief, the Sastres correctly assert that the adoption statute, OCGA § 19-8-1 et seq., fails to define the words "bona fide resident" as set out therein, arguing that the word "resident" should be defined as it is in OCGA § 19-5-2 see Conrad v. Conrad, 278 Ga. 107, 108, 597 S.E.2d 369 (2004) ("As used in OCGA § 19-5-2, `resident' means `domiciliary.'") (citation omitted). As such, the Sastres assert that the dismissal of their petition for adoption was error because they remained domiciliaries of Georgia, even though they were living in Tennessee while Mr. Sastre completed his seminary education.

By their undisputed, verified petition for adoption, the Sastres averred that they have lived in White Oak, Georgia, since 2002; that they moved to Tennessee in November 2007 to permit Mr. Sastre to attend seminary; and that they will be returning to Georgia upon the completion of Mr. Sastre's seminary education.

While Chapter 8 of Title 19 of the Code does not define the phrase "bona fide resident" as it is used in OCGA § 19-8-3 (a)(3), we find no basis to depart from the definition our Supreme Court has given the same as to divorce for purposes of determining eligibility to adopt. Conrad, supra, 278 Ga. at 108, 597 S.E.2d 369. We also find such construction to be wholly consistent with the Department's interest in finding adoptive parents who are most able to provide for the welfare and best interests of children placed for adoption. Thus, we hold that the phrase "bona fide resident," as used in OCGA § 19-8-3(a)(3), requires a showing of status as a Georgia domiciliary for at least six months immediately before the filing of the petition for adoption. See OCGA § 19-2-1; see also Abou-Issa v. Abou-Issa, 229 Ga. 77, 78, 189 S.E.2d 443 (1972) ("[D]omicile refers to a single fixed place of abode with the intention of remaining there indefinitely, or the single fixed place of abode where a person intends to return, even though the person may in fact be residing elsewhere." (Citations omitted; emphasis supplied.)). Our prior decisions construing OCGA § 19-8-3(a)(3) are...