Welch v. Welch, s. S94A1722
| Citation | 453 S.E.2d 445,265 Ga. 89 |
| Decision Date | 13 February 1995 |
| Docket Number | S94X1730 and S94X1732,Nos. S94A1722,S94X1725,S94X1728,s. S94A1722 |
| Parties | Joseph Eugene WELCH et al. v. Mack Wren WELCH et al. Martha Welch SINGLETARY v. Joseph Eugene WELCH et al. Mack Wren WELCH et al. v. Joseph Eugene WELCH et al. Tommy WELCH v. Joseph Eugene WELCH et al. Charles A. WELCH et al. v. Joseph Eugene WELCH et al. |
| Court | Supreme Court of Georgia |
Robert P. McFarland, Cumming, for appellants.
Robert S. Stubbs, III, Banks & Stubbs, Michael R. Sleister, Lipscomb, Johnson, Ashway & Sleister, Jeffrey S. Bagley, Boling, Rice, Bettis, Bottoms & Bagley, Cumming, T. Russell McClelland III, Roswell, for appellees.
In the 1960's, appellant-plaintiffs were placed into the custody of Mr. and Mrs. Cecil Welch by order of the juvenile court. Although appellants remained in the custody of the Welches until they reached their majority, the Welches never initiated proceedings to adopt appellants formally. When no wills were offered for probate after the Welches died in 1992, appellants filed an action seeking children's shares of the estates based on alleged "virtual adoption." After appellants presented their evidence at a bench trial, the trial court granted appellees' motion for involuntary dismissal. The ground for the dismissal was the trial court's conclusion, as a matter of law, that a contract for adoption must be between the natural parents and the adoptive parents, and that case law did not support the conclusion that the juvenile court was a party competent to enter into such a contract. It is from that dismissal that appellants bring the main appeal. Appellees have filed defensive cross-appeals.
In O'Neal v. Wilkes, 263 Ga. 850(1), 439 S.E.2d 490 (1994), this court reiterated the principle that a contract for adoption must be between parties competent to contract for the disposition of the child. The question for resolution in this case is whether the juvenile court can, by entry of an order awarding custody, become one of such parties. We conclude that the principles stated in O'Neal should not be extended so far as to permit the juvenile court such authority.
Virtual adoption is not a doctrine to be employed broadly, and the facts of this case demonstrate why. Appellants' suit asked the trial court to create a contract out of an order which merely established legal custody and gave approval to the custodians to proceed with statutory adoption proceedings if they chose to do so. The evidence is clear that they did not choose to do so, and while the record is silent as to the reason for that non-action, it is also silent as to the intent of the Welches in taking custody of appellants. The trial court here expressed the opinion that the contract of adoption must be considered oral because only the juvenile court signed the order and the purported adoptive parents had not signed anything memorializing their intent at that time of adopting appellants. The danger of familial ties being created by judicial action such as this in the absence of evidence of such an intent is too great to permit a custody order to have the effect which appellants would have us give it. The Welches are no longer able to speak to their reasons for not following up on the pre-approval given by the juvenile court, and we cannot assume from their silence that they had such an intent to adopt that a court of equity should cause that intent to mature into an accomplished adoption.
While it is true that our former law permitted certain juvenile courts to take custody of children whose parents' parental rights had been terminated, and to act in loco parentis and as guardian of such children 1, and case law has recognized the authority of such courts to give consent to adoption 2, that authority should properly be limited to the context in which it arose, statutory adoption. The trial court in the present case was correct in its holding that there was no case law permitting a juvenile court's order to be considered the contract underlying virtual adoption.
The courts have an important role in supervising and regulating the adoption process in this case and should not become mere contractual parties in the process. While it is appropriate in circumstances such as those surrounding the custodial placement of appellants for the juvenile court to give encouragement to custodians to adopt, it is not appropriate for the superior court subsequently to transmute that encouragement into a contract which became binding on one side only after the death of that side. The trial court was correct in ruling that the custody order could not serve as a contract of adoption and in granting appellees' motion for involuntary dismissal. Since that judgment is affirmed, the defensive cross-appeals are moot and must be dismissed.
Judgment affirmed in Case No. S94A1722.
Appeals dismissed in Cases No. S94X1725, S94X1728, S94X1730, and S94X1732.
All the Justices concur except SEARS, HUNSTEIN, and CARLEY, JJ., who dissent.
For the reasons given by Justice Carley in his dissent, I believe that the trial court's judgment must be reversed even under the rationale of the majority opinion in O'Neal v. Wilkes, 263 Ga. 850(1), 439 S.E.2d 490 (1994), to which I dissented. I also believe that the judgment in this case should be reversed based on the principles set forth in my dissent in O'Neal v. Wilkes, 263 Ga. at 853-856, 439 S.E.2d 490. I therefore respectfully dissent to the majority opinion in the present case.
Because, in affirming the trial court, the majority unduly restricts the principles of O'Neal v. Wilkes, 263 Ga. 850(1), 439 S.E.2d 490 (1994) and misconstrues the custody orders, I must respectfully dissent. In my opinion, the trial court erred in granting appellees' motion for involuntary dismissal pursuant to OCGA § 9-11-41(b).
1. In a virtual adoption case, a contract for adoption must be proven and (Emphasis supplied.) O'Neal v. Wilkes, 263 Ga. 850, 851(1), 439 S.E.2d 490 (1994). Ordinarily, the natural parents will be the ones who are "competent to contract" for the adoption of their child. However, that is not invariably the case. The natural parents may be deceased or, if living, they may have lost their parental rights. Accordingly, in determining whether this element of a virtual adoption case has been proven, the focus must be upon the competency of the party with whom the purported adoptive...
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