In re Interest of K. G. V.

358 Ga.App. 61

853 S.E.2d 376

In the INTEREST OF K. G. V., a child.

A21A0033

Court of Appeals of Georgia.

December 31, 2020

Darice Marie Good, for Appellant.

Yari Dion Lawson, Lawrenceville, Cynthia Ann Lain, Atlanta, Tyler Vandenberg, Christina Bridger, for Appellee.

Barnes, Presiding Judge.

Sharon O'Connor, the maternal grandmother of K. G. V., appeals from the order of the Superior Court of Gwinnett County dismissing her petition to adopt the minor child. For the reasons discussed below, the trial court erred in concluding that the grandmother could not seek to adopt the child because she was the child's permanent guardian. Accordingly, we reverse.

We begin with the procedural history forming the context for this case. In January 2016, the grandmother of the then four-year-old child filed a petition to terminate the parental rights of the mother and father or, in the alternative, a petition for permanent guardianship in the Juvenile Court of Gwinnett County. The juvenile court had previously found that the child was dependent and had placed the child in the temporary custody of the grandmother in March 2014.

In November 2016, the juvenile court entered an order denying the grandmother's petition to terminate parental rights but granting her petition for permanent guardianship. The juvenile court found that the mother and father had abandoned the child and that the child was dependent as a result of, among other things, the parent's chronic unrehabilitated substance abuse, felony convictions, and history of incarceration. However, the court found that there was not clear and convincing evidence that termination of parental rights would be in the child's best interest. The juvenile court placed the child under the permanent guardianship of the grandmother, concluding that reasonable efforts to reunite the child with the parents would be detrimental to the child, the grandmother could provide a safe and permanent home for the child, the appointment of a permanent guardian would be in the child's best interests, and the grandmother was the individual most appropriate to serve as the child's permanent guardian, taking into consideration the best interests of the child. See OCGA § 15-11-240 (a). The court also required the parents to pay child support, among other requirements, and granted them scheduled phone calls and supervised visitation with the child.¹ See OCGA §§ 15-11-240 (b) ; 15-11-242 (a) (3).

In October 2017, the grandmother filed in the juvenile court a second petition seeking to terminate parental rights or, in the alternative, to modify the conditions of the permanent guardianship. The juvenile court dismissed the petition on res judicata grounds in June 2018.

In July 2018, the grandmother filed a petition in the Superior Court of Gwinnett County seeking to adopt the child.² In her petition, the grandmother, as a relative of the child under OCGA § 19-8-7 (a), sought to terminate the mother and father's parental rights under OCGA § 19-8-10 (a) (1), (3) and (5) on the grounds that the parents had abandoned the child; that the father had suffered a recent traumatic brain injury that rendered him incapable of surrendering his parental rights; and that the child was dependent due to lack of proper parental care and control based on, among other things, the parents’ chronic unrehabilitated substance abuse, felony convictions, and history of incarceration. The petition further alleged that continued contact between the child and parents was causing harm to the child.

The mother filed a motion to dismiss the grandmother's petition for adoption on the ground of res judicata. The trial court denied the motion, concluding that there had been changes in the law that might affect "the ultimate decision and [that] there are allegations that, if proven, could show a change in condition since the last case."³

The mother filed a second motion to dismiss the grandmother's petition for adoption, but on a different ground, namely, that dismissal was appropriate because the grandmother had already been granted a permanent guardianship and had custody and control of the child. The mother argued that "[t]he appointment of a permanent guardian ended the child's abandonment and cured her dependency," that "[t]he child's support, stability, and care [were] now the responsibility of [the] grandmother," and that "all claims of abandonment and dependency" with respect to the mother had been rendered moot.

Consequently, the mother argued that the grandmother could not show that the child was in a present state of abandonment or dependency vis a vis the mother, and thus could not satisfy the conditions for terminating her parental rights under OCGA § 19-8-10 (a) (1) and (5) as part of the adoption process.

At the hearing conducted on the mother's motion to dismiss, the guardian ad litem who had been appointed to represent the father because of his recent brain injury asked the trial court to grant the motion and dismiss the adoption petition. In contrast, the child's guardian ad litem asked the trial court to deny the motion to dismiss, arguing that "[a] guardianship does not preclude a party, if they fit the statutory requirements, to file an adoption."

After the hearing, in November 2019, the trial court granted the motion to dismiss the adoption petition based on the mother's argument regarding the permanent guardianship that had been granted to the grandmother. This appeal by the grandmother followed.

On appeal, the grandmother contends that the trial court erred in dismissing her adoption petition based on the fact that she had been granted a permanent guardianship over the child. We agree.

In her adoption petition, the grandmother sought to adopt the child based on OCGA §§ 19-8-7 (a) and 19-8-10 (a). OCGA § 19-8-7 (a) of Georgia's current adoption code⁴ provides:

A child may be adopted by a relative who is related by blood or marriage to the child as a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, or sibling only if each living parent and guardian of such child has voluntarily and in writing surrendered to that relative and any spouse of such relative all of his or her rights to the child for the purpose of enabling that relative and any such spouse to adopt the child.

In lieu of obtaining a voluntary surrender of parental rights, a petitioner pursuing an adoption as a relative of the child under OCGA § 19-8-7 (a) may obtain the adoption by satisfying the requirements of OCGA § 19-8-10 (a). See Hooper v. Hedgepath , 340 Ga. App. 163, 166 (1), 796 S.E.2d 779 (2017). OCGA § 19-8-10 (a) provides:

Surrender or termination of rights of a living parent pursuant to Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the granting of a petition for adoption of a child of such living parent pursuant to Code Section 19-8-13 when the court determines by clear and convincing evidence that the:

(1) Child has been abandoned by that parent;^[5]

(2) Parent cannot be found after a diligent search has been made;

(3) Parent is insane or otherwise incapacitated from surrendering such rights;

(4) Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the biological mother of his child or when the biological mother is less than ten years of age; or

(5) Parent, without justifiable cause, has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section 15-11-310,^{[6 ]} and the court is of the opinion that the adoption is in the best interests of that child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.

Nothing in the language of these statutes disqualifies a permanent guardian from seeking to adopt a child. Rather, OCGA § 19-8-3 (a) sets out the eligibility requirements for petitioning for adoption:

Any individual may petition to adopt a child if he or she:

(1) Is at least 25 years of age or is married and living with his or her spouse, or is at least 21 years of age and is a relative of the child;

(2) Is at least ten years older than the child, except such ten-year requirement shall not apply when the petitioner is a stepparent or relative and the petition is filed pursuant to Code Section 19-8-6 or 19-8-7 ;

(3) Is a bona fide resident of this state at the filing of the petition for adoption or is a bona fide resident of the receiving state when the adoptee was born in this state and was placed in compliance with Chapter 4 of Title 39, relating to the Interstate Compact on the Placement of Children; and

(4) Is financially, physically, and mentally able to have permanent custody of the child.

A relative who meets these eligibility requirements is entitled to pursue an adoption under OCGA § 19-8-10 (a), irrespective of whether the relative might also be the permanent guardian of the child. Concluding otherwise would require us to engraft a provision disqualifying permanent guardians from petitioning for adoption onto the otherwise plain language of the pertinent statutes, which we decline to do. See Allen v. Allen , 265 Ga. 53, 53 (1), 452 S.E.2d 767 (1995) (declining to "rewrite" statute to graft a new requirement not reflected in the plain language of the statute); Mullis v. Bone , 143 Ga. App. 407, 409 (1), 238 S.E.2d 748 (1977) (noting that new requirements should not be engrafted onto a statute "by judicial fiat"). As repeatedly explained by our Supreme Court, "where the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning ends." (Citation and punctuation omitted.) Patton v. Vanterpool , 302 Ga. 253, 254, 806 S.E.2d 493 (2017).

In seeking to dismiss the adoption petition, the mother argued that a permanent guardian cannot petition for adoption specifically...