GA Code § 19-8-18 (2021)
2021 Georgia Code|Title 19 - Domestic Relations|Chapter 8 - Adoption|Article 1 - General Provisions|§ 19-8-18. Hearing; District Attorney to Be Directed to Review Inducement Violations; Decree of Adoption; Factors Considered in Determining Best Interests of Child; Disposition of Child on Denial of Petition

    Upon the date appointed by the court for a hearing of the petition for adoption or as soon thereafter as the matter may be reached for a hearing, the court shall proceed to a full hearing on such petition and the examination of the parties at interest in chambers, under oath, with the right of continuing the hearing and examinations from time to time as the nature of the case may require. The court at such times shall give consideration to the investigation report to the court provided for in Code Section 19-8-16 and the recommendations contained in such report. There shall be a presumption that a petitioner who is a nonresident of Georgia should be granted the opportunity to appear via electronic means in lieu of physical presence before the court if his or her petition is uncontested, especially if appearing in person would cause hardship to the petitioner. In all other cases, the court may in its discretion allow the petitioner or any witness to appear via electronic means in lieu of requiring his or her physical presence before the court.   The court shall examine the petition for adoption and the affidavit specified in subsection (g) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7, as appropriate, to determine whether Code Section 19-8-12 is applicable. If the court determines that Code Section 19-8-12 is applicable to the petition for adoption, it shall:   Determine that an appropriate order has previously been entered;   Enter an order consistent with Code Section 19-8-12; or   Continue the hearing until Code Section 19-8-12 is complied with.     If the adoption petition is filed pursuant to Code Section 19-8-5, the court shall examine the financial disclosures required under subsections (c) and (d) of Code Section 19-8-13 and make such further examination of each petitioner and his or her attorney as the court deems appropriate in order to make a determination as to whether there is cause to believe that Code Section 19-8-24 has been violated with regard to the inducement, as such term is defined in Code Section 19-8-24, of the placement of the child for adoption. Should the court determine that further inquiry is in order, the court shall direct the district attorney for the county to review the matter further and to take such appropriate action as the district attorney in his or her discretion deems appropriate.       If the petition for adoption was filed pursuant to Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7, the court shall enter a decree of adoption naming the child as prayed for in such petition; terminating all of the rights of each living parent, guardian, and legal custodian of the child, other than the spouse of the petitioner in the case of a stepparent adoption pursuant to Code Section 19-8-6; granting the permanent custody of the child to each petitioner; and declaring the child to be the adopted child of each petitioner if the court is satisfied that:   Each living parent or guardian of the child has surrendered or had terminated all of his or her rights to the child in the manner provided by law or that each petitioner has complied with the notice requirements of subsection (c) of Code Section 19-8-10 and satisfied his or her burden of proof under Code Section 19-8-10 or that the spouse has consented to the petitioner's adoption of the child as required by Code Section 19-8-6;   Each petitioner is capable of assuming responsibility for the care, supervision, training, and education of the child;   The child is suitable for adoption in a private family home; and   The adoption requested is in the best interests of the child.     When Code Section 19-8-10 has been relied upon by any petitioner for the termination of rights of a living parent, the court shall include in the decree of adoption appropriate findings of fact and conclusions of law relating to the termination of rights of such living parent and the court's determination that the adoption is in the child's best interests.   When the child was born in a country other than the United States, the court shall examine the evidence submitted in order to determine whether sufficient evidence has been proffered to show that the child has a viable path to lawful permanent resident status, if not already obtained. The court shall consider the evidence when making a determination if it is in the best interests of the child to grant the petition for adoption.   If there is an existing visitation order pursuant to Code Section 19-7-3 in favor of a family member, the court shall have the authority to continue or discontinue such visitation rights in the adoption order as it deems is in the best interests of the child.     If the petition for adoption was filed pursuant to subsection (a) of Code Section 19-8-8 and if the court is satisfied that the petitioner has fully complied with the requirements of Code Section 19-8-13 and has established that he or she finalized his or her adoption of the child in the foreign country, then the court shall enter a decree of adoption naming the child as prayed for in such petition; domesticating the foreign decree of adoption; granting the permanent custody of the child to each petitioner; changing the date of birth of the child if so requested, provided that evidence was presented justifying such change; and declaring the child to be the adopted child of each petitioner.Notwithstanding the requirements of subsection (a) of this Code section, the court may domesticate the foreign decree of adoption upon the pleadings without a hearing.   If the petition for adoption was filed pursuant to subsection (b) of Code Section 19-8-8, the court shall enter a decree of adoption naming the child as prayed for in such petition; terminating the guardianship; granting the permanent custody of the child to each petitioner; changing the date of birth of the child if so requested, provided that evidence was presented justifying such change; and declaring the child to be the adopted child of each petitioner if the court is satisfied that the petitioner has fully complied with the requirements of Code Section 19-8-13 and that:   Each petitioner in his or her capacity as guardian of the child has surrendered all of his or her rights to the child in the manner provided by law;   Each petitioner is capable of assuming responsibility for the care, supervision, training, and education of the child;   The child is suitable for adoption in a private family home; and   The adoption requested is in the best interests of the child.     In exercising its discretion to determine whether the adoption requested is in the best interests of the child, the court shall consider the following factors:   The ability of each petitioner and, if applicable, each respondent to provide for the physical safety and welfare of the child, including food, shelter, health, and clothing;   The love, affection, bonding, and emotional ties existing between the child and each petitioner and, if applicable, each respondent;   The child's need for permanence, including the child's need for stability and continuity of relationships with his or her siblings;   The capacity and disposition of each petitioner and, if applicable, each respondent to give the child his or her love, affection, and guidance and to continue the education and rearing of the child;   The home environment of each petitioner and, if applicable, each respondent, considering the promotion of the child's nurturance and safety rather than superficial or material factors;   The stability of the family unit and the presence or absence of support systems within the community to benefit the child;   The mental and physical health of all individuals involved;   The home, school, and community record and history of the child, as well as any health or educational special needs of the child;   The child's background and ties, including familial, cultural, and religious;   The uniqueness of every family and child;   The child's wishes and long-term goals;   Any evidence of family violence, substance abuse, criminal history, or sexual, mental, or physical child abuse in the petitioner's home and, if applicable, each respondent's home;   Any recommendation by a court appointed agent or guardian ad litem; and   Any other factors considered by the court to be relevant and proper to its determination.     If the court determines that any petitioner has not complied with this article, it may dismiss the petition for adoption without prejudice or it may continue the case.Should the court find that any notice required to be given by any petitioner under this article has not been given or has not been properly given or that the petition for adoption has not been properly filed, the court shall be authorized to enter an order providing for corrective action and an additional hearing.   If the court is not satisfied that the adoption is in the best interests of the child, it shall deny the petition for adoption.If such petition is denied because the court determines that the adoption requested is not in the best interests of the child or for any other reason under law, the court shall set forth specific findings of fact explaining its decision in its order denying the adoption and shall commit the child to the custody of the department, a child-placing agency, or an out-of-state licensed agency if such petition was filed pursuant to Code Section 19-8-4.If such petition was filed pursuant to Code Section 19-8-5, the court shall commit the child to the third party named by the parent in the written surrender of rights pursuant to subsection (a) of Code Section 19-8-5; and if there is no surrender of rights, the court shall place the child with the department for the purpose of determining whether or not a petition should be initiated under Chapter 11 of Title 15.If such petition was filed pursuant to Code Section 19-8-6, 19-8-7, or 19-8-8, the child shall remain in the custody of each petitioner if each petitioner is fit to have custody or the court may place the child with the department for the purpose of determining whether or not a petition should be initiated under Chapter 11 of Title 15.If the petition for adoption is denied, each surrender of rights executed in support of the adoption, whether by a parent, biological father who is not a legal father, or guardian, shall be dissolved by operation of law and the individual's rights shall be restored.The fact that the individual executed a surrender of his or her rights in support of the adoption shall not be admissible as evidence against him or her in any subsequent proceeding.   A decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.Notwithstanding Code Section 9-3-31, any action for damages against an adoptee or the adoptive parents for fraud in obtaining a consent or surrender of rights shall be brought within six months of the time the fraud is or ought to reasonably have been discovered.   Notwithstanding subsection (a) of Code Section 19-8-23, the decree of adoption issued pursuant to subsection (b) of this Code section shall authorize the clerk of the court to issue one or more certified copies of the decree of adoption to the petitioner or his or her attorney at the time of entry of the final decree without further order of the court and without cost.     (Code 1981, §19-8-18, enacted by Ga. L. 1990, p. 1572, § 5; Ga. L. 1995, p. 791, § 1/HB 474; Ga. L. 2018, p. 19, § 1-1/HB 159; Ga. L. 2021, p. 151, § 11/HB 154.)    The 2018 amendment,  effective September 1, 2018, rewrote this Code section.    The 2021 amendment,  effective July 1, 2021, in subsection (a), added the third sentence of paragraph (a)(1), substituted "In all other cases, the court" for "The court" at the beginning of the fourth sentence and deleted "subsection (a) of" following "filed pursuant to" near the beginning of paragraph (a)(3); and rewrote paragraph (b)(3), which read: "When the child was born in a country other than the United States, the court shall examine the evidence submitted and determine that sufficient evidence has been proffered to show that the child will be able to obtain lawful permanent resident status, if not already obtained, before the court shall have authority to determine if it is in the best interests of the child to grant the petition for adoption."   Law reviews.   - For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 166 (1995).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under Ga. L. 1941, p. 300, § 3 and former § 19-8-13, as last amended by Ga. L. 1979, p. 1182, §§ 9-11, are included in the annotations for this Code section.    Purpose of hearing upon petition of adoption is to ascertain disposition in the child's best interest. Hester v. Mathis, 147 Ga. App. 257, 248 S.E.2d 538 (1978) (decided under Ga. L. 1941, p. 300, § 3).   Petition for adoption properly granted.    - Trial court did not abuse the court's discretion in granting the petition for adoption filed by a child's paternal grandmother and paternal step grandfather because the court properly found that the adoption was in the best interest of the child; the trial court recognized the importance of continuity, stability, and security that would come from allowing the paternal grandmother and paternal step grandfather to adopt the child and found that they applied themselves so as to promote or foster a positive relationship with all the child's blood relatives. Barr v. Gregor, 316 Ga. App. 269, 728 S.E.2d 868 (2012).   Res judicata.    - Superior court erred in granting a mother's motion to dismiss a former partner's petition to adopt the mother's child because a judgment denying the mother's motion to set aside the adoption decree was res judicata as to the validity of the adoption decree, and the superior court that dismissed the partner's petition for custody was not entitled to revisit the validity of the decree; although a superior court ultimately denied the mother's motion to set aside as untimely, the application of the time bar set out in O.C.G.A. § 19-8-18(e) (subsection (e) is now deleted) presupposed that the adoption was one authorized by, and entered in accordance with, O.C.G.A. § 19-8-18(b). Bates v. Bates, 317 Ga. App. 339, 730 S.E.2d 482 (2012).    Adoption laws are to be strictly construed in favor of natural parents. Johnson v. Strickland, 88 Ga. App. 281, 76 S.E.2d 533 (1953) (decided under Ga. L. 1941, p. 300, § 3 prior to revision of chapter by Ga. L. 1977, p. 201).    While it may be true that in some respects adoption statute may be liberally construed, as applied to severance forever of paternal relation, it must be construed strictly against applicant and favorably to parent. Wheeler v. Little, 113 Ga. App. 106, 147 S.E.2d 352 (1966) (decided under Ga. L. 1941, p. 300, § 3 prior to revision of chapter by Ga. L. 1977, p. 201).   Unmarried individuals may adopt.    - Trial court abused the court's discretion by denying a foster parent's petition to adopt the foster child on the ground that placing the child with the foster parent, who was not married to the individual with whom the foster parent lived, violated the state's public policy because all of the evidence showed that the adoption would be in the child's best interest, and the trial court failed to apply the law as written and determine whether it was in the child's best interest to allow the adoption; all of the witnesses, including the guardian ad litem the trial court appointed to represent the child's interests and the Department of Family and Children's Services adoption specialist, testified that the adoption was in the child's best interest and that to remove the child from the only family the child had ever known would be devastating to the child, and O.C.G.A. § 19-8-3 clearly did not prohibit the adoption because the General Assembly did not prohibit unmarried couples from adopting. In re Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).    In all adoption proceedings, judge exercises wide discretion which will not be set aside by appellate courts unless abused. McCall v. VanPopering, 124 Ga. App. 149, 183 S.E.2d 411 (1971) (decided under Ga. L. 1941, p. 300, § 3 prior to revision of chapter by Ga. L. 1977, p. 201).    In matters of adoption, superior court has very broad discretion which will not be controlled by appellate courts except in plain cases of abuse. If there is any evidence to support judgment entered in adoption proceeding, it must be affirmed. Nix v. Sanders, 136 Ga. App. 859, 223 S.E.2d 21 (1975) (decided under Ga. L. 1941, p. 300, § 3 prior to revision of chapter by Ga. L. 1977, p. 201).    Wide discretion is vested in the trial judge, who acts as both judge and jury, in adoption proceedings, and the judge's discretion will not be controlled unless manifestly abused. Ritchie v. Dillon, 103 Ga. App. 7, 118 S.E.2d 115 (1961) (decided under Ga. L. 1941, p. 300, § 3 prior to revision of chapter by Ga. L. 1977, p. 201).   Judge must consider recommendations of Department of Human Resources.    - It appears that, while legislature invested trial judge with utmost discretion in determining child's best interests to the judge's own satisfaction, it included mandatory provision that judge should give consideration to recommendations of Department of Human Resources in so doing. Cox v. Bohannon, 86 Ga. App. 236, 71 S.E.2d 440 (1952) (decided under Ga. L. 1941, p. 300, § 7 prior to revision of chapter by Ga. L. 1977, p. 201).   Recommendations of investigating agency to be "given consideration".    - Court properly granted a married couple's petition to adopt a child despite testimony from a representative of the Department of Family and Children Services (DFACS) that the child's interests would be best served by remaining in the care of relatives since the child had been there for a while. Although O.C.G.A. § 19-8-18(a)(1) required the trial court to "give consideration" to the DFACS investigative report, the law did not require the court to follow or adopt any conclusions in the report. Blount v. Knighton, 298 Ga. App. 448, 680 S.E.2d 522 (2009).    Only questions before court are: (1) do parents consent; (2) are adopting parents worthy and able to care for child; and (3) is adoption in best interests of child? Court is not required to declare adoption unless all three facts unequivocally appear. Allen v. Morgan, 75 Ga. App. 738, 44 S.E.2d 500 (1947) (decided under Ga. L. 1941, p. 300, § 7 prior to revision of chapter by Ga. L. 1977, p. 201).   Judge must determine whether parents have consented.    - At full hearing, judge has jurisdiction and it is the judge's duty to inquire into whether both parents have consented to adoption, and whether, if one parent has not consented, the necessity for such consent has been rendered unnecessary under law providing for such cases. Murray v. Woodford, 86 Ga. App. 273, 71 S.E.2d 275 (1952) (decided under Ga. L. 1941, p. 300, § 7 prior to revision of chapter by Ga. L. 1977, p. 201).   Challenge to consent order time barred.    - Challenge by the adoptive father and the biological mother to a consent order providing, inter alia, visitation to the biological father and the paternal grandmother, filed more than a year after the consent order was entered was time barred. Rimmer v. Tinch, 324 Ga. App. 65, 749 S.E.2d 236 (2013).    Consideration of investigative report of Department of Human Resources, if existent, is mandatory in adoption proceedings. Chandler v. Cochran, 247 Ga. 184, 275 S.E.2d 23 (1981) (decided under former § 19-8-13, as last amended by Ga. L. 1979, p. 1182, §§ 9-11).   Acceptance of recommendations.    - While the trial court is required to "give consideration" to the investigative report, the court is not required to follow or adopt any conclusions in the report. Bragg v. State, 226 Ga. App. 588, 487 S.E.2d 137 (1997).    When the trial court considered the investigative report's recommendations and scanned the report, although the court did not read the report in detail, there was no violation of paragraph (a)(1) of former § 19-8-13. Ridgley v. Helms, 168 Ga. App. 435, 309 S.E.2d 375 (1983) (decided under former § 19-8-13, as last amended by Ga. L. 1979, p. 1182, §§ 9-11); Cafagno v. Hagan, 213 Ga. App. 631, 445 S.E.2d 380 (1994);.   Challenge to adoption decree untimely.    - Because any challenge to the adoption decree had to be brought within six months and the mother brought a challenge approximately 10 months after the decree was entered, the trial court erred in granting the mother's motion to set aside the adoption. Oni v. Oni, 323 Ga. App. 467, 746 S.E.2d 641 (2013).    After the trial court's first judgment granting the mother's motion to set aside the adoption of the mother's two children by the adoptive father and awarding the mother temporary custody of the children was reversed by the appellate court, the trial court's second judgment granting the mother's amended motion to set aside the adoption was also reversed because the mother's motion to set aside the adoption decree approximately 10 months after entry of that decree and the mother's judicial challenge to that decree were time-barred. Oni v. Oni, 336 Ga. App. 278, 784 S.E.2d 112 (2016).   Denial of adoption petition affirmed.    - Fact that the child's father surrendered his rights to the child over to the paternal grandparents pursuant to O.C.G.A. § 19-8-7(a) was not determinative of the adoption petition filed by the paternal grandparents; since there was evidence to support the trial court's findings that the paternal grandparents would have denied the maternal grandparents contact with the child if the adoption petition were granted, and that the granting of the petition was not in the child's best interests, the denial of the petition was affirmed. Madison v. Barnett, 268 Ga. App. 348, 601 S.E.2d 704 (2004).   Decree met statutory requirements.    - Trial court's decree terminating a father's parental rights and allowing the adoption of the child by the adoptive parent complied with the statutory requirements because the order provided specific findings of fact that at the time of filing the petition, there had been no payments on the monthly child support for the one-year period immediately prior, and that there had been no child support payments from the date of the father's release from prison through a specific date; the trial court's decree further stated that the court's conclusions of law were based on the court's findings of fact and the verified petition, which specifically referenced O.C.G.A. § 19-8-10 in seeking adoption due, in part, to the father's failure to pay child support as required by a divorce decree and contempt order. Ray v. Denton, 278 Ga. App. 69, 628 S.E.2d 180 (2006).   Lack of notification to natural parent.    - Trial court erred by granting a stepparent's petition to adopt an eight-year-old child and by terminating the parental rights of one of the child's natural parents as the trial court failed to make any finding as to whether the natural parent's lack of communication with the child was without justifiable cause as required by O.C.G.A. § 19-8-18(b). Further, the trial court erred by basing the court's adoption decision, in part, on O.C.G.A. § 19-8-10(a)(4) as the stepparent's petition did not assert any claim pursuant to § 19-8-10(a) and, instead, relied exclusively on § 19-8-10(b). The natural parent was not served with a petition making allegations under subsection (a) and, therefore, received no notification that the natural parent had to prepare to show cause why the natural parent's parental rights should not be terminated. Smallwood v. Davis, 292 Ga. App. 173, 664 S.E.2d 254 (2008).   Findings of fact and conclusions of law.    - Since a trial court failed to make any specific findings of fact in support of the court's recitation under O.C.G.A. § 19-8-10 that a child's father had failed without justifiable cause to communicate with the child for a period of one year immediately prior to the filing of the adoption petition, the order did not comply with the requirements of O.C.G.A. § 19-8-18, and the court had to remand the matter to the trial court to make the appropriate findings of fact and conclusions of law. Sauls v. Atchison, 316 Ga. App. 792, 730 S.E.2d 459 (2012).    Trial court erred by terminating a biological father's parental rights and ordering adoption because the court failed to set forth specific findings of fact to support the conclusion that the requisites of O.C.G.A. § 19-8-10(b) as to abandonment of the child had been met. Ray v. Hann, 323 Ga. App. 45, 746 S.E.2d 600 (2013).   Best interests of child not shown.    - Although a grandmother's testimony as to her care and support of her granddaughter supported a trial court's grant of the grandmother's adoption petition pursuant to O.C.G.A. § 19-8-18(b), there was no showing that such adoption was in the child's best interest. Owen v. Watts, 296 Ga. App. 449, 674 S.E.2d 665 (2009).   Construction with other law.    - Superior court properly dismissed a grandmother's adoption petition on collateral estoppel grounds based on the juvenile court's previous order granting temporary custody to the maternal grandfather and grant of visitation rights to the grandmother; as a result, the superior court was not authorized to readjudicate the issue of permanent custody involving the child at issue. Smith v. Hutcheson, 283 Ga. App. 117, 640 S.E.2d 690 (2006).    When the trial court denied a couple's petition to adopt a child and to terminate the parental rights of the child's legal father, the court was not required to enter findings in accordance with O.C.G.A. § 19-8-18(b), which applied when an adoption petition was granted and parental rights terminated; the court entered findings and conclusions sufficient to satisfy O.C.G.A. § 19-8-10(b) when the court found that the father had paid child support and had communicated with the child and that the adoption was not in the child's best interest. Thaggard v. Willard, 285 Ga. App. 384, 646 S.E.2d 479 (2007).    Trial court erred in denying an aunt and uncle's petition to adopt their nephew under O.C.G.A. § 19-8-8, and should have applied O.C.G.A. § 19-8-7 as: (1) the former was not intended to be a general rule regarding the adoption of foreign children; (2) the aunt and uncle satisfied the jurisdictional and venue requirements of O.C.G.A. § 19-8-2 by filing the adoption petition in the superior court of their county of residence; and (3) as the child's aunt and uncle, they were relatives eligible to adopt under O.C.G.A. § 19-8-7(a); hence, the matter was remanded for consideration of the relevant factors in making the determinations required under O.C.G.A. § 19-8-18(b). In re Adoption of D.J.F.M., 284 Ga. App. 420, 643 S.E.2d 879 (2007).    Limiting language of O.C.G.A. § 19-7-3(b), forbidding original actions for grandparent visitation if the parents are together and living with the child, includes adoptive parents because in the absence of language limiting the term "parent" to only "natural parents" or "biological parents," there is no legislative intent to withhold from adoptive parents the same constitutionally protected status enjoyed by biological parents to raise their children without state interference; in construing § 19-7-3(b), the definition of parent in the adoption statute, O.C.G.A. § 19-8-1(6) and (8), which gives full legal status to adoptive parents, cannot be ignored, and the clear intent of the adoption statute is to give adoptive parents full legal rights. Bailey v. Kunz, 307 Ga. App. 710, 706 S.E.2d 98 (2011), aff'd, 290 Ga. 361, 720 S.E.2d 634 (2012).   Public policy of the state is to consider best interest of the child.    - Public policy of the state as enunciated by the General Assembly is to consider the best interest of the child when determining whether he or she should be adopted, O.C.G.A. § 19-8-18(b); in stating that marriage is encouraged, O.C.G.A. § 19-3-6 forbids most efforts to restrain or discourage marriage by contract, condition, limitation, or otherwise, and § 19-3-6 has nothing to do with the standards the courts must apply in determining whether to allow a child to be adopted. In re Goudeau, 305 Ga. App. 718, 700 S.E.2d 688 (2010).    Cited in Howard v. Bridger, 189 Ga. App. 292, 375 S.E.2d 270 (1988); Stroud v. McSwain, 192 Ga. App. 171, 384 S.E.2d 206 (1989); Matherly v. Kinney, 227 Ga. App. 302, 489 S.E.2d 89 (1997); In re Stroh, 240 Ga. App. 835, 523 S.E.2d 887 (1999).   RESEARCH REFERENCES   Am. Jur. 2d.   - 2 Am. Jur. 2d, Adoption, §§ 117, 128 et seq.   1B Am. Jur. Pleading and Practice Forms, Adoption, §§ 186 et seq., 216.   C.J.S.   - 2 C.J.S., Adoption of Persons, §§ 93 et seq., 118.   ALR.   - Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421.   Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 A.L.R.3d 489.   What constitutes "duress" in obtaining parent's consent to adoption of child or surrender of child to adoption agency, 74 A.L.R.3d 527.   Postadoption visitation by natural parent, 78 A.L.R.4th 218.