Citation Codes

Equivalent Citations

citation codes

Docket Number

64683, 64684.

Attorney(S)

C. Robert Melton, for appellant. Randall A. Meincke, for appellee.

Judges

DEEN, Presiding Judge.

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Smart Summary

Summary of Opinion: IN RE C. C. B. / IN RE S. J. S. (Court of Appeals of Georgia, Oct. 18, 1982)

Factual and Procedural Background

Phyllis Colleen Adams LeBlanc (the mother) had two children by separate prior marriages: a son by appellant Sons and a daughter by appellant Boudreaux. Both fathers were Louisiana residents. The Louisiana decree dissolving the mother's marriage to Boudreaux made no mention of alimony or child support; the record contains no information regarding support provisions in the Sons decree. The mother was awarded custody of both children.

Following their respective divorces, appellant Sons contributed approximately $2,000 toward his son's support since his 1974 divorce, and respondent Boudreaux contributed approximately $200 toward his daughter's support since his 1977 divorce. Neither father visited his child more than about half a dozen times.

At Christmas 1980 the mother arranged for visits with the fathers. Shortly after New Year's she took the children to live with her brother and sister-in-law, Mr. and Mrs. Douglas, in Macon, Georgia, where the children attended school until about June 1981, when the mother took them to Louisiana for the summer. In early October 1981 the children returned to the Douglases in Monroe County, Georgia. A few days later the mother signed consents to the adoptions and surrenders of parental rights under Ga. Code Ann. §§ 74-403(a)(4) and 74-404(c).

Two weeks later the Douglases filed adoption petitions in Monroe County Superior Court, alleging both fathers had forfeited parental rights under Ga. Code Ann. § 74-405(b) for significant failure for one year or longer immediately prior to filing to communicate with or to provide for the care and support of the child. Each father received notice and moved for continuances, which were granted.

Both fathers were represented at the Monroe County hearing, each sought custody of his child and moved to dismiss the adoption petitions. In February 1982 Boudreaux obtained a Louisiana custody modification awarding him custody of his daughter; the Douglases received no notice of that Louisiana action, and the mother was served and answered, excepting that the Louisiana court lacked jurisdiction. The Monroe County Superior Court denied the motion to dismiss, held the Louisiana modification not binding, and found that the best interest of the children required granting the adoptions. Both fathers appealed. The Court of Appeals affirmed.

Legal Issues Presented

Whether the Monroe County Superior Court had jurisdiction over the adoption proceedings under the Uniform Child Custody Jurisdiction Act (Ga. Code Ann. § 74-504 et seq.).
Whether ex parte affidavits submitted by the appellants were admissible at the adoption hearing.
Whether appellants' parental rights could properly be terminated under Ga. Code Ann. § 74-405(b) for a "significant failure" to communicate with or support the children for one year or longer immediately prior to the filing of the adoption petition.
Whether granting the adoptions was in the best interest of the children.
Whether a Louisiana custody modification obtained after the Georgia petition was filed was binding upon the Georgia court and should have prevented Georgia from exercising jurisdiction.

Arguments of the Parties

Appellants' Arguments

That Louisiana, rather than Georgia, was the children's "home state" when the adoption petition was filed (implicating jurisdiction under the Uniform Child Custody Jurisdiction Act).
That the court erred in excluding ex parte affidavits submitted by appellants.
That appellants' parental rights should not have been terminated because circumstances in their favor (appellants cited Crumb v. Gordon) made the termination improper.
That the adoption was not in the best interest of the children.
That the Louisiana custody modification (in Boudreaux's favor) was binding and should have precluded the Georgia court from granting the adoption.

The opinion does not contain a detailed account of the appellee's legal arguments beyond the positions reflected in the trial court's rulings and the legal bases relied upon by the court in its analysis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brenner v. Cavin, 163 Ga. App. 694 (295 S.E.2d 135) (1982)	Comparison regarding analysis of "home state" under the Uniform Child Custody Jurisdiction Act.	Used as a point of comparison; court concluded facts supported Georgia as the children's home state.
Morris v. Mosley, 246 Ga. 749 (272 S.E.2d 705) (1980)	That courts have discretion under the UCCJA whether to accept jurisdiction in interstate custody disputes.	Cited to support Georgia court's discretion to exercise jurisdiction over the adoption proceeding.
Jossey v. Brown, 119 Ga. 758 (47 S.E. 350) (1904)	Presumption in favor of the regularity of proceedings and the jurisdiction of the court.	Invoked to sustain the regularity and jurisdiction of the Monroe County proceedings given notice and opportunity to be heard.
Camp v. Camp, 213 Ga. 65 (97 S.E.2d 125) (1957)	Ex parte affidavits (except in summary judgment proceedings) are inadmissible because they deny cross-examination.	Cited to support exclusion of appellants' ex parte affidavits at the adoption hearing.
Lanthripp v. Lang, 103 Ga. App. 602 (120 S.E.2d 59) (1969)	Same rule as Camp v. Camp regarding inadmissibility of ex parte affidavits outside summary judgment.	Cited in support of excluding ex parte affidavits.
Crumb v. Gordon, 157 Ga. App. 839 (278 S.E.2d 725) (1981)	Appellants relied on this precedent to argue termination of parental rights was inappropriate.	Court found Crumb's facts "distinctly different" and inapposite to the instant case.
Chandler v. Cochran, 247 Ga. 184 (275 S.E.2d 23) (1981)	Authority cited in connection with standards for termination of parental rights under UCCJA/Georgia law.	Cited as supporting authority for affirming termination of parental rights in this case.
Kirkland v. Lee, 160 Ga. App. 446 (287 S.E.2d 365) (1981)	Authority cited in connection with termination/adoption standards.	Referenced as supporting precedent for the court's conclusion on termination.
Prescott v. Judy, 157 Ga. App. 735 (278 S.E.2d 493) (1981)	Authority on adoption proceedings and standards for review (including citation quoted regarding affirmance if any evidence supports judgment).	Used to support affirmance of the adoption judgment where evidence supported the trial court's finding.
Lanning v. Fiveash, 147 Ga. App. 290 (248 S.E.2d 553) (1978)	"If there is any evidence to support the judgment entered in an adoption proceeding, it must be affirmed..." (standard for appellate review).	Quoted and applied to uphold the trial court's finding that the adoption was in the children's best interest.

Court's Reasoning and Analysis

The court's analysis is organized into five discrete holdings:

Jurisdiction (Division 1). Both Louisiana and Georgia have adopted the Uniform Child Custody Jurisdiction Act. Under Ga. Code Ann. § 74-504, jurisdiction lies either in the child's "home state" or in a state where the child and a contestant have a "significant connection" with available substantial evidence concerning the child's welfare. The court relied on § 74-503(e)'s definition of "home state" (six consecutive months with a person acting as a parent, with temporary absences counted). Except for the summer visit with their mother, both children lived in Georgia from January 1981 until the adoption petition in October 1981 and continued to reside there as part of the Douglas family; therefore Georgia met the jurisdictional requirement under either statutory criterion. Because both appellants were represented and had notice and an opportunity to be heard, the Monroe County decree is binding. The court also noted the UCCJA vests discretion in a subscribing state's courts to accept jurisdiction and invoked a presumption of regularity supporting the exercise of jurisdiction.
Admissibility of Ex Parte Affidavits (Division 2). The court held the lower court properly excluded appellants' ex parte affidavits. Citing Camp v. Camp and Lanthripp v. Lang, the court reiterated the rule that, except in summary judgment proceedings, ex parte affidavits are inadmissible because they deny the adverse party the constitutional right of cross-examination.
Termination of Parental Rights (Division 3). The court found Ga. Code Ann. § 74-405(b)'s language regarding "significant failure" controlling. The evidence of sporadic, minimal financial contributions and apparent indifference supported a finding of "significant failure" either to support or to communicate for the requisite period. The court rejected the argument that absence of a specific child support mandate in the Boudreaux divorce decree relieved him of statutory duty to support, citing statutory provisions imposing the duty of support. The court found prior cases cited by appellants (including Crumb v. Gordon) distinguishable and inapposite, and referenced additional authorities corroborating its conclusion.
Best Interest of the Children (Division 4). The court applied the two-pronged statutory test: (1) the significant failure identified under § 74-405(b) and (2) a finding that the adoption is in the child's best interest. Beyond the statutory failure, the record contained ample evidence that keeping the brother and sister together in the Douglases' traditional and stable family—where they had already flourished—was preferable to placing them separately in unfamiliar or loosely structured households with persons they scarcely knew. The court applied the well-settled appellate standard that if any evidence supports an adoption judgment, it must be affirmed (Lanning v. Fiveash, quoted in Prescott v. Judy).
Effect of Louisiana Custody Modification (Division 5). The court held the Louisiana custody modification (obtained by Boudreaux after the Georgia petition) was not binding. Under the UCCJA (Ga. Code Ann. § 74-507 and corresponding Louisiana statute), a state shall not exercise jurisdiction pursuant to the Act if a custody proceeding is pending in that state or another. The Act requires parties to disclose pending proceedings and requires notice and opportunity to be heard for any person with physical custody before a state court issues a decree. The court found those procedural requirements had not been complied with in the Louisiana proceedings and stated the Louisiana court should have stayed its proceedings pending resolution of the Georgia action.

Holding and Implications

Judgment affirmed.

Direct consequences of the decision:

The Monroe County Superior Court's grant of the adoptions was affirmed.
The appellants' parental rights were properly terminated under Ga. Code Ann. § 74-405(b) based on significant failure to communicate or support and the court's finding that adoption was in the children's best interest.
The Louisiana custody modification obtained after the Georgia petition was held not binding because required UCCJA notice and procedural prerequisites were not satisfied.

The opinion does not assert that it establishes a new legal precedent beyond applying existing statutes and cited authorities; the decision affirms the trial court's rulings on jurisdiction, admissibility of evidence, termination of parental rights, the best-interest determination, and the non-binding nature of the subsequent Louisiana decree given the procedural deficiencies described.

Judgment affirmed. Sognier and Pope, JJ., concur.

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IN RE C. C. B. IN RE S. J. S.

DEEN, Presiding Judge.

Phyllis Colleen Adams LeBlanc, now legally separated from her third husband, had one son by her marriage to appellant Sons and one daughter by her subsequent marriage to appellant Boudreaux, both Louisiana residents. The Louisiana decree dissolving the marriage to Boudreaux made no mention of alimony or child support; the record contains no information regarding support provisions in the Sons decree. The mother was awarded custody of both children. The record shows that appellant Sons contributed approximately $2,000 to his son's support since his 1974 divorce, and respondent Boudreaux approximately $200 to the support of his daughter since receiving his divorce in 1977. Although Ms. LeBlanc lived within 100 miles of her former husbands after the marriages were dissolved, neither visited his child more than a half-dozen times at most.

At Christmas time in 1980 Ms. LeBlanc on her own initiative arranged for the children to visit their respective fathers. Shortly after New Year's she took them to the Macon, Georgia, home of her brother and sister-in-law, Mr. and Mrs. Douglas, where they lived and attended school until some time in June of 1981, when their mother took them to her Louisiana home for the remainder of the summer. In early October she returned the children to the Douglases, who had purchased a residence in Monroe County, Georgia, and a few days later signed a consent to the adoption of each child and a surrender of parental rights to each, pursuant to Ga. Code Ann. §§ 74-403 (a) (4) and 74-404 (c). Two weeks later the Douglases filed an adoption petition in Monroe County Superior Court, reciting that both fathers had forfeited their parental rights as provided in Ga. Code Ann. § 74-405 (b): "Surrender or termination of parental rights as provided in Code section 74-403 shall not be required ... in the case of a parent who has failed significantly for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate, or to make a bona fide attempt to communicate with the child, or (2) to provide for the care and support of the child as required by law or judicial decree..." Each father was given notice as prescribed in § 74-405 (c), and both moved for continuances, which were granted.

Both appellant fathers were represented at the hearing held in the Monroe County Superior Court and, seeking custody of their respective children, moved for dismissal of the adoption petition. In February 1982 respondent Boudreaux obtained in the Louisiana courts a modification of his divorce decree that awarded him custody of his daughter. The Douglases received no notice of this action, but Ms. LeBlanc was served and answered, excepting on the ground, inter alia, that the Louisiana court lacked jurisdiction. The Monroe County Superior Court denied the motion to dismiss, held the Louisiana modification not binding, and found that the best interest of the children required the granting of the adoption petition. Each father brings an appeal. Held:

1. The Monroe County Superior Court has jurisdiction of the adoption proceeding. Both Louisiana and Georgia have adopted the Uniform Child Custody Jurisdiction Act, which at Ga. Code Ann. § 74-504 confers jurisdiction upon the appropriate courts (1) of the child's "home state," or (2) of the state where the child and one of the contestants have "a significant connection" and where there is available "substantial evidence concerning the child's present or future care, protection, training, and personal relationships." See the verbatim provisions of Louisiana Statutes Annotated, Revised Statutes §§ 13:1701, 13:1702. Appellants' contention that Louisiana rather than Georgia was the children's "home state" when the adoption petition was filed is without support in the statute, which at § 74-503 (e) defines home state as "the state in which the child immediately preceding the time involved lived with ... a person acting as a parent for at least six consecutive months ...," and expressly stipulates that "[p]eriods of temporary absence ... are counted as part of the six-month ... period." Accord, La. Stat. Ann., RS § 13:1701 (5). Except for the summer visit with their mother, both children lived in Georgia from January 1981 until the date the petition was filed in October and have continued to reside there as part of the Douglas family. Compare Brenner v. Cavin, 163 Ga. App. 694 ( 295 S.E.2d 135) (1982). The record contains ample evidence regarding their present and future welfare. Thus the jurisdictional requirement is met under either criterion, supra. The decree of a state court of competent jurisdiction is binding upon all parties having notice and an opportunity to be heard. Ga. Code Ann. § 74-513; LSA RS 13:1711. Since both appellants were represented at the Monroe County hearing, both are bound by that court's decision. Furthermore, the Uniform Child Custody Jurisdiction Act vests in the courts of each subscribing state discretion as to whether to accept jurisdiction in cases where there is or may be an interstate custody dispute. Ga. Code Ann. § 74-504; Morris v. Mosley, 246 Ga. 749 ( 272 S.E.2d 705) (1980). A presumption in favor of the regularity of the proceedings and the jurisdiction of the court operates to sustain the decision below. Jossey v. Brown, 119 Ga. 758 ( 47 S.E. 350) (1904).

2. The court below did not err in ruling inadmissible the ex parte affidavits submitted by appellants. It is well settled in this state that except in summary judgment proceedings ex parte affidavits are inadmissible because they deny the adverse party his constitutional right of cross-examination. See Camp v. Camp, 213 Ga. 65 ( 97 S.E.2d 125) (1957); Lanthripp v. Lang, 103 Ga. App. 602 ( 120 S.E.2d 59) (1969).

3. The court below did not err in terminating appellants' parental rights. The language of Ga. Code Ann. § 74-405 (b) regarding "significant failure" is controlling here. In the instant case evidence of appellants' sporadic and de minimis financial contributions, and of their apparent indifference to their children's welfare, militates against a finding that their conduct prior to institution of the adoption proceedings evinced anything other than a "significant failure" either to support or to communicate. The fact that the Boudreaux divorce decree did not specifically mandate child support does not relieve appellant of the duty of support imposed by statute. See Ga. Code Ann. § 74-105; LSA RS 13:1600 (6); 13:1642. The facts of Crumb v. Gordon, 157 Ga. App. 839 ( 278 S.E.2d 725) (1981), cited by appellants, are distinctly different from those of the instant case, and the holding is therefore inapposite. See Chandler v. Cochran, 247 Ga. 184 ( 275 S.E.2d 23) (1981); Kirkland v. Lee, 160 Ga. App. 446 ( 287 S.E.2d 365) (1981); Prescott v. Judy, 157 Ga. App. 735 ( 278 S.E.2d 493) (1981).

4. Appellants' contention that the court below erred in finding the adoption in the best interest of the children is without merit for two reasons. The holding in Division 3 satisfies the first prong of the two-pronged statutory test: significant failure for one year to communicate with or provide financially for the child. As to the second prong, "and the court is of the opinion that the adoption is in the best interest of the child," Ga. Code Ann. § 74-405 (b), the record holds ample evidence, beyond the failure to communicate or to support, to sustain the court's finding. Under the "best interest" standard, keeping brother and sister together in a traditional and stable family situation with which they are already comfortable, and in which there is evidence that they have flourished, is clearly preferable to placing each separately in an unfamiliar place, in an apparently loosely structured household, with a mother-figure whom they know hardly at all and a father whom they know scarcely better. "If there is any evidence to support the judgment entered in an adoption proceeding, it must be affirmed..." Lanning v. Fiveash, 147 Ga. App. 290 ( 248 S.E.2d 553) (1978), quoted in Prescott v. Judy, supra at 737.

5. The court below did not err in holding in case no. 64683 that the Louisiana custody modification was not binding. Under the Uniform Child Custody Jurisdiction Act § 6, Ga. Code Ann. § 74-507 and LSA RS 13:1705, no state shall exercise its jurisdiction pursuant to the Act if at the time the petition is filed, a custody proceeding is pending in that state or another state. Furthermore, every party to a custody proceeding is required to declare under oath whether he knows of any pending proceeding or of any person not a party to the proceedings who has physical custody of the child or children. Ga. Code Ann. § 74-510 (2), (3); LSA RS 13:1705. Before the state court makes a decree, any person with physical custody must be given notice and an opportunity to be heard. Ga. Code Ann. §§ 74-505, 74-506, 74-511, LSA RS §§ 13:1703, 13:1704, 13:1709. None of these requirements was complied with. The Louisiana court should have stayed any proceedings brought there pending resolution of the Georgia proceeding.