In re Adoption of D. J. F. M.

643 S.E.2d 879, 284 Ga. App. 420
Court of Appeals of Georgia·Decided March 22, 2007·No. A06A1936·Published·Cited by 3 cases

Opinion

Adams, Judge.

Petitioners V. F. M. and H. F. M. appeal from the trial court’s denial of their petition to adopt D. J. F. M., their ten-year-old nephew from Honduras, who has been living in the United States for five years. D. J. F. M. has leukemia, and his mother brought him to America in February 2001 for treatment. He entered the United States with a valid nonimmigrant visa. In April of that year, the Douglas County Probate Court appointed his aunt, V. F. M., as his temporary guardian.1 After his doctor recommended that D. J. F. M. remain in the United States for continued monitoring and treatment, his parents decided to relinquish their parental rights and allow the petitioners, V. F. M. and her husband H. F. M., to adopt the child.

The aunt and uncle filed a petition to adopt D. J. F. M. pursuant to OCGA § 19-8-7 (a), which governs the adoption of a child by a relative. The petitioners assert that they met the requirements of that statute, including voluntary surrenders by each parent. Nevertheless, the superior court applied OCGA § 19-8-8 to hold that it lacked the authority to grant the adoption. OCGA§ 19-8-8 allows for the domestication of foreign adoption decrees, where the child has been granted a valid visa by the United States. The court stated that it applied this statute, rather than OCGA § 19-8-7, because it is the “only statement of the law in Georgia on the adoption of children from other nations.”

In addition, the trial court took judicial notice of Honduran law, relying upon a United States State Department informational website addressing Honduran adoptions.2 According to that website, Honduran law would not allow D. J. F. M.’s parents to surrender their parental rights because both parents are still living. Further, the trial court noted that D. J. F. M. had no valid visa, and petitioners had failed to comply with certain requirements established by the United States Bureau of Citizenship and Immigration Services in the Department of Homeland Security.

Nevertheless, the petitioners contend that the superior court had the authority to grant the adoption under OCGA § 19-8-7. They note that superior courts have jurisdiction in all matters of adoption, and venue is proper in the county where the petitioners reside. OCGA § 19-8-2. They assert that the child’s citizenship and the parents’ residency are irrelevant to the court’s jurisdiction. They contend that the written surrender of rights signed by each parent terminated [421]*421their parental rights as a matter of law, and that Georgia has the innate ability to protect children, despite their immigration status. The petitioners also assert that OCGA § 19-8-8 should not apply because that section applies to cases in which adoptions occurred overseas and the parties wish to domesticate the adoption. They further note that the trial judge failed to consider the best interest of the child, particularly his health issues, in denying the adoption petition.

“[I]n 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. Thus, if there is any evidence to support the judgment entered in an adoption proceeding, it must be affirmed by this court.” Rokowski v. Gilbert, 275 Ga. App. 305, 306 (620 SE2d 509) (2005). We find that it was a plain abuse of discretion for the trial court to apply the provisions of OCGA § 19-8-8 in this case. That statute is intended to govern adoptions “based upon certain foreign decrees,” not to provide a general rule applicable to the adoption of children born in foreign countries. See Ga. L. 1990, p. 1572. The first requirement of the statute is an adoption “decree which has been entered pursuant to due process of law by a court of competent jurisdiction outside the United States.” OCGA § 19-8-8 (1). Thus, by its own terms, the statute does not apply where petitioners seek a domestic adoption of a foreign-born child, and the trial court erred in attempting to hold the petitioners to its requirements.

Instead, the trial court should have applied the provisions of OCGA § 19-8-7, governing adoption by a child’s relatives. That statute provides:

Except as otherwise authorized in this Code section, a child who has any living parent or guardian 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 such living parent and each such guardian 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.

OCGA§ 19-8-7 (a). The particular requirements for such an adoption are fully set out in OCGA § 19-8-13 (a) (5).

Nothing in the language of these statutes, or in the language of any of the other adoption statutes, restricts the Georgia adoption process to United States citizens. To be eligible to adopt, a person need only (1) be twenty-five years of age or married and living with a spouse; (2) be at least ten years older than the child; (3) have been a [422]*422bona fide resident of the state for six months prior to filing the petition; and (4) be financially, physically and mentally able to have permanent custody of the child. OCGA § 19-8-3 (a). A relative who meets these requirements is eligible to seek adoption under OCGA § 19-8-7. There is no statutory requirement, nor any appellate case that requires, that either the petitioners or the adopted child be United States citizens.

The fact that the child’s natural parents reside in Honduras does not alter this analysis. We note that the trial court questioned whether it had personal jurisdiction over D. J. F. M.’s natural parents, because they never specifically submitted themselves to the court’s jurisdiction. But each parent signed the requisite surrender of parental rights form, which provides that each parent is relinquishing his or her parental rights to D. J. F. M.

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In re Adoption of D. J. F. M., 643 S.E.2d 879, 284 Ga. App. 420 (Ga. Ct. App. 2007).

643 S.E.2d 879 (In re Adoption of D. J. F. M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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