In the Interest of C. D. B.

355 S.E.2d 759, 182 Ga. App. 263, 1987 Ga. App. LEXIS 2609

• Court: Court of Appeals of Georgia
• Decided: March 19, 1987
• Docket: 73059
• Status: Published

Opinions

Benham, Judge.

Appellant, C. D. B.’s natural father, appeals from an order terminating his parental rights and granting an adoption petition filed by C. D. B.’s mother’s husband.

1. Appellant first filed an application for discretionary appeal in the Supreme Court. When that application was denied, appellant filed a timely direct appeal to that court. The Supreme Court transferred the case to this court because the constitutional issues on which the invocation of that court’s jurisdiction was based were not raised in the trial court.

Appellees, C. D. B.’s mother and adoptive father, have filed a motion to dismiss the appeal, citing Byrd v. Byrd, 248 Ga. 163 (281 SE2d 617) (1981), and Steele v. Niggelie, 163 Ga. App. 98 (293 SE2d 368) (1982), for the proposition that the Supreme Court’s denial of the discretionary application is res judicata on the merits of the action. The statement of that proposition in Steele was pure dicta, and the statement in Byrd on which appellees rely was that the doctrine of res judicata was invoked by the dismissal of a direct appeal for failure to file a discretionary application when one was required. Since the procedural situations existing in those two cases do not exist here, they are inapposite and the motion to dismiss is denied.

2. As noted in Division 1, appellant’s various constitutional attacks on OCGA § 19-8-6 (b) were not raised in the trial court. They cannot now be considered by this court for that reason (see American Mut. Ins. Co. v. Thompson, 169 Ga. App. 24 (1) (311 SE2d 846) (1983)), and because attacks on the constitutionality of a statute are outside the jurisdiction of this court. Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1).

3. Appellant contends on appeal that appellees did not carry their burden of proving by clear and convincing evidence (see In re S. D. S., 166 Ga. App. 344 (4) (304 SE2d 85) (1983)) that appellant had failed significantly for a period of one year prior to the filing of the adoption petition to provide for the care and support of the child as required by judicial decree, and that adoption is for the best interests of the child. See OCGA § 19-8-6 (b) (2). The record persuades us otherwise. It shows that appellant, in the year prior to the filing of the adoption petition, made only eight of the weekly support payments of $50 required by a previous court order. Furthermore, although appellant attempted to justify his failure to support on the ground of illness which prevented his steady employment, there was sufficient evidence from which the trial court could find that appellant had not made significant efforts to produce the income necessary to meet his child support obligations. That evidence, together with evidence of the history of appellant’s relationship with the child and with the child’s mother, authorized the trial court to find that appellant had failed significantly for the year prior to the filing of the adoption petition to provide court-ordered support, and that the adoption is for the best interests of the child. See Kirkland v. Lee, 160 Ga. App. 446 (287 SE2d 365) (1981).

4. In his final enumeration of error, appellant contends that the trial court committed reversible error in entering judgment without first requiring an investigation by the Department of Human Resources as is provided for in OCGA § 19-8-11. That argument is controlled adversely to appellant’s position by Chandler v. Cochran, 247 Ga. 184 (2) (275 SE2d 23) (1981).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.