Carley, Judge.
Appellant is the natural father of a minor child and the ex-husband of the child’s mother. Appellee is the current husband of the child’s mother and the stepfather of the child. Appellee filed a petition seeking to adopt the child, alleging that the surrender or termination of appellant’s parental rights was unnecessary because “[h]e has failed significantly for a period of more than one (1) year immediately prior to the filing of this petition to communicate with the child, or to provide for the care and support of the child as required by a decree of this Court...” Appellant answered, opposing the petition and alleging that his attempts to communicate with and to support the child had been frustrated by her mother.
The trial court, after conducting a hearing on the adoption petition, found that appellant had not visited or supported his child since June of 1979 and that appellee, a “fit and proper person to have ... custody,” was “capable of assuming the responsibility for the care, supervision, training and education of [the] minor child...” The trial court further concluded that appellant had “failed significantly for a period of more than one (1) year immediately prior to the filing of the Petition” to communicate or to make a bona fide attempt to communicate with his child and to provide for her care and support and that it would be in the best interest of the child to be adopted by appellee. It is from the trial court’s decree of adoption terminating all the rights of appellant to the child that the instant appeal is taken.
1. Appellant urges that the final judgment of adoption must be vacated and the case remanded because the trial court made no specific finding that the failure to communicate and support was “without justifiable cause.” That phrase appeared in former Code Ann. § 74-405 (Ga. L. 1977, pp. 201, 211) which provided in part: “Surrender or termination of parental rights as provided in Code section 74-403 shall not be required as a prerequisite to adoption ... pursuant to subsections (a) (3) or (a) (4) of Code section 74-403 in the case of a parent who has failed significantly without justifiable cause for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate, or 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.” (Emphasis supplied.) The phrase “justifiable cause” was judicially construed to be “substantially the same as ‘justifiable reason’ as it appears in Code § 30-219 providing for attachment for contempt for failure to pay alimony ...” Ehrman v. Moser, 148 Ga. App. 857, 858 [447]*447(253 SE2d 216) (1979), aff’d. 244 Ga. 112 (259 SE2d 634) (1979). Thus, in an adoption proceeding governed by the former statute if the natural parent demonstrated a “justifiable reason” for his failure to communicate or support, any possibility of a finding that his failure was “without justifiable cause” was thereby negated and a petition to adopt his child had to be denied. Ehrman, supra.
In 1979, however, former Code Ann., § 74-405 was stricken in its entirety and a new code section substituted in lieu thereof. Ga. L. 1979, pp. 1182,1187. Code Ann. § 74-405 (b) as re-enacted in 1979 and as applicable in the instant case contains essentially the same language as the former statute with two exceptions. The new statute omits the former requirement that the parent’s failure be “without justifiable cause” and, unlike the former statute, existing Code Ann. § 74-405 (b) has the additional requirement that “the court [be] of the opinion that the adoption is for the best interest of the child” whose parent has “failed significantly” to communicate with or provide support for him.
While it is unclear from the facts, apparently Burch v. Terrell, 154 Ga. App. 299 (267 SE2d 901) (1980) involved adoption proceedings instituted after the effective date of existing Code Ann. § 74-405 (b) but in which the trial court in its final order had specifically found as a fact that the natural father’s failure to communicate with or provide support for his child was “without justifiable cause.” This court, interpreting such a final o^der of adoption in light of existing Code Ann. § 74-405 (b), found that “[w]hatever the reason for dropping [the phrase ‘without justifiable cause’ in the statute], we do not construe it as depriving the trial court of a discretion in determining whether the action of the parent was in fact legally justifiable.” Burch, 154 Ga. App. at 300, supra. Turning then to the trial court’s specific finding that the failure to support had been “without justifiable cause,” this court held in Burch that, as that clause in former Code Ann. § 74-405 had been interpreted, the finding was erroneous. Then, because it could not be determined what the decision of the trial court would have been had it not considered the parent’s failure to support, the judgment granting adoption was vacated and the case remanded for the trial court to reconsider his original finding that there had been no justifiable cause for the parent’s failure to make a bona fide attempt to communicate with his child within the appropriate time period. Burch, 154 Ga. App. at 300-301, supra.
Subsequently, in Baker v. Nicholson, 158 Ga. App. 267 (279 SE2d 717) (1981), Burch was interpreted “as holding that the trial court must make a finding of fact that the failure to support or communicate was without justifiable cause in order to demonstrate a [448]*448full exercise of the trial court’s discretion in adoption matters where parental rights are terminated.” Relying on this interpretation of Burch, Baker reversed a final order of adoption which had not specifically made a finding of fact that the parent’s failure to communicate with or provide support had been “without justifiable cause” and remanded the case with direction that the trial court make a finding “regarding justifiable cause.” Thus, Baker and Burch stand for the proposition that under existing Code Ann. § 74-405 (b) the trial court must make a specific finding that the parent’s failure to communicate with or support his child was “without justifiable cause” in a final order granting adoption. If this interpretation of Code Ann. § 74-405 (b) in Baker and Burch is correct appellant is likewise correct in his assertion that the final order in the instant case granting the adoption of his child must be vacated and remanded. The trial judge found only that appellant had “failed significantly” to communicate with or to support his child and that adoption by appellee would be in the best interest of the child. We believe, however, that Baker and Burch misinterpreted Code Ann. § 74-405.
It is readily seen that if the interpretation of Code Ann. § 74-405 (b) in Baker and Burch is correct the “without justifiable cause” language is again part of the statute, though an unwritten part, and the child of a parent who has “failed significantly” to communicate with or provide support for him may not be adopted unless that significant failure is also specifically found to be “without justifiable cause.” However, it is indisputable that the legislature specifically omitted any requirement that a parent’s significant failure in this regard be found to be “without justifiable cause.” It must be presumed that the legislature when enacting existing Code Ann. § 74-405 (b) had knowledge of the requirement of former Code Ann. § 74-405 and intended
Free access — add to your briefcase to read the full text and ask questions with AI
Carley, Judge.
Appellant is the natural father of a minor child and the ex-husband of the child’s mother. Appellee is the current husband of the child’s mother and the stepfather of the child. Appellee filed a petition seeking to adopt the child, alleging that the surrender or termination of appellant’s parental rights was unnecessary because “[h]e has failed significantly for a period of more than one (1) year immediately prior to the filing of this petition to communicate with the child, or to provide for the care and support of the child as required by a decree of this Court...” Appellant answered, opposing the petition and alleging that his attempts to communicate with and to support the child had been frustrated by her mother.
The trial court, after conducting a hearing on the adoption petition, found that appellant had not visited or supported his child since June of 1979 and that appellee, a “fit and proper person to have ... custody,” was “capable of assuming the responsibility for the care, supervision, training and education of [the] minor child...” The trial court further concluded that appellant had “failed significantly for a period of more than one (1) year immediately prior to the filing of the Petition” to communicate or to make a bona fide attempt to communicate with his child and to provide for her care and support and that it would be in the best interest of the child to be adopted by appellee. It is from the trial court’s decree of adoption terminating all the rights of appellant to the child that the instant appeal is taken.
1. Appellant urges that the final judgment of adoption must be vacated and the case remanded because the trial court made no specific finding that the failure to communicate and support was “without justifiable cause.” That phrase appeared in former Code Ann. § 74-405 (Ga. L. 1977, pp. 201, 211) which provided in part: “Surrender or termination of parental rights as provided in Code section 74-403 shall not be required as a prerequisite to adoption ... pursuant to subsections (a) (3) or (a) (4) of Code section 74-403 in the case of a parent who has failed significantly without justifiable cause for a period of one year or longer immediately prior to the filing of the petition for adoption (1) to communicate, or 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.” (Emphasis supplied.) The phrase “justifiable cause” was judicially construed to be “substantially the same as ‘justifiable reason’ as it appears in Code § 30-219 providing for attachment for contempt for failure to pay alimony ...” Ehrman v. Moser, 148 Ga. App. 857, 858 [447]*447(253 SE2d 216) (1979), aff’d. 244 Ga. 112 (259 SE2d 634) (1979). Thus, in an adoption proceeding governed by the former statute if the natural parent demonstrated a “justifiable reason” for his failure to communicate or support, any possibility of a finding that his failure was “without justifiable cause” was thereby negated and a petition to adopt his child had to be denied. Ehrman, supra.
In 1979, however, former Code Ann., § 74-405 was stricken in its entirety and a new code section substituted in lieu thereof. Ga. L. 1979, pp. 1182,1187. Code Ann. § 74-405 (b) as re-enacted in 1979 and as applicable in the instant case contains essentially the same language as the former statute with two exceptions. The new statute omits the former requirement that the parent’s failure be “without justifiable cause” and, unlike the former statute, existing Code Ann. § 74-405 (b) has the additional requirement that “the court [be] of the opinion that the adoption is for the best interest of the child” whose parent has “failed significantly” to communicate with or provide support for him.
While it is unclear from the facts, apparently Burch v. Terrell, 154 Ga. App. 299 (267 SE2d 901) (1980) involved adoption proceedings instituted after the effective date of existing Code Ann. § 74-405 (b) but in which the trial court in its final order had specifically found as a fact that the natural father’s failure to communicate with or provide support for his child was “without justifiable cause.” This court, interpreting such a final o^der of adoption in light of existing Code Ann. § 74-405 (b), found that “[w]hatever the reason for dropping [the phrase ‘without justifiable cause’ in the statute], we do not construe it as depriving the trial court of a discretion in determining whether the action of the parent was in fact legally justifiable.” Burch, 154 Ga. App. at 300, supra. Turning then to the trial court’s specific finding that the failure to support had been “without justifiable cause,” this court held in Burch that, as that clause in former Code Ann. § 74-405 had been interpreted, the finding was erroneous. Then, because it could not be determined what the decision of the trial court would have been had it not considered the parent’s failure to support, the judgment granting adoption was vacated and the case remanded for the trial court to reconsider his original finding that there had been no justifiable cause for the parent’s failure to make a bona fide attempt to communicate with his child within the appropriate time period. Burch, 154 Ga. App. at 300-301, supra.
Subsequently, in Baker v. Nicholson, 158 Ga. App. 267 (279 SE2d 717) (1981), Burch was interpreted “as holding that the trial court must make a finding of fact that the failure to support or communicate was without justifiable cause in order to demonstrate a [448]*448full exercise of the trial court’s discretion in adoption matters where parental rights are terminated.” Relying on this interpretation of Burch, Baker reversed a final order of adoption which had not specifically made a finding of fact that the parent’s failure to communicate with or provide support had been “without justifiable cause” and remanded the case with direction that the trial court make a finding “regarding justifiable cause.” Thus, Baker and Burch stand for the proposition that under existing Code Ann. § 74-405 (b) the trial court must make a specific finding that the parent’s failure to communicate with or support his child was “without justifiable cause” in a final order granting adoption. If this interpretation of Code Ann. § 74-405 (b) in Baker and Burch is correct appellant is likewise correct in his assertion that the final order in the instant case granting the adoption of his child must be vacated and remanded. The trial judge found only that appellant had “failed significantly” to communicate with or to support his child and that adoption by appellee would be in the best interest of the child. We believe, however, that Baker and Burch misinterpreted Code Ann. § 74-405.
It is readily seen that if the interpretation of Code Ann. § 74-405 (b) in Baker and Burch is correct the “without justifiable cause” language is again part of the statute, though an unwritten part, and the child of a parent who has “failed significantly” to communicate with or provide support for him may not be adopted unless that significant failure is also specifically found to be “without justifiable cause.” However, it is indisputable that the legislature specifically omitted any requirement that a parent’s significant failure in this regard be found to be “without justifiable cause.” It must be presumed that the legislature when enacting existing Code Ann. § 74-405 (b) had knowledge of the requirement of former Code Ann. § 74-405 and intended to delete the requirement that a parent’s significant failure to communicate with or to provide support for his child further be “without justifiable cause” and that such a finding is no longer a prerequisite to an adoption without the consent of the natural parent. See generally Webb v. Alexander, 202 Ga. 436 (1) (43 SE2d 668) (1947). The rule applicable to the interpretation of a reenacted statute such as Ga. L. 1979, pp. 1182,1187, is that “ ‘... this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the State, absolutely controls . . .’ ” Osborne v. Ridge View Associates, 238 Ga. 377, 378 (233 SE2d 342) (1977). It is the “cardinal or preeminent rule” of statutory construction that this legislative intent be given effect. Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1) (62 SE2d 209) (1950). “The new statute made no attempt to re-enact the old provision, although the legislature knew at the time that the old law [required the failure to [449]*449be found to be “without justifiable cause.”] Could it be said that the legislature intended to abandon its own language,..., and take the chance that the [new statute] would be construed to mean the same thing, and this notwithstanding the fact that the members of the General Assembly knew that the rules of construction require that [the language of the new statute] be given its natural and ordinary meaning which [does] not include [“without justifiable cause”]? ... The purpose or wisdom in repealing and refusing to re-enact [former Code Ann. § 74-405 as worded] is a matter for the exclusive determination of the legislature and is no legitimate concern of the judiciary. [Cits.]” Thompson v. Eastern Air Lines, 200 Ga. 216, 223-224 (36 SE2d 675) (1946). “[I]t is the province of the General Assembly, and not of the courts, to declare what shall be the public policy of this State...” Hightower v. Hollis, 121 Ga. 159, 161-162 (48 SE 969) (1904). “[T]he courts in construing a statute can neither add to nor take away from it. [Cits.]” State Revenue Com. v. Alexander, 54 Ga. App. 295, 296 (187 SE 707) (1936).
Applying the foregoing rules of statutory construction to existing Code Ann. § 74-405 (b), we conclude that Burch and Baker are incorrect and must be overruled insofar as they require a specific finding that a parent’s significant failure was “without justifiable cause” as an absolute prerequisite to the entry of a decree of adoption under that statute. The intent of the legislature in enacting Ga. L. 1979, pp. 1182,1187, clearly was to omit any such requirement and to substitute the “best interest of the child” as a criterion for the adoption determination. Since “the law presumes that it is in the child’s ‘best interest’ to be with his parent if the parent is not unfit...” (Larson v. Gambrell, 157 Ga. App. 193, 195 (276 SE2d 686) (1981)) it is apparent that in enacting existing Code Ann. § 74-405 (b), the legislature intended that in adoption proceedings any issue of a natural parent’s justification for his “significant failure” to support or communicate with his child be subsumed into and resolved in the context of whether the severance of the parental relationship would be in the “best interest of the child.” Existing Code Ann. § 74-405 (b), as thus construed, makes a finding that an adoption is in the “best interest of the child” tantamount to a finding that the presumption in favor of the continued rights of the natural parent has been rebutted and that the parental relationship should nonetheless be severed because of the parent’s “significant failure” to communicate with or provide support for his child. This interpretation of the statute does not leave the natural parent defenseless in the face of a prima facie showing of his failure to communicate with or provide support for his child for a period of 12 months or longer. It merely obviates the need for a specific finding on the issue of the parent’s “justifiable cause” [450]*450for the failure when a finding that the adoption would be in the “best interest of the child” has otherwise been made. “The alleged words, ‘without justifiable cause/ do not appear in the statute.” Chandler v. Cochran, 247 Ga. 184, 187 (275 SE2d 23) (1981).
Under this interpretation of the statute, no trial court should grant and no appellate court should affirm an order of adoption where the uncontroverted evidence demands a finding that the natural parent was entirely blameless in failing to communicate with or to provide support for his child. In such a case the presumption that it would be in the best interest of the child to maintain the existing relationship with his natural parent remains unrebutted. However, under the existing statute if, after hearing all the evidence, including that concerning the natural parent’s justification for his actions or inactions, the trial court determines that there was a “significant failure” to communicate with or to provide support for the child and that it would be in the “best interest” of that child to be adopted, the trial court should make appropriate findings in that regard and enter an order granting the adoption. On appeal the natural parent is entitled to urge that the order is erroneous for whatever reasons believed to be meritorious. Citing evidence to support the assertion that he was “justified,” the natural parent is entitled to enumerate as error on appeal the trial court’s evidentiary finding that it was in the “best interest of the child” to have the parental relationship terminated. If there is any evidence to support the trial court’s finding that the adoption was in the child’s “best interest,” a judgment based upon that finding will be affirmed on appeal. Beverly v. Kennedy, 153 Ga. App. 149, 150 (2) (264 SE2d 690) (1980). However, it is apparent that in enacting Ga. L. 1979, pp. 1182, 1187, the General Assembly intended that no order of adoption ever be reversed for the reasons expressed in Burch and Baker, and the failure of the trial court to make a further specific finding on the issue of “justifiable cause” is no longer a meritorious ground for reversal. Accordingly, those two decisions are overruled insofar as they hold that, in the full exercise of his discretion the trial court must make a specific finding that the parent’s failure was “without justifiable cause” before granting a petition of adoption under existing Code Ann. § 74-405 (b).
Under the proper construction of the statute, an order granting an adoption need only contain specific and articulated findings that the parent “has failed significantly” for a one year period to communicate with or provide support for his child and that the adoption would be in the child’s “best interest.” These findings were made in the instant case. Pretermitting appellant’s assertion on appeal, these findings are not rendered erroneous by the fact that he [451]*451presented evidence that he voluntarily discontinued to support or communicate with his child because of discouragement by the child’s mother. See Prescott v. Judy, 157 Ga. App. 735 (278 SE2d 493) (1981). “It is well settled that no person can object to the natural consequences of his own act voluntarily performed.” Chandler v. Cochran, 247 Ga. 184, 187 (6), supra. From our review of the entire record in this case, we find evidence to support the finding of the trial court. Beverly v. Kennedy, supra. There is no merit in the contention that the case must be remanded for a specific finding on whether appellant had “justifiable cause” for his actions or inactions.
2. After the petition for adoption was filed in the instant case, appellant’s ex-wife, the child’s mother, filed garnishment proceedings to collect delinquent child support payments due to her pursuant to a prior divorce decree on which a fi. fa. had been issued. At the date of the hearing on the adoption no answer was due or had been filed by the garnishee. Appellant testified at the adoption hearing that he did not plan to contest or to intervene in the garnishment proceeding. Appellant asserts on appeal that the trial court erroneously concluded that “[t]he Garnishment proceedings by the mother to collect past due support for said minor child having been initiated subsequent to the filing of the Petition for Adoption, has no bearing on the matter [of the adoption].” Appellant contends that to the contrary “the payment of the funds held by the [garnishee] to the mother would have reduced [appellant’s] arrearage from [$1,160.00] to approximately [$140.00], which would mean that he will have paid to the mother all but seven out of the fifty-eight weeks that he is alleged to be behind. It means that one ground upon which appellant’s parental rights were terminated, non-payment of support, will no longer exist.”
We find appellant’s argument to be without merit. Code Ann. § 74-405 (b) (2) speaks in terms 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 ... to provide for the care and support of the child as required by law or judicial decree ...” (Emphasis supplied.) “[A]n offer to pay the arrearages comes too late after the filing of the petition for adoption. [Cit.]” Plymel v. Adams, 132 Ga. App. 621, 622 (208 SE2d 627) (1974). Appellant urges that in the instant case, unlike Plymel, the child’s mother, by instituting the garnishment action, should be considered as having “accepted” the delinquent child support payments and that appellant should therefore have been deemed to have significantly “paid” his child support obligations. Assuming, without deciding, that such sums as the child’s mother might receive pursuant to the garnishment proceeding should be considered as appellant’s “payment” of delinquent child [452]*452support, such payment, coming after the filing of the adoption petition, is too late for appellant to rely upon it as evidence that he did not significantly fail to provide child support. “[P]ayment after [the filing of the petition for adoption does not] restore the requirement of [the parent’s] written consent to the adoption. [Cits.] Rights of the parties are generally fixed as of the time the petition is filed and served.” Hamrick v. Seward, 126 Ga. App. 5, 10 (189 SE2d 882) (1972).
Decided November 20, 1981.
Daniel MacDougald III, for appellant.
Willard H. Chason, for appellee.
Judgment affirmed.
Quillian, C. J., Birdsong and Pope, JJ., concur. McMurray, P. J., Shulman, P. J., and Birdsong, J., concur specially. Deen, P. J., Banke and Sognier, JJ., dissent.