Welch v. Welch

453 S.E.2d 445, 265 Ga. 89

• Court: Supreme Court of Georgia
• Decided: February 13, 1995
• Docket: S94A1722, S94X1725, S94X1728, S94X1730, S94X1732
• Status: Published

Opinions

Benham, Presiding Justice.

In the 1960’s, appellant-plaintiffs were placed into the custody of Mr. and Mrs. Cecil Welch by order of the juvenile court. Although appellants remained in the custody of the Welches until they reached their majority, the Welches never initiated proceedings to adopt appellants formally. When no wills were offered for probate after the Welches died in 1992, appellants filed an action seeking children’s shares of the estates based on alleged “virtual adoption.” After appellants presented their evidence at a bench trial, the trial court granted appellees’ motion for involuntary dismissal. The ground for the dismissal was the trial court’s conclusion, as a matter of law, that a contract for adoption must be between the natural parents and the adoptive parents, and that case law did not support the conclusion that the juvenile court was a party competent to enter into such a contract. It is from that dismissal that appellants bring the main appeal. Appellees have filed defensive cross-appeals.

In O’Neal v. Wilkes, 263 Ga. 850 (1) (439 SE2d 490) (1994), this court reiterated the principle that a contract for adoption must be between parties competent to contract for the disposition of the child. The question for resolution in this case is whether the juvenile court can, by entry of an order awarding custody, become one of such parties. We conclude that the principles stated in O’Neal should not be extended so far as to permit the juvenile court such authority.

Virtual adoption is not a doctrine to be employed broadly, and the facts of this case demonstrate why. Appellants’ suit asked the trial court to create a contract out of an order which merely established legal custody and gave approval to the custodians to proceed with statutory adoption proceedings if they chose to do so. The evidence is clear that they did not choose to do so, and while the record is silent as to the reason for that non-action, it is also silent as to the intent of the Welches in taking custody of appellants. The trial court here expressed the opinion that the contract of adoption must be considered oral because only the juvenile court signed the order and the purported adoptive parents had not signed anything memorializing their intent at that time of adopting appellants. The danger of familial ties being created by judicial action such as this in the absence of evidence of such an intent is too great to permit a custody order to have the effect which appellants would have us give it. The Welches are no longer able to speak to their reasons for not following up on the pre-approval given by the juvenile court, and we cannot assume from their silence that they had such an intent to adopt that a court of equity should cause that intent to mature into an accomplished adoption.

While it is true that our former law permitted certain juvenile courts to take custody of children whose parents’ parental rights had been terminated, and to act in loco parentis and as guardian of such children,¹ and case law has recognized the authority of such courts to give consent to adoption,² that authority should properly be limited to the context in which it arose, statutory adoption. The trial court in the present case was correct in its holding that there was no case law permitting a juvenile court’s order to be considered the contract underlying virtual adoption.

The courts have an important role in supervising and regulating the adoption process in this case and should not become mere contractual parties in the process. While it is appropriate in circumstances such as those surrounding the custodial placement of appellants for the juvenile court to give encouragement to custodians to adopt, it is not appropriate for the superior court subsequently to transmute that encouragement into a contract which became binding on one side only after the death of that side. The trial court was correct in ruling that the custody order could not serve as a contract of adoption and in granting appellees’ motion for involuntary dismissal. Since that judgment is affirmed, the defensive cross-appeals are moot and must be dismissed.

Judgment affirmed in Case No. S94A1722. Appeals dismissed in Case Nos. S94X1725, S94X1728, S94X1730, and S94X1732.

All the Justices concur, except Sears, Hunstein and Carley, JJ., who dissent.

1 Ga. L. 1951, pp. 291, 304, § 21 (3).

2 Criswell v. Jones, 60 Ga. App. 81 (4) (3 SE2d 115) (1939).