Opinion
41664.
SUBMITTED JANUARY 10, 1966.
DECIDED JANUARY 20, 1966.
Adoption. Tattnall Superior Court. Before Judge Durrence.
Dawson Phillips, Richard D. Phillips, for appellant.
R. L. Carr, for appellees.
1. Where the natural mother of a child has not given her written consent to its adoption and she has not abandoned her rights to it, the superior court is without power to grant an order of adoption to third parties. Code § 74-403. This is true although the natural father may have given his written consent to the adoption.
2. The mere leaving of a child in custody of another for a length of time (here, approximately nine years) does not constitute abandonment. Johnson v. Strickland, 88 Ga. App. 281 ( 76 S.E.2d 533); Holbrook v. Rodgers, 105 Ga. App. 219 ( 124 S.E.2d 443). Failure to supply the child with the necessities of life, though an element of abandonment, is not alone sufficient, and this is particularly true as to the natural mother, the duty of affording the necessities being that of the father. Code § 74-105; Blue Ridge Park Nurseries v. Owen, 41 Ga. App. 98 (4) ( 152 S.E. 485).
3. The evidence fails to show an abandonment by the mother, and since she has given no written consent to the child's adoption, the granting of the order was error.
Judgment reversed. Bell, P. J., and Jordan, J., concur.
SUBMITTED JANUARY 10, 1966 — DECIDED JANUARY 20, 1966.
While Billy Brazell was in the Army and his wife, Mildred, was working, they left their first child, William Steven Brazell, then about a year old, with Billy's sister, Mrs. Thelma B. Anderson, and her husband, Garland Anderson. Four other children were afterward born to Billy and Mildred and when a divorce was granted, custody of the children was awarded to Mrs. Brazell during the school months of the year and to the father during the summer. The father has remarried, though the mother has not.
The child, William Steven Brazell, is now about 10 years old, and has spent most of his time with the Andersons since he was first left with them. They have largely supported him. They now seek to adopt him. An undated written consent from the father is attached to the petition for adoption, but it is alleged that at the time the child was first left with petitioners the mother orally agreed that they might adopt him and that she now seeks to repudiate her agreement. No abandonment of the child was alleged in the petition.
The Andersons and both natural parents testified at the interlocutory hearing and at the final hearing on the petition for adoption. Petitioners asserted that they had supplied all necessities for the child since he had been with them and that the parents had orally agreed that they might adopt the boy. The father's testimony was substantially in accord. But the mother denied having made any agreement of any kind that the child might be adopted and asserted that he had spent much time in the home with her and the other children and that she now wishes to have him grow up with them and be accorded the same treatment and advantages.
Recognizing that there was no written agreement of the mother for the adoption, the court found from the evidence that she had abandoned the child and thus that no consent was necessary and proceeded to grant the final order of adoption.