Opinion
46248.
ARGUED JUNE 4, 1971.
DECIDED JUNE 30, 1971.
Abandonment. Fulton Juvenile Court. Before Judge Langford.
Harold T. Daniel, Jr., for appellant.
Martin H. Peabody, Henry J. Miller, Hope Sadler Poe, for appellee.
1. On the issue of whether a parent is to be deprived of the custody of a child because of an alleged abandonment, the facts are to be construed against abandonment.
2. Under a proper construction of the evidence a finding of abandonment by the Juvenile Court was not authorized.
ARGUED JUNE 4, 1971 — DECIDED JUNE 30, 1971.
The mother in this case was unmarried, 23 years of age, and suffered an estranged relationship with her parents who lived in her home State of Iowa. She received a master's degree in teaching exceptional children from a university in Colorado, where conception took place. She had lived in Atlanta on a prior occasion and came here after graduation, holding a "T-5" teaching certificate in this State. Although she suspected she was pregnant, she was not able to admit it positively to herself until the eighth month; and, trapped in a sort of emotional isolation booth, unable to confide in her parents or anyone else except a friend in Colorado with whom she corresponded, she somehow concealed her pregnancy from co-workers and casual friends.
On December 18, 1970, she worked until 5 p. m., went to her apartment and waited alone. The child was born normally at 11:40 that night, after which she was exhausted and in a daze. She tried to get cleaned up and held the child in her arms until sometime after 6 a. m. It appeared to be perfectly healthy, but she felt it should go to the hospital. It was her thought that the Suicide Prevention Bureau would be the only agency that would listen to her, secure medical facilities quickly, and give her advice. Accordingly, she telephoned them from a telephone booth, explaining the situation and notifying them that the child would be left in the booth. She then left it in a basket, wrapped in a blanket, with a note and $25 in cash. Approximately ten minutes later the child was picked up by the police, whom the Suicide Prevention Bureau had notified, and taken to the hospital, where it was examined and found to be in good health.
After leaving the child, the mother cleaned her apartment and went to work. Several days later she heard on the radio that the policeman on duty at the hospital when the child was brought in was interested in adopting it. Apparently at this point she began to think more clearly about her life and the possibilities of keeping the child, and started an investigation of the home of the policeman. She conversed over the phone with the policeman's wife, and at this point she determined that she could offer the child a better home and a better life than these people. The policeman's wife displayed a hostile attitude toward the mother's actions in coming forward, and threatened criminal action; so the mother telephoned her parents in Iowa, told them she had a problem that she could not handle alone or explain over the telephone and requested that her mother come to Atlanta. The mother's father chartered a plane, and her mother came to Atlanta, where, after the situation was explained to her, she began calling various city and county officials in behalf of her daughter, who was working. By December 28, 1970, some nine days after the call to the Suicide Prevention Bureau, appellant's mother succeeded in locating the probation officer of Fulton Juvenile Court who was assigned to this case and had a conference with her, and the child's mother followed up with another conference the next day.
At a hearing on January 13, the mother appeared, represented by counsel, but the policeman seeking custody was not present nor were other necessary witnesses. The hearing was continued until February 4, by which time the policeman had lost interest in the matter. Also by this time, the mother had moved from her old apartment, which excluded children, to a larger apartment where children were welcome. In addition, the mother had accomplished the following: made arrangements with a day-care center for child care during her working hours; consulted a professional counselor, whom she felt could be depended upon in the future to help her with problems that might arise; consulted a physician for a physical examination and was pronounced in good health; made arrangements with her friend in Colorado to act as the guardian of the child in the event of the mother's death; and placed funds in escrow to begin a trust fund for the child's education.
The juvenile court found that the child was under insufficient and improper guardianship and had been abandoned by its mother and left in a dependent condition, and that there had been a sufficient act of abandonment to warrant the termination of parental rights. The order concluded, "However, the mother orally stating her love for the child and contending that custody of the child should be returned to her and declaring her willingness to support the child, this court finds that parental rights should not be terminated at this time, but that the mother should be given an opportunity to demonstrate her stability and her willingness to support the child over a reasonable period of time," and the child was committed to the Fulton County Department of Family and Children Services with the requirement that its mother pay into court $20 per week for its support.
The mother appeals, contending that the court erred in denying custody to her.
We reverse. On the issue of whether custody of a child is to be denied a parent, the facts must be construed in the parent's favor, i.e., against an abandonment. Johnson v. Strickland, 88 Ga. App. 281, 283 ( 76 S.E.2d 533).
The term "abandonment" has been well defined in McComas v. Glendinning, 59 Ga. App. 234, 235 ( 200 S.E. 304). Applying the tests of that definition it is apparent that appellant had no intention of giving up her child never to resume or claim her rights of interest in it. Her actions were not those of a deliberate, carefully weighed decision by one under no compulsion, or one standing in a position to make a rational and deliberate judgment. She was in something akin to a state of shock and under a feeling of compulsion to do something that would enable the child to get immediate attention from a doctor, which she was not then in position to provide. As we see this evidence, she sought to do that which her impaired judgment told her would help the child — not to desert and abandon it. She did not leave it destitute, for she left with it the money that she had — more than a week's support in terms of the court order. She followed up within a matter of days, when she learned that custody of the child might be given to others, obtained counsel, sought a return of the child to herself, moved into an apartment where she would be allowed to keep it, and arranged for its day care while she worked.
We do not regard the facts before the court as authorizing a finding of abandonment of the child by its mother.
Nor do we think the finding that the child was under an "improper or insufficient guardianship" appropriate here. There could have been no guardianship save the natural guardianship of the mother. Since we view the evidence as insufficient to authorize the finding of abandonment, but rather, when properly construed to indicate a purpose of the mother to reclaim custody of the child when she was able to arrange for its care, and since the trial court concluded that the parental rights of the mother should not be terminated, this finding does not require a different result.
Judgment reversed. Hall, P. J., and Whitman, J., concur.