Duncan v. Harden , 234 Ga. 204 ( 1975 )

Ingram, Justice,

dissenting.

In a case involving the surrender of parental rights for adoption, as in the instant case, there is no statutory authority for the natural parent to withdraw the consent because of regret and a change of mind. Georgia Code Ann. § 74-403 (Ga. L. 1941, pp. 300, 301; 1950, pp. 289, 290; 1957, p. 367; 1960, pp. 791, 792; 1967, pp. 107, 108) states: "(1) Except as otherwise specified in the following subsections, no adoption shall be permitted except with the written consent of the living parents of a child. Said consent, when given freely, voluntarily, may not be revoked by the parents as a matter of right ... (2) Exemption where child abandoned or parental custody terminated.— Consent of a parent shall not be required... where such parent has surrendered all of his or her rights to said child to a licensed child placing agency, or to a court of competent jurisdiction for adoption, or to the Department of Human Resources through its designated agents ... (3) Illegitimate children. — If the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrendered all of her rights to said child to a licensed child-placing agency, or to the Department of Human Resources. . . .”

The statutory factor for consideration in a situation involving surrender of parental rights is whether the consent was given freely and voluntarily. The majority opinion expresses serious doubts about the voluntary nature of this consent. However, the findings of the trial judge shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Ga. Code Ann. § 81A-152 (a). Viewing the evidence in this case, a clear abuse of discretion by the trial judge is not apparent. Although the original consent was obtained from the mother on May 17, only four days after the child’s birth, and under emotional circumstances, the mother was subsequently advised on June 17th that she could change her mind regarding the releases. The mother did not change her mind at this time, but subsequently married the father of the child and they filed their habeas corpus petition on September 19th. The factors surrounding the consent given by the mother in this case were carefully considered by the trial judge and his judgment ought not to be interfered with by this court unless he clearly abused his discretion. I respectfully dissent to the majority opinion because I cannot agree the trial judge clearly abused his discretion.

I am authorized to state that Justices Gunter and Hill concur in this dissent.