In the Interest of C. D. B. ( 1987 )

Beasley, Judge,

concurring specially.

The trial court committed error in not requiring the DHR investigation and recommendation or a substitute in the event DHR notified the court that DHR was unable to fill the request. Chandler v. Cochran, 247 Ga. 184 (2) (275 SE2d 23) (1981) found that it was error to omit this legislatively-mandated procedure but that it was harmless in the circumstances of that particular case. As pointed out by the Supreme Court, it is a “required report” and when it is made, it is “mandatory to consider the report.” Id. at 185 and 186.

The statute, OCGA § 19-8-11 (a), clearly states that the court cannot “take . . . other steps” to have the matter investigated unless the DHR cannot do so. The independent investigation, conducted free of the rules of evidence and courtroom confines and time narrowness of a judicial inquiry, is what the legislature insists on. This policy, which relates to the elemental relationship of a biological parent and child which is by judicial decree of adoption sundered forevermore in the eyes of the law for all purposes controlled by law,¹ is confirmed by the express command that the investigation report and recommendations be considered by the court. OCGA § 19-8-13 (a). We recognized so in Ridgley v. Helms, 168 Ga. App. 435, 439 (3) (309 SE2d 375) (1983).

The primary issue both below and here is whether there is clear and convincing evidence that the parental relationship should be terminated. Much of the evidence, and to a degree the decision itself, is by nature subjective. Thus, a significant part of the body of information which the court is to take into account in weighing that evidence is the report and recommendation of the independent and disinterested social service agency. What is to be contained in the report is expressly set out in OCGA § 19-8-12 (a).

Thus the complete absence of the department’s input creates a void in the process which is required by law to be followed in considering the evidence brought by the antagonistic parties who each have a high stake in the outcome. It is the department’s obligation to provide the report and recommendation, OCGA § 19-8-11 (a), and the court’s obligation to “give consideration to” it. OCGA § 19-8-13 (a). It does not require a request from either party.

Instead, it is the mandate of the legislature as part of the process for these cases in which there is a complete destruction of the natural parent-child relationship in the law and the substitution of a new parent. This process for effecting such a change is the declared public policy of the state, and as repeated again in Kirkland v. Lee, 160 Ga. App. 446, 449 (287 SE2d 365) (1981): “ ‘(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).”

Decided March 19, 1987. D. Jeffrey Grate, for appellant. Gregory T. Jones, for appellee.

The departure in this case is saved only because the facts disclosed by the record are so compelling that they render harmless the bypassing of the mechanism designed to uncover and marshall all of the information relevant to the complex issues of final adoption.

1 See Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982).