O'NEAL v. Wilkes , 263 Ga. 850 ( 1994 )

Fletcher, Justice.

In this virtual adoption action, a jury found that appellant Hattie O’Neal had been virtually adopted by the decedent, Roswell Cook. On post-trial motions, the court granted a judgment notwithstanding the verdict to appellee Firmón Wilkes, as administrator of Cook’s estate, on the ground that the paternal aunt who allegedly entered into the adoption contract with Cook had no legal authority to do so. We have •eviewed the record and conclude that the court correctly determined ;hat there was no valid contract to adopt.

O’Neal was born out of wedlock in 1949 and raised by her nother, Bessie Broughton, until her mother’s death in 1957. At no :ime did O’Neal’s biological father recognize O’Neal as his daughter, ;ake any action to legitimize her, or provide support to her or her mother. O’Neal testified that she first met her biological father in 1970.

For four years after her mother’s death, O’Neal lived in New York City with her maternal aunt, Ethel Campbell. In 1961, Ms. Campbell brought O’Neal to Savannah, Georgia, and surrendered physical custody of O’Neal to a woman identified only as Louise who was known to want a daughter. Shortly thereafter, Louise determined she could not care for O’Neal and took her to the Savannah home of Estelle Page, the sister of O’Neal’s biological father. After a short time with Page, Roswell Cook and his wife came to Savannah from their Riceboro, Georgia home to pick up O’Neal.¹ Page testified that she had heard that the Cooks wanted a daughter and after telling them about O’Neal, they came for her.

Although O’Neal was never statutorily adopted by Cook, he raised her and provided for her education and she resided with him until her marriage in 1975. While she never took the last name of Cook, he referred to her as his daughter and, later, identified her children as his grandchildren.

In November 1991, Cook died intestate. The appellee, Firmón Wilkes, was appointed as administrator of Cook’s estate and refused to recognize O’Neal’s asserted interest in the estate. In December 1991, O’Neal filed a petition in equity asking the court to declare a virtual adoption, thereby entitling her to the estate property she would have inherited if she were Cook’s statutorily adopted child.

1. The first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child. Winder v. Winder, 218 Ga. 409 (128 SE2d 56) (1962); Rucker v. Moore, 186 Ga. 747, 748 (199 SE 106) (1938). A successful plaintiff must also prove:

“Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating [it] as their child, and . . . the intestacy of the foster parent.”

Williams v. Murray, 239 Ga. 276 (236 SE2d 624) (1977), quoting Habecker v. Young, 474 F2d 1229, 1230 (5th Cir. 1973). The only issue on this appeal is whether the court correctly determined that Page was without authority to contract for O’Neal’s adoption.

2. O’Neal argues that Page, a paternal aunt with physical custody of her, had authority to contract for her adoption and, even if she was without such authority, any person with the legal right to contract for the adoption, be they O’Neal’s biological father or maternal aunts or uncles, ratified the adoption contract by failing to object.

As a preliminary matter, we agree with O’Neal that although her biological father was living at the time the adoption contract was allegedly entered into, his consent to the contract was not necessary as he never recognized or legitimized her or provided for her support in any manner. See Williams, 239 Ga. 276 (mother alone may contract for adoption where the father has lost parental control or abandoned the child); OCGA § 19-7-25, Code 1933, § 74-203 (only mother of child born out of wedlock may exercise parental power over the child unless legitimized by the father); see also OCGA § 19-8-10 (parent not entitled to notice of petition of adoption where parent has abandoned the child). What is less clear are the rights and obligations acquired by Page by virtue of her physical custody of O’Neal after her mother’s death.²

3. The Georgia Code defines a “legal custodian” as a person to whom legal custody has been given by court order and who has the right to physical custody of the child and to determine the nature of the care and treatment of the child and the duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child. OCGA § 15-11-43, Code 1933, § 24A-2901. A legal custodian does not have the right to consent to the adoption of a child, as this right is specifically retained by one with greater rights over the child, a child’s parent or guardian. OCGA § 15-11-43, Code 1933, § 24A-2901 (rights of a legal custodian are subject to the remaining rights and duties of the child’s parents or guardian); Skipper v. Smith, 239 Ga. 854 (238 SE2d 917) (1977) (right to consent to adoption is a residual right retained by a parent notwithstanding the transfer of legal custody of the child to another person); Jackson v. Anglin, 193 Ga. 737, 738 (19 SE2d 914) (1942) (parent retains exclusive authority to consent to adoption although child is placed in temporary custody of another); Carey v. Phillips, 137 Ga. App. 619, 624 (224 SE2d 870) (1976) (parent’s consent is required for adoption of child although child is in physical custody of another).

O’Neal concedes that, after her mother’s death, no guardianship petition was filed by her relatives. Nor is there any evidence that any person petitioned to be appointed as her legal custodian. Accordingly, the obligation to care and provide for O’Neal, undertaken first by Campbell, and later by Page, was not a legal obligation but a familial obligation resulting in a custodial relationship properly characterized as something less than that of a legal custodian. Such a relationship carried with it no authority to contract for O’Neal’s adoption. See Skipper, 239 Ga. at 856. While we sympathize with O’Neal’s plight, we conclude that Page had no authority to enter into the adoption contract with Cook and the contract, therefore, was invalid.

4. Because O’Neal’s relatives did not have the legal authority to enter into a contract for her adoption, their alleged ratification of the adoption contract was of no legal effect and the court did not err in granting a judgment notwithstanding the verdict in favor of the appellee. See Foster v. Cheek, 212 Ga. 821 (96 SE2d 545) (1957) (adoption contract made between persons not competent to contract for child’s adoption specifically enforceable where the parent with parental power over the child acquiesced in and ratified the adoption contract).

Judgment affirmed.

All the Justices concur, except Hunt, P. J., and Carley, J., who concur in the judgment only; Sears-Collins and Hunstein, JJ., who dissent.

1 Mr. and Mrs. Cook were divorced in the 1970s. The former Mrs. Cook did not testify at trial.

2 This issue was alluded to but not decided in Foster v. Cheek, 212 Ga. 821, 824-825 (96 SE2d 545) (1957). In that case, it was not necessary to decide whether grandparents with physical custody of a child were competent to contract with their daughter’s second husband for the adoption of their daughter’s child because their daughter, the child’s mother, ratified the adoption contract.