Nelson v. Taylor , 244 Ga. 657 ( 1979 )

Nichols, Chief Justice,

dissenting.

I agree with the majority that "Adoption statutes should be strictly construed and meticulously followed so that beyond all peradventure the adoption will not later be subject to attack.” However, the rule is not one of form for the sake of form. It is one of form for the sake of substance. The substance of the rule is to preclude a later attack on the adoption.

Code Ann. § 74-403 (a)(4) provides insofar as it is relevant to the present case that "no adoption ... shall be permitted except where . . . the parent(s) of the child has voluntarily and in writing surrendered all his rights to the child ...” (Emphasis supplied.) The surrender must be in writing. In this case, the surrender was in writing. The acknowledgment of the surrender was not in writing and signed by the mother who was contesting the adoption. The referenced Code section does not expressly state that the acknowledgment also must be in writing.

Code Ann. § 74-404 provides, in relevant part, that "A surrender ... shall be executed ... in the presence of a notary.” No parallel requirement expressly is stated pertaining to the acknowledgment of the surrender, as distinguished from the surrender itself. Code Ann. § 74-404 (c)(4) strongly implies that the acknowledgment also must be in writing by stating that "A surrender of parental rights shall be acknowledged by the parent(s)... signing in substantially the following form.” (Emphasis supplied.) To say that the form must be signed is to imply in the very strongest of terms that the acknowledgment is to be in writing. But the express statutory requirement is one of substantial compliance,. rather than strict compliance, with a form. Thus, although adoption laws should be strictly construed so as to prevent later attacks upon the adoption proceedings, the rule of strict construction should not be so strictly appliedhy this court as to require strict compliance with a statutory provision in respect to which the General Assembly expressly has required no more than substantial compliance. It is at this point of the analysis that I must part from the majority.

The facts are these: The mother signed the surrender form but did not sign the acknowledgment form. I agree with the majority that she signed the correct surrender form. Instead of her signing the acknowledgment form, counsel for the adoptive parents (the parental grandparents) examined the mother during the adoption proceedings as to all of the various substantive requirements of the acknowledgment form as set forth in Code Ann. § 74-404 (c)(4), receiving her responses under oath which either strictly, or at least substantially, complied with the answers she would have given to each of the points of inquiry had she signed the acknowledgment form. The substance of the matter is identical whether she signed a form or testified under oath. She would not later be able to attack the adoption proceedings.

I believe the majority’s opinion pays too much attention to form and too little attention to substance. Hence, I respectfully must dissent.