THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 14, 2017
In the Court of Appeals of Georgia
A17A0948. McDOWELL v. BOWERS et al.
ELLINGTON, Presiding Judge.
Pursuant to a granted application for an interlocutory appeal, Richard Chad
McDowell contends that the Superior Court of Bryan County erred in permitting
Judith and Jeffrey Bowers, the paternal grandparents of J. N. S., a minor child, to
intervene in his petition to adopt the child. Because Georgia law does not permit the
grandparents to intervene under the circumstances presented in this case, we must
reverse the superior court’s order allowing the intervention.
The relevant, undisputed facts of this case are as follows. J. N. S., the
biological child of S. S. and E. S., was born in 2009. The child’s parents divorced in
2012. The divorce decree, which established the parents’ visitation rights, contained
no provision concerning grandparent visitation. E. S. died in an accident in 2014. In
September 2014, S. S. agreed to allow McDowell to adopt J. N. S., and the probate
court granted McDowell letters of guardianship. McDowell is not a blood relative of
J. N. S. Rather, McDowell was previously married to S. S. They had a son in 2005;
they divorced in 2008. J. N. S. has regularly visited McDowell and his half-brother
and has reportedly formed a bond with them. McDowell filed a petition to adopt J. N.
S. on September 23, 2015. Shortly thereafter, the granparents filed their motion to
intervene, which the superior court granted. According to their supporting brief, the
grandparents are seeking custody of the child pursuant to OCGA §§ 19-7-3 and 19-8-
15.
“In matters of adoption, the superior court has a very broad discretion which
will not be controlled by the appellate courts except in cases of plain abuse.” (Citation
and punctuation omitted.) Smith v. Hutcheson, 283 Ga. App. 117, 118 (640 SE2d
690) (2006). However, where, as here, an appeal involves a question of law, we owe
no deference to the trial court and our review is de novo. Suarez v. Halbert, 246 Ga.
App. 822, 824 (1) (543 SE2d 733) (2000).
Although it is clear from the record that the grandparents believe they can
provide the best possible life for their grandchild, Georgia law does not authorize
them to intervene in this third-party adoption proceeding to obtain custody under the
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circumstances presented. Contrary to their contention, “OCGA § 19-7-3 only
authorizes grandparents to intervene to obtain visitation rights in the proceedings
specified in the Code section.” (Citation omitted; emphasis supplied.) Murphy v.
McCarthy, 201 Ga. App. 101, 102 (410 SE2d 198) (1991). This Code section does
not authorize intervention for the purpose asserted by the granparents, that is, to
object to the adoption and to obtain custody themselves.1 Further, the only adoption
proceedings listed in this Code section are those in which the child is being adopted
by a blood relative or a stepparent, and McDowell is neither. OCGA § 19-7-3 (b) (1)
(B). See Murphy v. McCarthy, 201 Ga. App. at 102. Finally, because “an adoption is
not the equivalent of a proceeding to terminate parental rights within the meaning of
1
OCGA § 19-7-3 (b) (1) (B) provides:
Any family member shall have the right to intervene in and seek to
obtain visitation rights in any action in which any court in this state shall
have before it any question concerning the custody of a minor child, a
divorce of the parents or a parent of such minor child, a termination of
the parental rights of either parent of such minor child, or visitation
rights concerning such minor child or whenever there has been an
adoption in which the adopted child has been adopted by the child’s
blood relative or by a stepparent, notwithstanding the provisions of
Code Section 19-8-19.
3
OCGA § 19-7-3,” id., OCGA § 19-7-3 (b) (1) (B) provides no basis for permitting the
grandparents to intervene.
Rather, OCGA § 19-8-15 governs when objections by grandparents are allowed
in adoption proceedings. Murphy v. McCarthy, 201 Ga. App. at 102. It provides that
the blood relatives of a minor child may object to an adoption in limited
circumstances. OCGA § 19-8-15 (b) provides, in relevant part:
If the child sought to be adopted has no legal father or legal mother
living, it shall be the privilege of any person related by blood to the
child to file objections to the petition for adoption. A family member
with visitation rights to a child granted pursuant to Code Section 19-7-3
shall have the privilege to file objections to the petition of adoption if
neither parent has any further rights to the child and if the petition for
adoption has been filed by a blood relative of the child.
Under the circumstances of this case, this Code section does not give the
grandparents standing to object to the adoption. J. N. S.’s legal mother is alive and
she has consented to the adoption.2 Further, by its plain terms, OCGA § 19-8-15 (b)
2
S. S.’s surrender of her parental rights to McDowell is conditional; if J. N. S.
is not adopted by McDowell, the child is to be returned to her custody. Moreover,
although parental power may be lost by consenting to the adoption of a child by a
third person, the act of consenting does not immediately result in the termination of
parental rights, thereby creating a right to object and standing to intervene. See Baum
v. Moore, 230 Ga. App. 255, 257 (496 SE2d 307) (1998) (“[OCGA § 19-7-1 (b.1),
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only provides that objections may be made when a blood relative files for adoption
of the minor child, and McDowell is a non-relative third party. Finally, the
grandparents have not established any visitation rights to J. N. S. pursuant to OCGA
§ 19-7-3.3 Because the grandparents have failed to show that they have a legal right
to object to the adoption, they are not authorized to intervene in this adoption
proceeding, and the order granting intervention must be reversed. See Murphy v.
McCarthy, 201 Ga. App. at 102.
Judgment reversed. Andrews and Rickman, JJ., concur.
concerning when parental power may be lost,] does not create a new right to intervene
in an adoption proceeding, but merely states that when custody is an issue between
parents or between a parent and certain third parties, parental power may be lost if the
court determines that an award of custody to a third party is in the best interest of the
child.”) (emphasis supplied).
3
In 2013, the grandparents sought an ex parte order in South Carolina to obtain
joint custody of J. N. S. with his father. The court granted the grandparents’
emergency motion for temporary custody but later dismissed the action for lack of
subject matter jurisdiction and returned custody to S. S. The court concluded that the
grandparents had wilfully failed to inform the court that issues of custody and support
had already been adjudicated in Georgia and that the mother had already been
awarded custody. On that ground, the court awarded attorney fees to S. S. Thus, the
trial court’s reliance on Evans v. Sangster, 330 Ga. App. 533 (768 SE2d 278) (2015)
is misplaced. The grandparents in Evans were allowed to intervene in a stepparent
adoption to protect visitation rights that they had already obtained. Id. at 538 (b).
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