dissenting.
Having profound misgivings as to the far-reaching implications of the majority opinion and the conclusions reached in Divisions 3 and *3834, I respectfully dissent.
The factual posture of the proceedings below is sufficiently explained in the majority opinion and needs no further explanation here.
While I do not take issue with the statutory obligation to reimburse provided for in OCGA § 19-11-5 and as discussed in Divisions 1 and 2 of the majority opinion, I do take issue with the procedural framework for collection authorized in Divisions 3 and 4. At common law, public welfare agencies had no right of recovery for public assistance given to eligible recipients. Re Estate of Lainez, 422 NYS2d 849 (102 Misc. 2d 138) (1979). Present-day schemes of recovery are statutorily created and should not only be strictly construed, but should be viewed in light of contemporary due process requirements.
To fully appreciate the problem posed by the majority opinion, a brief review of the legislative history concerning welfare recovery statutes is illuminating. The first recovery statute was provided for in Ga. Laws 1973, p. 192, Sec. 4, which provided: “The payment of public assistance to or on behalf of a dependent child creates a debt due and owing the State by the parent or parents of the child; provided, however, that where a court has ordered child support incident to a final divorce decree or other final order for child support, the debt shall be limited to the amount specified in the decree or order. This liability shall attach only with respect to the period of time during which public assistance is granted and only if the parent or parents were financially able to furnish support during this period.” (Emphasis supplied.) This provision was supplanted by Ga. Laws 1976, p. 1537, Sec. 4, which struck Section 4 in its entirety and provided, in part, that: “The amount of the debt is the amount necessary to meet the total needs of the child or children, and the person having custody, if included in the public assistance grant, as determined by the Department in conformity with the Federal Social Security Act; provided, however, that where a court has ordered child support incident to a final divorce decree or in a criminal proceeding for nonsupport, or other similar proceeding, the debt shall be limited to the amount specified in the decree of order.” In the subsequent sections, an administrative procedure was set up for determining ability to support.
The most recent enactment (Ga. Laws 1977, p. 643, Sec. 1) is quoted in the majority opinion, but no mention is made as to the preambular language of the legislative enactment, which is as follows: “An act to amend an Act known as the ‘Child Support Recovery Act’ approved March 28, 1973 (Ga. L. 1973, p. 192) as amended, so as to make the amount of the debt created by payment of public assistance to or on behalf of a child equal to the amount specified in the court order or decree where such a court order or decree exists; to provide that the debt owed the State by the individual responsible for sup*384port may be established by legal process other than court order or decree, such as an administrative hearing or a legally enforceable and binding agreement. . .” (Emphasis supplied.) There is a clearly distinguishable thread coursing through each enactment, favoring some type of administrative notice and due process procedure.
Decided March 14, 1985 Rehearing denied March 29, 1985 Gregory W. Valpey-Toussignant, Phyllis J. Holmen, John Cro-martie, Nancy R. Lindbloom, Mary R. Carden, for appellant. William F. Riley, Jr., Assistant District Attorney, Mary Foil Russell, Staff Assistant Attorney General, for appellee.The pivotal case in this area, which is mentioned by the majority opinion, but inappropriately distinguished, is Burns v. Swinney, 252 Ga. 461 (314 SE2d 440) (1984). While Burns v. Swinney makes reference to the “non-custodial parent,” the principles are equally applicable to the custodial parent. Hence, it is inconceivable that the courts would accord the absconding parent more procedural rights than the custodial parent. Burns, at 464, requires a notice of the duty to support so that the parent may keep records of the support provided as required by OCGA § 19-7-24. In Burns, the Supreme Court clearly stated the reason for such a notice requirement: “[W]e do so because the failure to provide for notice and an opportunity to be heard could render the state’s right of recovery unconstitutional for lack of notice and due process.”
The majority opinion seeks to distinguish Burns v. Swinney by stating that the appellant here, who was the recipient, had notice of the application for AFDC; however, the majority opinion fails to address the second requirement, which is notice of the obligation to repay. This lack of notice rendered the procedure below fatally flawed, and I would reverse the judgment of the trial court.