In re B. D. C.

Beasley, Judge,

dissenting.

The petitioning grandparent, who did not file a brief on appeal, has filed a motion for rehearing which I would grant. I am persuaded that the trial court did not abuse the discretion vested in it by OCGA § 19-9-2 when it granted temporary custody of the now nearly six-year-old grandson to the grandparents with whom he has lived all of his life.

The trial court expressly applied the “clear and convincing evidence” test in determining that the respondent father had abandoned his child. This conclusion of abandonment was the statutory basis for retaining custody in the grandparents. OCGA § 19-7-1 (b) (3).

At the hearing, the court heard from and observed both the petitioner and the respondent father. On the issue of abandonment, the court took into account the following circumstances which it found to be fact: “[The father] has denied that the child was in fact his. He has referred to the child as ‘that boy,’ never by name. He did not visit the child and mother at the hospital at the time of the child’s birth. During questioning regarding failure to send birthday gifts, he responded that he ‘didn’t know his birthday.’ Although he has an income of some $40,000 per year, the father contributed nothing to the child’s support for a period of at least three years or more and has only recently made payments when forced by the court to do so. He has not visited the child nor attempted to visit the child for three years or more. The child has received no gifts or greeting cards, no telephone or other communication from him. The father has made no inquiries concerning the child and has shown no interest in his growth and development. The Court finds no indication of any intent on the part of the father to acknowledge the child, claim the child as his, or show any interest in the welfare, progress or even the existence of the child. There is no evidence of any inclination to act as a parent, but on the contrary, obvious effort to forego all parental duties and claims.”

The majority does not challenge any of these findings but instead focuses exclusively on the father’s payment of $4,000 child support shortly before the petition was filed by the grandmother. This fact, it concludes, negates a conclusion of abandonment. Forced payment of a portion of long-overdue, court-ordered child support, compelled by garnishment, surely does not change the history and record of utter forsaking of this child. It was even more than abandonment, which connotes initial support; it was rejection from the outset. Respondent turned his back and did not reverse his position of renouncement when the law, giving him no choice, finally exacted some money from his earnings. I would not construe this involuntary type of providing, prompted by the law’s summary command to his employer, as evidence contradicting the abandonment which otherwise was abun*90dantly manifested.

Decided July 8, 1986 Rehearing denied July 31, 1986 Dorm M. Peevy, for appellant. Bryant Huff, for appellee.

Sale v. Leachman, 218 Ga. 834 (131 SE2d 185) (1963) is inapposite. It involved an adoption petition, a much more severe adjustment of the parent/child relationship. The adoption was objected to by the natural father, who had voluntarily begun to make the twice-monthly support payments required in the divorce decree. The issue was the construction of a provision of the law which has since been substantially changed. See OCGA §§ 19-8-3 and 19-8-6 (b) (2).

The evidence supports the court’s findings. We must accept that and construe it to uphold rather than to destroy them and the judgment. Hamrick v. Seward, 126 Ga. App. 5, 7 (1) (189 SE2d 882) (1972). The court, having taken all of the relevant circumstances into account and concluding that the father had abandoned the child, did not in my opinion abuse its discretion in awarding temporary custody to the grandparents who theretofore had nurtured and cared for the child from his birth. Instead, the court clearly performed its statutory function in conformity with the mandate to “[look] solely to the child’s interest and welfare.” OCGA § 19-9-2.