dissenting.
I do not agree with the holding in the majority opinion that the "relationship between the child and his foster parents is primarily irrelevant” and the conclusion that "we thus find no merit in the Drummonds’ claim of right by virtue of their status as Timmy’s foster parents.”
The facts in Carson v. Marette, 217 Ga. 614 (124 SE2d 74) (1962), cited in the majority opinion, which denied the claim of the foster parent, are vastly different from the facts in this case. In Carson the custody of the foster parent had been revoked by the juvenile court based on a complaint filed in that court alleging abuse and mistreatment of the child by the foster parent. Certainly this was sufficient to eliminate any legal claim or right the foster parent might have had. In the case under consideration the facts show love and care for the child and no court has ever revoked the custodial care given to the foster parents at the time the child was placed in their home.
It is my position that when a state agency having only legal custodial status places a child in a foster home, tacit approval is given that such foster parents are eligible to be adoptive parents. Once this relationship is shown to exist the burden should be upon the agency to *461show that conditions have changed adversely affecting the welfare of the child, such as was done in Carson, supra. Unless such changed conditions are shown to exist, the agency no longer has the absolute and arbitrary discretion to refuse such application to adopt.
Here the record shows that the FCDFCS had approved the Drummonds as fit and proper foster parents for the care and protection of this child. This love, care and protection lasted some 2-1/2 years without complaint by the agency. During this period of time the foster parents became the psychological parents of the child, the only parents he had ever known. Upon their application to adopt, permission by the agency should have been given in the absence of a showing that they were no longer fit or eligible to become the adoptive parents.
This is not a dispute between the natural parent(s) of a child and some third party, as was the situation in several cases cited by the majority. This dispute is between foster parents who in time have become psychological parents and a state agency whose only interest should be that the "best interest of the child” test has been met. The initial determination of this test was made by the agency when it placed custodial care of the child in the Drummonds at the age of one month. This "best interest of the child” determination is presumed to continue until the contrary appears. This record is devoid of facts to show such a change. The Drummonds’application to adopt was simply "denied.”
Georgia should follow the lead of several states which have recognized that legal rights can attach to foster parents under certain conditions. See In re Confessora B., 348 N. Y. S. 2d 21 (1973). Under the facts of this case the foster parents had clearly established an interest in the child sufficient to entitle them to a judicial determination of their right to adopt.
In my opinion the trial court erred in dismissing the complaint for failure to state a claim.
I respectfully dissent.