dissenting.
Because, in affirming the trial court, the majority unduly restricts the principles of O’Neal v. Wilkes, 263 Ga. 850 (1) (439 SE2d 490) (1994) and misconstrues the custody orders, I must respectfully dissent. In my opinion, the trial court erred in granting appellees’ motion for involuntary dismissal pursuant to OCGA § 9-11-41 (b).
1. In a virtual adoption case, a contract for adoption must be proven and “[t]he first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child. [Cits.]” (Emphasis supplied.) O’Neal v. Wilkes, supra at 851 (1). Ordinarily, the natural parents will be the ones who are “competent to contract” for the adoption of their child. However, that is not invariably the case. The natural parents may be deceased or, if living, they may have lost their parental rights. Accordingly, in determining whether this element of a virtual adoption case has been proven, the focus must be upon the competency of the party with whom the purported adoptive parents contracted. That party’s lack of status as a natural parent of the child is not necessarily dispositive.
At the time that appellants were placed into the custody of the Welches, the applicable former law provided that,
[w]hen conditions and circumstances warrant the termination of parental rights, the [juvenile] court may take custody of the child or children involved for suitable placement or adoption and may act in loco parentis in all matters pertaining to their interests. In such cases the court shall act as guardian of the person and property of the child or children involved.
(Emphasis supplied.) Ga. L. 1951, pp. 291, 304, § 21 (3). Thus, where *92parental rights had been terminated, a juvenile court could consent to an adoption “in lieu of the consent of the parent[s].” Criswell v. Jones, 60 Ga. App. 81, 82 (4) (3 SE2d 115) (1939). I cannot agree with the majority’s position that the authority possessed by the juvenile court at the time of the custody orders was limited to statutory adoption. It is an unwarranted and inordinately fine distinction to hold that a party has authority to consent to an adoption but is not competent to contract for that adoption.
Accordingly, I believe that, under the law applicable at the time of the custody orders involved in this proceeding, it was possible for a child whose natural parents had lost their parental rights to become virtually adopted as a consequence of an adoption agreement between a juvenile court and the purported adoptive parents. I do not hereby advocate an expansion of the existing law of virtual adoption, but, to the contrary, merely recognize and apply the long-standing principle that the party with whom the purported adoptive parents contracted must be one who was competent to contract for the disposition of the child. O’Neal v. Wilkes, supra at 851 (1). Under the applicable provisions of former law, a juvenile court would be competent to contract with the Welches for appellants’ adoption if the parental rights of their natural parents had been terminated. Therefore, in my opinion, the trial court incorrectly concluded that appellants could not recover on their virtual adoption claims in the absence of a contract between their natural parents and the Welches and, thus, erred in granting appellees’ § 41 (b) motion for involuntary dismissal.
2. The majority not only concludes that the juvenile court could not become a party competent to contract for the disposition of appellants, but also questions the existence of any intent to adopt on the part of the Welches.
The trial court found that, if the juvenile court was competent to contract with the Welches for the adoption of appellants, then the language of the custody orders constituted, in a clear, convincing and strong manner, a contract for adoption. In my opinion, this finding is not erroneous. Both custody orders clearly state that appellants were being placed with the Welches for the purpose of adoption.
It is true that, in order to be enforceable under the doctrine of virtual adoption, the contract must comprehend and intend a legal adoption according to statute. [Cit.] This, however, is not to say that language clearly having that meaning under the attendant and surrounding circumstances, though not containing precise legal phraseology, would be insufficient.
(Emphasis supplied.) Toler v. Goodin, 200 Ga. 527, 539 (4) (37 SE2d *93609) (1946). See also Anderson v. Maddox, 257 Ga. 478 (360 SE2d 590) (1987). Furthermore, because the Welches accepted and retained custody of appellants pursuant to the custody orders, the absence of any document signed by them is immaterial. Taylor v. Taylor, 217 Ga. 20, 22-23 (2) (120 SE2d 874) (1961).
Decided February 13, 1995 Reconsideration denied March 3, 1995. Robert P. McFarland, for appellants. Banks & Stubbs, Robert S. Stubbs III, Lipscomb, Johnson, Ashway & Sleister, Michael R. Sleister, Boling, Rice, Bettis, Bottoms & Bagley, Jeffrey S. Bagley, T. Russell McClelland III, for appellees.3. The trial court’s grant of an involuntary dismissal cannot be affirmed on the ground that appellants failed to prove that the Welches died intestate. The fact that no wills have ever been propounded is sufficient to show that the Welches died intestate and to shift to appellees the burden of coming forward with some evidence to authorize a finding that the Welches had wills.
The judgment of the trial court should be reversed.
I am authorized to state that Justice Hunstein joins in this dissent.