TITLE 15 COURTS

Section 11. Juvenile Code, 15-11-1 through 15-11-747.

ARTICLE 4 TERMINATION OF PARENTAL RIGHTS

15-11-283. Notice to father.

Unless he has surrendered all parental rights to his child, a summons shall be served in the same manner as set forth in Code Section 15-11-282 on the biological father:
1. Whose paternity has been previously established in a judicial proceeding to which the father was a party;
2. Whose identity is known to the petitioner or the petitioner's attorney;
3. Who is a registrant on the putative father registry and has acknowledged paternity of the child named in the petition brought pursuant to this article;
4. Who is a registrant on the putative father registry who has indicated possible paternity of the child named in the petition brought pursuant to this article that was born to such child's mother during a period beginning no more than two years immediately preceding such child's date of birth; or
5. Who, if the court finds from the evidence including but not limited to the affidavit of the mother of a child named in the petition brought pursuant to this article, has performed any of the following acts:
  1. Lived with such child;
  2. Contributed to such child's support;
  3. Made any attempt to legitimate such child; or
  4. Provided support or medical care for such mother either during her pregnancy or during her hospitalization for the birth of such child.
The notice shall advise the biological father who is not the legal father that he may lose all rights to the child named in a petition brought pursuant to this article and will not be entitled to object to the termination of his rights to such child unless, within 30 days of receipt of notice, he files:
1. A petition to legitimate such child; and
2. Notice of the filing of the petition to legitimate with the court in which the termination of parental rights proceeding is pending.
If the identity of the biological father whose rights are sought to be terminated is not known to the petitioner or the petitioner's attorney and the biological father would not be entitled to notice in accordance with subsection (a) of this Code section, then it shall be rebuttably presumed that he is not entitled to notice of the proceedings. The court shall be authorized to require the mother to execute an affidavit supporting the presumption or show cause before the court if she refuses. Absent evidence rebutting the presumption, no further inquiry or notice shall be required by the court, and the court may enter an order terminating the rights of the biological father.
The court may enter an order terminating all the parental rights of a biological father, including any right to object thereafter to such proceedings:
1. Who fails to file a timely petition to legitimate the child named in a petition brought pursuant to this article and notice in accordance with subsection (b) of this Code section;
2. Whose petition to legitimate is subsequently dismissed for failure to prosecute; or
3. Whose petition to legitimate does not result in a court order finding that he is the legal father of the child named in a petition brought pursuant to this article.

(Code 1981, §15-11-283, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-21/SB 364.)

The 2014 amendment, effective April 28, 2014, substituted "in the same manner as set forth in Code Section 15-11-282 on" for "on the legal father of a child named in the petition brought pursuant to this article or" in subsection (a); deleted former subsection (b), which read: "(b) Notice shall be given to the biological father or legal father by the following methods:

"(1) If the biological father or legal father is within this state and can be found, the summons shall be served upon him personally as soon as possible and least 30 days before the termination of parental rights hearing;

"(2) If the biological father or legal father is outside this state but his address is known or can be ascertained with due diligence, service of summons shall be made at least 30 days before the termination of parental rights hearing either by delivering a copy to him personally or by mailing a copy to him by registered or certified mail or statutory overnight delivery, return receipt requested; or

"(3) If, after due diligence, the biological father or legal father to be served with summons cannot be found and his address cannot be ascertained, whether he is within or outside this state, the court may order service of summons upon him by publication. The termination of parental rights hearing shall not be earlier than 31 days after the date of the last publication. Service by publication shall be as follows:

"(A) Service by publication shall be made once a week for four consecutive weeks in the legal organ of the county where the petition to terminate parental rights has been filed and of the county of the biological father's last known address. Service shall be deemed complete upon the date of the last publication;

"(B) When served by publication, the notice shall contain the names of the parties, except that the anonymity of a child shall be preserved by the use of appropriate initials, and the date the petition to terminate parental rights was filed. The notice shall indicate the general nature of the allegations and where a copy of the petition to terminate parental rights can be obtained and require the biological father or legal father to appear before the court at the time fixed to answer the allegations of the petition to terminate parental rights;

"(C) The petition to terminate parental rights shall be available to the biological father or legal father whose rights are sought to be terminated free of charge from the court during business hours or, upon request, shall be mailed to the biological father or legal father; and

"(D) Within 15 days after the filing of the order of service by publication, the clerk of court shall mail a copy of the notice, a copy of the order of service by publication, and a copy of the petition to terminate parental rights to the biological father's or legal father's last known address."; redesignated former subsections (c) through (e) as present subsections (b) through (d), respectively; and substituted "subsection (b)" for "subsection (c)" in paragraph (d)(1).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under pre-2000 Code Section 15-11-83, and pre-2014 Code Section 15-11-96, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.

Constitutionality.

- Former O.C.G.A. § 15-11-96 (see now O.C.G.A. §§ 15-11-281,15-11-282, and15-11-283) was not unconstitutional because the statute required the biological father to exercise his interest in the child by filing a petition to legitimate. In the Interest of D.B., 243 Ga. App. 473, 533 S.E.2d 737 (2000) (decided under former O.C.G.A. § 15-11-96).

Requiring fathers of children born out of wedlock to legitimate their children in order to preserve their parental rights does not violate equal protection because unwed fathers and unwed mothers are not similarly situated. In the Interest of V.M.T., 243 Ga. App. 732, 534 S.E.2d 452 (2000) (decided under former O.C.G.A. § 15-11-96).

Standing.

- Parent who filed a legitimation petition more than 30 days after a termination of parental rights petition was filed lacked standing to challenge the termination. In the Interest of S.H., 251 Ga. App. 555, 553 S.E.2d 849 (2001) (decided under former O.C.G.A. § 15-11-96).

Father was not entitled to a new trial on a termination of rights petition filed by the Department of Family and Children Services as the father failed to legitimate the child at issue and, hence, lacked standing to challenge the termination of parental rights order. In the Interest of J.L.E., 281 Ga. App. 805, 637 S.E.2d 446 (2006) (decided under former O.C.G.A. § 15-11-96).

Given a biological father's failure to legitimate the child at issue, the father lacked standing to challenge the juvenile court's termination of parental rights order. In the Interest of L.S.T., 286 Ga. App. 638, 649 S.E.2d 841 (2007) (decided under former O.C.G.A. § 15-11-96).

Putative father had standing to appeal the termination of the putative father's parental rights even though the putative father had never filed a petition to legitimate the child; because the putative father never received notice under former O.C.G.A. § 15-11-96(e) (see now O.C.G.A. § 15-11-283) that the putative father had 30 days to file a petition to legitimate a child, former § 15-11-96(i) did not apply. In the Interest of K.E.A., 292 Ga. App. 239, 663 S.E.2d 822 (2008), overruled on other grounds, In re J.M.B., 296 Ga. App. 786, 676 S.E.2d 9 (2009) (decided under former O.C.G.A. § 15-11-96).

Juvenile court did not err in denying a father's legitimation petition based on his failure to support the child or his mother or send the child cards or letters while incarcerated. Because the father failed to legitimate the child, he lacked standing to challenge the termination of his parental rights under former O.C.G.A. § 15-11-96(i)(3) (see now O.C.G.A. § 15-11-283). In re J. S., 302 Ga. App. 342, 691 S.E.2d 250 (2010) (decided under former O.C.G.A. § 15-11-96).

Termination hearing seeks above all else welfare of child with due regard for the rights of the parents. Harvey v. Fulton County Dep't of Family & Children Servs., 147 Ga. App. 824, 250 S.E.2d 563 (1978) (decided under former law) Childers v. Clayton County Dep't of Family & Children Servs., 147 Ga. App. 825, 250 S.E.2d 564 (1978); Kilgore v. Department of Human Resources, 151 Ga. App. 19, 258 S.E.2d 680 (1979) (decided under former law);(decided under former law).

Court's discretion not controlled, absent abuse.

- In determining how the interest of the child is best served, the juvenile court is vested with broad discretion which will not be controlled in the absence of manifest abuse. Harvey v. Fulton County Dep't of Family & Children Servs., 147 Ga. App. 824, 250 S.E.2d 563 (1978) (decided under former law) Childers v. Clayton County Dep't of Family & Children Servs., 147 Ga. App. 825, 250 S.E.2d 564 (1978);(decided under former law).

Failure to file petition to legitimate.

- If the biological father received notice of a proceeding to terminate parental rights and failed to file a petition to legitimate the children, termination of his parental rights was authorized under former O.C.G.A. § 15-11-83 (see now O.C.G.A. § 15-11-96). In re D.B.G., 226 Ga. App. 29, 485 S.E.2d 575 (1997) (decided under former O.C.G.A. § 15-11-83).

Court correctly terminated a father's parental rights after he was personally served with a copy of the petition, which contained a notice that he would lose all rights unless he filed a petition to legitimate within 30 days, and he never filed such a petition. In re E.D.T., 233 Ga. App. 774, 505 S.E.2d 516 (1998) (decided under former O.C.G.A. § 15-11-83) In the Interest of D.M., 244 Ga. App. 361, 535 S.E.2d 7 (2000);(decided under former O.C.G.A. § 15-11-96).

Since the biological father of a child was notified nine months before a termination hearing that he had 30 days in which to file a petition to legitimate the child, and was further informed eleven days before the hearing that the paternity tests showed the child was his, but did not inform the court that he had received the paternity test results and wished more time in which to file a petition to legitimate, the court did not err in determining that his rights should be terminated. In re A.K.M., 235 Ga. App. 853, 510 S.E.2d 611 (1998) (decided under former O.C.G.A. § 15-11-83).

Biological father who fails to seek to legitimate his child following receipt of proper notice of termination proceedings may not thereafter object to the termination of his parental rights. In the Interest of A.W., 242 Ga. App. 26, 528 S.E.2d 819 (2000) (decided under former O.C.G.A. § 15-11-96).

Since the putative biological father failed to file a legitimation petition, despite having received two notices of his need to legitimate and having been given a continuance from the termination hearing so that he could comply with former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), the juvenile court did not err in determining that his parental rights should be terminated. In the Interest of D.B., 243 Ga. App. 473, 533 S.E.2d 737 (2000) (decided under former O.C.G.A. § 15-11-96).

Under former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), a petition to terminate parental rights must notify a biological father who is not the legal father that he must file, within 30 days of receipt of notice, a petition to legitimate his child; O.C.G.A. § 19-7-22 regulates a petition for the legitimation of a child, notice to the mother, a court order, the order's effect, and the intervention by the father. In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003) (decided under former O.C.G.A. § 15-11-96).

If a biological father fails to file a legitimation petition within 30 days of a petition under former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-283), he loses all rights to the child and will not be entitled to object to the termination of his parental rights; if no legitimation petition is timely filed, or if it is denied or dismissed, the trial court shall enter an order terminating the father's rights under former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. § 15-11-283). In the Interest of D.W., 264 Ga. App. 833, 592 S.E.2d 679 (2003) (decided under former O.C.G.A. § 15-11-96).

Order terminating a biological parent's parental rights was upheld on appeal as the parent failed to file for legitimation of the affected children within 30 days of being notified of the termination petition, despite repeatedly being notified to do so, and despite the appointment of an attorney in the termination proceedings. In the Interest of S.M.G., 284 Ga. App. 64, 643 S.E.2d 296 (2007) (decided under former O.C.G.A. § 15-11-96).

Because a father failed to give written notice to the juvenile court that a legitimation petition was filed, as required by former O.C.G.A. § 15-11-96(h) (see now O.C.G.A. § 15-11-28), within 30 days of receiving notification of a termination proceeding, the juvenile court properly entered an order terminating the father's parental rights, and the father was thus denied the right to object. In the Interest of S.M.R., 286 Ga. App. 139, 648 S.E.2d 697 (2007) (decided under former O.C.G.A. § 15-11-96).

Trial court properly terminated a parent's parental rights to a child as a result of the parent failing to timely file a notice of the petition to legitimate the child with the juvenile court within 30 days. In the Interest of M.D., 293 Ga. App. 700, 667 S.E.2d 693 (2008) (decided under former O.C.G.A. § 15-11-96).

Because a father of a 7-year-old autistic child had not even attempted to legitimate his child, despite numerous warnings from the juvenile court, the father lacked standing to challenge the termination of his parental rights. Therefore, the father's argument that the juvenile court erred in denying his motion for a continuance was moot. In the Interest of T. B. R., 304 Ga. App. 773, 697 S.E.2d 878 (2010) (decided under former O.C.G.A. § 15-11-96).

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