In re A.J.A.

Pope, Judge. 1. On September 15, 1981 appellees filed a petition for the adoption of A.J.A., a minor child, claiming she had been abandoned by her natural parents and that it was in the best interest of the child that the petition be granted. After a hearing on the merits, the trial court made the findings of fact summarized below, which we find to be supported by the evidence. Code Ann. § 81 A-152; Perry v. Thomas, 129 Ga. App. 325 (3) (199 SE2d 634) (1973). The child was born on June 24, 1979 and she lived with her natural mother in various places until September 13, 1980. On that date, the mother asked petitioners to care for the child for a day. She did not return for the child and, after several days effort to locate the mother, petitioners found her. She asked petitioners to continue to care for the child and also that they adopt her. Petitioners then retained counsel to effect the adoption. The adoption papers were prepared, but the mother refused to sign them. She did not, however, ask for the return of her child. During the period of time the child was in petitioners’ custody, a period exceeding one year, the natural mother saw the child for a total of less than one hour. She paid a ten minute visit in November, another at Easter time and another a few days after the child’s birthday in June. The mother did not contribute toward the support of the child during this time. On one particular occasion, in December of 1980, the child was in need of medical attention for which authority by the natural mother was required. Petitioners located the mother and obtained power of attorney, but only on the condition they loan her a sum of money. 2. Upon these facts, the trial court concluded as a matter of law that the natural mother had abandoned the child. The court applied the standards of Glendinning v. McComas, 188 Ga. 345 (3 SE2d 562) (1939), which were appropriate. See Crumb v. Gordon, 157 Ga. App. 839 (1) (278 SE2d 725) (1981). The court also utilized the procedure suggested for proving abandonment in 10 Am Jur Proof of Facts 2d 635. Having judged the contentions and evidence under the proper standards, we will disturb the court’s conclusions only when they are not supported by any evidence, thus amounting to a clear abuse of discretion. Lanning v. Fiveash, 147 Ga. App. 290 (248 SE2d 553) (1978). See also Crumb v. Gordon, supra; Findley v. Sanders, 153 Ga. App. 146 (1) (264 SE2d 659) (1980). We find no such basis in the record before us. The conclusions are supported by competent evidence and we find no abuse of discretion by the court in its [211] rejection of conflicting evidence proffered by appellant. 3. Besides challenging the court’s findings of fact and conclusions of law, appellant takes issue with the fact that petitioners’ relation to her was that of first cousin, asserting that a closer relationship is required. When the basis for granting a petition of adoption is abandonment, the relationship of the parties is manifestly immaterial. Code Ann. § 74-405 (a). Compare Code Ann. § 74-405 (b). 4. The dissent asserts that the issue in this case is “whether the case was tried under Code § 74-405 (a) or (b)” and concludes that it was tried under subsection (b). From our review of the record, we are of the opinion that the case was actually tried and decided under both subsections. This was improper because subsection (b) is inapplicable (as will be explained infra), but, inasmuch as a finding of abandonment under subsection (a) is sufficient to support a granting of adoption and because we find that the court’s conclusion as to abandonment is supported by the evidence, we affirm. See Division 2, supra. Code Ann. § 74-403 (a) provides that no adoption of a child with a living parent(s) shall be allowed unless there has been a surrender or termination of parental rights. Code Ann. § 74-405 contains the exceptions to § 74-403 (a). Section 74-405 (a) allows any person to petition for the adoption of a child, without first obtaining a surrender or termination of parental rights, where the child has been abandoned by the natural parent(s). Section 74-405 (b) provides a more limited exception. It allows the other parent and his/her spouse (see § 74-403 (a) (3)) or a close relative (see § 74-403 (a) (4)) to petition for adoption, without having first obtained a surrender or termination of parental rights, where the parent has failed significantly for over a year to communicate with or provide care and support for the child. In this case, one of the petitioners was a first cousin of the natural mother. Because petitioners’ relationship is outside that contemplated in either § 74-403 (a) (3) or § 74-403 (a)(4), petitioners cannot avail themselves of § 74-405 (b). This leaves petitioners two options by which they could adopt the child: either they obtain a surrender of parental rights under § 74-403 (a) (2) (as “third person(s)”) or proceed under § 74-405 (a), alleging and proving abandonment. Abandonment is a difficult claim to prove. See Glendinning v. McComas, supra. Many factors combine to constitute it. Inclusive among these are the factors of failure to communicate with and failure to support the child. See 10 Am Jur Proof of Facts 2d 635, 645. Thus, the basis of § 74-405 (b), that is, failure to communicate or [212] failure to support, is also part of the basis of § 74-405 (a), that is, abandonment. Decided October 7, 1982 Rehearing denied November 1, 1982 Jerry C. Gray, for appellant. Gregory M. Perry, for appellees. The key evidence of abandonment in this case was in fact that evidence showing the natural mother’s failure to communicate with and provide support for the child. There was, however, other evidence of abandonment, including the natural mother’s voluntary surrender of the child to petitioners coupled with no serious demand for the return of the child; the natural mother’s suggestion that petitioners adopt the child; the natural mother’s unconcern and even disregard of the child’s well-being; and other evidence which, in the aggregate, showed actual desertion and intent to sever the parental relation. Thus, we hold that despite the procedural impropriety of entertaining Code Ann. § 74-405 (b), the trial court’s conclusion that abandonment under § 74-405 (a) was proven is supported by the evidence and the adoption was therefore granted upon sufficient grounds. Judgment affirmed. Quillian, C. J., McMurray, P. J, Shulman, P. J., Banke and Carley, JJ., concur. Deen, P. J., Birdsong and Sognier, JJ., dissent.