
    57991.
    ROBERTS et al. v. MUSCOGEE COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES.
   Banke, Judge.

This appeal from an order dismissing appellants’ petition for adoption was originally filed in the Supreme Court because of a constitutional challenge to a statute. The case was transferred to this court by the Supreme Court.

James Roberts and his wife, residents of North Carolina, filed a petition in the superior court for the adoption of James Roberts’ 10-year-old niece. The parental rights of the natural parents of the child had previously been terminated by court order and legal custody placed with the appellee, the County Department of Family & Children Services. The petition failed to show that the legal custodian consented to the adoption, as required by Code Ann. § 74-403. Appellants contend that the appellee would have withheld its consent due to appellants’ failure to meet the Georgia residency requirement of Code Ann. § 74-402. Appellants further contend that this requirement violates the equal protection guarantee of the United States Constitution. Appellants have not applied to the Department of Family & Children Services for the agency’s consent. Held:

The decision of the trial court was based upon the absolute requirement that consent of the legal custodian be obtained as a prerequisite to adoption. Code Ann. § 74-403. This requirement applies as fully where the Department of Family & Children Services is the custodian as it does where the natural parents have custody. "[T]he decision to choose adoptive parents for children in the custody of the [local Department of Family & Children Services] is entirely discretionary in nature, the same as it would be for the natural parents in whose place the agency stands.” Drummond v. Fulton County Dept. of Family &c. Serv., 237 Ga. 449 (3), 456 (228 SE2d 839) (1976). The record contains no support for the appellants’ contention that the appellee would have refused its consent based on their residence alone, and thus no constitutional issue is presented.

The judgment of the court below in dismissing appellants’ adoption petition is accordingly affirmed.

Argued June 13, 1979

Decided July 13, 1979.

Henson, Collins & Butler, L. Joel Collins, for appellants.

Mark R. Youmans, Arthur K. Bolton, Attorney General, Stephanie B. Manis, Staff Assistant Attorney General, for appellee.

Judgment affirmed.

McMurray, P. J., and Underwood, J., concur.  