*1 25, 1970. June
Brailsford, Justice. trial judge
This is the disallowance an from appeal The counterclaim. to defendant’s of a demurrer plaintiff trial the commencement demurrer was stated at orally doesn’t the “counter-claim and was upon of action to constitute the cause the facts sufficient state under insufficient was palpably defense.” This generality that a “de 10-643, which requires Section Code the grounds objection murrer shall distinctly specify does so it may disregarded.” Unless it complaint. Franks v. An overruled. so-called demurrer was properly 891 (1957). ap 97 S. thony, (2d) S. C. facts proved does not sufficiency peal challenge de verdict, $1,657.56 was for for the to sustain on his counterclaim. fendant
Affirmed. Bussey
Moss, JJ., Littlejohn, J.,C. Lewis, and concur. Bevis, BEVIS, Pamela T. BEVIS and
Mary Appellant, Lee v. Joe W. Bevis, under years, Cynthia a minor age of 14 a minor under the Tinsley, Joe T. of whom years, and E. Bevis age of 14 Jean are, whom Tinsley Respondents, E. Bevis Bevis Jean minors, are, Bevis, Appellants. Cynthia Pamela Bevis 398) (175 S. E. *3 Vermont, Mary of Spartanburg,
Messrs. Gaines & Bevis, Plaintiff-Appellant, Lee W. *4 Turner, Respondent, R. Spartanburg, for
James Esq., 26, 1970. June
Lewis, Justice. the two adopt
This is a proceeding by of her husband aby prior marriage minor children brought The been ended divorce. proceeding had mother, chil- husband, two natural and the against chil- ad litem for husband and the dren. The guardian the natural for but adoption, dren the reqüest joined and contested the proceeding. refused consent concerned the necessity under the main issue pleadings step- mother to adoption. of the natural the consent *5 mother consent of the alleged sought prove natural mother was because she had abandoned unnecessary the children for a months, of more than twelve period thereby forfeited her The lower court found parental rights. that there had been no abandonment and denied the adoption. and the ad litem for the children guardian have appealed.
While the ultimate relief in this is the sought proceeding children, adoption the issue as to the consent of the court, was tried in the lower to all agreeably parties, as if the under proceeding of brought provisions Section 31-51.1 et Laws, seq., Code of to bar the pa- rental mother, and not as rights a incident to question a under the proceeding statutes adoption 10-2587.2 (Section seq., et Supplement Code of Laws).
As out in pointed Richland County Department of Mickens, Public v. 246 S. C. 142 S. Welfare 737, Section 31-51.1 et seq., provides statutory remedy, statutes, from the separate for adoption whether or not a child determining has been “voluntarily abandoned”. that the Upon child has been finding so aban doned “for a period months,” excess of twelve the court may issue an order forever barring parental guardianship rights, the child rendering for eligible without the consent of the person whose have been so barred. This statutory remedy child whether a has been determining abandoned is determined, not exclusive. Such issue bemay as it consent, relates to in a under the proceeding Benedict, statutes. v. 252 S. C. 165 S. E. (2d) Goff 269. Also see: Richland Public Wel County Department of Mickens, v. supra. fare
However, facts, under the whether issue present of abandonment considered under Section 31-51.1 et seq. or as incidental to the the result adoption, would be the same. Benedict,
We v. held that statutes supra, pro Goff for the termination of of na viding parental rights tural are to be strictly construed in favor parents and the parent preservation relationship parent and child. 31-51.1,
Under Section be barred parental rights may *6 only a that the child has been upon finding “volun abandoned.” tarily While the uses statute the phrase abandoned,” we do “voluntarily not think that it denotes any of greater degree child the than that neglect parent encompassed the term Aban generally “abandonment.” donment, as used in with the connection of children and the termination of voluntary a parental rights, implies act or a conscious of a the owed disregard obligations to the child. parent
While it is to difficult formulate a definition that will cover cases, all as rule, a “abandonment con- general any imports duct on the part parent evinces settled purpose all duties and parental all forego relinquish 32; claims 2 child.” Am. Section (2d), Adoption, Jur. 662; Annotation: 35 A. L. R. of C. S. Adoption J. Children does not include an act or course of 21d(2). It § conduct which is done force of circumstances through from dire necessity. determination, of such the best interest making involved, as
the child well as the of are rights parents and the of completeness relinquishment pa rental to constitute abandonment must be determined upon basis a due consideration of both.
The authorities that the of abandon agree in ment is one of be determined each intent to largely case from all of the facts and circumstances.
While other and basic are first questions presented, issue for determination is whether natural mother aban- doned her children. The material facts are not in dispute. and T. Bevis defendants
The record shows that Joe 28, re- married on November E. Bevis were Jean Two children (girls) Carolina. in South sided Spartanburg, in December 1955 born to marriage were —Pamela in At last hearing the time 1959. Cynthia June court, years Pamela was thirteen lower matter nine. and Cynthia age dif- marital had been experiencing Bevis Jean Joe her against
ficulties and instituted divorce proceedings Jean 30, of physical on on November husband 9, 1961, hus- dated In an amended answer cruelty. June a divorce sought the wife with adultery, band charged wife was that the It is undisputed from her that ground. went affair. She at time from an adulterous pregnant shortly about to Florida with paramour June case, two and carried her divorce hearing before never her. and her were children with She paramour man and wife until about but lived as married together Jan- born which time two children were uary during *7 relationship. this State,
After the left the the husband was granted wife 24, on of adultery from her 1961 on July divorce was awarded children with reasonable custody and to the wife. visitation privileges had children out of the the mother carried the Since State, could not then be delivered to the father custody their However, as ordered the court. the mother returned by children a visit about two months after the State with the entered, time, the ob- divorce decree was at which over officers, aid the chil- of the mother and with the jection and delivered to dren were removed from her custody in father’s since time custody have been They father. in Spartanburg. her removed from custody, the children were
After she contacted the Florida. returned to Subsequently letters, and gifts, at intervals by phone, personal children 1964, once or visits twice a she returned year. June when her mother died and visited with Spartanburg children at in that time. The children were the home living this paternal during period. grandparents on December the father married
Subsequently, action, Bevis, Lee in Mary this children plaintiff wife, have in lived the home their father his second with since that time. After the father’s remar- stepmother, children, the mother continued write to her call riage, them over the and visit them phone occasionally. The mother visited them two or July about three weeks before this action was The visits and begun. contact the mother with the children had become obnoxious to the apparently and, visit, stepmother last arose over during dispute visitation, in a threat the mother an resulting to secure to seek more liberal visitation attorney privileges. visit, after the
Shortly July stepmother instituted this action to bar the mother in order to effect an of the children. It is clearly inferable from the record that the visits and contacts with the children by the mother had become obnoxious to the this action was instituted so as to the mother prevent from children at seeing the time. As any stated the trial “it is from the judge, obvious she plaintiff’s testimony that resented natural mother’s into intrusions her home and with contacts the children. viewed the continuing She mother’s contacts the children as an interference as unwanted influence.”
Service of the this matter the mother pleadings upon which, Florida was order attempted an through publication seen, as will be set aside because of defec- subsequently *8 tive service. The mother made no in the action appearance and she was in default. After an declared a order hearing, 1966, 3, was issued on November in which the parental terminated the mother were that upon children, she had abandoned the and their adoption allowed. in this and complaint that summons It later appeared at the address mailed wrong was to the action however her. did have knowledge never She received her November 1966 member of family through and was the children adopt efforts of the stepmother that a counselor later informed in March 1967 continued to attempt been The mother children had adopted. con- and, of these the children because to contact and see of the contacts, with a copy tinued she was served about attorney decree a letter from the stepmother’s that she thereafter December The mother testified 1967. him retainer to represent an contacted attorney paid was too attorney busy her. When it developed matter, It was handle she counsel. employed present of the and complaint then discovered that service summons counsel for the mother been made and had upon defectively an the issuance of consented to plaintiff (stepmother) decree vacating order October filed an answer November 1966. The mother subsequently followed, in the decree resulting and a series of hearings mother, which this comes. favorable to the from appeal children, Limited of the mother with the visitation privileges court, been since have allowed under the supervision set decree was aside. the original adoption with her that she has ended the affair mother testified him from 1968. While separated January paramour there that she has fact is is credible testimony questioned, her life for the better. change taken meaningful steps no evidence would serve use A further review the is not one of custody here ful purpose. seeks to only The natural mother of the children. the record all While termination of rights. avoid of the mother part fully justifying misconduct on shows evidence su we think that the custody, denial to her of court she no intent to lower had finding stains the children, best interests of the and that abandon Her a determination. not such per- require children did *9 them, sistent and with continued contacts visitation them, efforts over the of a nature years, personal gifts welfare, to indicate solicitation for their show con- parental cern and an intent all duties and forego negate parental all claims to the children. relinquish It is argued however that because of immoral conduct of the mother and the excellent care children in of the home of the father and for several both of years, record, are established by the the best interests of the children would be served parental rights terminating of the mother so they that can be by the adopted stepmother. This is argument not without some appeal.
However, the trial after all of judge, the factors weighing involved, concluded that the best interests of the children did not a termination of all require of the mother’s rights. children were thirteen and nine years of a the time of age last in the lower hearing court. are now fourteen They ten of years been They have age. contact with the mother No doubt through years. the trial concluded judge limited, continued but strictly supervised, contacts children the mother, while continued they under the dominant influences of the home provided by the father and not stepmother, would be detrimental to their best interests under all of the facts circumstances of this case. matters of determining this kind a wide discretion
must be allowed trial judge who sees and observes and, parties necessity, acquires peculiar knowledge comprehension situation from close contact with it. We cannot that the trial failed say judge in this case to balance properly wel between the equities fare of the children and the of the mother. His finding, that abandonment on the of the mother had not been part shown, is affirmed.
As noted, a previously default decree was issued this matter on November 1966. It is undisputed service of the legal summons and to the entry on the mother prior was not made complaint first told of the adoption proceedings such decree. She was she December and on a sister November 1966 thereafter ob- order. She the final was served with copy was secured on October tained counsel and an order decree, two years aside the approximately setting issuance, service after its illegal *10 consented to counsel the This order was pleadings. the chil- notice to but was issued without prior the ad litem. It is contended dren their guardian or. in aside ad the lower court erred setting litem that guardian the chil- notice to the default decree without prior adoption dren or the ad litem. guardian the upon is the service
It undisputed attempted no juris- mother was and that the court acquired defective to it. could have resulted diction of her under No prejudice not given because were merely they of the children any right the court the contest the fact that to. opportunity undisputed the the mother. lacked to jurisdicion adjudicate rights v. 153 S. Galloway, in 249 S. C. Galloway decision as to not Here there is no is controlling. dispute In Gallo- the which the of jurisdiction. facts court deprived facts were in dispute. the way, jurisdictional that the however ad litem contends guardian have the to mother was to assert the right estopped laches, and set decree aside because adoption vacate children notice of the motion to to give failure of their to assert such estop the decree them right deprived foregoing no have the The children have lost right pel. was raised guardian determined. The question issue Full lower court. hearings ad litem the subsequent in. the trial on issue and considered by was taken testimony issues. While a decision of other preliminary judge to vacate the to be heard the motion were entitled they ef decree, consideration of the full subsequent of the mother on her afforded laches fect of alleged and no on the issue hearing effective legally the children has resulted to them the failure to afford prejudice from them an earlier to be heard. opportunity that laches would mother from
Assuming estop asserting to have the set aside for right judgment lack of jurisdiction, we trial agree judge that the do facts not warrant the application principle laches case. Laches involves but in not only delay justice to the prejudice opposite party.
The children had been in the home with the living step- mother since to their father on December marriage 1964. There no material in their situation after change decree and the record fails show the accrual of an of the children intervening right would prej- udiced by the delay to vacate the moving adoption.
The final concerns the refusal lower court to permit the children to testify. It trial that the appears conferred judge with the children but refused to privately allow them to be called as witnesses in the open hearings. *11 It is the contended that refusal to allow the children to so constituted a denial the testify to children and the stepmother of the constitutional guarantees of due process. of the
Regardless the children to testify generally, the refusal to allow them to do so in this case could not have resulted in any to them prejudice or the in stepmother. purpose the children to having was to them “the testify give to testi opportunity express wishes, what their mony and feelings, in experiences regard to the natural parent have been.” would They apparently have testified that they wished to be adopted by step mother. The to failure allow them to so state in an open could not have them in hearing prejudiced this for respect the lower court held that every requirement adoption by had been met consent except of the natural mother. consent, With reference to abandonment and record shows that the material facts were not in dispute. to unnecessary children was of the testimony
Therefore of mother. reference to conduct any establish fact consti- facts was whether the undisputed only abandonment. tuted to unnecessary of the children was testimony
Since issue, no resulted from any prejudice establish fact to to them testify. refusal permit affirmed.
Judgment Bussey Moss, concur. JJ., and J.,C. Brailsford, J., Littlejohn, dissents. (dissenting).
Littlejohn, Justice court the lower I hold that dissent and would respectfully abandoned rule that Tinsley erred to failing Jean 31- 31-51.1 through children within the of Sections meaning 1962, and of Laws for 51.4 of the Code South Carolina erred in the adoption. failing grant authority has
This action is in court equity, find with our views of the pre- the facts accord appeal re- may We evidence. ponderance greater weight fact the lower court when appellant verse finding is us of the evidence against satisfies that the preponderance Simonds, v. lower See Simonds court. finding cases 185, 101 S. (2d) (1957), S. C. therein. cited Benedict, 165 S. E. v. 252 S. C. Goff that misconduct this court inference recognized
(1969), serve as a basis for may holding on the part parent here ties be severed. Though respondent should parental children, her did not intend abandon asserts she the conclu- abandonment warrants conduct constituted be severed. Intention should ties should sion that *12 of than the conduct rather objectively by parent judged placed is said. has voluntarily what by Respondent solely with paren- in a of totally incompatible herself sphere living should life of the children and future tal present duties. will, not be to her nor be controlled left as- arbitrary sertion that no there was intent to abandon. involves Intent a mental evi- process may circumstantial proved by dence as aswell utterances of the intent is whose person involved.
In view the should my adoption have been granted. there are four interested proceedings parties: (1) children; the minor or those (2) parents standing place parents; party seeking (3) adopt; (4) the State. v. Galloway Galloway, S. C. 153 S. (1967). mother, which the rights natural would Tinsely, Jean considered; assert must be the welfare of the children must also be considered. It becomes of this court to duty balance the and to equities determine whether the of rights the mother or the welfare the children is paramount. Un- claimed fortunately, the mother are inconsistent with the welfare of the children. Since when the na- went tural mother to Florida Bill with Tinsley, she has been to them a source of misery. The that it judge recognized was unsuitable for the children visit with her at her home, Bevis, at home Lee Mary Joe directed that visitations take in his office place under the one of his counselors until supervision he ordered other- wise. There is in the record before us to nothing lead one to believe that her contacts logically children hereafter hand, would contribute to their welfare. On the I other am convinced that such would be It is detrimental. obvious that the children are now in a established home. For nine good have from time to been years they time afflicted with distur- bance and because of are now anguish They Tinsley. Jean mind, which can hold- entitled to come from a peace only should been have ing granted.