318 S.E.2d 279 | S.C. Ct. App. | 1984
These actions, consolidated on appeal, were initiated by appellant — Children’s Foster Care Review Board (the Board) to have the Family Courts review the cases of several minor children who are currently residing in foster homes but remain in the legal custody of the respondent — South Carolina
It is elementary that in passing upon a demurrer, an appellate court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. A demurrer admits the facts well pleaded in the complaint but does not admit the inferences drawn by the plaintiff from such facts, nor does it admit conclusions of law. Greneker v. Sprouse, 263 S. C. 571, 211 S. E. (2d) 879 (1975); Akers v. Hard, 275 S. C. 100, 267 S. E. (2d) 536 (1980); Sease v. City of Spartanburg, 242 S. C. 520, 131 S. E. (2d) 683 (1963). The same rule applies to a demurrer to a petition for a writ of mandamus, Dowling v. Charleston & W. C. Ry. Co., 105 S. C. 475, 81 S. E. 313 (1913).
For purposes of this appeal, we assume, without deciding, that the family court has the power to issue a writ of mandamus under the proper circumstances. However, we conclude that the Board has not shown that it is entitled to have the writ issued.
To be entitled to a writ of mandamus requiring the performance of some act, an applicant must show: (1) a duty upon the respondent to perform the act; (2) that the duty is ministerial in its character; (3) that the applicant has a specific legal right for which the discharge of the duty is necessary; and (4) that he has no other legal remedy. Willimon v. City of Greenville, 243 S. C. 82, 132 S. E. (2d) 169 (1963);
The family courts have jurisdiction over actions to terminate parental rights.' Section 20-7-420(4). The statutory process is found at Sections 20-7-1560 through 20-7-1610. Before parental rights can be terminated, there must be a court order determining that a child has been abandoned or severely abused. Section 20-7-1580. Under this section, one of several state agencies, including DSS, or “an interested party may petition a court of competent jurisdiction” for such a determination. Upon such a determination, the court “may issue an order forever terminating parental or guardianship rights.” Section 20-7-1590.
Obviously, there is no ministerial duty imposed upon DSS to commence such an action. DSS’ only obligation under these statutes it to make an evaluation of each child’s situation to determine if a family should be reunited. If reuniting the family appears impossible, then DSS may move to terminate parental rights for the purpose of placing the child for adoption. It can hardly be claimed that the decision to terminate parental rights is a function imposed by law without any exercise of agency judgment.
We recognize that under certain circumstances courts may use their mandamus powers to compel an administrative agency to act by exercising its judgment or discretion. Thomas v. Hollis, 232 S. C. 330, 102 S. E. (2d) 110 (1958); Drew v. Lawrimore, 380 F. (2d) 479 (4th Cir.1967); cert. denied 389 U. S. 974, 88 S. Ct. 475, 19 L. Ed. (2d) 467 (1967).
We cannot unequivocally say that if the parental rights in question are not terminated by DSS, the purpose of Section 20-7-1560 et seq. will be defeated. If doubt or uncertainty exists in the facts of the case, so that it does not appear clear that such facts entitle the applicant to relief by mandate, the writ will not be issued. Willimon v. City of Greenville, supra.
To get a writ of mandamus, the applicant must also show that he has no other legal remedy. Here, the Board could initiate an action to terminate parental rights on its own. Section 20-7-1580 allows “any interested party” to petition the family court for a determination that a child has been abandoned or severely abused, which determination is a prerequisite to the termination of parental rights. Section 20-7-435 would also allow the Board to institute a judicial proceeding respecting any child that it considered to be neglected or delinquent. And finally, Section 20-7-1630(2) specifically allows the Board, upon determining that the return of foster children to their natural parents is not in the best interest of the children, “to initiate such proceedings pursuant to law as would make the child eligible for adoption”. “Such proceedings” would necessarily require an action ter
Where another adequate remedy exists, a writ of mandamus cannot rightful be issued. Smith v. Hendrix, 265 S. C. 417, 219 S. E. (2d) 312. (1975). The Board had several other remedies available to it besides mandamus if it had determined that termination of parental rights was in the best interest of the children involved. The writ was properly denied.
In view of our decision that the Board had the power to bring a suit to terminate the parental rights to these children, it is unnecessary to reach the issue of whether the Board had standing to compel judicial review of the children’s cases.
The appeal involving Jimmie Lee Gaynor, Quinton Cornell Campbell and Michael Allen Campbell in Docket Number 82-388 is moot. As to these three individuals, Number 82-388 is
Dismissed.
Docket Numbers 82-055, 82-076, 82-125 and 82-388 (except as above mentioned) are
Affirmed.
The effective date for the new statute on termination of parental rights is March 5,1984. Section 2(A) of the Act clearly states, “Any cause of action pending on the effective date of this Act may continue under the provisions of law which existed prior to this Act”. The trial in this case was held prior to the effective date; the appeal was pending prior to such date.
Even if the new law was applicable, the result would be the same. Section 20-7-1564 of the new statute reads, “A petition seeking termination of parental rights may be filed by the child protective services agency or any interested party”, (emphasis added). The termination of parental rights is still a discretionary act with DSS. Also, the Children’s Poster Care Review Board could still file such a ¡jetition.