Arscott v. Bacon, No. 3525.

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Citation351 S.C. 44,567 S.E.2d 898
PartiesDavid Mason ARSCOTT and Teresa Helen Laws Arscott, Appellants, v. Edgar Ira BACON, Jr., Infant Baby Boy, and Mary Ford, Respondents.
Docket NumberNo. 3525.
Decision Date27 June 2002

351 S.C. 44
567 S.E.2d 898

David Mason ARSCOTT and Teresa Helen Laws Arscott, Appellants,
v.
Edgar Ira BACON, Jr., Infant Baby Boy, and Mary Ford, Respondents

No. 3525.

Court of Appeals of South Carolina.

Heard June 6, 2002.

Decided June 27, 2002.

Rehearing Denied August 22, 2002.


351 S.C. 45
James F. Thompson, of Spartanburg, for appellants

Richard H. Rhodes, of Burts, Turner, Rhodes & Thompson, of Spartanburg, for respondents.

351 S.C. 46
Gary L. Williams, of Laurens, Guardian ad Litem

PER CURIAM:

The Arscotts sought to adopt Infant Baby Boy. The natural mother, Mary Ford, consented to the adoption. The Arscotts contended the natural father's consent was not statutorily required and alternatively sought to terminate his parental rights. The natural father, Edgar Ira Bacon, Jr., objected to the adoption and sought custody of the child. The family court held Bacon's consent to the adoption was necessary and there were no grounds to terminate his parental rights. We conclude Bacon's consent was not required and accordingly reverse the family court.

FACTUAL BACKGROUND

Although the relevant facts are largely undisputed, the parties do dispute the legal significance to be accorded those facts. In May 1999, Bacon and Ford began what the family court characterized as an "uncommitted" sexual relationship. From May until November, they engaged in sexual relations several times a week, usually at Bacon's home. Each maintained a separate residence. Bacon lived at his home on the lake, and Ford lived with another man, Shawn Harrell. According to Bacon's testimony, Ford told him that Harrell was homosexual and consistently denied an intimate relationship with Harrell. Apparently, however, Bacon had suspicions regarding Ford's relationship with Harrell. During that time, Bacon and Ford exchanged token gifts but did not provide monetary support to each other.

In October 1999, Ford took a home pregnancy test during a visit to Bacon's house and informed him the test was positive. There is no indication in the record that Bacon initiated any discussion with Ford at that time about marriage or having the child. Rather, Bacon testified that approximately two weeks after the pregnancy test, Ford told him she had had an abortion. There is no testimony from Bacon that he objected. In the first week of November, Bacon ended his relationship with Ford, ostensibly because of Harrell. Bacon maintained he did not really know if Ford was initially or still pregnant because her credibility with him was "very slim." He also did

351 S.C. 47
not know if she actually had an abortion because she never provided him with any paperwork concerning the abortion as she had promised

In early November 1999, Ford and others were arrested in connection with a robbery at Bacon's home. Ford was incarcerated at the local jail until January 8, 2000. According to Bacon, he inquired at the jail about whether Ford was pregnant and was advised she had indicated to jail authorities that she was. Bacon also inquired of police authorities if Ford could be forced to take a pregnancy test at the jail but was advised she could not. When Ford was released on bond in January, she went to live at a local women's shelter. In the ensuing months, Bacon asked a number of people if Ford appeared to be pregnant. He also repeatedly drove by the women's clinic, a local health care facility, in attempts to observe Ford entering or leaving.

On May 22, 2000, Ford gave birth to a son weighing four pounds, thirteen ounces. When the child was born, Ford indicated to hospital personnel that she wanted to place him for adoption. The Arscotts, who had been trying to have a family for several years, were contacted by a family member who was on staff at the hospital and met with Ford and their attorney. Ford executed a consent to adoption, and on May 25, 2000, the Arscotts took the child home from the hospital. He has lived with them since that date and is now just over two years old.

On July 17, 2000, Ford appeared in criminal court on the burglary charge. Bacon was present and Ford told him at that time that she had given birth. She had a picture with her, but Bacon stated she would not let him see it. Even with this direct information from Ford, Bacon still did not believe that she had ever been pregnant and had given birth. On August 16, 2000, Bacon was served with this adoption action which had been filed by the Arscotts in July. According to him, this was the first time he actually believed Ford had given birth. Even so, Bacon testified he was not sure the child was his, although admittedly he was sexually involved with Ford during the relevant time period for conception. Bacon filed an answer and counterclaim opposing the adoption and seeking custody and paternity testing. Bacon alleged

351 S.C. 48
"the natural mother concealed her pregnancy from [him] and service of the Complaint was the first notice of the alleged paternal relationship. . . ." The family court ordered paternity testing which established Bacon as the biological father. At a temporary hearing on November 17, 2000, the family court ordered physical and legal custody of the child to remain with the Arscotts. At his request, Bacon was ordered to pay child support of $75 per week and was permitted to have supervised visitation with the child.

Ford did not testify at the merits hearing which was held in July 2001. The court's order states she was served with pleadings but did not respond. Apparently, she appeared at the courthouse on the day of the hearing but left before it began. Therefore, Bacon's testimony was the only direct evidence regarding his relationship with Ford.

The family court found that, up until July 17, 2000, Bacon "made a sufficient prompt good faith effort to determine whether he was a father, and that the efforts did not reasonably answer the question." In making this finding, the judge stated he "[did] not observe that [Bacon] did all that he could have done, or approached an answer in the most effective manner possible . . . however, . . . a good faith effort does not so demand." The court found Bacon had sufficient information to "move into action after July 17th," when Ford told him she had given birth. Specifically, the court noted Bacon could have instituted court action. However, in reaching its conclusion that Bacon's consent to the adoption was necessary, the court observed:

Whether Bacon knew that if Ford had a child it was given up for adoption and who had the child is not known to the Court. Bacon contends it was only clear to him upon being served that Ford did have a child on May 22, 2000; that he was being charged as the father, and that the child was in the care of the [Arscotts] in Laurens County. I am unable to conclude that because Bacon did not take any known affirmative steps to answer the question of paternity and otherwise assume his parental responsibilities between July 17, 2000, and August 16, 2000, his good faith efforts failed. From a purely practical point of view, it would have taken him at least as long after July 17th to get the matter before the Court as it actually did. What he might have done had
351 S.C. 49
the [Arscotts] not filed [the complaint] on July 5th will never be known. What is abundantly clear is that upon his being served and the paternity test results having been returned positive, [Bacon] has been aggressive and timely in taking the steps and pursuing relief indicative of a desire to exercise the responsibilities and opportunities on behalf of the minor child in issue.

LAW/ANALYSIS

The primary legal issue in this appeal is whether Bacon's consent to the adoption of Infant Baby Boy was required. Resolution of this issue involves an analysis of the facts of this case in light of prior South Carolina Supreme Court precedents interpreting S.C.Code Ann. § 20-7-1690 (Supp.2001). Specifically, we must examine the facts of this case in light of Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993), and Doe v. Queen, 347 S.C. 4, 552 S.E.2d 761 (2001). In both of those cases, the supreme court found the father's consent to adoption was required. The importance of analyzing the facts of each specific case cannot be overstated. In Abernathy, the supreme court noted the "unusual facts before us." 313 S.C. at 32, 437 S.E.2d at 29. In Queen, the supreme court narrowed its holding to "the very limited facts of this case." 347 S.C. at 10, 552 S.E.2d at 764.

S.C.Code Ann. § 20-7-1690 (Supp.2001) addresses the issue of consent for a child's adoption. The consent of the unmarried mother is required under section 20-7-1690(A)(3). If the father of the child is not married to...

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12 practice notes
  • Doe v. Roe, No. 4119.
    • United States
    • Court of Appeals of South Carolina
    • June 5, 2006
    ...and custody of Tanner should be transferred to Queen. Queen, 347 S.C. at 8-10, 552 S.E.2d at 763-64 (footnote omitted). Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App.2002), is our most recent decision regarding consent for adoption by an unwed father. Edgar Bacon and Mary Ford began......
  • Sc Dept. of Social Services v. Roe, No. 4191.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ...raise, ex mero motu, issues not raised by the parties. Ex parte Roper, 254 S.C. 558, 176 S.E.2d 175 (1970). See also Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App. 2002) (due to role of courts in protecting minors, the appellate court may raise ex mero motu issues not raised by the ......
  • Roe v. Reeves, No. 26967.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 2011
    ...father's help but, rather, requested it, mother attempted to reach father on several occasions but he avoided her); Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App.2002) (mother informed father she had given birth, and even with this direct information from mother, father still did no......
  • Roe v. Reeves, Opinion No. 26967
    • United States
    • United States State Supreme Court of South Carolina
    • May 2, 2011
    ...father's help but, rather, requested it, mother attempted to reach father on several occasions but he avoided her); Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct. App. 2002) (mother informed father she had given birth, and even with this direct information from mother, father still did ......
  • Request a trial to view additional results
12 cases
  • Doe v. Roe, No. 4119.
    • United States
    • Court of Appeals of South Carolina
    • June 5, 2006
    ...and custody of Tanner should be transferred to Queen. Queen, 347 S.C. at 8-10, 552 S.E.2d at 763-64 (footnote omitted). Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App.2002), is our most recent decision regarding consent for adoption by an unwed father. Edgar Bacon and Mary Ford began......
  • Sc Dept. of Social Services v. Roe, No. 4191.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 2006
    ...raise, ex mero motu, issues not raised by the parties. Ex parte Roper, 254 S.C. 558, 176 S.E.2d 175 (1970). See also Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App. 2002) (due to role of courts in protecting minors, the appellate court may raise ex mero motu issues not raised by the ......
  • Roe v. Reeves, No. 26967.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 2011
    ...father's help but, rather, requested it, mother attempted to reach father on several occasions but he avoided her); Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App.2002) (mother informed father she had given birth, and even with this direct information from mother, father still did no......
  • Roe v. Reeves, Opinion No. 26967
    • United States
    • United States State Supreme Court of South Carolina
    • May 2, 2011
    ...father's help but, rather, requested it, mother attempted to reach father on several occasions but he avoided her); Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct. App. 2002) (mother informed father she had given birth, and even with this direct information from mother, father still did ......
  • Request a trial to view additional results

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