Bevis v. Bevis

Decision Date26 June 1970
Docket NumberNo. 19070,19070
Citation254 S.C. 345,175 S.E.2d 398
PartiesMary Lee W. BEVIS, Appellant, v. Joe T. BEVIS and Pamela Bevis, a minor under the age of 14 years, CynthiaBevis, a minor under the age of 14 years, and Jean E. Bevis Tinsely, of whomJoe T. Bevis and Jean E. Bevis Tinsley are, Respondents, and of whom PamelaBevis and CynthiaBevis, minors, are, Appellants.
CourtSouth Carolina Supreme Court

Paul R. Hibbard and Gaines & Vermont, Spartanburg, for appellants.

James R. Turner, Spartanburg, for respondents.

LEWIS, Justice.

This is a proceeding by a stepmother to adopt the two minor children of her husband by a prior marriage which had been ended by divorce. The proceeding was brought against the husband, the natural mother, and the two children. The husband and the guardian ad litem for the children joined in the request for adoption, but the natural mother refused to consent and contested the proceeding. The main issue under the pleadings concerned the necessity for the consent of the natural mother to the adoption. The stepmother alleged and sought to prove that the consent of the natural mother was unnecessary because she had abandoned the children for a period of more than twelve months, and thereby forfeited her parental rights. The lower court found that there had been no abandonment and denied the adoption. The stepmother and the guardian ad litem for the children have appealed.

While the ultimate relief sought in this proceeding is the adoption of the children, the issue as to the consent of the mother was tried in the lower court, agreeably to all parties, as if the proceeding was brought under the provisions of Section 31--51.1 et seq., 1962 Code of Laws, to bar the parental rights of the mother, and not as a question incident to a proceeding under the adoption statutes (Section 10--2587.2 et seq., Supplement to 1962 Code of Laws).

As pointed out in Richland County Department of Public Welfare v. Mickens, 246 S.C. 113, 142 S.E.2d 737, Section 31--51.1 et seq. provides a statutory remedy, separate from the adoption statutes, for determining whether or not a child has been 'voluntarily abandoned'. Upon a finding that the child has been so abandoned 'for a period in excess of twelve months,' the court may issue an order forever barring parental or guardianship rights, rendering the child eligible for adoption without the consent of the person whose rights have been so barred. This statutory remedy for determining whether a child has been abandoned is not exclusive. Such issue may be determined, as it relates to consent, in a proceeding under the adoption statutes. Goff v. Benedict, 252 S.C. 83, 165 S.E.2d 269. Also see: Richland County Department of Public Welfare v. Mickens, supra.

However, under the present facts, whether the issue of abandonment be considered under Section 31--51.1 et seq. or as incidental to the question of adoption, the result would be the same.

We held in Goff v. Benedict, supra, that statutes providing for the termination of parental rights of natural parents are to be strictly construed in favor of the parent and the preservation of the relationship of parent and child.

Under Section 31--51.1, parental rights may be barred only upon a finding that the child has been 'voluntarily abandoned.' While the statute uses the phrase 'voluntarily abandoned,' we do not think that it denotes any greater degree of neglect of the child by the parent than that generally encompassed by the term 'abandonment.' Abandonment, as used in connection with the adoption of children and the termination of parental rights, implies a voluntary act or a conscious disregard of the obligations owed by a parent to the child.

While it is difficult to formulate a definition that will cover all cases, as a general rule, 'abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.' 2 Am.Jur. (2d), Adoption, Section 32; Annotation: 35 A.L.R. (2d) 662; 2 C.J.S. Adoption of Children § 21d(2). It does not include an act or course of conduct which is done through force of circumstances or from dire necessity.

In making such a determination, the best interest of the child as well as the rights of parents are involved, and the completeness of the relinquishment of parental rights to constitute abandonment must be determined upon the basis of a due consideration of both.

The authorities agree that the question of abandonment is largely one of intent to be determined in each case from all of the facts and circumstances.

While other questions are presented, the first and basic issue for determination is whether the natural mother abandoned her children. The material facts are not in dispute.

The record shows that the defendants Joe T. Bevis and Jean E. Bevis were married on November 28, 1954 and resided in Spartanburg, South Carolina. Two children (girls) were born to the marriage--Pamela in December 1955 and Cynthia in June 1959. At the time of the last hearing in this matter in the lower court, Pamela was thirteen years of age and Cynthia was nine.

Joe and Jean Bevis had been experiencing marital difficulties and Jean instituted divorce proceedings against her husband on November 30, 1960 on the ground of physical cruelty. In an amended answer dated June 9, 1961, the husband charged the wife with adultery, and sought a divorce from her on that ground. It is undisputed that the wife was pregnant at that time from an adulterous affair. She went to Florida with her paramour about June 20, 1961, shortly before the hearing in the divorce case, and carried her two children with her. She and her paramour were never married but lived together as man and wife until about January 1968, during which time two children were born to this relationship.

After the wife left the State, the husband was granted a divorce from her on July 24, 1961 on the ground of adultery and was awarded custody of the children with reasonable visitation privileges to the wife.

Since the mother had carried the children out of the State, their custody could not then be delivered to the father as ordered by the court. However, the mother returned to the State with the children on a visit about two months after the divorce decree was entered, at which time, over the objection of the mother and with the aid of officers, the children were removed from her custody and delivered to the father. They have been in the father's custody since that time in Spartanburg.

After the children were removed from her custody, the mother returned to Florida. Subsequently she contacted the children at intervals by phone, letters, personal gifts, and visits once or twice a year. In June 1964, she returned to Spartanburg when her mother died and visited with the children at that time. The chilren were living in the home of the paternal grandparents during this period.

Subsequently, on December 1, 1964, the father married Mary Lee Bevis, the plaintiff in this action, and the children have lived in the home with their father and his second wife, the stepmother, since that time. After the father's remarriage, the mother continued to write to her children, call them over the phone and visit them occasionally. The mother visited them in July 1966, about two or three weeks before this action was begun. The visits and contact by the mother with the children had apparently become obnoxious to the stepmother and, during this last visit, a dispute arose over visitation, resulting in a threat by the mother to secure an attorney to seek more liberal visitation privileges.

Shortly after the July 1966 visit, the stepmother instituted this action to bar the parental rights of the mother in order to effect an adoption 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 stepmother and that this action was instituted so as to prevent the mother from seeing the children at any time. As stated by the trial judge, 'it is obvious from the plaintiff's testimony that she resented the natural mother's intrusions into her home and her continuing contacts with the children. She viewed the mother's contacts with the children as interference and as an unwanted influence.'

Service of the pleadings in this matter upon the mother in Florida was attempted through an order of publication which, as will be seen, was subsequently set aside because of defective service. The mother made no appearance in the action and she was declared in default. After a hearing, an order was issued on November 3, 1966, in which the parental rights of the mother were terminated upon the ground that she had abandoned the children, and their adoption by the stepmother allowed.

It later appeared that the summons and complaint in this action was mailed to the mother at the wrong address and was never received by her. She did have knowledge however through a member of her family in November 1966 of the efforts of the stepmother to adopt the children and was later informed in March 1967 by a counselor that the children had been adopted. The mother continued to attempt to contact and see the chilren and, because of these continued contacts, she was served with a copy of the adoption decree and a letter from the stepmother's attorney about December 7, 1967. The mother testified that she thereafter contacted an attorney and paid him a retainer to represent her. When it developed that this attorney was too busy to handle the matter, she employed her present counsel. It was then discovered that service of the summons and complaint upon the mother had been defectively made and counsel for the plaintiff (stepmother) consented to the issuance of an order on October 23, 1968 vacating the adoption decree of November 3, 1966. The mother subsequently filed an answer and a series of hearings followed, resulting...

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