Doe v. Roe, 4119.
| Decision Date | 05 June 2006 |
| Docket Number | No. 4119.,4119. |
| Citation | 631 S.E.2d 317 |
| Court | South Carolina Court of Appeals |
| Parties | Jane & John DOE, Respondents, v. Richard ROE; Mary M.; John Roe (Whose true identity is unknown); and Baby Boy Jay, A Minor Under the Age Seven (7) Years, Defendants, Of Whom Richard Roe is the Appellant. |
William G. Rhoden, of Gaffney, for Appellant.
James Fletcher Thompson, of Spartanburg, for Respondents.
Susan A. Fretwell, of Spartanburg, Guardian Ad Litem.
Richard Roe, the biological father of Baby Boy Jay, appeals (1) the family court's ruling that Roe's consent for adoption was not required under section 20-7-1690 of the South Carolina Code, and (2) the court's termination of Roe's parental rights. We affirm.
Melanie gave birth to Jay on January 19, 2005, and executed a consent for adoption form on January 20, 2005. Jane and John Doe initiated this action by filing for adoption of Jay on January 24, 2005. The Does have had custody of Jay since January 21, 2005.
Roe timely filed an answer and counterclaim seeking custody of Jay. DNA testing confirmed that Roe is Jay's biological father. The case was tried on May 9 and 11, 2005 and resulted in a ruling that Roe's consent was not required under South Carolina Code Annotated section 20-7-1690. In addition, the court terminated his parental rights.
Roe, who has been married to Martha Roe since April of 2000, separated from his wife in March of 2004 and moved in with Melanie. Within a few weeks, Roe returned to live with his wife. Shortly thereafter, Melanie discovered she was pregnant and informed Roe. On June 16, 2004, Melanie entered a drug rehabilitation center where she stayed until September 2, 2004. While she was in rehabilitation, Roe visited her and called her on the phone. The parties disagreed on the number of visits—Melanie estimated six visits, Roe recalled twelve or thirteen. By early August, the calls and visits suddenly stopped. Melanie averred:
A. In the beginning, he called a lot, but he just quit calling and quit coming, and I didn't know what happened to him.
Q. Before you got out, recognizing you got out September 2nd, '04, how much before the time that you got out—how many days or weeks or months did he stop coming to visit or stop calling?
A. About a month.
Q. Had y'all had this falling out or something?
A. No. He showed up with a card and a pack of cigarettes. And, the lady there told me—he didn't even see me, it was Wednesday; it was not visit day; Thursday was visit day. And, when I came back—I think I was in class or something, but when I came back to where we lived, she gave me the card and the cigarettes.
Q. That was it?
A. I never heard from him again until December.
During the time that Roe did visit, he gave Melanie some money, brought her cigarettes, and took her out for food on several occasions.
Q. . . . Was there anything that Roe ever brought you that helped you while you were in there. . .?
A. He got me some food.
Q. Y'all went out to eat? You could check out a couple of times?
A. On Thursday, he could go eat with me, if I remember.
Q. And, I think you estimated on how many occasions during the time he came?
A. We went to Subway twice and, on a Sunday, he brought me KFC once.
Q. Subway twice; KFC once—twice; is that right?
A. Yes.
Q. And, Twenty Bucks?
A. Yes.
Q. Could it have been Thirty Bucks?
A. It could have been Thirty Bucks.
Q. Could it have been Fifty Bucks?
A. No, it wasn't.
Q. That was just one time, and it was in cash.
A. Yes—well, no, he mainly gave me Ten and Twenty on different occasions, but it was not more than Fifty Dollars altogether.
Roe confessed, "I gave her very little money while she was in there," but estimated he gave her between fifty and one hundred dollars. He averred he brought her cigarettes and soda "just about every week."
Melanie left the rehabilitation center on September 2. After staying one night with a friend, and several nights with her brother, she returned to her mother's home in Gaffney, South Carolina. On September 7, Melanie obtained phone service in her name at her mother's residence. Melanie tried unsuccessfully to reach Roe by phone on several occasions, calling Roe's mother and wife to no avail. For approximately two weeks in October, Melanie moved out from her mother's house and stayed with her brother Adam and his girlfriend Carla. She returned to her mother's in Gaffney and stayed there until December 3, 2004, when she moved back in with Adam and Carla.
Although Melanie avoided DSS, she declared she never attempted to evade Roe.
Q. Have you ever failed to answer the door for Roe?
A. Roe never knocked on the door. We knew who was at the door all the time.
Q. Did you ever hide from Roe?
A. No, I did not.
Melanie's brother, Adam, and Adam's girlfriend, Carla, confirmed that Melanie never hid from Roe, but rather attempted to contact him. Adam testified as follows at trial:
Q. At any time when you were staying with your mom and with Melanie at Kendrick Street, were you aware of any steps that were made to try to hide Melanie from Roe?
A. No, sir.
Q. Are you aware of any steps that were taken from Melanie to find Roe?
A. A few.
Q. What were you aware of that was done?
A. I was aware of her few phone calls that were made.
Q. Did you ever make any phone calls?
A. One or two.
Carla provided a similar account:
Q. Were you aware of any veil of secrecy or any kind of concerted effort that was made to hide the pregnancy from Roe?
A. No.
Q. Are you aware of any steps that were taken actually to locate Roe during this period of time?
A. Yes.
Q. What were you aware of?
A. Melanie had used the phone a couple of times trying to call. She couldn't get through. Adam had called a couple of times and couldn't get through. They just couldn't find him.
However, the evidence does suggest that Roe hid from Melanie. Adam recounted a time in December when he had a chance encounter with Roe.
Q. What happened that day?
A. Roe drove up the street. I was outside. He stopped to talk to me.
Q. What did Roe say?
A. He asked me if I knew where my sister was.
Q. What did you say to him?
A. I asked him where he was—where he had been, I'm sorry.
Q. What was his response to that?
A. He said he was trying to hide out.
Carla described an occasion when Roe stopped at the service station where Adam and Carla worked. She averred:
From December 3 until Jay was born Melanie stayed with her brother. Roe spoke with Melanie's brother and left a card and a pillow for her sometime in December. The card read, "21 More Day[s]," a statement apparently intended to mislead Melanie into believing Roe was soon to be divorced from his wife.
On January 3, 2005, Roe stopped by Adam's trailer to install a car battery. Melanie was there, and Roe stayed for approximately fifteen minutes. According to Roe, "she showed me a picture of the ultrasound and I told her I didn't really have time; I just wanted to make sure she was O.K." Melanie testified:
Q. At that time, did he stay a long time? Did he talk to you about the baby and your plans together? Did y'all sit down and—what happened?
A. I was sitting on the couch; I showed him the ultrasound; he helped me with the battery in the car.
Q. Did he leave you any money?
A. No.
Q. Did he come back after that January 3rd visit again before the baby was born?
A. No, he did not.
Q. Had you left the Evans Trailer Park?
A. No, he told me that he would be back, and he never came back.
Melanie did not see Roe again until after she gave birth. On February 12, 2005, after learning of the suit for adoption by the Does, Roe purchased several items including blankets, pacifiers, and a diaper bag from Target.
The family court ruled that Roe was aware that Melanie was pregnant, knew of her location, and was informed that she was considering the option of adoption. According to the court, Roe "abdicated his responsibility to Melanie and to the unborn child." Therefore, the court found his consent to the adoption was not required and terminated his parental rights.
In appeals from the family court, this Court may find facts in accordance with its own view of the preponderance of the evidence. Dearybury v. Dearybury, 351 S.C. 278, 569 S.E.2d 367 (2002); Lanier v. Lanier, 364 S.C. 211, 612 S.E.2d 456 (Ct.App.2005); Nasser-Moghaddassi v. Moghaddassi, 364 S.C. 182, 612 S.E.2d 707 (Ct.App.2005); Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598 (Ct.App.2004) (citing Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992)). However, this broad scope of review does not require us to disregard the family court's findings. Holler v. Holler, 364 S.C. 256, 261, 612 S.E.2d 469, 472 (Ct.App.2005). Bowers v. Bowers, 349 S.C. 85, 561 S.E.2d 610 (Ct.App.2002); Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Nor must we ignore the fact that the trial judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lacke v. Lacke, 362 S.C. 302, 608 S.E.2d 147 (Ct.App.2005); Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct. App.1996) ().
South Carolina Code Ann. section 20-7-1690 (Supp.2005), provides, in pertinent part:
(A) Consent or relinquishment for the purpose of adoption is required of the following persons:
. . . .
(5) the...
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