Donahue v. Lawrence, 0075

• Court: Court of Appeals of South Carolina
• Citation: 280 S.C. 382,312 S.E.2d 594
• Decision Date: 13 February 1984
• Docket Number: No. 0075,0075
• Parties: Chrystal Kay DONAHUE, Respondent, v. Kelly LAWRENCE and John Winston Donahue, minors under the age of Fourteen (14) years, James Kelly Donahue and Barbara Massengale Donahue, Respondents, of whom Barbara Massengale Donahue is Appellant.

Page 594

312 S.E.2d 594 280 S.C. 382 Chrystal Kay DONAHUE, Respondent,
v.
Kelly LAWRENCE and John Winston Donahue, minors under the
age of Fourteen (14) years, James Kelly Donahue
and Barbara Massengale Donahue, Respondents,
of whom Barbara Massengale Donahue is Appellant. No. 0075. Court of Appeals of South Carolina. Feb. 13, 1984.

Page 595

[280 S.C. 384] Leo A. Dryer, Columbia, for appellant.

Daniel H. Shine, Dillon, for respondent.

Thomas E. Elliott, Jr., Columbia, guardian ad litem.

CURETON, Judge:

Appellant, Barbara Donahue appeals from the order of the family court that terminated her parental rights to her minor children and permitted the children's stepmother, Chrystal Donahue to adopt them. We find no error and affirm.

The facts of this case are essentially undisputed. Counsel for the parties stipulated for the purposes of this appeal to a summary of the testimony presented to the trial judge.

Barbara Donahue is the natural mother of the minor children, Kelly Lawrence Donahue and John Winston Donahue. Barbara and the children's father, James Donahue, were separated in 1974 at which time Barbara kept the children.

James and Chrystal were married in July 1975. When they later learned that Barbara had not divorced James, the marriage was annulled. James then secured a divorce from Barbara in June, 1977 and remarried Chrystal immediately.

In January, 1976, Barbara carried the children to James's parents' home in Columbia and left them. She testified that she left the children with her in-laws because she was then living with a man in Georgia and felt that the environment was not suitable for rearing her children.

James and Chrystal took the children from his parents' home in early 1976. The children have lived with Chrystal since, even from the time of annulment until the

Page 596

remarriage, during which period James and Chrystal lived apart.

Several witnesses testified that Chrystal was a loving, patient and responsible person who loved the children very much. One child has cerebral palsy and the other a speech impediment. Chrystal has worked with the children untiringly to eliminate or ameliorate these handicaps. At one time, she worked two jobs to support the family when James was injured and unable to work.

[280 S.C. 385] The trial judge found that Barbara had abandoned the children pursuant to Section 20-11-20 by willfully failing to visit them for approximately nine months from February through November, 1979 and that Chrystal should be allowed to adopt them.

Barbara concedes that Chrystal is a suitable person to have custody, but takes the position that (1) Chrystal lacks standing to maintain an action to terminate Barbara's parental rights, (2) the question of abandonment was not properly before the trial court, (3) Chrystal has not shown Barbara willfully abandoned her children, and (4) equity dictates Barbara's parental rights not be terminated.

We first consider Barbara's argument that Chrystal lacks standing to prosecute an action to terminate Barbara's parental rights. Barbara argues that Section 20-11-30, Code of Laws of South Carolina, 1976, provides that only a statutorily mandated child protection agency may petition the court for a determination of abandonment. ¹ The argument lacks merit because we conclude this is an action for adoption which is governed by Section 15-45-10 through 15-45-180. ² D'Augustine v. Bush, 269 S.C. 342, 237 S.E.2d 384 (1977).

It is settled law in South Carolina that the issue of abandonment is properly before the court in an adoption proceeding where the petitioner, lacking written consent to adopt by a parent, seeks judicial termination of the parent's parental rights. Goff v. Benedict, 252 S.C. 83, 165 S.E.2d 269 (1969); Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398 (1970); Hamby v. Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975); D'Augustine v....