Leone v. Dilullo, 1077

• Decision Date: 21 October 1987
• Docket Number: No. 1077,1077
• Citation: 365 S.E.2d 39,294 S.C. 410
• Court: South Carolina Court of Appeals
• Parties: Joseph C. LEONE and Ellen Marie Leone, Respondents, v. Marie Horton DILULLO, George Fortier, and Christine Ann Horton and Patrick Joseph Horton, minors, by their Guardian ad Litem, of whom Marie Horton Dilullo is Appellant. . Heard

Page 39

365 S.E.2d 39

294 S.C. 410

Joseph C. LEONE and Ellen Marie Leone, Respondents, v. Marie Horton DILULLO, George Fortier, and Christine Ann Horton and Patrick Joseph Horton, minors, by their Guardian ad Litem, of whom Marie Horton Dilullo is Appellant.

No. 1077.

Court of Appeals of South Carolina.

Heard Oct. 21, 1987.

Decided Jan. 25, 1988.

Kathryn Williams, of Foster, Covington & Patrick, Greenville, for appellant.

William T. Clarke, of Legal Clinic of Sarratt & Clarke, Greenville, for respondents.

BELL, Judge:

This is an action for termination of parental rights and adoption. Joseph Leone and his wife, Ellen, desired to adopt Christine Ann Horton and Patrick Joseph Horton, the natural children of Joseph's sister, Marie Horton Dilullo, by George Fortier. The Leones were awarded legal custody of Christine and Patrick more than three years prior to the commencement of this action. The Leones petitioned the family court to terminate the parental rights of Dilullo and Fortier and to grant the Leones a decree of adoption. Dilullo counterclaimed for return of custody of the children. The family court terminated parental rights on the grounds that the children had lived outside the homes of both natural parents for six months and that during that time both parents failed to visit the children or support them. The court then denied Dilullo's counterclaim for custody and entered a decree of adoption in favor of the Leones. Dilullo appeals. We affirm.

The facts of the case are largely undisputed. Dilullo is the natural mother of Christine and Patrick Horton. She was never married to the children's natural father, George Fortier. From birth until they were four and half and three years of age, respectively, the children lived with Dilullo in Waterbury, Connecticut. In May 1980, Dilullo was evicted from her dwelling for nonpayment of rent after she was robbed of her rent money. Shortly thereafter, she lost her job and went on welfare. Unable to support the children, and concerned that they were too young to be placed in state custody, Dilullo asked the Leones to take care of them until she was in a position to provide for them herself. The Leones agreed and brought Christine and Patrick to Greenville, South Carolina, to live with them and their four children. Christine and Patrick have lived with the Leones continuously since May 1980. They have a normal, healthy sibling relationship with the Leone children and call the Leones "mom" and "dad."

In December 1981, the Leones obtained an order from the Greenville County family court granting them legal custody of Christine and Patrick. Since the award of custody, Fortier, who still resides in Waterbury, Connecticut, has had no contact with the children and has provided them no support. Dilullo likewise has provided no support. Although she did send a dress to Christine in December 1984, she has never sent Patrick anything. Since surrendering the children in May 1980, Dilullo has never visited them. She has never mailed a card or a letter to them. She did make a few intermittent telephone calls over the years. She testified that during the six months next preceding this action, she telephoned one time, to wish Patrick a happy birthday.

Section 20-7-1572, Code of Laws of South Carolina, 1976, as amended, provides in pertinent part:

The Family Court may order termination of parental rights upon a finding of one or more of the following grounds:

* * *

* * *

(3) The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to visit the child.

Dilullo admits that Christine and Patrick have lived outside her home for a period of six months and during that time she has failed to visit them. However, she argues her failure to visit was not "willful," but a result of her poor financial circumstances. She claims she has done everything reasonably within her means to maintain a parental relationship with the children since she surrendered them to her brother and his wife.

Statutes providing for the termination of parental rights are to be strictly construed in favor of the parent and the preservation of the relationship of parent and child. Goff v. Benedict, 252 S.C. 83, 165 S.E.2d 269 (1969). Whether a failure to visit is "willful" within the meaning of the statute is a question of intent to be determined in each case from all the facts and circumstances. Berry v. Ianuario, 286 S.C. 522, 335 S.E.2d 250 (Ct.App.1985). In making this determination, the trial judge is given wide discretion. Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398 (1970). However, the element of willfulness must be established by clear and convincing evidence. Richberg v. Dawson, 278 S.C. 356, 296 S.E.2d 338 (1982).

Conduct of the parent which evinces a settled purpose to forgo parental duties may fairly be characterized as "willful," because it manifests a conscious indifference to the rights of the child to receive...