McCormick v. McMurray, 19626

• Decision Date: 09 May 1973
• Docket Number: No. 19626,19626
• Citation: 260 S.C. 452,196 S.E.2d 642
• Court: South Carolina Supreme Court
• Parties: Velerie Hamilton McCORMICK and Bill Carroll McCormick, Appellants, v. Audine McMURRAY, Respondent.

Page 642

196 S.E.2d 642

260 S.C. 452

Velerie Hamilton McCORMICK and Bill Carroll McCormick, Appellants, v. Audine McMURRAY, Respondent.

No. 19626.

Supreme Court of South Carolina.

May 9, 1973.

Cleve A. Lytle, Fort Mill, for appellants.

Charles H. Chiles and Emil W. Wald, Rock Hill, for respondent.

LEWIS, Justice:

The issues in this action arise out of a controversy between appellants, as foster parents, and respondent, the natural mother, over the parental rights to, and the custody of, a nine (9) year old child.

Respondent gave birth to a daughter, Cheryl Renee Spinks, on July 1, 1964. Subsequently, on January 1, 1969, respondent delivered custody of the child to appellants, indicating at the time that she would consent to her adoption by them. Later, in January 1970, no adoption having taken place, disagreement arose between the parties about the future of the child, which resulted in the institution of this action by appellants, under Section 31--51.1 et seq. of the 1962 Code of Laws, for the purpose of securing an order terminating respondent's parental rights and awarding exclusive custody of the child to appellants. Appellants sought to terminate all rights of respondent, as the natural mother, upon the ground that she had voluntarily abandoned the child for a period in excess of twelve months.

After a hearing, the lower court entered an order on August 3, 1972, holding that respondent had not voluntarily abandoned her child and was entitled to its immediate custody. This appeal is from that order. The exceptions challenge the correctness of the findings of the lower court on both the issue of abandonment and custody. We have concluded that the findings relative to abandonment should be affirmed, while the order granting immediate custody to the respondent be reversed.

We had occasion, in Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398, to consider the statutes under which this action is brought. It was pointed out that 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 '(voluntarily) abandoned for a period in excess of twelve months,' the court may issue an order forever barring parental rights, rendering the child eligible for adoption without the consent of the person whose rights have been so barred.

In Bevis, we stated the general definition of 'voluntary abandonment' as follows:

'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.'

When the child was placed in the custody of appellants in January 1969, respondent was financially destitute and the child was sick. These facts were known to appellants. In fact, appellants concede that the child was initially delivered by respondent to them because of her destitute circumstances and from dire necessity. They contend however that her conduct during the subsequent twelve month period evidenced a settled purpose to relinquish all parental claims to the child.

The record amply sustains the findings of the lower court that the respondent did not intend to abandon her child. The same circumstances which forced respondent to deliver the child to appellants continued to exist for some time thereafter. As previously stated, the child was delivered to appellants in January 1969. In July 1969, respondent, while receiving assistance from the welfare department, enrolled in a...