Morgan v. South Carolina Dept. of Social Services, 0106

• Decision Date: 02 March 1984
• Docket Number: No. 0106,0106
• Citation: 280 S.C. 577,313 S.E.2d 350
• Court: South Carolina Court of Appeals
• Parties: Thomas R. and Lynn L. MORGAN, Respondents, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES and Rebecca W. and Robert Wardlaw, Appellants. In The Interest of Krystie OWENS.

Page 350

313 S.E.2d 350

280 S.C. 577

Thomas R. and Lynn L. MORGAN, Respondents, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES and Rebecca W and Robert Wardlaw, Appellants In The Interest of Krystie OWENS.

No. 0106.

Court of Appeals of South Carolina.

March 2, 1984.

Ethel E. Weinberg, Columbia, Jane A. McFaddin, Charleston, for appellants.

Randall M. Chastain, Columbia, for respondents.

SHAW, Judge:

Both appellants, South Carolina Department of Social Services and Mr. and Mrs. Wardlaw, are appealing a Family Court order allowing the respondents (Mr. and Mrs. Morgan) to adopt the minor, Krystie Owens. We affirm.

In an equity action tried by a judge without a reference the Supreme Court (also Appeals Court) has jurisdiction to find facts in accordance with its view of the preponderance of the evidence. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

The primary issue is whether the Department of Social Services (DSS) holding temporary custody of a minor that is free for adoption must consent before the Family Court issues its order granting an adoption.

Krystie Owens is the oldest of three children. The two younger children are Krystie's half brothers. None of Krystie's parents (she has a legal and a natural father) have ever shown any interest in her or her brothers. Krystie's mother signed a Consent and Waiver form whereby she relinquished all parental rights in Krystie and consented to Krystie's adoption by the parents recommended by DSS. DSS has been unsuccessful in contacting or serving the natural or legal father of the children who are believed to be out of the state.

DSS placed Krystie temporarily with the Morgans as foster parents on August 29, 1980. The Morgans signed a foster parent contract which provided that DSS could reclaim Krystie upon ten days notice and that the Morgans agreed to follow DSS adoption procedures and policies should they later desire to adopt Krystie. On October 24, 1980, the Morgans communicated to DSS their desire to adopt Krystie.

By this time, DSS had selected the Wardlaws as the proper adoptive parents and had placed Krystie's brothers with them. Even though it is DSS policy to keep siblings together if at all possible, DSS agreed to conduct a psychological examination of Krystie to determine if it would be in her best interest to stay with the Morgans. On December 21, 1980, it was determined that there was no reason why Krystie could not live with her brothers. On December 22, the ten days notice of removal was given to the Morgans.

The Morgans brought suit seeking a temporary restraining order which was granted on January 8, 1981. The Morgans' case was joined with DSS' case to terminate the fathers' parental rights on the ground of abandonment. The cases were heard together and the Morgans were allowed to adopt Krystie on the grounds that it was in Krystie's best interest to remain with the Morgans and that DSS had engaged in misconduct by adhering strictly to agency policy rather than considering Krystie's best interest. The fees for Krystie's court appointed attorney, $600, and guardian ad litem, $800, were split between the Morgans and DSS.

It is DSS' position that the Morgans' adoption of Krystie is not valid because DSS never consented to the adoption. DSS claims that it acquired custody of Krystie when the court terminated the fathers' parental rights on the ground of abandonment under Section 20-7-1590 and when Krystie's mother relinquished the child for adoption to DSS under Section 20-7-1710(d). Because DSS has custody, it claims that its consent is necessary for an adoption to occur. DSS relies on the case of Akers v. Hard, 275 S.C. 100, 267 S.E.2d 536 (1980), which states in a footnote:

Adoptions in South Carolina are purely statutory; the process by which an adoption takes place is determined by the General Assembly. When an agency acquires custody of a child with the right to consent to adoption, statutory law provides that there can be no adoption without the consent. Akers, 267 S.E.2d at 537, footnote 1.

DSS has misread Section 20-7-1710(d) which states:

An adoption of a child may be decreed when there have been filed written consents to adoption executed by: (d) the executive head of an agency if both parents are dead or if the child has been relinquished for adoption to such agency or if the rights of the parents have been judicially terminated and custody of the child had been legally vested in such agency with authority to consent to adoption of the child. (emphasis added).

This statute sets up three conditions under which the consent of the executive head of an agency is required before an adoption may be decreed--the death of both parents, the relinquishment of the child to the agency for adoption, and the judicial termination of parental rights. DSS reads the statute so that the conjunctive word "and" with its following phrase only applies to the judicial termination of parental rights and not to the other two conditions. This reading of 20-7-1710(d) goes against the common and ordinary meaning given to the words of the English language. In construing a statute, the words used should be given their ordinary and popular significance. Martin v. Nationwide Mut. Ins. Co., 256 S.C. 577, 183 S.E.2d 451 (1971); Hay v. S.C. Tax Commission, 273 S.C. 269, 255 S.E.2d 837 (1979).

Section 20-7-1710(d) sets forth the three conditions when the consent of an agency head may be required by the use of the disjunctive words "or", with no commas or semi-colons, and then follows the three conditions with the phrase "and custody of the child had been legally vested in such agency with authority to consent to adoption of the child". We read the statute to mean that the occurrence of one of these three events in and of itself is not sufficient to require agency consent; one or more of these conditions must occur and custody of the child must have been legally vested in the agency with authority to consent to the adoption. To hold otherwise would create the situation whereby upon the deaths of both parents, the first state agency to gain possession of the decedents' children would have the power to consent to the children's adoption without judicial review.

That 20-7-1710(d) requires the occurrence of one of the three conditions and the legal vesting of authority to consent to the adoption is clear and unambiguous from the terms of the statute. The legislative design is unmistakable. In such a situation, there is no room for construction and the courts are required to apply the statute literally. Green v. Zimmerman, 269 S.C. 535, 238 S.E.2d 323 (1977); Martin v. Ellisor, 266 S.C. 377, 223 S.E.2d 415 (1976); Mitchell v. Mitchell, 266 S.C. 196, 222 S.E.2d 499 (1976); McMillen Feed v. Mayer, 265 S.C. 500, 220 S.E.2d 221 (1975).

In Ex Parte Tillman, 84 S.C. 552, 66 S.E. 1049 (1910), our Supreme Court held that the determination of the right to custody of a...