Richberg v. Dawson, 21797

• Decision Date: 12 October 1982
• Docket Number: No. 21797,21797
• Citation: 296 S.E.2d 338,278 S.C. 356
• Court: South Carolina Supreme Court
• Parties: In the Interest of Tanya RICHBERG and Tammi Dawson Children's Bureau of South Carolina and Robert C. Clawson, Guardian Ad Litem, Appellants, v. Lorraine DAWSON, Respondent.

Page 338

296 S.E.2d 338

278 S.C. 356

In the Interest of Tanya RICHBERG and Tammi Dawson

Children's Bureau of South Carolina and Robert C.

Clawson, Guardian Ad Litem, Appellants, v. Lorraine DAWSON, Respondent.

No. 21797.

Supreme Court of South Carolina.

Oct. 12, 1982.

Atty. Gen. Daniel R. McLeod, Staff Attys. Corinne G. Russell and Betty J. Willoughby, and Robert C. Clawson, as G/A/L, pro se, Columbia, for appellants.

Gary R. Daves, Columbia, for respondent.

LEWIS, Chief Justice:

Appeal is from an order of the Family Court refusing the petition of appellant, Children's Bureau of South Carolina, for an order terminating the respondent's parental rights to her two minor daughters, aged ten and twelve, because of her alleged abandonment of the children. The trial court held that abandonment had not been established and directed that respondent have custody of the children upon compliance with certain conditions. Enforcement of that order has been superseded pending this appeal.

It is now established that, before parental rights may be completely and irrevocably severed, the State must show conditions warranting such action by clear and convincing evidence. Santosky v. Kramer, --- U.S. ----, 102 S.Ct. 1388, 71 L.Ed.2d 599.

Appellant instituted this action in March 1979, pursuant to Section 20-11-40, South Carolina Code 1976 (now Section 20-7-1590, 1981 Cum.Supp.) which provides that if, after a hearing, the court shall determine that the child concerned, "either voluntarily or through neglect, has been abandoned for a period in excess of six months or severely abused, it may issue an order forever terminating parental or guardianship rights to such child, award custody to such person or agency as it deems proper and the child shall be eligible for adoption."

An abandoned child is defined in Code Section 20-11-20 (now 20-7-1570, Cum.Supp.) as:

(1) A child whose parents have willfully failed to visit or have willfully failed to support or make payments toward his support for six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child.

The Court has held that "abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.... It does not include an act or course of conduct which is done through force of circumstances or from dire necessity." McCormick v. McMurray, 260 S.C. 452, 455, 196 S.E.2d 642; Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398.

Respondent entered the military service and, in July 1978, was assigned to Fort Jackson, Columbia, South Carolina, as a basic trainee. She left her two daughters, whom she brought to Columbia from New Jersey, at a Columbia motel in the care of a resident maid. When the maid became ill, the motel owner arranged for the children to move to the home of a friend (Mrs. Byrd). Respondent subsequently made one visit to the Byrd residence, taking the children with her to a motel on the night before she left for a new assignment at Fort Sam Houston, Texas. Before leaving, respondent arranged for Mrs. Byrd to continue keeping the children, paying her with a check which was subsequently returned from the bank because of insufficient funds.

Soon after respondent's departure from Columbia for her assignment in Texas, Mrs. Byrd, with whom the children had been left, contacted appellant about their care. Thereafter, appellant made contact with respondent through military channels, and she consented by telephone to the transfer of the children to that agency. Appellant...