Richland County Dept. of Public Welfare v. Mickens

• Decision Date: 11 June 1965
• Docket Number: No. 18358,18358
• Citation: 246 S.C. 113,142 S.E.2d 737
• Court: South Carolina Supreme Court
• Parties: RICHLAND COUNTY DEPARTMENT OF PUBLIC WELFARE, Respondent, v. Patricia Ann Davis MICKENS, Appellant. In re Ollie William DAVIS, Neglected Child.

Page 737

142 S.E.2d 737

246 S.C. 113

RICHLAND COUNTY DEPARTMENT OF PUBLIC WELFARE, Respondent, v. Patricia Ann Davis MICKENS, Appellant In re Ollie William DAVIS, Neglected Child.

No. 18358.

Supreme Court of South Carolina.

June 11, 1965.

Owens T. Cobb, Columbia, for appellant.

Daniel R. McLeod, Atty. Gen., William L. Pope, Everett N. Brandon, Asst. Attys. Gen., Columbia, for respondent.

BUSSEY, Justice:

The appellant, a Negro girl, is the mother of the infant Ollie William Davis, an illegitimate child born on July 19, 1961, appellant being at that time thirteen years of age. In a proceeding commenced by respondent on January 31, 1964, pursuant to Section 31-51.1 et seq., of the 1962 Code of Laws of South Carolina, the judge of the Juvenile-Domestic Relations Court for Richland County judicially terminated the parental rights of the appellant to her child by order dated May 27, 1964, finding that said infant had been voluntarily abandoned for more than one year by appellant. On appeal to the Court of Common Pleas for Richland County, the order of the Juvenile-Domestic Relations Court for Richland County was affirmed, and from this order of affirmance appellant perfected her appeal to this court.

The initial contention of appellant is that the said Juvenile-Domestic Relations Court did not have jurisdiction of the proceeding. If that court lacks jurisdiction, it follows that the other questions raised by the appeal will not need to be considered. It is conceded that the said court is an inferior court of limited jurisdiction created by statute. See provisions of Chapter 7, Title 15, 1962 Code, most of which were originally enacted in the year 1936. It is further conceded that any authority on the part of this court to exercise jurisdiction in the proceeding here involved must be found in some statute, granted either expressly or by necessary implication. McCullough v. McCullough, 242 S.C. 108, 130 S.E.2d 77; Wright v. Alexander, 230 S.C. 286, 95 S.E.2d 500.

Section 31-51.1 et seq. of the Code, pursuant to which this proceeding was brought, were enacted in 1961, but said sections do not confer any jurisdiction upon any particular court or courts, it simply being provided that a petition for termination of parental rights might be brought in any court of competent jurisdiction. Respondent does not contend that there is any statute which expressly confers upon the Juvenile-Domestic Relations Court of Richland County jurisdiction of such a proceeding.

While the order of the circuit court referred to numerous sections of Chapter 7, Title 15 of the Code in considering whether the Juvenile-Domestic Relations Court had jurisdiction, respondent apparently concedes that jurisdiction, if it exists, arises solely by necessary implication from the Code sections giving the court jurisdiction in adoption proceedings. Section 15-1171 empowers the children's division of the court to 'grant orders for the adoption of' certain children, and Section 15-1222 confers upon the family court division of the said court concurrent jurisdiction with the circuit court with respect to the 'custody and adoption of children'.

The instant proceeding was commenced on the 31st day of January, 1964, and the jurisdictional question was considered by the court below and argued by counsel here in the light of the adoption law of this state as it existed prior to the 3rd day of February, 1964, when Act No. 703 of the 1964 Acts and Joint Resolutions (now Section 10-2587.1 et seq. of the 1964 Supplement to the Code) revising the adoption law of South Carolina was approved. Reference to the aforesaid Act No. 703 will show that it contained the following proviso:

'Provided, however, that the terms of this act shall not apply to any case which has been commenced or pending upon the effective date of this act.'

We do not mean to intimate an opinion as to what effect, if any, the provisions of the said 1964 Act might otherwise have upon the issue before us, but sumply point out these matters in explanation of the light in which the issue of jurisdiction is here considered.

Counsel for both parties apparently take the position that whether the statutes giving the court in question jurisdiction of adoption proceedings, by necessary implication, gave the said court jurisdiction of the present proceeding, is dependent in large measure on whether or not under the existing law of this state a child could be adopted without the express consent of the natural parents. Both parties cite the decision of this court in Driggers v. Jolley, 219 S.C. 31, 64 S.E.2d 19. Reference is made also to an article in 9 S.C.L.Q. 210. It is contended by appellant that under the foregoing decision an adoption could not be granted by any court in South Carolina except with the consent of the natural parents, or possibly upon their default after a summons being served upon them.

Respondent argues that the decision in the Driggers case was limited to the question of jurisdiction of the Children's Court of Spartanburg County, and that any other court, whose jurisdiction is not so expressly limited, was empowered under the existing adoption law to follow the general rule set forth in 2 Am.Jur.2d, Adoptions, Section 24, to the effect that adoptions can be ordered without the consent of the natural parents when they, by their misconduct, such as desertion, failure to support, or ill treatment, have forfeited their rights as parents.

This court has never had occasion, apparently, to squarely consider or decide the question of whether a court of general original jurisdiction, or other court whose jurisdiction was not expressly limited by statute, in this state, had the power to grant an adoption on any ground or grounds, in the absence of consent of the natural parents, or against the will of such. The Driggers case did decide that the Children's Court of Spatanburg did not have such jurisdiction, in view of the language of the particular statute involved. The opinion there went on to point out that it was generally held that consent lay at the foundation of the statutes of adoption, but it is worthy of note that the court affirmed an order of the lower court referring the adoption action brought in the Court of Common Pleas for Berkeley County, without the consent of the parents, to a special referee. It is thus clear that this court did not hold that the Court of Common Pleas, a court of original general jurisdiction, could not under any circumstances grant an adoption in the absence of consent of the natural parents.

While prior to the 1964 revision the provisions of our adoption law were rather meager, a review of...