Doe v. Clark , 318 S.C. 274 ( 1995 )

Finney, Justice:

The appellant, Wylanda Clark, an unwed twenty-two-year old, signed a Consent/Relinquishment Form on January 25, 1994, purporting to release her parental rights prior to the birth of her child. The baby was born on January 30, 1994. Prior to leaving the hospital on January 31,1994, Clark signed a hospital form consenting' to an adoption and authorizing the hospital to deliver the infant to the attorney representing the prospective adoptive parents (the Does). The baby remained at the hospital. On February 1, 1994, when the attorney and the Does went to pick up the baby, they were told that Clark and her father were seeking to take the infant home with them. The infant was left at the hospital pending a hearing to determine to whom the child should be released. At the hearing on February 2, 1994, initiated by the Does, Clark stated that she had changed her mind and wanted to keep the baby. Clark was not represented by counsel nor was a guardian ad litem appointed for the infant.

The family court judge found that the consent form signed by Clark prior to the child’s birth was valid and reaffirmed by subsequent releases and other documents signed by Clark prior to her release from the hospital. The judge refused to set aside Clark’s consent and ordered the baby released for placement with the Does.

On March 10, 1994, a second hearing was held before the same family court judge pursuant to Clark’s motion to void consent or, in the alternative, a motion to reconsider. Clark sought to set aside the original Consent/Relinquishment Form and have it declared void because it was signed prior to the birth of the child and lacked certain information required under the statute. The trial judge adhered to his prior order. Wylanda Clark appeals.

Clark asserts that S.C. Code Ann. § 20-7-1700 (Supp. 1993) implicitly requires that consent to adoption be executed after birth of the child. Section 20-7-1700(A)(3) provides that the consent or relinquishment form shall specify the date of birth, race, and sex of the adoptee and any names by which the adoptee has been known. Appellant contends that since this information cannot be ascertained until after birth, the statute implicitly requires that consent be obtained then. In this case, the child’s date of birth and sex were not recorded on the signed consent form.

While the legislature has not explicitly required that consent be obtained after birth, the Adoption Act implicitly contemplates that consent apply to a child in being. S.C. Code Ann. § 20-7-1690 (Supp. 1993) provides that consent is required of “the mother of a child born when the mother was not married.” Consent is defined as the “informed and voluntary release in writing of all parental rights with respect to a child by a parent.” S.C. Code Ann. § 20-7-1650(f) (Supp. 1993). A child is defined as any person under 18 years of age. S.C. Code Ann. § 20-7-1650(d) (Supp. 1993). In viewing the statutory language as a whole, we conclude the legislature intended that consent be obtained after birth of a child.

Because this proceeding was in equity, heard by the trial judge alone, this Court’s scope of review extends to the finding of facts based on its own view of the preponderance of the evidence. Johnson v. Horry County DSS, 298 S.C. 355, 380 S.E. (2d) 830 (1989). Accordingly, we find the prebirth consent obtained in this case is invalid in view of the fact that appellant did not consent to relinquish her rights in accordance with § 20-7-1700 after the birth of her child. Because of he specific facts in this case, we do not decide here whether birth parent can ratify prebirth consent by subsequent acts. Clark initially signed a consent form only five days before giving birth and changed her mind two days after birth. She notified the hospital of her intention to keep the child prior to his release from the hospital to the adoptive parents. Accordingly, we find no ratification here and the trial judge is reversed.

Reversed.

Chandler, C.J., and Toal and Moore, JJ., concur. Waller, J., dissenting in separate opinion.