Doe v. Queen

CONNOR, Judge:

Appellants, Jane and John Doe, filed this adoption action alleging consent to the adoption by Respondent birth father, Travis Queen, was not required. The family court judge concluded Queen’s consent was required and denied the Does’ request to terminate Queen’s parental rights. Subsequently, the judge denied the Does’ motion to reconsider and motion for a new trial. Finally, he ordered the parties to agree to a “work-in” schedule to move Baby Boy Tanner (Tanner) from the Does’ home to Queen’s home. The Does appeal. We reverse and remand.¹

FACTS

Queen and the birth mother lived together in Kings Mountain, North Carolina from November 1997 to February 1998. In February, the birth mother informed Queen that she was pregnant and wanted an abortion, to which Queen objected. Conflicts between the couple arose, and the couple separated in February. Over the next two months, Queen and the birth mother maintained contact and occasionally saw one another. Thereafter, Queen had little contact with the birth mother.² At some point, the birth mother told Queen she had already gone to Atlanta and aborted the pregnancy.³

Tanner was born on September 21,1998. Because the birth mother withheld Queen’s address on the Consent/Relinquishment for Adoption form, the Does’ attorney was not able to notify Queen of the birth until November 1998.

When the Does’ attorney informed Queen about the adoption and requested his signature, Queen responded that he needed to consult an attorney. The first indication in the record that Queen had retained counsel is a consent order signed on Queen’s behalf in February of 1999, three months after being notified of Tanner’s birth. Queen did not file an answer to the Does’ complaint until August 9,1999, the day of the hearing. He never asked for pendente lite relief concerning custody or visitation of Tanner. Nor did he offer to pay temporary support for Tanner.

The family court judge found Queen prepared a nursery and arranged for medical insurance. Also, despite conflicting testimony, the trial judge found Queen established a bank account for Tanner. There was no documentary evidence of a savings account. The only evidence concerning the account follows. When asked if there was money set aside for Tanner, Queen stated, “I do have money.” To a similar question, Queen responded, “I would initially take Two Thousand Dollars out of my savings and put into his savings account. I would make a savings account.” Wflien asked if he had been putting away money since finding out about Tanner’s birth, Queen responded affirmatively.

The family court judge concluded Queen’s consent to the adoption was required pursuant to S.C.Code Ann. § 20-7-1690 (Supp.1999) and Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993). He then concluded Queen’s parental rights should not be terminated under S.C.Code Ann. §§ 20-7-1572(3) & (4) (Supp.1999), for failure to visit and failure to support. Citing the guardian ad litem’s report, which stated that either the Does or Queen would be suitable to have custody of Tanner, the court found that the interests of Tanner and Queen were not in conflict.

The family court denied the Does’ post-trial motions and ordered the parties to agree to a schedule transferring custody of Tanner to Queen. The family court also denied the Does’ motion to stay the order transferring custody.

STANDARD OF REVIEW

Adoptions are equitable proceedings, and therefore, we have jurisdiction to find facts in accordance with our own view of the preponderance of the evidence. Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d 404 (1994); Phillips v. Baker, 284 S.C. 134, 325 S.E.2d 533 (1985). In exercising our jurisdiction, we are mindful the child is the proper focus of the review. Morgan v. South Carolina Dep’t of Soc. Servs., 280 S.C. 577, 313 S.E.2d 350 (Ct.App.1984).

LAW/ANALYSIS

The Does argue the family court erred in finding Queen’s consent to the adoption was necessary under the South Carolina Adoption Act. Queen’s consent is required only if he “paid a fair and reasonable sum, based on [his] financial ability, for the support of the child or for expenses incurred in connection with the mother’s pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.” S.C.Code Ann. § 20-7-1690(A)(5)(b) (Supp.1999).

There is a complete absence of evidence that Queen either supported or attempted to support Tanner after learning of the child’s existence. Likewise, the only evidence of support for the birth mother during her pregnancy was the birth mother’s access to a bank account she shared with Queen. While living together, Queen and the birth mother opened a joint checking account and shared expenses. Queen continued to deposit his checks in the joint checking account until July 1998, when the birth mother closed the account. In deposition testimony submitted to the trial judge as an attachment to the Does’ motion for new trial, Queen testifiéd the birth mother took approximately $200 from his account after she moved out.

In our view, the record does not support a finding that Queen paid a reasonable sum, based on his financial ability, for the support of Tanner or for the birth mother’s expenses. There is no question Queen had the financial means to contribute to Tanner’s support. He testified he held two jobs and had significant sums in his savings and checking accounts. Even if the birth mother used funds from the joint account until July, there is no evidence Queen provided any support from July until September, when Tanner was born. Moreover, it is unclear that Queen set aside money for Tanner in an account for his benefit. The arrangements for insurance and the purchase of a crib are not sufficient support to require Queen’s consent under the statute.

Relying on Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993), the family court excused Queen’s failure to support either the birth mother during her pregnancy or Tanner after Queen learned of his birth. In Abernathy, the biological father made numerous attempts to financially support the birth mother and child but was repeatedly rebuffed by the mother. Upon learning of the adoption action, the father immediately answered, demonstrating his willingness to assume sole custody of the child. The Supreme Court excused the father for his failure to meet the literal requirements of section 20-7-1690(A)(5)(b) because the mother thwarted the father’s efforts to commit to the child. The Supreme Court held “an unwed father is entitled to constitutional protection not only when he meets the literal requirements of section 20-7-1690(A)(5)(b), but also when he undertakes sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute.” Id. at 32, 437 S.E.2d at 29.

For the Abernathy exception to apply, the unwed father must exhibit “a full commitment to the responsibilities of parenthood.” Parag v. Baby Boy Lovin, 333 S.C. 221, 227, 508 S.E.2d 590, 593 (Ct.App.1998). In Abernathy, the Supreme Court concluded, “Time and circumstances may limit the proteetibility of an unwed father’s interest in his child. The values that underlie protection require that the father take advantage of his opportunity to develop a relationship with his child early and completely.” Abernathy, 313 S.C. at 33, 437 S.E.2d at 29. An unwed father must timely demonstrate a commitment to his child and a desire to grasp the opportunity to assume full responsibility for his child. Id. at 32, 437 S.E.2d at 29.

Queen learned of Tanner’s birth in November 1998. He made no efforts to visit the child before the adoption hearing on August 9,1999. Further, he waited almost a year, until the day of the adoption hearing, to file an answer in opposition to the request for adoption. Most significant, however, was Queen’s lack of effort to support Tanner after learning of his birth. Explaining why he chose not to send money via the Doe’s attorney to help support Tanner, Queen testified, “That just wouldn’t be right. It would be like me giving them money to hire an attorney.”

Queen’s efforts concerning Tanner do not rise to the level of commitment discussed in Abernathy. Therefore, we cannot excuse Queen’s failure to meet the literal requirements of the statute. See Doe v. Brown, 331 S.C. 491, 489 S.E.2d 917 (1997) (wherein the Supreme Court found the father’s conduct after learning of the pregnancy failed to rise to the level necessary to meet the Abernathy standard); Ex parte Black, 330 S.C. 431, 499 S.E.2d 229 (Ct.App.1998) (refusing to apply Abernathy to excuse the father’s failure to support his child for five months after learning he was the child’s father).

The dissent appears to agree that Queen did not meet the literal requirements of section 20-7-1690(A)(5)(b). The divergence in opinion arises from our differing views of whether Queen’s failure to support Tanner since learning of his birth should be excused under Abernathy.

As stated before, Abernathy requires a parent to undertake “sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute.” The focus of the Abernathy analysis in this case is Queen’s failure to make any effort to comply with section 20-7-1690(A)(5)(b).

To bolster its position that Queen made sufficient and good faith efforts to comply with the statute, the dissent points out that “Queen established a nursery, set up health insurance for the child, arranged child care, and began a savings account for the child.” As characterized by the dissent, Queen’s acts sound like significant steps in his effort to gain custody of Tanner. The reality of his efforts demonstrate how insignificant his actions were. Queen bought a crib, filled out some insurance paperwork, asked his grandmother to babysit Tanner, and said he would set up a savings account if given custody. These acts by Queen are mere preparations for a potential change in custody. Queen is required to either actually support Tanner pursuant to the statute or make a sufficient good faith effort to support Tanner under Abernathy. Although Queen’s actions may have proven beneficial if and when he gained custody of Tanner, the fact remains that Queen made no effort to actually support Tanner pending the potential change in custody.

The dissent suggests the guardian ad litem and trial judge were in agreement that Queen should be given custody. However, when asked which home environment would most benefit Tanner, the guardian testified:

I know that he is doing wonderfully now with the Does. I know that he is a happy child and is as healthy as he can possibly be. My problem with trying to pick a better home is that I don’t know how Mr. Queen would take care of him; it’s an unknown. And, I know he has been well taken care of right now. It is my belief — it is my sincere belief that the Queens would also be loving and supportive of this child. I don’t know how to pick a better home; they are both filled with love and support. I don’t know how to pick a better home, one over the other.

Clearly, the guardian did not recommend Queen over the Does. If her conclusions can be adjudged anything other than a coin-toss, the guardian’s statement seems to lean toward the Does, choosing the known over the unknown.

In conclusion, although we do not condone the birth mother’s actions in hiding the pregnancy and birth from Queen, we find Queen did not manifest a prompt willingness to commit to the child and his actions do not establish a vigorous attempt to assume parental responsibility. Accordingly, the order of the family court is reversed and the case is remanded for adoption proceedings in accordance with this opinion.⁴

REVERSED AND REMANDED.

GOOLSBY, J., concurs and HOWARD, J., dissents in separate opinion.

1 . On December 1, 1999, the Does filed a petition to supplement the record. By order filed December 28, 1999, the petition was denied, but the Does were given permission to reargue the issue at oral argument on the merits of the appeal. The Does’ request to supplement the record is again denied.

2 . On June 25, 1998, the birth mother and her new boyfriend signed a criminal warrant against Queen for assault with a deadly weapon (an automobile). A condition of his bond was that he have no contact with the birth mother. Queen was found not guilty of the criminal charges. A week after signing the criminal warrant against Queen, the birth mother filed for an order of protection against Queen, resulting in a consent order dated July 6, 1998, prohibiting Queen from going near the birth mother for one year. Queen testified he did not see the birth mother after the order of protection and criminal trial.

3 . In contrast to the dissent's assertion that Queen had no knowledge of Tanner’s birth, Queen had opportunities to determine whether the birth mother really aborted his child. Queen’s brother and a friend worked at Circuit City with the birth mother until June 1998 when she was seven months pregnant. Also, on August 21, 1998, Queen saw the birth mother in the courtroom during his trial for assault with a deadly weapon. At that time the birth mother was eight months pregnant.

4 . Because we reverse on this issue, we need not reach the Does’ remaining issues on appeal.