Roe v. Reeves

Justice PLEICONES.

I respectfully dissent. In my opinion, the family court correctly determined Father’s consent was required for the adoption of the child because Father demonstrated sufficient and prompt good faith efforts to assume parental responsibility such that his literal compliance with § 63-9-310(A)(5)(b) should be excused.

In appeals concerning adoption proceedings, as in any appeal from family court, this Court may find the facts in accordance with its own view of the preponderance of the evidence. McCann v. Doe, 377 S.C. 373, 382, 660 S.E.2d 500, 505 (2008). This broad scope of review does not require the Court to disregard the findings of the family court judge, who saw and heard the witnesses and was in a better position to evaluate their credibility. Id.

I disagree with the majority’s conclusion that Mother did not thwart Father’s attempts to form a relationship with the child because she did not actually hide herself and the only financial support she rejected was Father’s “one-time offer of $100.” In my opinion, the family court correctly found Mother thwarted Father’s attempts to provide financial support based on the adoption agency’s advice about birth father’s rights. The majority states Father made Mother a one-time offer of $100, which she refused. Father’s testimony, however, contradicted this. Father testified he offered Mother money “a lot” but that Mother told him the agency advised her not to accept any offers of support or even speak to him. Father testified Mother would accept money for herself and her other son but wouldn’t accept anything “immediately for [the child].” After assessing the credibility of the witnesses, the family court found Mother refused Father’s offers of support based on the agency’s advice about birth father’s rights. Although we may find the facts in accordance with our own view of the preponderance of the evidence, we are not required to disregard the *157findings of the family court, who saw and heard the witnesses and was in a better position to evaluate their credibility.

Further, the majority focuses solely on the financial considerations that are to be made in determining whether a father’s consent is required. In doing so, the majority fails to recognize Father’s offers of non-financial support. “The United States Supreme Court has recognized that an unwed father may possess a relationship with his child that is entitled to constitutional protection.” Abernathy at 31, 437 S.E.2d at 28 (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). However, “parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Id. (quoting Lehr v. Robertson, 463 U.S. 248, 260, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). Thus, an unwed father must demonstrate a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child before his interest in personal contact with his child acquires substantial constitutional protection. Id. The mere existence of a biological link does not merit equivalent constitutional protection. Id.

In my view, the constitutional protection afforded Father by virtue of his demonstrated commitment to the child far outweighs his failure to literally comply with the requirements of the statute. The majority states the facts favorable to Father in this case do not rise to the level of those in Abernathy. The Abernathy Court considered not only father’s offers of financial support, but also took into account the fact that father did not seek legal advice about how to protect his paternal interests because of mother’s assurance that she would not place the child for adoption. Abernathy at 33, 437 S.E.2d at 29. The Court also noted the father “immediately manifested his willingness to assume sole custody of the child once he discovered adoption proceedings had commenced.” Id.

Turning to the facts of the present case, once Father realized Mother was actually pregnant, he immediately manifested his willingness to raise the child. Father pleaded with Mother to stop the adoption process, even offering to call Appellants to discuss the matter. Father also relied on Mother’s misrepresentations to him on several occasions that *158she would not go through with the adoption. In fact, Father believed he would be able to take the child home from the hospital after its birth. The record also clearly shows that Mother used the adoption process as leverage to try to lure Father back.

The majority focuses on distinguishing the facts of the present case from the “extraordinary factual scenario” presented in Abernathy. Although Abernathy is the seminal case on this issue, it is not the only case where the Court has determined a father was not required to literally comply with the statute. In Doe v. Queen, 347 S.C. 4, 552 S.E.2d 761 (2001), the factual scenario presented certainly did not reach that of Abernathy. We nonetheless affirmed the family court’s ruling that the father demonstrated sufficient prompt and good faith efforts to assume parental responsibility such that his literal compliance with the statute was excused. In that case, the mother lied to the father and told him she had an abortion after he tried to convince her to keep the child. Queen at 6, 552 S.E.2d at 762. The mother also signed a criminal warrant against the father, which resulted in a bond condition that father have no contact with the mother. Id. The father was notified of the child’s birth in November, approximately two months after the child was born. Id. When the adoptive parents requested the father sign the consent forms, the father obtained an attorney, but did not file responsive pleadings until the day of the hearing the next August. Id. The father began saving money, prepared a nursery, and arranged for medical insurance for the child. Id. We found the father’s failure to provide support during the mother’s pregnancy was no fault of his own, and that the father’s actions subsequent to learning of the child’s birth demonstrated sufficient prompt and good faith efforts to assume parental responsibility. Queen at 9, 552 S.E.2d at 764. If the father’s actions in Queen constituted sufficient prompt and good faith efforts to assume parental responsibility, then Father has surely exceeded that standard here. In my view, the father in Queen did very little to support his child after learning of its birth. Here, Father exercised regular visitation and paid child support, in addition to preparing a nursery.

Moreover, in focusing on distinguishing the present case from Abernathy, the majority fails to recognize the numerous *159cases in our jurisprudence where our courts have determined the father’s consent was not required. These cases are, in my opinion, instructive owing to their contrast with the factual scenario under consideration. See Doe v. Roe, 369 S.C. 351, 631 S.E.2d 317 (Ct.App.2006) (father’s contributions to mother were insubstantial and inconsistent, mother never refused father’s help but, rather, requested it, mother attempted to reach father on several occasions but he avoided her); Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct.App.2002) (mother informed father she had given birth, and even with this direct information from mother, father still did not believe that she had ever been pregnant and had given birth, and father did nothing, despite knowing that mother had a child and he could be the father); Parag v. Baby Boy Lovin, 333 S.C. 221, 508 S.E.2d 590 (Ct.App.1998) (father could have sought the exact location of his child and could have made efforts to cultivate a relationship with the child three months prior to taking any action; father never offered any financial support to mother in connection with the expenses of her pregnancy and birth; and father never offered any financial support for the child after learning of his birth); and Ex parte Black, 330 S.C. 431, 499 S.E.2d 229 (Ct.App.1998) (assuming unwed father took prompt measures to determine paternity and assert parental rights after biological mother informed father of child’s existence, where father failed to offer to support child or assist in medical expenses, his consent to adoption was not required).

In my opinion, the present case is distinguishable from those cases in which our courts have determined a father’s consent was not required. Mother never requested assistance from Father, but rather, told him she did not want to “mess up the adoption” by accepting money from him. After the child’s birth, Father showed his commitment to the child by immediately moving for temporary relief, preparing a nursery, regularly exercising his visitation rights, and paying child support. Father also offered to reimburse Appellants for all of their expenses incurred during Mother’s pregnancy.

In my opinion, Father timely demonstrated his willingness to develop a relationship with his child and therefore acquired constitutional protection. I would therefore affirm the family *160court’s finding that Father’s consent was required and find that custody of the child should remain with the Father.

BEATTY, J., concurs.