THE STATE OF SOUTH CAROLINA

In The Supreme Court

John Doe and Jane Doe,

Charles R. Brown, Jr.,

and Baby Girl Ashlie, an

infant under the age of

seven (7) years,

of whom Charles R.

Brown, Jr., is

and Baby Girl Ashlie, an

infant under the age of

seven (7) years is,

and Charles R. Brown,

Sr., and Mrs. Charles R.

Brown, Sr.,

Appeal From Greenville County

John W. Kittredge, Family Court Judge

Opinion No. 24680

Heard May 20, 1997 - Filed September 2, 1997

AFFIRMED

O. W. Bannister, Jr., of Hill, Wyatt & Bannister, L.L.P., of

Greenville, for appellants.

Stephen A. Yacobi and D. Denby Davenport, Jr., both of

Davenport & Yacobi, P.A., of Greenville, for respondents.

James Fletcher Thompson, of Thompson & Sinclair, of Spartanburg,

Guardian ad Litem for Baby Girl Ashlie.

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JANE & JOHN DOE v. CHARLES R. BROWN, JR. , et al.

FINNEY, C.J.: The critical issue in this case is whether the father

of a child, conceived as the result of father's statutory rape of the mother, has

any parental rights to that child? The family court first held the father had no

rights, and therefore he need not consent to the child's adoption nor be given

notice of the adoption proceedings. Alternatively, the court held that this

Father had not complied with the statutory requirements so as to require his

consent to the adoption. We agree with the family court's second holding, and

affirm.

Baby Girl Ashlie was conceived as the result of appellant

Charles R. Brown, Jr.'s. (Father's) statutory rape of twelve year old Mother in

Kentucky.1 After Ashlie was born in South Carolina, Mother relinquished her

parental rights and consented to Ashlie's adoption by the respondents.

Respondents then brought this adoption action, and the family court permitted

Father and his parents, appellants Mr. and Mrs. Charles R. Brown, Sr.

(Grandparents) to intervene. From orders "terminating" Father's rights and

granting Ashlie's adoption, Father and Grandparents appeal. Appellants do not

challenge the family court's ruling that Grandparents' rights, if any, are

derivative of Father's, and that they have no independent standing to challenge

the adoption.

The resolution of the issues raised by this case turns on the

interpretation of several statutes. South Carolina Code Ann. § 20-7-1690 (Supp.

1996) lists the persons who must consent or relinquish their parental rights to a

child for purposes of the child's adoption. Section 20-7-1695 (Supp. 1996)

specifies those persons from whom neither consent nor relinquishment is

required. Under this statute, parents who need not consent or relinquish their

parental rights are those who have already had their rights terminated; those

who are mentally incompetent; and those, such as the Mother here, who have

executed a relinquishment pursuant to S.C. Code Ann. § 20-7-1700 (Supp. 1996).

There is no exemption in these consent/relinquishment statutes for the parent of

a child conceived as the result of that person's criminal act.2

A different statute, § 20-7-1734 (Supp. 1996), lists the persons

and agencies who must be given notice of adoption proceedings. Generally, a

1Father was seventeen years old at the time of conception. It is undisputed

that because of the parents' ages, intercourse was a criminal act in Kentucky.

Kentucky Code of Laws § 510.120(l)(b). Had the act occurred in South

Carolina, it would have been classified as second degree criminal sexual conduct.

S.C. Code Ann. § 16-3-655(2)(1985).

2A female can statutorily rape a male child under our gender-neutral "CSC

with a minor" statute. S.C. Code Ann. § 16-3-655 (1985). See State ex rel. Hermesmann v. Sever, 847 P. 2d 1273 (Kan. 1993).

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JANE & JOHN DOE v. CHARLES R. BROWN, JR., et al.

person whose parental rights have been terminated or relinquished or who has

consented to the adoption need not be given notice of the adoption proceedings.

§ 20-7-1734 (A). Certain fathers, however, whose consent or relinquishment to

adoption is not required under § 20-7-1690 are, nevertheless, entitled to notice

of the adoption under subsection (B) of § 20-7-1734. This notice statute

explicitly provides, however, in its next subsection, that a father otherwise

entitled to notice under subsection (B) is not entitled to notice if the child was

conceived as the result of criminal sexual conduct or incest. § 20-7-1734 (C).

In sum, South Carolina's statutory adoption plan defines

which parents must consent or relinquish their parental rights, or have them

terminated, in order for a child to be adoptable. There is no per se exclusion of

parents of children conceived as the result of a criminal act from the statutory

consent/relinquishment/termination requirement. A different statute defines

those persons who are entitled to notice of an adoption, and this notice statute

explicitly excludes "criminal parents."

The family court order extrapolated from § 20-7-1734 (C)'s "no

notice" provision that ". . . .a rapist has no [parental] rights to the child

conceived as the result of the criminal act." The court therefore held Father

simply had no right to be involved in this proceeding. Alternatively, if Father

did have rights and was to be treated under the consent/relinquishment statutes

as any other out-of-wedlock father, then the court held that Father's failure to

assume parental responsibility within the meaning of § 20-7-1690 (A)(5)(b)(Supp.

1996) and/or Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1995),

abrogated the need for Father's formal consent. The judge held that he was

effectively terminating Father's parental rights, and made a finding that the

adoption was in the child's best interest.

Appellants first argue the family court erred in extrapolating

from § 20-7-1734 (C)'s "no notice" of adoption provision that the parents of

children conceived as the result of their criminal act have no parental rights.

For the following reasons we agree, and hold that under our statutory scheme,

these parents must be treated as other out-of-wedlock parents3 for purposes of

the consent/relinquishment requirements.

Adoption statutes are in derogation of the common law and

3It is possible for a child to be conceived as the result of criminal sexual

conduct by one spouse towards the other. S.C. Code Ann. § 16-3-658 (Supp.

1996). The adoption of a child conceived as the result of such an assault should

be treated as the adoption of any child born to the marriage. Further, where

the "criminal father" is unknown, a "John Doe" consent/relinquishment/adoption

proceeding is appropriate. See Evans v. S.C. Dep't of Soc. Services, 303 S.C.

108, 399 S.E.2d 156 (1990) (unwed mother refused to provide name of father).

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JANE & JOHN DOE v. CHARLES R. BROWN, JR., et al.

therefore must be strictly construed. Hucks v. Dolan, 288 S.C. 468, 343 S.E.2d

613 (1986). Here, there is no language exempting "criminal parents" from the

consent/relinquishment requirement, while there is such an exemption in the

notice statute. Statutes which are part of the same legislative scheme should be

read together. In re Keith Lamont G., 304 S.C. 456, 405 S.E.2d 404 (1991).

The clear and unambiguous language of the these statutes indicates that when

the Legislature intended to exclude "criminal parents" from the adoption process,

it did so. See Gaster v. Evatt, _ S.C. _, 483 S.E.2d 197 (1997). Such

parents are exempt only from the notice of adoption requirement under our

statutes.4 Compare Mullis v. Kinder, 568 N.E.2d 1087 (lnd. App. 1991)

(Father's consent not required where statute stated consent to adoption not

needed from fathers of children conceived as a result of child molestation).

Further, public policy is served by recognizing a legal

relationship, albeit limited,5 between the "criminal parent" and the child. For

example, if the mother wishes to retain custody of the child, then legal

recognition of the relationship will allow her to seek child support from the

father. Cf., e.g. State ex rel. Hermesmann v. Seyer, 847 P.2d 1273 (Kan. 1993);

Com. ex rel. Rush v. Hatfield, 929 S.E.2d 202 (Ky. 1996); In re Paternity of J.L.H., 441 N.W.2d 273 (Wisc. App. 1989) (cases requiring underage father victims of statutory rapes to contribute to child's support where intercourse was factually voluntary, even if under criminal law it was without consent).

In its alternative holding, the family court held that Father

had not met the requirements of either § 20-7-1690 (A)(5)(b) or Abernathy so as

to require him to consent or relinquish his rights to Ashlie prior to her adoption.

We affirm the family court.

Under the applicable code section, consent or relinquishment

is required from an unwed father when the child was placed with the adoptive

parents six months or less after her birth "only if the father paid a fair and

reasonable sum, based on the father's 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." § 20-7-1690 (5)(b). As this Court explained in Abernathy, an

unwed father can establish the right to have his interest in the child afforded

legal protection not only where he meets the literal language of the statute, "but

4The notice exception means the "criminal parent" will not know the identity

or residence of the adoptive parents.

5 "Parental rights do not spring full-blown from the biological connection

between parent and child. They require relationships more enduring." Lehr v. Robertson 463 U.S. 248 (1983) cited with approval in Abernathy v. Baby Boy, supra.

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JANE & JOHN DOE v. CHARLES R. BROWN, JR., et al.

also when he undertakes sufficient prompt and good faith efforts to assume

parental responsibility and to comply with the statute."

In Abernathy, the Court noted it was faced with "unusual

facts" in that the Mother stymied all of the father's efforts to offer assistance,

both monetary and emotional, as well as his offer of matrimony. Abernathy

made extensive efforts to be involved as soon as he learned of the pregnancy,

and promptly responded when he learned of the contemplated adoption. He was

a responsible, mature adult with a demonstrable ability to competently raise a

child.

In sharp contrast to Abernathy, the family court judge in this

case found Father "young, immature, and irresponsible." He found Father

failed to meet the statutory requirements, and that his conduct upon learning of

the pregnancy and during the next several months did not rise to the level

necessary to meet the Abernathy standard. Although this Court is free to find

the facts differently from the family court, we find the record overwhelmingly

supports these findings. Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884

(1994). Accordingly, the orders severing Father's parental rights and granting

the adoption are

AFFIRMED.

TOAL, MOORE, WALLER and BURNETT, JJ., concur.