Akers v. Hard

267 S.E.2d 536, 275 S.C. 100, 1980 S.C. LEXIS 389

• Court: Supreme Court of South Carolina
• Decided: June 18, 1980
• Docket: 21252
• Status: Published

Opinions

Harwell, Justice:

Appellants Leland T. and Mae H. Akers appeal from an order granting a demurrer to their petition for adoption. We affirm.

Appellants were notified by the respondent South Carolina Department of Social Services in May of 1978 that they had been approved generally as adoptive parents but not as adoptive parents for Bobby Dean Hard for whom they were then foster parents. To qualify as foster parents, the appellants signed a contract with respondent agreeing that the child assigned could be removed on sufficient notice whenever either party determined the child’s best interests so required.

The parental rights of Bobby’s natural parents were terminated on July 21, 1978, and the respondent Department acquired custody and authority to consent to adoption. On July 28, 1978, respondent sent notice to the appellants that Bobby was to be removed from their home on August 5, 1978. Appellants then began this action by obtaining an ex parte rule to show cause and temporary restraining order. At the show cause hearing the court took all matters under advisement and continued the temporary order until a hearing on the merits of the petition could be held. Succinctly put, the petition asks the court to issue its decree of adoption. Among the allegations contained in the petition is one stating that the respondent has unreasonably and arbitarily withheld consent to adoption in derogation of the best interest of the child.¹ Prior to any further action, respondent filed its demurrer. The court granted the demurrer and dissolved the temporary order.

This court stated in Sease v. City of Spartanburg, 242 S. C. 520, 131 S. E. (2d) 683 (1963) that:

“It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. A demurrer admits the facts well pleaded in the complaint but does not admit the inferences drawn by the plaintiff from such facts. Costas v. Florence Printing Co., 237 S. C. 655, 118 S. E. (2d) 696. A demurrer to a complaint does not admit conclusions of law pleaded therein. Gainey v. Coker's Pedigreed Seed Co., 227 S. C. 200, 87 S. E. (2d) 486.”

See also, Red Oak Lands, Inc. v. Lane, 268 S. C. 631, 235 S. E. (2d) 718 (1977) ; Greneker v. Sprouse, 263 S. C. 571, 211 S. E. (2d) 879 (1975).

Appellants’ bare assertion that respondent agency has arbitrarily and unreasonably withheld consent is not a factual allegation but is merely a conclusion of law. The appellants have not stated facts from which even an inference can be drawn that the discretionary decision of the respondent agency amounted to unreasonableness or arbitrariness. It is axiomatic that no cause of action is stated absent sufficient allegations of facts. The granting of the demurrer by the trial judge was therefore proper.

Affirmed.

Littlejohn and Ness, JJ., concur. Lewis, C. J., and Gregory, J., dissent.

1 Adoptions in South Carolina are purely statutory; the process by which an adoption takes place is determined by the General Assembly. When an agency acquires custody of a child with the right to consent to adoption, statutory law provides that there can be no adoption without the consent. Section 15-45-70 S. C. Code Ann. (1976) in pertinent part states:

“An adoption of a child may be decreed when there have been filed written consents to adoption executed by:

(d) The executive head of an agency ... if the rights of the parents have been judicially terminated and custody of the child had been legally vested in such agency with authority to consent to adoption of the child; or . . .”