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BUTLER v. WHITT ET AL.

November 28, 1956

MRS. BETTY BUTLER OF THE DEPARTMENT OF PUBLIC WELFARE, RESPONDENT,
v.
MRS. MARGARET WHITT, CAROLYN WHITT, INFANT UNDER FOURTEEN YEARS OF AGE, CLYDE E. JARRETT AND MRS. CLYDE E. JARRETT, APPELLANTS.



The opinion of the court was delivered by: Oxner, Justice.

November 28, 1956.

This controversy relates to the custody of Carolyn Whitt, who is now approximately eight year of age.

On June 9, 1952, Mrs. Betty Butler, a case worker in the Department of Public Welfare, filed a petition in the Children's Court of Spartanburg County in which she alleged that the above minor had been given by her mother to Mr. and Mrs. Clyde E. Jarrett who had turned her over to the Department of Public Welfare, and that she was now "dependent". The Court was requested to assume custody pending an investigation and hearing. The Children's Court did so and placed the child in a foster home under the care of the Department of Public Welfare. The petition and summons were duly served upon the child and her mother, Margaret Whitt. On June 23, 1952, Mr. and Mrs. Jarrett were made parties defendant.

A guardian ad litem was appointed for the child. The mother filed an answer in which she denied that her daughter was dependent or homeless, and alleged that she had been delivered to the Jarretts under an agreement that the latter would take care of, maintain and support her during her minority and would take the necessary steps for adoption, and that pursuant to this agreement, she deeded the child to the Jarretts on June 12, 1952. The Jarretts also denied in their answer that the child was dependent or homeless and stated that under the agreement made with the mother they were charged with the responsibility of supporting her. They further alleged that the child was temporarily turned over to the petitioner, a welfare worker, who promised to return her in a day or two but refused to do so and delivered her to the Department of Public Welfare.

A hearing was duly had in the Children's Court, after which an order was filed on August 23, 1952, wherein the Court refused to deliver the custody of the child to either the mother or the Jarretts and continued jurisdiction. This order was sustained by the resident Judge of the Court of Common Pleas on March 13, 1956. The case is here on appeal by the mother and the Jarretts.

The mother testified that she visited the Jarrett home quite frequently, found the child happy and well taken care of, and that she was entirely satisfied with her placement in the Jarrett home. It appears that the Jarretts have no children. Both said the child was happy, they were very fond of her, and were financially able to rear her without assistance from the welfare department. They claimed that they were annoyed by frequent visits from the welfare worker and finally had to request that she discontinue coming to their home. They admitted, however, that during the latter part of May or early June, 1952, they sought the advice of the welfare department as a result of which petitioner came to their home and asked to take the child for a few hours in order to get acquainted with her. They said they permitted her to do so but instead of returning the child, petitioner placed her in a foster home.

Appellants offered several witnesses who expressed the opinion that the Jarrett home was an entirely suitable one for the child. It seems to be admitted, however, that Mrs. Jarrett is extremely nervous and suffers from "tension headaches", which her physician said were caused by certain repulsive conduct on the part of her father and brothers when she was a young girl. For some time she was under the care of a psychiatrist. It is also conceded that on account of certain behavior and habits, the child on one occasion was taken to a mental clinic.

We shall first discuss the exceptions challenging the jurisdiction of the Children's Court of Spartanburg County to hear the case. Appellants contend that the Court was without jurisdiction because "the testimony discloses that this child is neither homeless nor dependent." Section 15-1335 of the 1952 Code is as follows:

"The children's court of Spartanburg County shall have exclusive original jurisdiction of any case of a child less than sixteen years of age who is delinquent, dependent or neglected and of all other persons involved with or contributing to the dependency or delinquency of any child residing in or being at the time within said county or any city therein."

Under the definition found in Section 15-1334, "A child is `dependent' who is dependant upon public support, who is destitute, homeless or abandoned, whose custody is subject to controversy, * * *."

Also to be considered is Section 15-1397 of the 1952 Code, which is a general provision applicable to all children's courts and is as follows:

"If it appears from the petition that the child is delinquent or is in such condition or surroundings that the welfare of the child requires that its custody be immediately assumed the court may endorse or cause to be endorsed upon the summons a direction that ...


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