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Supreme Court holds foster parents lack standing to seek or challenge adoption when child is placed with DSS for purpose of placing child for adoption

The March 8, 2013 Supreme Court opinion in Youngblood v. DSS, 402 S.C. 311, 741 S.E.2d 515 (2013), holds that once the South Carolina Department of Social Services is given the legal authority to place a child for adoption, there is no right to judicial review for parties unhappy with DSS’s decision.

In Youngblood, the Youngbloods were foster parents of one of five siblings in DSS’s custody.  They expressed an interest in adopting the child (Child) placed with them and DSS did a home study approving them for adoption of a child, but not that specific child.

Eventually the parental rights of all five siblings’ parents were terminated and DSS was given the right to place the children for adoption.  DSS give notice to the Youngbloods that they were going to be placing Child elsewhere and informed the Youngbloods of their right to an administrative appeal.  Eventually DSS placed Child and her siblings with the Does, with the intent that the Does adopt all five.

The Youngbloods then filed their administrative appeal with DSS, which was denied.  Both the Does and the Youngbloods filed adoption actions, with the Youngbloods seeking to adopt Child and the Does seeking to adopt all five children.  DSS and the Does sought to dismiss the Youngbloods’ action due to lack of standing.  The family court denied this request and then, considering Child’s best interests, granted the Youngbloods’ petition to adopt Child, subject to sibling visitation.  The Does and DSS appealed.  The Court of Appeals, in an unpublished opinion, found the Youngbloods had standing and affirmed the adoption.  The Supreme Court granted certiorari.

The Supreme Court found that the Youngbloods lacked standing to seek adoption.  The Supreme Court determined that the right to administrative appeal of a DSS placement decision did not give rise to judicial review despite the language of S.C. Code § 63-9-310(D) that:

If the consent of a child placing agency required by this subsection is not provided to any person eligible under Section 63-9-60, the agency has an affirmative duty to inform the person who is denied consent of all of his rights for judicial review of the denial.

The Supreme Court reasoned:

While [this subsection] does direct DSS to inform a person denied consent of “all of his rights to judicial review,” a statutory directive to inform persons of their rights does not in itself create rights. Although it is curious that the General Assembly would direct DSS to inform persons of their rights to judicial review if no such rights exist, where the plain language of a statute is unambiguous we are charged with implementing it.  Here, the statute unambiguously does nothing more than direct DSS to inform persons of any rights they may have.

Citation omitted.

Evidently, the Supreme Court’s conclusion is that the statutory scheme requires DSS to inform parties of a right to judicial review despite that right not actually existing.

The Supreme Court additionally found that the foster-parent child relationship did not create a legally protected right sufficient to confer constitutional standing:

[T]he Youngbloods were not just any persons–they were Child’s foster parents. While the foster care relationship undoubtedly often results in emotional attachments between the foster parent and foster child, the relationship is only a temporary, contractual relationship created by the State. Accordingly, the foster parent relationship, absent statutory law to the contrary, is insufficient to create a legally protected interest in a child and therefore, does not create standing to petition to adopt.

Citations omitted.

Finally the Supreme Court determined that the statutory scheme for placement of children for adoption did not confer standing on the Youngbloods.  They looked to S.C. Code § 63-9-60, which provides:

(A)(1) Any South Carolina resident may petition the court to adopt a child. . . . .

(B) This section does not apply to a child placed by the State Department of Social Services or any agency under contract with the department for purposes of placing that child for adoption.

The Supreme Court found that subsection (A)(1), which the family court had used to justify the Youngbloods’ standing, was inapplicable to situations in which DSS has the right to place the child for adoption.  Further DSS’s right to place the child for adoption made subsection (B) applicable, and that subsection specifically deprived the Youngbloods of standing.

The Supreme Court’s conclusion: once DSS has the legal right to place a child for adoption there is no judicial review of DSS’s determination.  While this result may appear harsh, the Supreme Court explained its rationale:

In order to ensure that our State resolves the permanent placement of children in its custody promptly, the General Assembly has entrusted DSS with discretion in making the initial decision as to the adoption of such children, and the rights of others to petition to adopt have been limited. If any person could petition to adopt a child in DSS’s custody despite DSS having placed the child with another, the placement of such children would become protracted contests, like the instant case, in which the vital interests of stability, permanency, and attachment would be irretrievably lost to the passage of time.

However because Child had been with the Youngbloods for years, the Supreme Court did not order adoption by the Does.  Rather it remanded and “recognizing that children develop rapidly, and that stability and attachment are important components in their growth and development, we direct DSS to consider Child’s present best interests in placing her for adoption.”

Whatever DSS’s ultimate decision on Child’s placement, Youngblood makes clear it will not be subject to judicial review.

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