Former foster parents who declined to adopt child lack standing to bring subsequent adoption proceeding; Judge Lockemy concerned that DSS deceived foster parents

Posted Friday, October 2nd, 2009 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Department of Social Services/Child Abuse and Neglect, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The Court of Appeals’ decision in Michael P. v. Greenville County Department of Social Services, 385 S.C. 407, 684 S.E.2d 211 (2009), has all the makings of an excellent melodrama [government malfeasance; lesbian adoption] buried within a decision over standing–the right of a person to bring a particular lawsuit.

In Michael P., DSS placed a child with Michael P. and Lisa P. and offered to let them adopt the child.  The P.s declined, suggesting DSS let a younger, childless couple adopt the child.  DSS then placed the child with an alleged lesbian. When the P.s discovered this, they filed an action for the child’s custody and to adopt the child.  Meanwhile, the birth mother executed a relinquishment to her parental rights that indicated she wanted the P.s to adopt her child.  DSS moved to dismiss the P.s’ action, claiming that their status as former foster parents who had declined to adopt the child gave them no standing to seek to adopt the child.

The family court conducted a hearing on the P.s’ request for placement and DSS’s request that the P.s’ action be dismissed due to lack of standing.  At that hearing, the family court judge asked the birth parents whether their relinquishments of parental rights were conditioned upon the child being placed with the P.s.  Being informed that the relinquishments were not so conditioned, he found the P.s lacked standing and dismissed their complaint.  The P.s appealed.

The Court of Appeals decided that S.C Code Ann. § 63-9-60, titled “Persons who may adopt,” which allows in subsection (A)(1) that “Any South Carolina resident may petition the court to adopt a child” is limited by subsection (B) and “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.” Because the P.s fell under subsection B, they lacked standing to seek the adoption under subsection A.  Ironically, the P.s were one of the few (perhaps only) people in South Carolina who would have lacked standing to petition the court to adopt the child at issue.

Because the Court of Appeals decided the P.s lacked standing, they did not have to reach the determination of whether placing a child with an allegedly lesbian foster parent was against the child’s best interests.  I assume the Court of Appeals is glad to have not had to wade into that controversial (at least in South Carolina) issue.

Equally interesting is Judge Lockemy’s concurrence.  It continues a pattern of our appellate courts being highly critical of the South Carolina Department of Social Services.  Analyzing claims by the P.s “that DSS personnel told them that they could bring Child to his new home and remain involved in his life,” but that DSS then reneged on this promise,  Lockemy writes:

In this State and, indeed in this country, we hold dear the right to have only those elected to office by the people hold sway over our activities through constitutionally permitted limits within laws passed, ratified, and signed into law.  Sometimes the operation of state and federal agencies cause us great concern because although they are authorized by these duly enacted laws to take certain actions, there seems to be a shield between the people and the agency.  This shield is an artificial one when an agency acts within the constraints of permitted statutes because the agency is carrying out the will of the people as authorized by its duly elected representatives.   However, if the agency goes beyond its authorization or tries to exert power it does not and should not have, then we do not have government by the people but government taken from the people.  Such is a dreaded concept that caused fear in philosophers like John Locke and Baron de Montesquieu, who believed in republican government based on the consent of the governed.   Thus, it is imperative that our governmental acts are derived only from the people through legislative or constitutional authority.

This case troubles me because Appellants have lodged serious allegations against DSS concerning what the agency told them about Child’s new placement, and I do not believe we should discount those allegations when the family court made no factual findings in this regard.  If true, the allegations made by Appellants against DSS would threaten to put that dangerous shield between the people and its government.

Given that there was no factual finding regarding the P.s’ allegations against DSS, Judge Lockemy did not need to draft his concurrence.  That he did so highlights the problems that our appellate courts are having with DSS’s actions and credibility: Judge Lockemy obviously entertains the possibility that DSS deceived the P.s in getting them to forgo adoption of the child.

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