In 3-2 decision, South Carolina Supreme Court orders immediate adoption in Indian Adoption case

Posted Wednesday, July 17th, 2013 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Appellate Decisions, South Carolina Specific

In a 3-2 decision today [July 17, 2013] in the case of Adoptive Couple v. Baby Girl, 404 S.C. 483, 746 S.E.2d 51 (2013), the South Carolina Supreme Court resolved the remand from the United States Supreme Court by:

[R]emand[ing] this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl, and thereby terminating Birth Father’s parental rights, in accordance with section 63-9-750 of the South Carolina Code.  Upon the entry of the Family Court’s order, custody of Baby Girl shall be transferred to Adoptive Couple.

This ruling would appear to resolve, with finality, the custody and parentage of 46-month old Veronica.  It will be the second time in 20 months that she has been moved halfway across the country and from caregivers she had been with for the previous 20 months.

At issue on remand was whether the SouthCarolina Supreme Court should order the immediate adoption [as Adoptive Couple requested] or whether the matter should be remanded for a de novo hearing in the family court on the child’s current best interests [as Birth Father requested] taking into account that the child has lived with Birth Father since New Year’s Eve 2011.

The majority based its opinion on the fact that the United States Supreme Court ruling had removed the Indian Child Welfare Act (ICWA) as a basis for preventing the adoption and that the previous South Carolina Supreme Court opinion had “held that, under state law, Birth Father’s consent to the adoption was not required under section 63-9-310(A)(5) of the South Carolina Code.”  Since Birth Father’s consent to the adoption was not required, the South Carolina Supreme Court held there was no basis to delay the adoption.

In rejecting Birth Father’s request for a de novo hearing on custody, the South Carolina Supreme Court found:

We think the [United States] Supreme Court plainly contemplated an expeditious resolution of this case, and we believe the facts of this case require it.  There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation.  As it stands, Adoptive Couple is the only party who has a petition pending for the adoption of Baby Girl, and thus, theirs is the only application that should be considered at this stage.

In an attempt for forestall further delays from Birth Father, his family or the Cherokee Nation, the South Carolina Supreme Court included the following language in the remand:

 If additional motions are pending or are filed prior to the entry of the order finalizing the adoption, the family court shall promptly dispose of all such motions and matters so as not to delay the entry of the adoption and the return of Baby Girl to the Adoptive Couple.

The two dissenters would have remanded the matter to the family court for a new de novo review:

[T]he majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest.

Much time has passed, and circumstances have changed.  I have no doubt that all interested parties wish to have this matter settled as quickly as possible, keeping in mind that what is ultimately at stake is the welfare of a little girl, and  that of all who love her.  I would remand but I would not order any specific relief at this juncture, as I believe this is a situation where the decisions that are in the best interests of this child, given all that has happened in her short life, must be sorted out in the lower court(s).

My general impression is that South Carolina is too quick to extinguish the parental rights of men who father children out of wedlock.  Such fathers can be subject to an order of paternity, even after such children reach the age of majority, and ordered to pay child support. See Smith v. Doe, 366 S.C. 469, 623 S.E.2d 370, 371 (2005). However these same fathers can find their parental rights extinguished due to failure to sufficiently support the mother during the gestational period. See Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011); Doe v. Roe, 386 S.C. 624, 690 S.E.2d 573 (2010).

Justice Scalia’s dissent in the United States Supreme Court expresses the viewpoint of many of the birth fathers I encounter:

It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

While Birth Father’s initial behavior in this case exhibited an extreme disinterest in raising his daughter, he has had custody of her for the past 20 months.  There’s no doubt that if Birth Mother had custody of the child she or DSS could pursue child support from him.  It seems unfair to impose the burdens of parentage on such fathers while being so quick to deny them the benefits.  If this case wasn’t a tragedy when it started, it is now.

One thought on In 3-2 decision, South Carolina Supreme Court orders immediate adoption in Indian Adoption case

  1. Rob Turkewitz says:

    Hi Greg – As you know, I’m a former Navy JAG lawyer and I handle veteran VA disability appeals. I don’t know if Mr. Brown’s lawyers realize it, but the judgment could be challenged and overturned under the Soldiers and Sailors Civil relief Act, which was intended to protect individuals serving on active duty from this type of court action, including decisions on custody. Here is a link that summarizes the law.

    Rob Turkewitz

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