Court of Appeals affirms strict compliance with adoption consent requirements

Posted Monday, August 4th, 2014 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The August 4, 2014 Court of Appeal opinion in Brown v. Baby Girl Harper, 409 S.C. 470, 761 S.E.2d 779 (Ct. App. 2014), affirmed a family court’s decision not to terminate a birth mother’s parental rights because the executed consents to the adoption were not properly witnessed. The attorney-witness was not in the room when the birth mother signed the consent document, and neither witness observed any discussion with the birth mother regarding the consent before she signed it. S.C. Code § 63-9-340 sets forth requirements for adoption consents.

(A) The sworn document . . . must be signed in the presence of two witnesses one of whom must be one of the following:

(1) a judge of any family court in this State; (2) an attorney licensed to practice law in South Carolina who does not represent the prospective adoption petitioners; (3) a person certified by the State Department of Social Services . . . to obtain consents or relinquishments; . . . .

(B) The persons who witness the signing of the sworn document . . . shall attach to the document written certification signed by each witness that before the signing of the document, the provisions of the document were discussed with the person giving consent or relinquishment, and that based on this discussion, it is each witness’ opinion that consent or relinquishment is being given voluntarily and that it is not being obtained under duress or through coercion.

Because neither witness observed any discussions with the birth mother regarding the adoption consents and the attorney-witness was apparently not even present when the birth mother signed it, the Court of Appeals affirmed the family court’s determination that the Respondent could not proceed with the requested adoption. While generally a small failure to strictly comply with statutory requirements should not defeat a just result, this case result does not appear unjust.

The purpose of the statutory requirements of 63-9-340 are to insure that biological parents understand the ramifications of what they are doing when they relinquish their parental rights. Given the gravity of this relinquishment, it is vital that birth parents understand what they are agreeing to. Here it’s not apparent that anyone actually explained to the birth mother what she was doing in consenting to relinquish her parental rights. Given that circumstance, it was not unjust to determine she had not validly relinquished these rights.

Based on this opinion, I have added the following language to my form adoption certifications: “Before the signing of the document, the provisions of the document were discussed with the person giving consent or relinquishment.”

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