Supreme Court affirms finding that non technical defects with adoption consent renders consent invalid

Posted Monday, September 29th, 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

Eight weeks after the Court of Appeals affirmed a family court finding that South Carolina’s adoption statute required strict compliance with statutory consent requirements in order for the consent to be valid, the Supreme Court affirmed that ruling in the September 29, 2014 opinion of Brown v. Baby Girl Harper, 410 S.C. 446, 766 S.E.2d 375 (2014). This rapid resolution demonstrates the appellate court’s determination to quickly resolve appeals involving the placement of children.

In Brown the attorney who was supposed to witness the birth mother’s consent failed to explain the consent to the birth mother and failed to witness the birth mother actually executing the consent. The non-attorney witness could not affirm that the consent was being given voluntarily and that it is not being obtained under duress or through coercion because that witness did not actually observe the consent being explained to the birth mother. The attorney for the adoptive mother explained the consent to birth mother but the attorney who was supposed to witness the consent did not. The Supreme Court indicated this procedure was insufficient. It agreed with the Court of Appeals’ analysis and further noted:

The main reason [a consent form] is so crucial is because, under South Carolina law, there simply is no waiting period before a relinquishment of parental rights becomes effective. It is the Legislature, not this Court, that has made this pronouncement. The legal rules on the timing of consents are ultimately a compromise between the interest in protecting biological mothers from making hasty or ill-informed decisions at a time of great physical and emotional stress, and the interest in expediting the adoption process for newborns.

The Legislature has chosen to safeguard this difficult decision-making process with certain requirements regarding both the form and content of a consent or relinquishment form and the process employed at the actual signing of the form.

Per the Supreme Court, this:

decision is narrow and fact-based, and we are not precluding the use of substantial compliance in future cases where technical defects in the consent, such as a scrivener’s error, may be at stake. We reach our decision here because the defects in execution were material and egregious.

(emphasis in original)

Finding the consent to be invalid and presuming birth mother to be fit, the Supreme Court ordered the child returned to birth mother as soon as the petition for rehearing time had elapsed (unless it granted that petition).

For attorneys wanting to follow the holding of Brown and insure that adoption consents are valid, the following requirements must be complied with strictly:

  • The attorney witnessing the consent may be paid by the adoptive parent(s) but must work for the birth parent. The adoptive parent’s attorney cannot be the witness.
  • The attorney witnessing the consent must not only witness the execution of the consent but must explain the consent and its ramifications to the birth parent.
  • The non-attorney witness needs to be physically present and observing when the attorney witness explains the adoption consent to the birth parent.
  • Both the attorney and non-attorney witness must attest that the consent is being given voluntarily and that it is not being obtained under duress or through coercion.

5 thoughts on Supreme Court affirms finding that non technical defects with adoption consent renders consent invalid

  1. Holly Lawrence says:

    I hope this sets new levels of standards in adoptions. I fear there are many more cases like mine, of people who were unable to find a lawyer who believed in right and wrong like mine, who chose adoption in a haste, who may not have the financial means to fight for their child, who will never get their wrongs righted. I firmly believe in not uprooting children. It killed me everyday that the more time this went on the higher the risk got for damaging that little girl. Adoption should be beautiful. It should be handled with the utmost care to protect the lives of the child, the biological mother and the adoptive parents. No adoptive parent should have to worry if their child will be ripped from the because of technical defects. And no biological mother should have to feel like there are no other life options then the ones presented to them by a select few individuals who lacked clear judgement and morals. Lawyers need to be overly careful and never forget they are dealing with human lives. The well-being of the families involved should be of the most importance. Permanency for the child should be of even higher importance. And if lawyers ever feel ill-equipped to handle such a heavy situation, then they need to find people who are capable or pass on the case. I hope this case spreads far and wide. I hope lawyers second guess their decisions because of my case, I hope birthmothers don’t get the wrong impression and try to overturn adoptions thinking they do not have to be permanent, and I hope adoptive parents seek out the right ways to adopt so they can have a family where all involved are a million percent sure of the choices. That can only be done through counseling and time. Take the time to do it right. I hope things change. I hope counseling isn’t merely a legal written offer to be glanced over, but mandatory. A lot less lives will be ruined that way.

  2. Jenna says:

    Who was the adoptive mothers lawyer? Was it JFT? I’m asking simply because I called JFT about two weeks from my due date in 2007 and things were done just like this. They never counseled me at all. I had no idea what to expect. If there was a lawyer that represented me…idk, I never spoke to a lawyer at all. Their adoption counselor told me I had 3 days to change my mind when I told her I didn’t want to do it at the hospital. That was a lie I found out after I signed. No one read me what I was signing until after I signed it. I hadn’t slept in almost three days because it was exactly 24 hours after giving birth and I was on narcotic pain killers at the time. I couldn’t read what I was signing so I just assumed that she was being honest about there being a revocation period. I trusted that they were professionals and weren’t essentially tricking me out of my child. I needed money to fix my car and they knew this and they probably knew that if they gave me the money before I relinquished that I wouldn’t do it so the counselor told me she couldn’t give me any money until after which I now know is coercion. If I could have afforded a lawyer I would have fought it. Not only that but they then ignored all my phone calls and emails afterwards regarding paying for counseling and never gave me the money I was promised. I had no idea that I would psychologically suffer for the rest of my life and I cannot afford therapy so I have to keep myself constantly medicated just to be able to function. It’s not right what they do to women that are frantic and vulnerable. They are just bad people IMO.

    1. John says:

      how much money did they offer you? And what adoption agency did they use?

  3. holly lawrence says:

    Adoptive mothers attorney was not JFT.

  4. Jenna says:

    So JFT was representing you? That’s so crazy to me, they were so awful to me I can’t imagine them doing anything to help a mother. Although, I can see him doing it for the PR. All well, I’m glad you got your child back and that y’all do not have to go on to suffer through separation. I’m sure there is some trauma there but you’re reunited now and that’s so wonderful imo. I’m part of a group that helps women who are in danger of having to place their child and we help them to parent instead if you’re interested in joining look up Saving Our Sisters on Facebook. I wish you and your daughter the best!

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