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

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.

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