Supreme Court makes it easier for foster parents to adopt

Posted Thursday, January 4th, 2018 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 January 3, 2018 South Carolina Supreme Court opinion in SCDSS v. Boulware, 422 S.C. 1, 809 S.E.2d 223 (2018),  makes it easier for foster parents to adopt their foster children. The case distinguishes adoption petitions that predate the Department of Social Services (DSS) placing the child for adoption with petitions that postdate such placements for adoption.

In Boulware, the Child was taken into emergency protective custody and placed with Foster Parents. Initially the family court ordered a permanency plan of reunification but, after the parents failed to complete their treatment plan, the family court approved DSS’s recommendation of a permanency plan of termination of parental rights (TPR) and adoption, with a concurrent plan of reunification. DSS and the parents then reached an agreement to place the Child with an Aunt and Uncle, who did not intend to adopt the Child. DSS notified the Foster Parents of its intent to place the Child with Aunt and Uncle. Foster Parents then filed a private TPR and adoption action and moved to intervene in the DSS action. The family court granted their motion to intervene. At a subsequent permanency planning hearing, the family court changed the plan to one for TPR and ordered DSS to file a TPR action with Foster Parents and Aunt and Uncle to be named parties to that action.

At the TPR hearing the family court granted the TPR request but found the Foster Parents lacked standing to adopt the child. The court noted Foster Parents and Aunt and Uncle could present their case for adoption to the DSS adoption committee but ruled none had standing to pursue a separate adoption action in the family court. Foster Parents appealed and the Court of Appeals, in an unpublished opinion, affirmed the family court. The Supreme Court granted Foster Parents’ petition for a writ of certiorari.

The Supreme Court reversed and remanded for consideration of the Foster Parents’ adoption request. It found they had standing under S.C. Code § 63-9-60(A)(1), which provides, “Any South Carolina resident may petition the court to adopt a child.” It determined the limitation imposed by S.C. Code § 63-9-60(B), which disallows such adoption petitions when DSS has placed that child for adoption, did not apply because, at the time of the Foster Parents’ TPR petition, DSS has not placed the child for adoption. The opinion distinguished Youngblood v. South Carolina Department of Social Services, 402 S.C. 311, 741 S.E.2d 515 (2013), because in Youngblood the Foster Parents petitioned for adoption after DSS had placed the child for adoption.

DSS and Aunt and Uncle argued that such a distinction leads to an absurd result, as foster parents who petition for adoption early in the process would have standing whereas foster parents who wait until a child is placed by DSS for adoption would lack standing. They argued that the legislature could not have intended this, and that allowing foster parents to prematurely petition for adoption contradicted the underlying policy of the Children’s Code to encourage family reunification.

The majority opinion found two reasons to reject this claim. First, it noted S.C. Code § 63-1-20(D) provides in pertinent part, “When children must be permanently removed from their homes, they shall be placed in adoptive homes so that they may become members of a family by legal adoption or, absent that possibility, other permanent settings.” (emphasis added). Here, DSS and Aunt and Uncle sought permanent placement, but not adoption, by Aunt and Uncle, making Foster Parents’ adoption request the preferred resolution under the Children’s Code. Second, it noted that one function and power of local foster care review boards is to advise foster parents of their right to “petition the family court” for TPR and for adoption to “encourage . . . foster parents to initiate these proceedings in an appropriate case when it has been determined by the local review board that return to the natural parent is not in the best interest of the child.” S.C. Code Ann. § 63-11-720(A)(5) (emphasis added). The Supreme Court held that this code section revealed the General Assembly’s intent that foster parents can initiate TPR and adoption proceedings in the family court once the local foster care review board determined it would not be in Child’s best interest to be returned to Parents.

DSS also asserted the word “placed” as used in section 63-9-60(B) simply refers to when a child is initially placed in DSS custody. The Supreme Court rejected this, finding “[t]hese interpretations do not comport with either a plain reading of the statute or our interpretation of the word ‘placed’ in Youngblood.”

Two Justices concurred in the result but wrote separately to express their belief that the General Assembly did not intend to grant standing to all South Carolina residents to file an action for the adoption of a child who has been placed in DSS custody. They “join[ed] the majority opinion because the result is not only warranted by the clear wording of the statute, it is also in this child’s best interest.” However, they were “concerned that foster parents and others who are anxious to adopt a child will hail our decision today as a green light to file an adoption action when a child is taken into protective custody.” They “trust[ed] the General Assembly will act to change the statute if the current plain language does not reflect its true intent.”

The Boulware opinion does not determine who should have placement of the Child or whether the Foster Parents should be allowed to adopt. It simply held that the Foster Parents have standing to pursue a private action for adoption pursuant to section 63-9-60 because they are residents of South Carolina and because, at the time they commenced their adoption action, Child had not yet been placed for adoption by DSS.

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