Supreme Court authorizes collateral attack on adoption due to significant procedural irregularities

N.B. the opinion discussed below was subsequently slightly modified. See Supreme Court issues slightly modified opinion in Ex-Parte: Carter.

The phrase Kafkaesque is an overused cliche but sometimes it’s apt. That is the situation described in the March 21, 2018 South Carolina Supreme Court opinion of Ex Parte: Carter. While Ms. Carter may be full of hooey in her claim that her adoption consent was the product of “emotional duress,” the family court’s ability to deny her right to present this claim clearly exasperated the Supreme Court.

In this case, Ms. Carter and her ex-husband signed consents to adoption for their two daughters, anticipating that it would be an open adoption. These consents waived service and notice of the adoption action. Four days after the consents were executed, the attorney for the Adoptive Couple filed for adoption. Eight days after the adoption action was filed, the Carters each executed a notarized document titled “Withdrawal of Parental Consent to Adoption” purporting to revoke their consents on the basis of emotional duress. Thereafter, the Carters sought, through many avenues, to withdraw their consent.

First they filed a motion to intervene in the adoption action. Counsel for the Adoptive Couple opposed the motion, arguing that because adoption proceedings are private and confidential proceedings, the Carters’ recourse was not as intervenors in the adoption action but through a separate action challenging the consents “outside the adoption itself.” The family court agreed and denied the Carters’ motion to intervene, stating “I don’t believe procedurally that’s the way that this should be handled.”

Thereafter the Carters filed a pro se petition at which point things got surreal. Per the Supreme Court:

At the direction of the family court, a week later, the Carters filed a separate action, along with affidavits supporting their challenge to the validity of the consents, and requested that a hearing be scheduled before the final adoption hearing. Between August 2014 and April 2015, the Carters appeared and asked to be heard at seven separate hearings before six different family court judges, each of whom refused to address the merits of the Carters’ claim based on perceived procedural abnormalities and gave the Carters inconsistent (and at times incorrect) instructions on the proper procedure through which the Carters should have pursued their claim. In every instance, the Carters timely followed these instructions. Nevertheless, the Carters’ claim was never evaluated on the merits.

Emphasis in original.

Within that paragraph is a footnote detailing the myriad excuses family court judges provided for not hearing the Carters’ motion:

Family court judges assigned to hear this matter avoided hearing the Carters’ case for a variety of reasons, including the claim of insufficient docket time requested, finding fault with the Carters for doing precisely what other family court judges told them to do, and perhaps the most troubling reason for not hearing the Carters’ case was the hearing “should not have been scheduled on a Friday.” Mr. Carter eventually abandoned his claim; we find it remarkable that Petitioner [Ms. Carter] did not throw in the towel as well.

At the final hearing to approve the adoption, the Adoptive Couples’ attorney failed to notify the court of the Carters’ separate action. The Supreme Court found this failure shocking:

Although counsel for the Adoptive Couple was well aware of the Carters’ separate pending challenge, the final adoption hearing transcript includes no reference to this. Rather, when the family court judge asked if there was anything else that needed to be placed on the record before the first witness was sworn, counsel for the Adoptive Couple never mentioned the Carters’ pending action and stunningly responded “I think we’re good, Your Honor.” We are confident the family court judge would not have proceeded with the adoption had he been made aware of the separate pending action. However, without the benefit of this critical information, the family court entered an order approving the adoption.

The adoptive couples’ attorney, armed with the adoption decree, then proceeded to get the Carters’ action dismissed. Per the Supreme Court:

Armed with the final adoption order, counsel for the Adoptive Couple filed a motion to dismiss the Carters’ separate action challenging the validity of their consents, arguing the final adoption order rendered moot the Carters’ challenge. The Carters appeared at the hearing on this motion on April 1, 2015, understandably incredulous that the adoption was finalized while their separate action to set aside the consents was pending. The Adoptive Couple, through counsel, recited the last sentence of section 63-9-350—“The entry of the final decree of adoption renders any consent or relinquishment irrevocable”—and argued the Carters’ separate action should be dismissed. This family court judge apparently felt constrained to dismiss the Carters’ action; the judge, however, instructed the Carters to file a Rule 60, SCRCP motion in the adoption action alleging extrinsic fraud prevented them from having an opportunity to be heard as to the validity of their consents.

Six days later the Carters filed the Rule 60, SCRCP motion. Three days later, a different family court judge summarily denied the Carters’ Rule 60(b) motion on the ground that it was untimely. The Carters appealed, arguing the family court erred in denying their Rule 60 motion as untimely and that the validity of the adoption was compromised because the Carters’ challenge to their consents was not resolved before the adoption was finalized. The Court of Appeals affirmed and the Supreme Court issued a writ of certiorari to review the Court of Appeals’ decision.

The Supreme Court’s opinion finds that Ms. Carter’s Rule 60(b) motion was both timely and proper. First it found that S.C. Code Ann. § 63-9-770(B) specifically gives a court authority to grant collateral relief from an adoption decree on the ground of extrinsic fraud. Further, it found that the Carters’ petition set forth a claim of extrinsic fraud:

[A]t the heart of the extrinsic fraud claim is the Adoptive Couple’s effort, through counsel, to push through the final adoption hearing knowing full well of the Carters’ repeated requests to be heard on their pending separate action. Most troubling is counsel’s failure to be candid with the family court when asked if there was “anything else.” These specific averments manifestly state a claim for extrinsic fraud.

In finding Ms. Carter’s Rule 60 motion was timely the Supreme Court held:

The final adoption decree was entered December 15, 2014. At a hearing on April 1, 2015, the family court instructed the Carters to file the Rule 60(b) motion. The Carters did so on April 7, 2015. Because this period of time is both reasonable and not more than one year after the entry of the final adoption decree, we find the family court abused its discretion in finding the Carters’ Rule 60(b) motion was untimely.

In concluding to remand the case back to the family court for a hearing on Ms. Carter’s claim that she should be allowed to withdraw her adoption consent, the Supreme Court expressed its “grave concern for the manner in which this matter was handled in the family court.”

Dana Adkins and I occasionally present to pro se litigants on family court procedure. I do this as part of my pro bono work because I believe the family court is ill equipped to handle cases involving pro se litigants and I believe helping such litigants navigate the system serves the public good. The Carter case demonstrates an extreme failure of the family court system to allow a pro se litigant to present his or her claims. The Carters’ perseverance through this process is impressive–I suspect many attorneys might have given up after having their motion continued six times. The Carter decision reflects a massive and systematic failure on the part of the family court system.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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