Supreme Court reinstates termination of father’s parental rights and authorizes foster parent adoption

The May 9, 2018 Supreme Court opinion in SCDSS v. Smith reverses a 2017 Court of Appeals opinion, terminates father’s parental rights, and authorizes the foster parents to adopt the minor child at issue.

This case is extremely fact intensive but to summarize: at the time this child was conceived both Mother and Father were living troubled lives, with Mother having substance abuse issues and Father having outstanding criminal charges in Maryland and Virginia. Wanting to address his criminal issues before the child’s birth, Father surrendered to Maryland authorities and Mother eventually went to live with Father’s mother (Grandmother) in Virginia, with the expectation that Grandmother and her husband would help raise the child until Father was released from prison.

After four months, Mother left Grandmother’s and went to live with her own father in South Carolina. There she gave birth to the child at issue. After the child tested positive for cocaine shortly after birth, DSS took custody and placed the child with Foster Parents. Meanwhile Grandmother intervened in the DSS case and sought placement. However, since she lived in Virginia, her request for placement was delayed due the necessity of a home study pursuant to the Interstate Compact on the Placement of Children. Meanwhile, Mother executed a consent relinquishing her parental rights and Father executed a consent relinquishing his parental rights with the specific intent to allow Grandmother to adopt the child. Eventually the Foster Parents filed a termination of parental rights (TPR) and adoption action. That case was consolidated with the DSS case.

At trial, the family court determined that Father had not established parental rights, determined that even if he had, his parental rights should be terminated, and authorized adoption by the Foster Parents. The Court of Appeals reversed, finding that Foster Parents lacked standing to adopt and that Father’s parental rights should not have been terminated. The Supreme Court granted certiorari to review the Court of Appeals opinion.

The Supreme Court found two statutory grounds to terminate Father’s parental rights: abandonment and failure to visit. The Supreme Court found that many of the factors listed by the Court of Appeals in reversing the TPR took place in a one-month period approximately a year after the child’s birth and that many of these factors were “not actually separate and distinct actions.” It further noted in justifying the finding of abandonment by Father that:

We are not inclined to give him credit for voluntarily surrendering his status as a fugitive from justice, as it was incumbent upon him to do so. Even if Father were entitled to some dispensation from this Court for surrendering to Maryland authorities, he did nothing to prepare for and provide the proper care of Mother and Child during his period of incarceration. When Mother was asked where she lived after Father went to prison, Mother replied, “I was just bouncing from here to there, wherever I could.” Mother had a history of drug abuse and instability; nevertheless, Father left pregnant Mother without money or evidence of a plan for her or Child’s well-being.

Citation omitted.

In finding the statutory ground of abandonment, the Supreme Court also noted Father’s failure to provide support for Mother at the time he surrendered to authorities and his failure to use any of the $1,894.98 deposited into his commissary account to support the child. It further noted that his consent to relinquish his parental rights to Grandmother and her husband was evidence of abandonment as “this maneuver clearly and convincingly establishes Father’s settled purpose to forgo his parental duties.”

In determining that it was in the minor child’s best interests to terminate Father’s parental rights, the Supreme Court held:

Viewed from Child’s perspective, we find TPR is in Child’s best interest. Child was placed in foster care shortly after her birth, and at the time the family court issued the order challenged by Father, she had lived with Foster Parents for over two years. She has now lived with Foster Parents for over four years. Father has never met Child, and no bond has formed between them. Father has willfully failed to play a meaningful role in Child’s life, despite his ability to write and place phone calls while in prison. It is important to delineate Grandmother’s efforts from Father’s lack of effort. It was Grandmother who stepped up and provided for Mother during the pregnancy when Mother reached out to her for help—not Father. It was Grandmother who maintained contact with Child and continued to provide support for Child—not Father. Clearly, Grandmother has shown an interest in Child’s well-being; unfortunately, we cannot say the same for Father.

Child has lived with Foster Parents for her entire life, and Grandmother visits with Child regularly. Both Foster Parents and Grandmother want to adopt Child and would provide her with permanency and stability as compared to Father.

Citations omitted.

Since the Supreme Court approved the termination of Father’s parental rights, it finally had to determine who should be allowed to adopt the child: Foster Parents or Grandmother. DSS had no issue with either placement. The Supreme Court addressed the issue of Foster Parents’ standing to seek adoption as the Court of Appeals held that they lacked standing. Based upon the recent decision in South Carolina Department of Social Services v. Boulware, 422 S.C. 1, 809 S.E.2d 223 (2018), which held that, absent circumstances not present in this case, any interested South Carolina resident may petition to adopt a child available for adoption, the Supreme Court concluded the Foster Parents had standing.

In addressing who should be allowed to adopt the child, the Supreme Court noted “the biological relationship between Grandmother and Child is relevant to this Court’s consideration; however, this factor is not determinative.” It noted “concerns regarding her ability to serve as Child’s adoptive parent. Our concerns focus on Grandmother’s prior parenting history, financial situation, and unhealthy relationship with Father.” In allowing the Foster Parents to adopt the Court held:

Importantly, Child has lived with Foster Parents since being removed from Mother’s home on June 6, 2013. Foster Parents are the only parent figures Child has known, and Dr. Fortner-Wood, an expert in child development and attachment, testified Child was “securely attached” to Foster Parents and believed Child’s removal from Foster Parents’ home would be traumatic for her and would have permanent implications. Because Child is strongly bonded with Foster Parents, it is not in her best interest to be removed from their home. Although Grandmother has consistently visited Child, we agree with Dr. Fortner-Wood’s assessment that Child has not spent a sufficient amount of time with Grandmother to develop an “attachment relationship.”

There are numerous factual and legal issues addressed in the Smith opinion and this appeal is so fact specific that, with one exception, it is hard to glean any general guidance from it. What the Smith case makes clear is that the efforts of family members to support and bond with a child cannot be imputed to the biological parent when that parent fights a TPR action.

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