Supreme Court reverses denial of grandfather adoption: finds adoption more stable than custody

Posted Wednesday, January 5th, 2022 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 5, 2022, Supreme Court opinion in Swain v. Bollinger, 435 S.C. 280, 866 S.E.2d 923 (2022), reversed a family court and Court of Appeals’ denial of a termination of father’s parental rights and granted maternal grandfather his request for adoption.

In Swain, Grandfather, after learning his daughter and the child’s father were using drugs, obtained placement of the child through DSS a few months after the child’s birth in 2011. Mother eventually completed rehab and moved in with her parents. Father continued to use drugs and also engaged in criminal conduct that led to his incarceration. He stopped paying child support in 2014. He had seen the child only four times and never unsupervised.

In 2018, Grandfather filed to terminate Father’s parental rights and to adopt the child. At trial the following year, the family court had concerns with Mother and Grandfather being listed as parents on the child’s birth certificate, despite neither Mother, Grandfather, nor the guardian ad litem having an issue with it. The family court found that Grandfather had proven grounds to terminate parental rights but failed to establish that termination would be in the child’s best interests. The court based its conclusion on the fact that the birth certificate would include Child’s grandfather and mother as parents and a denial of TPR and adoption would not affect Child’s stability since grandparents had legal custody.

The Court of Appeals, in an unpublished opinion, affirmed. It acknowledging Father’s conduct could be grounds for TPR if this were a DSS adoption, but because the grandparents already had legal custody of Child, TPR would not promote stability. The Supreme Court granted certiorari.

In reversing, the Supreme Court noted the family court granted undue weight to the birth certificate issue, especially as “neither Mother, Grandfather, nor the guardian ad litem expressed any reservations about listing Grandfather as Child’s father. Further, the modern day family structure reflects itself in many forms—a historical change from the nuclear family that society traditionally viewed as the norm.”

The Supreme Court also “reject[ed] the notion that because Grandfather already has custody, TPR and adoption would not promote stability for the child. Custody and adoption are clearly two distinct statuses, with the latter providing a level of permanency that a custody determination cannot. Without the adoption, Father would be free to attempt to inject himself into the child’s life at any time, either by demanding visitation or by bringing an action for custody. When everyone—including Father—agrees that Child does not even know who he is, it is difficult to fathom how this could possibly be in Child’s best interest.”

The Supreme Court further noted that adoption would enable the child to qualify for Grandfather’s social security benefits and that adoption would foster stability by leaving the child in the only living situation she had known. Finally, the Supreme Court rejected the Court of Appeals’ suggestion that a different standard for TPR should apply when a child is in DSS custody.

Swain establishes an important point, I often raise to non-parents who have custody of a child: TPR and adoption promote stability in a manner that mere custody cannot. In fact, mere minutes before Swain issued, I was emailing a client a suggestion she pursue TPR/adoption. Swain strengthens that advice.

Swain also establishes that the family courts can approve a grandparent adoption without having to terminate the parental rights of that grandparent’s own child. I have another open case in which a grandparent having to terminate her own son’s parental rights was an impediment to moving forward. Whether the parent and adopting grandparent have to be of opposite genders is something Swain does not address but I expect a future case might.

One thought on Supreme Court reverses denial of grandfather adoption: finds adoption more stable than custody

  1. Beverly Claessens says:

    If great grandparents have the child for seven years without either parent contributing financially and father consenting to TPR, what chances does the mother have to request joint custody between great grandparents and herself? Child has always had supervised visitation at her grandparents home with mother and has never visited mothers home in NC. Child resides in SC

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