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.

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.

On March 7, 2016, in the case of V. L. v. E. L., ET AL., the United States Supreme Court, in an unsigned Per Curiam opinion, ordered the Alabama Supreme Court to give full faith and credit to a Georgia adoption decree that allowed a lesbian mother to adopt her then-partner’s three biological children. The couple and their children subsequently moved to Alabama and later separated. Adopting mother (V.L.) petitioned the Alabama courts to enforce the adoption order and to grant her visitation. The Alabama lower court granted her visitation and biological mother (E.L.) appealed.

On appeal E.L. argued that the Georgia court lacked subject matter jurisdiction to allow the adoptions. After the Alabama Court of Civil Appeals ordered a remand for an evidentiary hearing on V.L.’s visitation request, the Alabama Supreme Court took certiorari and reversed the lower court. It held that the Georgia court had no subject-matter jurisdiction under Georgia law to enter a judgment allowing V. L. to adopt the children while still recognizing E. L.’s parental rights. As a consequence, the Alabama Supreme Court held Alabama courts were not required to accord full faith and credit to the Georgia judgment. V.L. sought certiorari with the United States Supreme Court.

The Supreme Court granted certiorari, dispensed with further briefing, reversed the Alabama Supreme Court and remanded the matter for further proceedings (likely the evidentiary hearing the Alabama Court of Civil Appeals decision required). In reversing the Alabama Supreme Court the Supreme Court held:

Under Georgia law, as relevant here, “[t]he superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption.” Ga. Code Ann. §19–8–2(a) (2015). That provision on its face gave the Georgia Superior Court subject matter jurisdiction to hear and decide the adoption petition at issue here. The Superior Court resolved that matter by entering a final judgment that made V. L. the legal adoptive parent of the children. Whatever the merits of that judgment, it was within the statutory grant of jurisdiction over “all matters of adoption.” Ibid. The Georgia court thus had the “adjudicatory authority over the subject matter” required to entitle its judgment to full faith and credit.

In reaching the conclusion that Georgia lacked subject matter jurisdiction to issue the adoption decree, the Alabama Supreme Court relied on Ga. Code Ann. §19–8–5(a). Per the Supreme Court opinion:

That statute states (as relevant here) that “a child who has any living parent or guardian may be adopted by a third party . . . only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.” The Alabama Supreme Court concluded that this provision prohibited the Georgia Superior Court from allowing V. L. to adopt the children while also allowing E. L. to keep her existing parental rights. It further concluded that this provision went not to the merits but to the Georgia court’s subject-matter jurisdiction. In reaching that crucial second conclusion, the Alabama Supreme Court seems to have relied solely on the fact that the right to adoption under Georgia law is purely statutory, and “‘[t]he requirements of Georgia’s adoptions statutes are mandatory and must be strictly construed in favor of the natural parents.’” (quoting In re Marks, 300 Ga. App. 239, 243, 684 S. E. 2d 364, 367 (2009)).

In rejecting the Alabama Supreme Court’s analysis the United States Supreme Court held:

Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction is to be presumed unless disproved. There is nothing here to rebut that presumption. The Georgia statute on which the Alabama Supreme Court relied, Ga. Code Ann. §19–8–5(a), does not speak in jurisdictional terms; for instance, it does not say that a Georgia court “shall have jurisdiction to enter an adoption decree” only if each existing parent or guardian has surrendered his or her parental rights. Neither the Georgia Supreme Court nor any Georgia appellate court, moreover, has construed §19–8–5(a) as jurisdictional. That construction would also be difficult to reconcile with Georgia law. Georgia recognizes that in general, subject-matter jurisdiction addresses whether a court has jurisdiction to decide a particular class of cases, not whether a court should grant relief in any given case. Unlike §19–8–2(a), which expressly gives Georgia superior courts “exclusive jurisdiction in all matters of adoption,” §19–8–5(a) does not speak to whether a court has the power to decide a general class of cases. It only provides a rule of decision to apply in determining if a particular adoption should be allowed.

Section 19–8–5(a) does not become jurisdictional just because it is mandatory and must be strictly construed. This Court has long rejected the notion that all mandatory prescriptions, however emphatic, are properly typed jurisdictional. Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia adoption statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.

As Justice Holmes observed more than a century ago, it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits. In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.

Citations omitted.

From the New York Times article that alerted me to this opinion, one gets the sense that the Alabama Supreme Court simply disapproved of a lesbian being allowed to adopt her partner’s child and was looking for a basis to upend the adoption. Now that gay marriage is authorized nationwide, we should be seeing many fewer non-spouse gay or lesbian partner adoptions. However the United States Supreme Court opinion is likely to prevent full faith and credit challenges to other state’s gay or lesbian couple adoptions.

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.

The August 4, 2014 Court of Appeal opinion in Brown v. Baby Girl Harper, 409 S.C. 470, 761 S.E.2d 779 (Ct. App. 2014), affirmed a family court’s decision not to terminate a birth mother’s parental rights because the executed consents to the adoption were not properly witnessed. The attorney-witness was not in the room when the birth mother signed the consent document, and neither witness observed any discussion with the birth mother regarding the consent before she signed it. S.C. Code § 63-9-340 sets forth requirements for adoption consents.

(A) The sworn document . . . must be signed in the presence of two witnesses one of whom must be one of the following:

(1) a judge of any family court in this State; (2) an attorney licensed to practice law in South Carolina who does not represent the prospective adoption petitioners; (3) a person certified by the State Department of Social Services . . . to obtain consents or relinquishments; . . . .

(B) The persons who witness the signing of the sworn document . . . shall attach to the document written certification signed by each witness that before the signing of the document, the provisions of the document were discussed with the person giving consent or relinquishment, and that based on this discussion, it is each witness’ opinion that consent or relinquishment is being given voluntarily and that it is not being obtained under duress or through coercion.

Because neither witness observed any discussions with the birth mother regarding the adoption consents and the attorney-witness was apparently not even present when the birth mother signed it, the Court of Appeals affirmed the family court’s determination that the Respondent could not proceed with the requested adoption. While generally a small failure to strictly comply with statutory requirements should not defeat a just result, this case result does not appear unjust.

The purpose of the statutory requirements of 63-9-340 are to insure that biological parents understand the ramifications of what they are doing when they relinquish their parental rights. Given the gravity of this relinquishment, it is vital that birth parents understand what they are agreeing to. Here it’s not apparent that anyone actually explained to the birth mother what she was doing in consenting to relinquish her parental rights. Given that circumstance, it was not unjust to determine she had not validly relinquished these rights.

Based on this opinion, I have added the following language to my form adoption certifications: “Before the signing of the document, the provisions of the document were discussed with the person giving consent or relinquishment.”

Many family law attorneys I know have mixed feelings about the outcome of Adoptive Couple v. Baby Girl.  State and federal laws make it more difficult than necessary for fathers of children born out of wedlock to assert their parental rights: the balance between the right to claim paternity and the imposition of child support is seriously tilted against such fathers.  On the other hand, the Father in this case initially demonstrated [as the Supreme Court accurately describes] “irrefutable lack of support, interest and involvement in the life of Baby Girl.”  On the third hand, Father and his family have raised his daughter for the past 20 months–reportedly doing it well.  So when the South Carolina Supreme Court denied his request last week for a de novo review on custody and ordered the immediate remand for adoption by Adoptive Couple, one could sense his desperation.

Evidently he has spent the past week petitioning the Supreme Court for rehearing, petitioning the Supreme Court for supersedeas, and filing a request for a de novo review in the Charleston County Family Court [an option I read the Supreme Court’s July 17th order as clearly foreclosing]. The Cherokee Nation filed its own petition for rehearing and joined Father’s petition for supersedeas.  On July 24, 2013, the Supreme Court denied Father’s petitions, in Adoptive Couple v. Baby Girl, 404 S.C. 490, 746 S.E.2d 346 (2013) holding:

Birth Father is precluded from challenging the adoption.  Moreover, in light of the urgent need for this matter to be concluded, we determine, upon review of the record, that the adoption of Baby Girl by the Adoptive Couple is in the best interests of Baby Girl…

We reiterate that, aside from the narrow issue of whether a transition plan is in Baby Girl’s best interest, the orders of this Court following remand from the USSC [United States Supreme Court] leave nothing further to be decided by the family court.  Accordingly, the family court shall forthwith approve the adoption and award legal custody to the Adoptive Couple.  The matter of transfer of physical custody shall be accomplished in accordance with Baby Girl’s best interest, as determined by the family court.

It is our fervent hope that the parties will work together in good faith and place the best interest and welfare of Baby Girl above their own desires.  This emotionally charged case was fully litigated in the South Carolina courts and the United States Supreme Court.  This case has reached finality, in this unchallenged forum and jurisdiction.  That finality should be honored.

Adoptive Couple v. Baby Girl, 404 S.C. 490, 746 S.E.2d 346 (2013). Father’s long-shot request for rehearing was understandable given two judges dissented from the July 17th order and that this was his best hope of keeping custody.  However collaterally attacking the South Carolina Supreme Court’s order by filing adoption petitions in other states, filing petitions for supersedeas, and filing requests for de novo review in the family court appear more desperate than strategic.

Counseling a client to give up–especially when the loss is as significant as it is here–is one of the hardest things a family court attorney has to do.  Often it is easier to develop unworkable legal arguments and give the client a glimmer of hope that the new strategy will work when past (and better) strategies failed.  Father’s desperation is understandable but at some point litigation has to end.  However, given what I glean from the new Supreme Court order, I doubt Father is done seeking to prevent the adoption and keep custody.

In a 3-2 decision today [July 17, 2013] in the case of Adoptive Couple v. Baby Girl, 404 S.C. 483, 746 S.E.2d 51 (2013), the South Carolina Supreme Court resolved the remand from the United States Supreme Court by:

[R]emand[ing] this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl, and thereby terminating Birth Father’s parental rights, in accordance with section 63-9-750 of the South Carolina Code.  Upon the entry of the Family Court’s order, custody of Baby Girl shall be transferred to Adoptive Couple.

This ruling would appear to resolve, with finality, the custody and parentage of 46-month old Veronica.  It will be the second time in 20 months that she has been moved halfway across the country and from caregivers she had been with for the previous 20 months.

At issue on remand was whether the SouthCarolina Supreme Court should order the immediate adoption [as Adoptive Couple requested] or whether the matter should be remanded for a de novo hearing in the family court on the child’s current best interests [as Birth Father requested] taking into account that the child has lived with Birth Father since New Year’s Eve 2011.

The majority based its opinion on the fact that the United States Supreme Court ruling had removed the Indian Child Welfare Act (ICWA) as a basis for preventing the adoption and that the previous South Carolina Supreme Court opinion had “held that, under state law, Birth Father’s consent to the adoption was not required under section 63-9-310(A)(5) of the South Carolina Code.”  Since Birth Father’s consent to the adoption was not required, the South Carolina Supreme Court held there was no basis to delay the adoption.

In rejecting Birth Father’s request for a de novo hearing on custody, the South Carolina Supreme Court found:

We think the [United States] Supreme Court plainly contemplated an expeditious resolution of this case, and we believe the facts of this case require it.  There is absolutely no need to compound any suffering that Baby Girl may experience through continued litigation.  As it stands, Adoptive Couple is the only party who has a petition pending for the adoption of Baby Girl, and thus, theirs is the only application that should be considered at this stage.

In an attempt for forestall further delays from Birth Father, his family or the Cherokee Nation, the South Carolina Supreme Court included the following language in the remand:

 If additional motions are pending or are filed prior to the entry of the order finalizing the adoption, the family court shall promptly dispose of all such motions and matters so as not to delay the entry of the adoption and the return of Baby Girl to the Adoptive Couple.

The two dissenters would have remanded the matter to the family court for a new de novo review:

[T]he majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest.

Much time has passed, and circumstances have changed.  I have no doubt that all interested parties wish to have this matter settled as quickly as possible, keeping in mind that what is ultimately at stake is the welfare of a little girl, and  that of all who love her.  I would remand but I would not order any specific relief at this juncture, as I believe this is a situation where the decisions that are in the best interests of this child, given all that has happened in her short life, must be sorted out in the lower court(s).

My general impression is that South Carolina is too quick to extinguish the parental rights of men who father children out of wedlock.  Such fathers can be subject to an order of paternity, even after such children reach the age of majority, and ordered to pay child support. See Smith v. Doe, 366 S.C. 469, 623 S.E.2d 370, 371 (2005). However these same fathers can find their parental rights extinguished due to failure to sufficiently support the mother during the gestational period. See Roe v. Reeves, 392 S.C. 143, 708 S.E.2d 778 (2011); Doe v. Roe, 386 S.C. 624, 690 S.E.2d 573 (2010).

Justice Scalia’s dissent in the United States Supreme Court expresses the viewpoint of many of the birth fathers I encounter:

It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

While Birth Father’s initial behavior in this case exhibited an extreme disinterest in raising his daughter, he has had custody of her for the past 20 months.  There’s no doubt that if Birth Mother had custody of the child she or DSS could pursue child support from him.  It seems unfair to impose the burdens of parentage on such fathers while being so quick to deny them the benefits.  If this case wasn’t a tragedy when it started, it is now.

The March 8, 2013 Supreme Court opinion in Youngblood v. DSS, 402 S.C. 311, 741 S.E.2d 515 (2013), holds that once the South Carolina Department of Social Services is given the legal authority to place a child for adoption, there is no right to judicial review for parties unhappy with DSS’s decision.

In Youngblood, the Youngbloods were foster parents of one of five siblings in DSS’s custody.  They expressed an interest in adopting the child (Child) placed with them and DSS did a home study approving them for adoption of a child, but not that specific child.

Eventually the parental rights of all five siblings’ parents were terminated and DSS was given the right to place the children for adoption.  DSS give notice to the Youngbloods that they were going to be placing Child elsewhere and informed the Youngbloods of their right to an administrative appeal.  Eventually DSS placed Child and her siblings with the Does, with the intent that the Does adopt all five.

The Youngbloods then filed their administrative appeal with DSS, which was denied.  Both the Does and the Youngbloods filed adoption actions, with the Youngbloods seeking to adopt Child and the Does seeking to adopt all five children.  DSS and the Does sought to dismiss the Youngbloods’ action due to lack of standing.  The family court denied this request and then, considering Child’s best interests, granted the Youngbloods’ petition to adopt Child, subject to sibling visitation.  The Does and DSS appealed.  The Court of Appeals, in an unpublished opinion, found the Youngbloods had standing and affirmed the adoption.  The Supreme Court granted certiorari.

The Supreme Court found that the Youngbloods lacked standing to seek adoption.  The Supreme Court determined that the right to administrative appeal of a DSS placement decision did not give rise to judicial review despite the language of S.C. Code § 63-9-310(D) that:

If the consent of a child placing agency required by this subsection is not provided to any person eligible under Section 63-9-60, the agency has an affirmative duty to inform the person who is denied consent of all of his rights for judicial review of the denial.

The Supreme Court reasoned:

While [this subsection] does direct DSS to inform a person denied consent of “all of his rights to judicial review,” a statutory directive to inform persons of their rights does not in itself create rights. Although it is curious that the General Assembly would direct DSS to inform persons of their rights to judicial review if no such rights exist, where the plain language of a statute is unambiguous we are charged with implementing it.  Here, the statute unambiguously does nothing more than direct DSS to inform persons of any rights they may have.

Citation omitted.

Evidently, the Supreme Court’s conclusion is that the statutory scheme requires DSS to inform parties of a right to judicial review despite that right not actually existing.

The Supreme Court additionally found that the foster-parent child relationship did not create a legally protected right sufficient to confer constitutional standing:

[T]he Youngbloods were not just any persons–they were Child’s foster parents. While the foster care relationship undoubtedly often results in emotional attachments between the foster parent and foster child, the relationship is only a temporary, contractual relationship created by the State. Accordingly, the foster parent relationship, absent statutory law to the contrary, is insufficient to create a legally protected interest in a child and therefore, does not create standing to petition to adopt.

Citations omitted.

Finally the Supreme Court determined that the statutory scheme for placement of children for adoption did not confer standing on the Youngbloods.  They looked to S.C. Code § 63-9-60, which provides:

(A)(1) Any South Carolina resident may petition the court to adopt a child. . . . .

(B) This section does not apply to a child placed by the State Department of Social Services or any agency under contract with the department for purposes of placing that child for adoption.

The Supreme Court found that subsection (A)(1), which the family court had used to justify the Youngbloods’ standing, was inapplicable to situations in which DSS has the right to place the child for adoption.  Further DSS’s right to place the child for adoption made subsection (B) applicable, and that subsection specifically deprived the Youngbloods of standing.

The Supreme Court’s conclusion: once DSS has the legal right to place a child for adoption there is no judicial review of DSS’s determination.  While this result may appear harsh, the Supreme Court explained its rationale:

In order to ensure that our State resolves the permanent placement of children in its custody promptly, the General Assembly has entrusted DSS with discretion in making the initial decision as to the adoption of such children, and the rights of others to petition to adopt have been limited. If any person could petition to adopt a child in DSS’s custody despite DSS having placed the child with another, the placement of such children would become protracted contests, like the instant case, in which the vital interests of stability, permanency, and attachment would be irretrievably lost to the passage of time.

However because Child had been with the Youngbloods for years, the Supreme Court did not order adoption by the Does.  Rather it remanded and “recognizing that children develop rapidly, and that stability and attachment are important components in their growth and development, we direct DSS to consider Child’s present best interests in placing her for adoption.”

Whatever DSS’s ultimate decision on Child’s placement, Youngblood makes clear it will not be subject to judicial review.

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

Recent Blog Posts

The Folly of Fighting Child Protective Services after a Merits Finding

Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I

[ + ] Read More

Court of Appeals determines homosexual couples could not enter common law marriage prior to the Condon case

A July 1, 2020, Court of Appeals opinion in Swicegood v. Thomson determined that South Carolina code prohibited homosexual couples from forming the

[ + ] Read More

College related child care is not work-related child care for the purpose of setting child support

There are a number of South Carolina family court opinions that are of narrow relevance but of significant importance when relevant. Such cases

[ + ] Read More