ICWA Doesn't Help Absentee Parent

In Adoptive Couple v. Baby Girl, the United States Supreme Court, in essence, says that an absentee Indian cannot rely on ICWA to challenge an adoption. The Court said that the heightened standard outlined in ICWA does not apply to a parent that has not either had physical or legal custody of the child. The essence of the ICWA is to preserve the bonds within the Indian community, and in this case the child was never in the custody of the Indian father. 

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Malnutrition and International Adoption

"Don't let a child's outward appearance fool you. All internatioally adopted children--even 'chubby,' 'stocky,' and 'solid-looking' ones--are at risk for malnutrition! 'Don't let a child's outward appearance fool you. Continue reading here.

Press Release: ICWA

PRESS RELEASE
Indian Child Welfare Act Panel to be Held at University of South Carolina School of Law
FOR IMMEDIATE RELEASE
April 11, 2013
MEDIA CONTACTS:
Victoria Middleton
Executive Director,
ACLU of SC
843-720-1424
aclu_sc@aclusouthcarolina.org
 

Dr. Marcia Zug
Professor, University of
South Carolina School of
Law
803-777-3615
zug@law.sc.edu
 

Chief Bill Harris
Catawba Indian Nation
(803) 366-4792
bill.harris@catawbaindian.net
 

Nicole Adams
National Indian Child
Welfare Association
O (503) 222-4044 ext. 133
C (503)754-0466
nicole@nicwa.org
 

Columbia, SC—The South Carolina Commission for Minority Affairs is hosting a town-hall style
educational panel discussion on the Indian Child Welfare Act (ICWA) at the University of South Carolina-School of Law’s Auditorium on Tuesday, April 16, 2013 from 10:00am until 12:30pm. Media are invited to attend starting at 10:00am. The event is free and open to the public.
Panelists will give testimonies regarding their personal experiences with the Act, explaining the need for the Act and its significance to Native American Indian people. Panelists include: Dr. Marcia Zug-USC Law School, Chief Bill Harris-Catawba Indian Nation, Ms. Susan Dunn-ACLU-SC, Ms. Linda Love-Catawba Indian Nation, Ms. Jacqueline Davis-Cheyenne River Sioux Tribe and others.
ICWA was enacted in 1978 by Congress in direct response to state adoption policies that were draining Indian tribes of their future citizens. The Act gives states guidance regarding adoption and custody issues of Federally Recognized Native American Indians allowing for Tribal and family intervention to keep children within their culture and communities when possible.
 

The Supreme Court will hear the case Adoptive Couple v. Baby Girl on April 16, 2013 which involves a South Carolina couple seeking review of a South Carolina Supreme Court ruling in an attempt to force Dusten Brown, a member of the Cherokee Nation, to give his daughter Veronica up for adoption. Mr. Brown, who is now raising Veronica at their home in Oklahoma, has prevailed in every court that has considered this matter, including the South Carolina Family Court and the South Carolina Supreme Court.
 

The South Carolina Commission for Minority Affairs-Native American Affairs Initiative serves as the State’s official Native American Affairs agency working with Native American Indians to address issues of poverty and socio-economic deprivation through collaboration with government and private partners.

For more information about the event, please contact:
Marcy L. Hayden, Native American Affairs Coordinator, SC Commission for Minority Affairs
(803) 832-8169 or (803) 402-2336
mhayden@cfma.sc.gov 

ICWA and South Carolina: Case Heads to U.S. Supreme Court

Adoptive Couple vs. Baby Girl will be heard by the U.S. Supreme Court on 16 April 2013.

The details of this case can be viewed at the U.S. Supreme Court website. The South Carolina Supreme Court opinion can be viewed here.

ICPC Office Homepage for Each State

http://icpcstatepages.org/

Consent and Relinquishment and TPR without Adoption

Terminating a parent's rights or taking his consent and relinquishment without a pending adoption primarily occurs  in DSS cases. The Court approving a Consent and Relinquishment or terminating a parent's rights without a pending adoption is rare in private actions. The person would have had to have done something  egregious to warrant a Court terminating his rights without a pending adoption.

Please note that a reading of the termination statutes seems to indicate that a person's rights could be terminated under statutory prescribed conditions regardless of whether an adoption is pending or not. We must remember that the Court has a great deal of discretion in applying those statutes; and at least in Horry County, the Court will generally not terminate a parent's rights without someone ready to adopt.

The Termination of Parental Rights statutes are Section 63-7-2510 throught 63-7-2620 of the South Carolina Code of Laws, as amended.

2012 Adoption Tax Credit

Adoption Tax Credit for 2012.

Russia Bans U.S. Adoptions

Russia Ban Hits Home.

NOVEMBER-NATIONAL ADOPTION MONTH

http://www.childwelfare.gov/adoption/nam/ is a great resource for parents seeking to adopt and children desiring to be adopted.

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ICWA and Adoption Law Part 3: Recent Case Law

Adoptive Couple v. Baby Girl, a minor under the age of fourteen years, Birth Father, and the Cherokee Nation is a great view of how the South Carolina Supreme Court interprets ICWA and how ICWA meshes with South Carolina adoption law. Enjoy!

ICWA and Adoption Law Part 2 (Involuntary Termination)

In addition to following South Carolina Termination of Parental Right Statutes under Section 63-7-2570 of the South Carolina Code of Laws, as amended, or the Notification Statute under Section 63-9-730 of the South Carolina Code of Laws, as amended to terminate an Indian parent's rights, the petitioners must follow the requirements of the ICWA.

Specifically, the petitioners must "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. Section 1912(d).

And,

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 U.S.C Section 1912(f).

I have never helped a family adopt an Indian child. Without good cause shown, I probably never will. Cumbersome and uncertain is all I can say.

ICWA (Indian Child Welfare Act) and Adoption Part 1

If an Indian Child, any unmarried person who is under age eighteen and is either a member of any Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe, is the subject of an adoption then the ICWA applies to the adoption.

If a parent is consenting to the adoption of an Indian Child, he must follow the requirements of both South Carolina law and the ICWA.

Sections 63-9-330 and -340 of the South Carolina Code of Laws, as amended, outlines the form of a consent and relinquishment and manner under which a consent and relinquishment must be executed. Specifically, two witnesses must witness the execution of the consent and relinquishment.

ICWA gives some added requirements for a consent and relinquishment to be valid.  In addition to needing the two witnesses, the consent document is not valid unless it is in writing and recorded in open court before a judge. The judge must certify that the terms and consequences of the consent are fully explained in detail and were fully understood by the parent. Additionally, the consent and relinquishment must not be given until ten days after the birth of the child (South Carolina law has no time restriction). Finally, the consent can be revoked up until the final decree of adoption or termination of parental rights (South Carolina law has no such provision, and the consent can only be withdrawn up until the final decree if the consent was given under duress and if it is in the child's best interest).

May a Minor Adopt?

In South Carolina, "[a]ny South Carolina resident may petition the court to adopt a child." The minor, it seems, can at least petition the court to adopt a child.

In all adoption cases the child being adopted is appointed a guardian ad litem to protect his interest. The guardian will report to the judge whether he thinks it is in the child's best interest for the child to be adopted. In all adoptions when the child is not related to the adoptive parent by blood or marriage, a pre- and post-placement home study is also required. The individual performing the home study will voice her opinion about whether the adoption is in the best interest of the child in her report. The report will be submitted to the court and the guardian for review.

Yes a minor may adopt a child if the minor can show the court that the best interest of the child is being met by the adoption. Keep in mind that if the judge, the guardian ad litem, or the individual performing the home study determines the adoption is not in the best interest of the child the adoption will not occur.

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Interstate Termination of Parental Rights and PKPA and UCCJEA

Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) may apply to your termination of parental rights cause of action if an order for visitation and/or custody was entered in another state.

You are only required to file a termination of parental rights cause of action if anyone who is required to consent to the adoption and relinquish her rights pursuant to Section 63-9-310 of the South Carolina Code of Laws, as amended, has not done so; this is deemed to be a contested case.

Basic rule is if an order for custody or visitation from another state has been entered and is determined to have been entered by a state that had jurisdiction to issue the initial child custody decree and it maintains exclusive, continuing jurisdiction then both PKPA and UCCJEA apply to the termination of parental rights cause of action.

If the adoption is uncontested and all required parties have signed consents and relinquishments, we have no need for a termination of parental rights cause of action and neither PKPA nor UCCJEA apply.

If either PKPA or UCCJEA or both apply, the termination of parental rights cause of action may need to be made in the state that has entered a child custody/visitation order and maintains continuing,  exclusive jurisdiction.

Short Anaylsis: No order from other state or uncontested action with order from other state; no PKPA or UCCJEA. Order from other state and contested action; PKPA and UCCJEA apply.

I have linked to a recent case from the South Carolina Court of Appeals for an analysis of PKPA and UCCJEA in  termination of parental rights cases here.

Adoption Checklist Required in Spartanburg and Cherokee Counties

Below is a checklist required for Spartanburg and Cherokee Counties. I use this checklist with all my adoption files. The checklist is simple to use and covers most requirements of the court.  Another helpful checklist I found can be viewed here; this checklist has outdated code section in it. One suggestion before attempting an adoption in a county you are not familiar with is to contact the administrative judge's office for local rules and contact an attorney that practices in the county you are seeking to file an adoption action in.

ADOPTION CHECKLIST

                                                                                     

Plaintiffs vs. Defendants

 

20____-DR-____-_____

                                                                 ADOPTION CHECKLIST

This Adoption is:

            Step-parent adoption or adoption related by blood or marriage

            Non-relative adoption

 

The following documents have been filed with the Clerk of Court:

            Summons

            Complaint

            Order appointing GAL

            Proper service of Order appointing GAL on the GAL

            Answer of GAL

Proof of service of Summons and Complaint on:

           Biological parents (if no consent/relinquishment or TPR)

             Child to be adopted (if 14 years or older)

           GAL or child (if 13 years or younger)

            Proof of Service by Publication (if served by Publication)

            Notice to named biological father

____    Responsible Father Registry Search Results

            Mother's Consent Relinquishment (if given)

            Father's Consent Relinquishment (if given)

            Consent of Child if age 14 or older

            Pre-placement Investigation signed within one year of date of placement (not required if step-parent adoption or related by blood or marriage)

            Post-Placement Investigation (not required if step-parent adoption or related by blood or marriage)

            Medical & Social History (not required if step-parent adoption or related by blood or marriage)

            Itemized Accounting (not required if step-parent adoption or related by blood or marriage)

            Adoption Placement Certificate (if DSS placement)

            Answer of DSS (if DSS placement)

           Service of Summons and Complaint on DSS (if DSS placement)

            Notice of Hearing to DSS (if DSS placement)

            Interstate Compact Approval (if child is placed out of state or placed in S.C. from another state)

            Order of Exceptional Circumstances (if child is placed in another State from S.C.)

 

Date:________________   

 

________________________________________

Attorney for Plaintiffs

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Family Adoption Assistance

If you are related to the child you are adopting, you may be able to receive financial assistance through DSS.

A child may receive an adoption subsidy if the child has special needs, is legally free for adoption and the adoptive family cannot adopt the child without the financial assistance. The child must meet one or more of the following criteria:

  • a white child 10 years old or older.
  • a black or mixed race child 6 years old or older.
  • a child having or at risk of having a physical, mental or emotional handicap.
  • a member of a white sibling group of three being placed together, one of whom is at least 6 years old, or a member of a sibling group of four or more white children of any age.
  • a member of a black or mixed-race sibling group of two being placed together, one of whom is at least 6 years old, or a member of a black or mixed race sibling group of three or more children of any age.
  • a member of a sibling group of two or more being placed together, one of whom is a special needs child.

This Assistance includes $1,500.00 for nonrecurring cost of adoption such as attorney's fees. This is more fully discuss in the FAQ link.

Below are the area adoption offices for South Carolina. Contact the office that covers your county for further information and/or vist this DSS link for informaiton.

Area Adoption Offices

Area A

714 North Pleasantburg Drive
Suite 300
Greenville, S.C. 29607
(864) 241-1070 / 1-800-868-6595
Anderson, Cherokee, Greenville, Oconee, Pickens and Spartanburg counties

454 South Anderson Road
Rock Hill, S.C. 29730
(803) 329-9626 / 1-800-922-1537
Chester, Fairfield, Lancaster, Union and York counties


Area B

Children's Center of South Carolina
2638 Two Notch Road, Suite 220
Columbia, S.C. 29204
(803) 929-2555 / 1-888-711-7095
Abbeville, Edgefield, Greenwood, Kershaw, Laurens, Lee, Lexington, McCormick, Newberry, Richland, Saluda and Sumter counties

Aiken DSS Office
P.O. Drawer 1268
Aiken, S.C. 29802-1268
(803) 502-1826 / 1-888-866-8852
Aiken and Barnwell counties


Area C

3346 Rivers Avenue
Suite F
North Charleston, S.C. 29405
(843) 953-9750 / 1-800-922-1518
Allendale, Beaufort, Berkeley, Charleston, Colleton, Hampton and Jasper counties

Orangeburg DSS Office
P.O. Box 1087
Orangeburg, S.C. 29116-1087
(803) 515-1846
Bamberg, Dorchester, Calhoun and Orangeburg counties


Area D

181 East Evans Street, Suite 112
Florence, S.C. 29501
(843) 661-2495 / 1-800-763-6637
Chesterfield, Clarendon, Darlington, Dillon, Florence, Georgetown, Horry, Marion, Marlboro and Williamsburg counties

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Husband: Presumptive Legal Father

“In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage.”  Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548 (S.C. 2010).

“No judgment of divorce from the bonds of matrimony shall render illegitimate the child begotten of the marriage.” Section 20-3-200 of the South Carolina Code of Laws, as amended.

No matter who is the biological father the husband is the presumed father if the mother is married at conception and birth or birth. The best practice when helping petitioners adopt a child of a married couple is to have the husband sign a consent and relinquishment or name him in the adoption petition and seek to terminate his rights under the termination of parental rights (TPR) statutes.

One of the TPR statutes covers this specific situation if the presumed father(husband) is not the biological father(sperm donor); " The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:...The presumptive legal father is not the biological father of the child, and the welfare of the child can best be served by termination of the parental rights of the presumptive legal father.” Section 63-7-2570(5) of the South Carolina Code of Law, as amened.

TPR: Best Interest of the Child

In my TPR: Clear and Convincing Evidence, I explained the burden required to terminate a parent's rights. Even if you can overcome that burden, you still need to show that the termination is in the best interest of the child. Trying to define the best interest of the child is like herding cats; I try to figure it out on a case-by-case basis, and I will not attempt to define it in this post.

However, I have noticed as I try cases that the facts I used to overcome the clear and convincing evidence burden are  often enough to show that the termination of parental rights is in the best interest of the child. That coupled with the fact that the folks that are asking for the termination of a parent's rights  generally already have physical custody of the child and are acting as the parent equals a pretty clear decision that termination of parental rights is in the child's best interest. Then again that is only one of many cats that needs to be herded.

James Fletcher Thompson, Esq., penned a chapter on "Best Interest of the Child" standard in his book South Carolina Adoption Law and Practice: A Guide for Attorneys, Certified Investigators, and Families. This book  would be a good starting point for you in understanding the dynamics we call "Best Interest of the Child." Here is a brief review and ordering information.

TPR: Clear and Convincing Evidence

Two of the most common grounds I use to terminate the parental rights of an individual when my clients are seeking to adopt a child are willful failure to support the child and willful failure to visit with the child.

Though I may technically have the grounds to terminate the parent's rights, I have to show the judge by clear and convincing evidence that the parent has willfully failed to visit or support the child. What is “clear and convincing evidence?” It is evidence that satisfies the judge that there is a high degree of probability that the elements for the ground to terminate the parental rights of the biological parent are satisfied. 

This burden is fairly easy to prove if the biological parent does not show up for court because my client is the only one presenting testimony and evidence. If I anticipate that the biological parent will show up to court, I ensure that I have enough evidence to overcome the burden of proof by clear and convincing evidence.

The most difficult element I have to show in both grounds is the element "willful." I have to keep this in mind when preparing for the trial. It is fairly easy to show whether or not the biological parent supported the child or not. What is more difficult to prove by clear and convincing evidence is whether or not the biological parent willfully failed to support the child. A couple of examples of the facts that helped prove beyond clear and convincing  evidence that the biological parent willfully failed to support the child can be found at this link. This same burden of proof of course also applies to willful failure to visit.

The grounds for TPR are found in Section 63-7-2570 of South Carolina Code of Laws, as amended.

 

Don't Forget the Letter of Compliance

One of the Court's requirements to finalize an interstate adoption is a letter of compliance from the ICPC office. The last document you should send to the ICPC office prior to your final hearing is the post-placement home study; request your letter of compliance upon submitting the post-placement home study and file the letter with the court prior to the final hearing if time permits. Thereafter, you will not have to worry with obtaining this letter at the last minute. This letter is easy to overlook; don't forget it.

The contact information for the ICPC offices in all fifty states can be found at the AAICPC website which is linked to the blog post below: http://www.southcarolinaadoptionlaw.com/2011/05/articles/adoption/interstate-adoption-1/aaicpc-website/

SC State Treasurer Loftis proclaims National Adoption Day in SC

http://myrtlebeach.thedigitel.com/event-calendars/sc-state-treasurer-loftis-proclaims-national-adopt-33439-1118

Martina McBride Will Host Adoption Special on CBS

http://www.cmt.com/news/news-in-brief/1674665/martina-mcbride-will-host-adoption-special-on-cbs.jhtml

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Not All Adoption Experiences Are Wonderful

During this month of celebrating the wonders of adoptions I want to remind fellow attorneys and potential adoptive parents that like other wonderful endeavors adoption has a potentially nasty underbelly. This article describes the content of a new book, FINDING FERNANDA, concerning adoption and human trafficking; the worst of the worst as far a nasty underbellies are concerned. 

I plead with attorneys and potential adoptive parents to be ever vigilant as we proceed with adoption to help stop the abuses described in this book and help ensure that all adoptions will be celebrated as a grand way to allow loving parents to bring deserving children into their home. May our efforts be so great that we never have to hear of such atrocities as are cited in this book again.

South Carolina Adoption Statutes Have Been Moved

The new location for the South Carolina Adoption Statutes can be found here. Please note that most of my old posts referencing statutes are linked to the old web location; when I click on the links in the old posts, they take me to a page with the following statement:

Error: Resource not found (404)

The web page or resource that you are requesting has been removed or is now located on a different page. Please refer to our home page for the information you want as links may have changed.

On the left of that page you will see a "South Carolina Law" tab; that tab will lead you to the complete list of South Carolina statutes. South Carolina Adoption law is under Title 63, Chapter 9. I will be working on the change over from the old link to the new one  in my older post as time permits.

 

November is Adoption Month!

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Tax Credit is Extended Through 2012

Read at about.com to find out what you need to do to claim your tax credit. Please remember that the money spent on the adoption of a spouse's child is considered an unqualified expense, and therefore, you cannot claim the expense for the adoption of your spouse's child for the tax credit.

Adoption and the Hague Adoption Convention

The U.S. Department of State explains the Hague Adoption Convention at Understanding the Hague Convention Page. The long and the short of it is that  intercountry adoptions amoung Hague Convention Countries are heavily regulated by both the U.S. (which is a Hague Convention Country) and the other Hague Convention Country. One of the requirements is that you will need to work with an agency that is an accredited adoption agency if you wish to adopt children from a Hague Convention Country. The above web page has both a list of accredited adoption agencies for each state and a list of Hague Convention Countries.

Please note that there are several exceptions that may exclude your adoption from the rigors of the Hague Convention. Before seeking out an accredited adoption agency, I would advise you to consult with an attorney well versed in both adoption and immigration law to determine if the child you wish to adopt is excepted from the Hague Adoption Convention.

The attorneys at Steffas and Associates, P.C. understand well the junction between adoption law and immigration law. They are well able to give you guidance concerning the Hague Adoption Convention and it exceptions. Ms. Steffas and her associates may be contacted at  www.SteffasLaw.com.

 

Adoption Financing

Great resources for those seeking to finance their adoption are found at http://www.squidoo.com/adoptionfinancing.

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Dale Dove: A Miracle Worker

Dale Dove has been my mentor in adoption law and life for the past four years; he has taught me quite a bit about both. To get a small taste of Dale's passion for both the law and life read about his quest to help the McClain family adopt Alyssa before Mr. McClain dies in A Dying Man's Race to Adopt, and a Small Miracle.

TPR:According to the Parent's Means

In South Carolina, a petitioner may ask the court to terminate a parent's rights if "[t]he child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to support the child. Failure to support means that the parent has failed to make a material contribution to the child's care."

The statute goes on to state that "[a] material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by custodian and the ability of the parent to provide support."

When a court determines whether a contribution is material or not, the court not only determines the means or income the parent has to support the child; the court also determines how the parent is spending her income. One example can be found in recent case law where the Supreme Court of South Carolina mentioned the mother spent an estimated fifty dollars per month to care for her dogs. The Supreme Court stated that "[t]his monthly expense constitutes a large sum of money mother could have instead provided [for the] child."

The Supreme Court also stated in its opinion that "[a]lthough mother had no independent source of income, occasionally providing child with food, drinks, medicine, diapers, wipes, and toys would not be considered a material contribution."

In another case, the Family Court found that a mother spending $3,600.00 per year for cigarettes when she was only giving the occasional contribution of clothes and school supplies totaling about $200.00 annually was a material issue in determining whether the mother wilfully  failed to support the child.

What I have gleaned from the Supreme Court opinion and the Family Court ruling is that when attempting to terminate a parent's rights pay as much attention to the parent's spending habits as you pay to the parent's income. I believe this balancing comes from the statement in the statute "according to the parent's means." The court is not going to terminate a parent's rights because she is poor; the court will terminate a parent's rights if she is not supporting her child while she feigns poor.

Exception to the South Carolina Rule

South Carolina law was amended last year to require all private adoptions of children being placed in South Carolina to be initiated and finalized in South Carolina. I affectionately call it the "South Carolina Rule." The law is explained in this blog post.

Section 63-9-1110(5)  of the South Carolina Code of Laws outlines the the family exception to the rule:

Any person may adopt his spouse's child, and any person may adopt a child to whom he is related by blood or marriage. In the adoption of these children:...upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-60 (A)(2), that the adoption proceeding must be finalized in this State.

 

Consents and Relinquishments Made Simple (Part 1)

A Consent and Relinquishment( "Consent") is an adoption attorney's best tool for a smooth adoption. With one from each parent in hand , the adoption will be made final with few or no problems with few exceptions.

Executing a consent can be as easy as executing a simple will or as complicated as executing a complex contract between two major companies.

The first step in making the process easier is to have a network of attorneys and DSS approved individual that you can call on to help you with the consents. This step takes time and is essential for the success of an adoption practice. I have several local attorneys I work with on my adoptions, and I have a couple of folks I work with statewide. I have found their quick response valuable to a smooth adoption. I continually work on growing this network. In fact, please call me at 843-267-0906 if you need help in Horry, Georgetown, Marion, Dillon, and Florence Counties, and call me if you would like to be a part of my network. Another benefit to this network is these same attorneys will contact you when they need help. I have learned that the more you let people know what you do and what you need the bigger your network  grows. Do not neglect this step.

The second step in making the process easier is to retain the person who is going to take the consent as soon as possible. I generally contact someone from my network to take the consent right after my first contact with the potential adoptive parents even before they have retained me. This does several things for me. First, it helps build rapport between me and the individual I am working with. Second, it gives the individual a heads-up so he can check his schedule to see if he will be available around the due date. Third, it is one less thing I have to do once the adoption process starts. Fourth, if the adoptive parents do retain my services, I can tell them I already have someone lined-up to take the cosents.

In essence, have friends before you need them, and be prepared.

 

Another Attorney's Analysis of Roe v. Reese

In my last blog, I talked about the ramification of the recent Roe v. Reese decision on father's rights and the effects it has on my clients; my take seems to be elementary compared with Gregory S. Forman's take. You can read his take at his blog.

 

Supreme Court: Father Needs to Grasp Opportunity and Accept Measure of Responsibility to Protect Rights

In Roe v. Reeves, the adoptive parents appeal a family court's decision where the birth father claims his consent was necessary prior to another couple adopting his child. The family court agreed with the father; the Supreme Court reversed stating that the father did not undertake sufficient good faith effort to assume parental responsibility and comply with the law.

The Supreme Court determined that the father paid or attempted to pay the mother about $100.00 toward the benefit of the child over the course of her pregnancy; during the same period he was spending $80.00 per month on tires. This is a no-no if you want to protect your rights. In addition, one of his initial text to the mother after she told him she was pregnant was to get an abortion and leave him alone. They determined that $100.00 was not sufficient to meet the statutory requirement needed for the father's consent and relinquishment to be taken.

In making their ruling, the Supreme Court stated  that "[i]t is not enough that the father simply have a desire to raise the child; he must act on that interest and make the material contributions to the child and the mother during her pregnancy required of a father-to-be..." to make his consent necessary prior to the adoption of his child.

This case put meat on the bones of Section 63-9-310(A)(5)(b) of the South Carolina Code of Laws, as amended . This section states that the consent or relinquishment for the purpose of adoption is required of the father of a child born when the father was not married to the child's mother, if the child was placed with the prospective adoptive parents six months or less after the child's birth, but only if the father paid a fair and reasonable sum, based on the father's financial ability, for the support of the child or for the expenses incurred in connection with the mother's pregnancy or with the birth of the child. We now know that $100.00 and his latent interest after his initial rejection of the mother and the child is not enough to require a man's consent.

The Supreme Court is clear and rightfully so that an unwed father must  demonstrate a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child in order for this relationship to obtain constitutional protection and the necessity to have his consent taken.

Action not words is the theme of this case. 

AAICPC Website

This link will take you the AAICPC Website. A map of the United States will appear; select the state to find contact information for the ICPC office and special requirements for that state.

South Carolina has nine requirements listed on its page; I have copied them below for your convenience.

Special Adoption Information Required in South Carolina. Social, medical, and legal documents must be forwarded to Deputy Compact Administrator: (1) Set of 100 A’s for each child; (2) Birth Family’s Social/Medical Information: (3) At least one Birth Parent’s consents. If both birth parents have not surrendered or have rights terminated, documentation of the attempts to locate and protect the rights to the birth parent.; (4) Documentation of Compliance with the Indian Child Welfare Act; (5) Court Findings of Unusual or Exceptional Circumstances for SC Birth Child being adopted by out of state residents; (6) Adoptive Family’s Pre-Placement Investigation; (7) Copies of adoptive Family’s Background Checks (Child Abuse/Neglect Clearances, State Criminal History Checks, Sexual Offenders Checks); (8) Official hospital birth report (labor and delivery/discharge summary); (9) Fee disclosure statement.  

Tax Identification Number for Children Pending an Adoption

This link has a list of FAQ concerning social security numbers for children. One of the questions and answers is:

What if my child is adopted?

We can assign your adopted child a Social Security number before the adoption is complete, but you may want to wait. Then, you can apply for the number using your child’s new name, with your name as parent. If you want to claim your child for tax purposes while the adoption is still pending, you need to contact the Internal Revenue Service for Form W-7A, Application for Taxpayer Identification Number for Pending U.S. Adoptions.

A previous client informed me that it takes about six weeks to obtain a taxpayer identification number for pending U.S. adoptions.

Servicemembers Civil Relief Act, Affidavits, and Adoptions

The below requirements apply to any civil action or proceeding, including any child custody proceeding, in which the Defendant does not make an appearance.

A Plaintiff is required to let the Court know via an affidavit whether or not the Defendant is in military service or not.

The consequence of a Defendant being in the military are:

  1. the Court shall appoint an attorney for the Defendant prior to entering a default judgment; and,
  2. the Court shall grant a stay of proceeding for a minimum of 90 days upon application by the attorney or on the Court's own motion, if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or after due diligence, the attorney has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

The above provisions can be found at this link.

The Court of Appeals of South Carolina in Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (S.C.App. 1999) held that the provisions of the Servicemembers Civil Relief Act's predecessor are mandatory, and the failure of a party or the court to comply, renders any judgment voidable.

The take away for me is that you will need to present the Court with an affidavit of military service for each named Defendant to eliminate the potential of the final order becoming voidable and do not name any biological father as a Defendant if he does not need to be named as a Defendant; serve him with the notice of adoption instead.

Please visit my blog post at Which Fathers Need to be Named Defendants in an Adoption? to help you determine if the father needs to be named as a Defendant; and visit my blog concerning notice requirements to determine who you must give notice of the adoption.

Home Study Explained

Once again I am referring you to adopts.com; this time I am referring you to the page in which the process of the homestudy is explained. Visit this link for guidance concerning the home study.

A home study is required for all adoptions in South Carolina except adoptions by an individual or individuals that are related to the child by blood such as grandparents, aunts, uncles, brothers and sisters; and by a stepparent.

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Great Links From Adopts.com

adopts.com

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Which Fathers Need to be Named as Defendants in an Adoption?

Any father whose consent and relinquishment is required must be named a defendant in an adoption proceeding if he does not consent and relinquish his rights.

If the child was conceived or born during the marriage of husband and wife whether or not the husband is the actual father, the husband's consent and relinquishment is required. If he does not sign a consent and relinquishment, he needs to be named a defendant in an adoption petition.

If the father maintained a relationship with the child and supported the child whether he was married to the mother or not, his consent and relinquishment is required. If he does not consent and relinquish, he needs to be named a defendant.

All other fathers do not need to consent and relinquish their rights and do not need to be named defendants.

Resource Site for Adoptive Parents

adoptuskids.org

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Adoption: It's the Same

I have seen prospective parents nurture a child with the uncertainty of the birth mother's intentions looming in the air waiting to take the child like death takes a sick newborn. The birth mother eagerly gave the child to the parents; in fact, she consented and relinquished her rights. Then after three week or so as the prospective parents were working through the process needed to take the child to their home out-of-state, the mother relented. She wanted their child. Due to the complexity of the facts and law involved and the uncertainty of the outcome of a contested adoption hearing, the prospective parents gave the child back to the mother. They mourned the loss of their child. I was there. I saw their raw emotion. I cried.

That experience leaves no doubt in my mind that their loss was every bit as real as the loss expectant parents feel when they lose a child to death. 

That was one of two cases I saw the past two years that ended with sorrow.

I tell this tale of sorrow to remind us all that not all adoptions are finalized.

Adoption like giving birth has risk involved; adoption like giving birth is worth the risk.

The rest ended with joyful parents and blessed children.

 

 

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2010 Adoption Tax Credit is Refundable!

The 2010 tax credit is refundable up to $13,170. If your child is determined to be special needs then you will receive the whole tax credit no matter how much you spent. My friends at about.com have a great article explaining the tax credit thoroughly at this link. By the way, refundable means you get the credit whether or not you have the tax liability. This is new for 2010.

Section 63-9-60(A)(2)-Placement with Non-Resident

Please note that Section 63-9-60(A)(2) was amended to require a non-resident to initiate and finalize his adoption in South Carolina. The full update is at this blog post and was past into law on 25 May 2010. Below is the code section; the added language is in bold.

SECTION    8.    Section 63-9-60(A)(2) of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"(2)    Before a child is placed within or outside the boundaries of this State for adoption with nonresidents of this State, compliance with Article 11 (Interstate Compact on the Placement of Children) is required, and a judicial determination must be made in this State that one of the circumstances in items (a) through (f) of subsection (A)(1) applies, whether or not the adoption proceedings are instituted in this State. Additionally, in order to determine if any of the circumstances in items (a) through (f) of subsection (A)(1) apply so as to permit placement with a nonresident for the purpose of adoption or adoption by a nonresident, a petition may be brought for the determination before the birth of the child or before placement of the child with the prospective adoptive parents. In ruling on this question the court must include in its order specific findings of fact as to the circumstances allowing the placement of a child with a nonresident or the adoption of a child by a nonresident. The court also must analyze the facts against the objective criteria established in Sections 16-3-1060 and 63-9-310(F) and make specific findings in accordance with the pertinent law and evidence presented. The order resulting from this action does not prohibit or waive the right to refuse to consent to a release of rights or relinquish rights at a later time or to withdraw a consent or relinquish at a later time as provided in this article. The order must be merged with and made a part of any subsequent adoption proceeding, which must be initiated and finalized in this State."

Non-resident Adoptions and Judicial Determination

If you are a non-resident  seeking to adopt a child from South Caroina or the non-resident's attorney, seek South Carolina legal assitance as early in the process as possible.

In addition to requiring the couple to comply with the Interstate Compact on the Placement of Chilren, South Carolina requires a judicial determination as to wether the couple meets one of the statutory exceptions allowing a non-resident to adopt. You may be able to get the judicial determination prior to the child's birth; this will help make the adoption more seamless.

Those exceptions may be found in this blog post.

We have severly great attorneys in this state that work with interstate adoptions; please contact my office if you need guidance.

 

SC Adoption Law and Practice: A Guide for Attorneys, Certified Investigators, and Families

I have reviewed the book and CD; I believe this book will help young lawyers seeking to work with familys in adopting a child to become  more competent at the task. This book will save you much time and money as you grow your adoption pratice. The book can be ordered at this link

James Fletcher Thompson, Esq., the author of the book can be reached at http://adoptionsc.com/.
 

Enjoy the book.

 

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Do You Need a Home Study to Adopt?

If you are adopting a child that is not related to you by blood or marriage, you need a home study.

"Before the placement of any child by any agency or by any person with a prospective adoptive parent, a preplacement investigation (home study)... and [a report of this investigation] must be completed," pursuant to Section 63-9-520 of the South Carolina Code of Laws, as amended.

This home study needs to be updated every year to comply with the code.

If you are thinking about adopting and even if you do not have a prospective child, my advice is to have a home study prepared. This does two things:

1)  By having the home study already completed, you are in the position to accept a child into your home immediately; and

2) By have the home study already completed, you have established a relationship with the person performing the home study. The folks performing these home studies are in the adoption community and are one more source to help find a child to bring into your family.

You have eliminated some of the stress associated with adoption and you have established a valuable relationship with someone who is in the adoption community.

The South Carolina Department of Social Services provides a list of individuals who are certified to perform  home studies. Please visit  this link for contact information and pricing. You can also contact my office at 843-267-0906 or lawyerhall@russellslawoffice.com for information concerning home studies.

South Carolina Awarded Money for Increasing Adoptions!

South Carolina was among thirty-eight  states to receive money from the Department of Health and Human Services for increasing adoptions.  Read all about! 

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Top One Hundred Adoption-Friendly Workplaces

Wendy's leads the list of the top one hundred adoption-friendly workplaces. View the list.

Pregnant? LDS Family Services Can Help

LDS Family Service has resources to help you if you are pregnant. You can find those resources at itsaboutlove.org  or call 1-800-537-2229 for information and help.
 

SC Adoption Law & Pratice Seminar

Please join us at the SC Adoption Law & Pratice Seminar on 29 October 2010. Check out the link for more details.

Updated Adoption Legislation

Governor Sanford signed into law a Senate bill that is aimed at speeding up the transition from foster child to adoption on 25 May 2010; the legislation became law immediately upon the governor signing the bill.

I have copied the legislation from www.scstatehouse.gov for your convenience.

"Be it enacted by the General Assembly of the State of South Carolina:

Procedures and requirements for family preservation and reunification

SECTION    1.    Section 63-7-1640 of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"Section 63-7-1640.    (A)    When this chapter requires the department to make reasonable efforts to preserve or reunify a family and requires the family court to determine whether these reasonable efforts have been made, the child's health and safety must be the paramount concern.

(B)    The family court may rule on whether reasonable efforts to preserve or reunify a family should be required in hearings regarding removal of custody, review of amendments to a placement plan, review of the status of a child in foster care, or permanency planning or in a separate proceeding for this purpose. The court may consider this issue on the motion of a named party, the child's guardian ad litem, or the foster care review board, provided that the foster care review board has reviewed the case pursuant to Section 63-11-720 or the child has previous entry into foster care.

(C)    The family court may authorize the department to terminate or forego reasonable efforts to preserve or reunify a family when the records of a court of competent jurisdiction show or when the family court determines that one or more of the following conditions exist:

(1)    the parent has subjected the child or another child while residing in the parent's domicile to one or more of the following aggravated circumstances:

(a)    severe or repeated abuse;

(b)    severe or repeated neglect;

(c)    sexual abuse;

(d)    acts the judge finds constitute torture; or

(e)    abandonment;

(2)    the parent has been convicted of or pled guilty or nolo contendere to murder of another child, or an equivalent offense, in this jurisdiction or another;

(3)    the parent has been convicted of or pled guilty or nolo contendere to voluntary manslaughter of another child, or an equivalent offense, in this jurisdiction or another;

(4)    the parent has been convicted of or pled guilty or nolo contendere to aiding, abetting, attempting, soliciting, or conspiring to commit murder or voluntary manslaughter of the child or another child while residing in the parent's domicile, or an equivalent offense, in this jurisdiction or another;

(5)    physical abuse of a child resulted in the death or admission to the hospital for in-patient care of that child and the abuse is the act for which the parent has been convicted of or pled guilty or nolo contendere to committing, aiding, abetting, conspiring to commit, or soliciting:

(a)    an offense against the person, as provided for in Title 16, Chapter 3;

(b)    criminal domestic violence, as defined in Section 16-25-20;

(c)    criminal domestic violence of a high and aggravated nature, as defined in Section 16-25-65; or

(d)    the common law offense of assault and battery of a high and aggravated nature, or an equivalent offense in another jurisdiction;

(6)    the parental rights of the parent to another child of the parent have been terminated involuntarily;

(7)    the parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unable or unlikely to provide minimally acceptable care of the child;

(8)    other circumstances exist that the court finds make continuation or implementation of reasonable efforts to preserve or reunify the family inconsistent with the permanent plan for the child.

(D)    The department may proceed with efforts to place a child for adoption or with a legal guardian concurrently with making efforts to prevent removal or to make it possible for the child to return safely to the home.

(E)    If the family court's decision that reasonable efforts to preserve or reunify a family are not required results from a hearing other than a permanency planning hearing, the court's order shall require that a permanency planning hearing be held within thirty days of the date of the order.

(F)    In determining whether to authorize the department to terminate or forego reasonable efforts to preserve or reunify a family, the court must consider whether initiation or continuation of reasonable efforts to preserve or reunify the family is in the best interests of the child. If the court authorizes the department to terminate or forego reasonable efforts to preserve or reunify a family, the court must make specific written findings in support of its conclusion that one or more of the conditions set forth in subsection (C)(1) through (8) are shown to exist, and why continuation of reasonable efforts is not in the best interest of the child. If the court does not authorize the department to terminate or forego reasonable efforts where one or more of the conditions set forth in subsection (C)(1) through (8) are shown to exist, the court must make specific written findings in support of its conclusion that continuation of reasonable efforts is in the best interest of the child. The court must not consider the availability or lack of an adoptive resource as a reason to deny the request to terminate or forego reasonable efforts.

(G)    In any case in which the court authorizes the department to terminate or forego reasonable efforts to preserve or reunify a family, the department shall file a petition for termination of parental rights within sixty days, unless there are compelling reasons why termination of parental rights would be contrary to the best interests of the child."

Procedures for removing a child from his home

SECTION    2.    Section 63-7-1660(B)(2) of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"(2)    The petition for removal may include a petition for termination of parental rights. The petition for removal must include a petition for termination of parental rights if court records or other evidence indicate the existence of one or more of the conditions set forth in Section 63-7-1640(C)(1) through (8), unless there are compelling reasons for believing that termination of parental rights would be contrary to the best interests of the child."

Contents of Placement Plans

SECTION    3.    Section 63-7-1680 of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"Section 63-7-1680.    (A)    If the court orders that a child be removed from the custody of the parent or guardian, the court must approve a placement plan. A plan must be presented to the court for its approval at the removal hearing or within ten days after the removal hearing. If the plan is presented subsequent to the removal hearing, the court shall hold a hearing on the plan if requested by a party. The plan must be a written document prepared by the department. To the extent possible, the plan must be prepared with the participation of the parents or guardian of the child, the child, and any other agency or individual that will be required to provide services in order to implement the plan.

(B)    The first section of the plan shall set forth the changes that must occur in the home and family situation before the child can be returned. These changes must be reasonably related to the reasons justifying removal of the child from the custody of the parents or guardian. This section of the plan must contain a notice to the parents or guardian that failure to make the indicated changes within six months may result in termination of parental rights.

(C)    The second section of the plan shall set forth:

(1)    specific actions to be taken by the parents or guardian of the child; and

(2)    social or other services to be provided or made available to the parent or guardian of the child.

This section of the plan must include time frames for commencement or completion of specific actions or services. This section must contain a notice to the parents or guardian that completion of the indicated actions will not result in return of the child unless the changes set forth in section one of the plan have occurred.

(D)    The third section of the plan shall set forth rights and obligations of the parents or guardian while the child is in custody including, but not limited to:

(1)    the responsibility of the parents or guardian for financial support of the child during the placement; and

(2)    the visitation rights and obligations of the parents or guardian during the placement.

This section of the plan must include a notice to the parents or guardian that failure to support or visit the child as provided in the plan may result in termination of parental rights.

(E)    The fourth section of the plan must address matters relating to the placement of the child including, but not limited to, the following:

(1)    the nature and location of the placement of the child, unless there are compelling reasons for concluding that disclosure of the location of the placement to the parents, guardian, or other person would be contrary to the best interests of the child. The placement must be as close to the child's home as is reasonably possible, unless there are compelling reasons for concluding that placement at a greater distance is necessary to promote the child's well-being. In the absence of good cause to the contrary, preference must be given to placement with a relative or other person who is known to the child and who has a constructive and caring relationship with the child;

(2)    visitation or other contact with siblings, other relatives, and other persons important to the child. The plan shall provide for as much contact between the child and these persons as is reasonably possible and consistent with the best interests of the child;

(3)    social and other supportive services to be provided to the child and the foster parents, including counseling or other services to assist the child in dealing with the effects of separation from the child's home and family; and

(4)    the minimum number and frequency of contacts that a caseworker with the department will have with the child, which must be based on the particular needs and circumstances of the individual child but which must not be less than once a month for a child placed in this State.

(F)    The court shall approve the plan only if it finds that:

(1)    the plan is consistent with the court's order placing the child in the custody of the department;

(2)    the plan is consistent with the requirements for the content of a placement plan set forth in subsections (B) through (E);

(3)    if the parents or guardian of the child did not participate in the development of the plan, that the department made reasonable efforts to secure their participation; and

(4)    the plan is meaningful and designed to address facts and circumstances upon which the court based the order of removal.

If the court determines that any of these criteria are not satisfied, the court shall require that necessary amendments to the plan be submitted to the court within a specified time but no later than seven days. A hearing on the amended plan must be held if requested by a party.

(G)    The court shall include in its order and shall advise defendants on the record that failure to remedy the conditions that caused the removal within six months, may result in termination of parental rights, subject to notice and a hearing as provided in Article 7. Before the court orders return of the child, the court must find that the changes in the home and family situation specified in section one of the plan have occurred and that the child can be safely returned to the home. Completion of the tasks specified in section two of the plan is not in itself sufficient basis for return of the child.

(H)    The department immediately shall give a copy of the plan to the parents or guardian of the child, and any other parties identified by the court, including the child if the court considers it appropriate. If a copy of the plan is not given to the child, the department shall provide the child with age-appropriate information concerning the substance of the plan unless the court finds that disclosure of any part of the plan to the child would be inconsistent with the child's best interests. A copy of any part of the plan that directly pertains to the foster family or the foster child must be provided to the foster parents.

(I)    The plan may be amended at any time if all parties agree to the revisions, and the revisions are approved by the court. The amended plan must be submitted to the court with a written explanation for the proposed change. The plan also may be amended by the court upon motion of a party after a hearing based on evidence demonstrating the need for the amendment. A copy of the amended plan immediately must be given to the parties specified in subsection (H).

(J)    Any objections to the sufficiency of a plan or the process by which a plan was developed must be made at the hearing on the plan. Failure to request a hearing or to enter an objection at the hearing constitutes a waiver of the objection. The sufficiency of the plan or of the process for developing the plan may not be raised as an issue in a proceeding for termination of parental rights under Article 7.

(K)    Upon petition of a party in interest, the court may order the state or county director or other authorized representative of the department to show cause why the agency should not be required to provide services in accordance with the plan. The provisions of the plan must be incorporated as part of a court order issued pursuant to this section. A person who fails to comply with an order may be held in contempt and subject to appropriate sanctions imposed by the court."

Contents and review procedures for Permanent Placement Plans

SECTION    4.    Section 63-7-1700 of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"Section 63-7-1700.    (A)    The family court shall review the status of a child placed in foster care upon motion filed by the department to determine a permanent plan for the child. The permanency planning hearing must be held no later than one year after the date the child was first placed in foster care. At the initial permanency planning hearing, the court shall review the status of the child and the progress being made toward the child's return home or toward any other permanent plan approved at the removal hearing. The court's order shall make specific findings in accordance with this section. An action for permanency planning must be brought for a child who enters the custody of the department by any mechanism, including subarticle 3 or Section 63-7-1660 or 63-9-330. If the child enters the custody of the department pursuant to Section 63-9-330 and no action is pending in the family court concerning the child, the department may initiate the permanency planning hearing with a summons and petition for review. All parties must be served with the motion or the summons and petition at least ten days before the hearing, and no responsive pleading is required.

(B)    The department shall attach a supplemental report to the motion or summons and petition which must contain at least:

(1)    that information necessary to support findings required in subsections (C) through (H), as applicable;

(2)    the recommended permanent plan and suggested timetable for attaining permanence;

(3)    a statement of whether or not the court has authorized the department to forego or terminate reasonable efforts pursuant to Section 63-7-1640; and

(4)    any reports of the local foster care review board which pertain to the child.

The department may use the same form for the supplemental report, reports from the department to the local foster care review board, and reports compiled for internal department reviews.

(C)    At the permanency planning hearing, the court shall review the department's plan for achieving permanence for the child. If the department's plan is not reunification with the parents, custody or guardianship with a fit and willing relative, or termination of parental rights, the department must show compelling reasons for the selection of another permanent plan. If the court approves a plan that is not reunification with the parents, custody or guardianship with a fit and willing relative, or termination of parental rights, the court must find compelling reasons for approval of the plan and that the plan is in the child's best interests.

(D)    If the court determines at the permanency planning hearing that the child may be safely maintained in the home in that the parent has remedied the conditions that caused the removal and the return of the child to the child's parent would not cause an unreasonable risk of harm to the child's life, physical health, safety, or mental well-being, the court shall order the child returned to the child's parent. The court may order a specified period of supervision and services not to exceed twelve months.

(E)    Unless subsection (C), (F), or (G) applies, if the court determines at the permanency planning hearing that the child should not be returned to the child's parent at that time, the court's order shall require the department to file a petition to terminate parental rights to the child not later than sixty days after receipt of the order. If a petition to terminate parental rights is to be filed, the department shall exercise and document every reasonable effort to promote and expedite the adoptive placement and adoption of the child, including a thorough adoption assessment and child-specific recruitment. Adoptive placements must be diligently sought for the child and failure to do so solely because a child is classified as 'special needs' is expressly prohibited. An adoption may not be delayed or denied solely because a child is classified as 'special needs'. For purposes of this subsection:

(1)    'thorough adoption assessment' means conducting and documenting face-to-face interviews with the child, foster care providers, and other significant parties; and

(2)    'child specific recruitment' means recruiting an adoptive placement targeted to meet the individual needs of the specific child including, but not be limited to, use of the media, use of photo listings, and any other in-state or out-of-state resources which may be utilized to meet the specific needs of the child, unless there are extenuating circumstances that indicate that these efforts are not in the best interest of the child.

(F)    If the court determines that the criteria in subsection (D) are not met but that the child may be returned to the parent within a specified reasonable time not to exceed eighteen months after the child was placed in foster care, the court may order an extension of the plan approved pursuant to Section 63-7-1680 or may order compliance with a modified plan, but in no case may the extension for reunification continue beyond eighteen months after the child was placed in foster care. An extension may be granted pursuant to this section only if the court finds:

(1)    that the parent has demonstrated due diligence and a commitment to correcting the conditions warranting the removal so that the child could return home in a timely fashion;

(2)    that there are specific reasons to believe that the conditions warranting the removal will be remedied by the end of the extension;

(3)    that the return of the child to the child's parent would not cause an unreasonable risk of harm to the child's life, physical health, safety, or mental well-being;

(4)    that, at the time of the hearing, initiation of termination of parental rights is not in the best interest of the child; and

(5)    that the best interests of the child will be served by the extended or modified plan.

(G)    If after assessing the viability of adoption, the department demonstrates that termination of parental rights is not in the child's best interests, the court may award custody or legal guardianship, or both, to a suitable, fit, and willing relative or nonrelative if the court finds this to be in the best interest of the child; however, a home study on the individual whom the department is recommending for custody of the child must be submitted to the court for consideration before custody or legal guardianship, or both, are awarded. The court may order a specified period of supervision and services not to exceed twelve months, and the court may authorize a period of visitation or trial placement prior to receiving a home study.

(H)    If at the initial permanency planning hearing the court does not order return of the child pursuant to subsection (D), in addition to those findings supporting the selection of a different plan, the court shall specify in its order:

(1)    what services have been provided to or offered to the parents to facilitate reunification;

(2)    the compliance or lack of compliance by all parties to the plan approved pursuant to Section 63-7-1680;

(3)    the extent to which the parents have visited or supported the child and any reasons why visitation or support has not occurred or has been infrequent;

(4)    whether previous services should continue and whether additional services are needed to facilitate reunification, identifying the services, and specifying the expected date for completion, which must be no longer than eighteen months from the date the child was placed in foster care;

(5)    whether return of the child can be expected and identification of the changes the parent must make in circumstances, conditions, or behavior to remedy the causes of the child's placement or retention in foster care;

(6)    whether the child's foster care is to continue for a specified time and, if so, how long;

(7)    if the child has attained the age of sixteen, the services needed to assist the child to make the transition to independent living;

(8)    whether the child's current placement is safe and appropriate;

(9)    whether the department has made reasonable efforts to assist the parents in remedying the causes of the child's placement or retention in foster care, unless the court has previously authorized the department to terminate or forego reasonable efforts pursuant to Section 63-7-1640; and

(10)    the steps the department is taking to promote and expedite the adoptive placement and to finalize the adoption of the child, including documentation of child specific recruitment efforts.

(I)    If after the permanency planning hearing, the child is retained in foster care, future permanency planning hearings must be held as follows:

(1)    If the child is retained in foster care and the agency is required to initiate termination of parental rights proceedings, the termination of parental rights hearing may serve as the next permanency planning hearing, but only if it is held no later than one year from the date of the previous permanency planning hearing.

(2)    If the court ordered extended foster care for the purpose of reunification with the parent, the court must select a permanent plan for the child other than another extension for reunification purposes at the next permanency planning hearing. The hearing must be held on or before the date specified in the plan for expected completion of the plan; in no case may the hearing be held any later than six months from the date of the last court order.

(3)    After the termination of parental rights hearing, the requirements of Section 63-7-2580 must be met. Permanency planning hearings must be held annually, starting with the date of the termination of parental rights hearing. No further permanency planning hearings may be required after filing a decree of adoption of the child.

(4)    If the court places custody or guardianship with the parent, extended family member, or suitable nonrelative and a period of services and supervision is authorized, services and supervision automatically terminate on the date specified in the court order. Before the termination date, the department or the guardian ad litem may file a petition with the court for a review hearing on the status of the placement. Filing of the petition stays termination of the case until further order from the court. If the court finds clear and convincing evidence that the child will be threatened with harm if services and supervision do not continue, the court may extend the period of services and supervision for a specified time. The court's order must specify the services and supervision necessary to reduce or eliminate the risk of harm to the child.

(5)    If the child is retained in foster care pursuant to a plan other than one described in items (1) through (4), future permanency planning hearings must be held at least annually.

(J)    A named party, the child's guardian ad litem, or the local foster care review board may file a motion for review of the case at any time. Any other party in interest may move to intervene in the case pursuant to the rules of civil procedure and if the motion is granted, may move for review. Parties in interest include, but are not limited to, the individual or agency with legal custody or placement of the child and the foster parent. The notice of motion and motion for review must be served on the named parties at least ten days before the hearing date. The motion must state the reason for review of the case and the relief requested.

(K)    The pendency of an appeal concerning a child in foster care does not deprive the court of jurisdiction to hear a case pursuant to this section. The court shall retain jurisdiction to review the status of the child and may act on matters not affected by the appeal."

Grounds for termination of parental rights

SECTION    5.    That portion of Section 63-7-2570 of the 1976 Code, as added by Act 361 of 2008, preceding item (2) is amended to read:

"The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:

(1)    The child or another child while residing in the parent's domicile has been harmed as defined in Section 63-7-20, and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent's previous abuse or neglect of the child or another child may be considered."

Grounds for termination of parental rights

SECTION    6.    Section 63-7-2570(6) of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"(6)    The parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unable or unlikely to provide minimally acceptable care of the child. It is presumed that the parent's condition is unlikely to change within a reasonable time upon proof that the parent has been required by the department or the family court to participate in a treatment program for alcohol or drug addiction, and the parent has failed two or more times to complete the program successfully or has refused at two or more separate meetings with the department to participate in a treatment program."

Grounds for termination of parental rights

SECTION    7.    Section 63-7-2570(9) of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"(9)    The physical abuse of a child resulted in the death or admission to the hospital for in-patient care of that child and the abuse is the act for which the parent has been convicted of or pled guilty or nolo contendere to committing, aiding, abetting, conspiring to commit, or soliciting an offense against the person as provided for in Title 16, Chapter 3, criminal domestic violence as defined in Section 16-25-20, criminal domestic violence of a high and aggravated nature as defined in Section 16-25-65, or the common law offense of assault and battery of a high and aggravated nature."

Nonresident adoptions

SECTION    8.    Section 63-9-60(A)(2) of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"(2)    Before a child is placed within or outside the boundaries of this State for adoption with nonresidents of this State, compliance with Article 11 (Interstate Compact on the Placement of Children) is required, and a judicial determination must be made in this State that one of the circumstances in items (a) through (f) of subsection (A)(1) applies, whether or not the adoption proceedings are instituted in this State. Additionally, in order to determine if any of the circumstances in items (a) through (f) of subsection (A)(1) apply so as to permit placement with a nonresident for the purpose of adoption or adoption by a nonresident, a petition may be brought for the determination before the birth of the child or before placement of the child with the prospective adoptive parents. In ruling on this question the court must include in its order specific findings of fact as to the circumstances allowing the placement of a child with a nonresident or the adoption of a child by a nonresident. The court also must analyze the facts against the objective criteria established in Sections 16-3-1060 and 63-9-310(F) and make specific findings in accordance with the pertinent law and evidence presented. The order resulting from this action does not prohibit or waive the right to refuse to consent to a release of rights or relinquish rights at a later time or to withdraw a consent or relinquish at a later time as provided in this article. The order must be merged with and made a part of any subsequent adoption proceeding, which must be initiated and finalized in this State."

Advertising prohibited to place or accept child for adoption; exception; penalties

SECTION    9.    Subarticle 1, Article 1, Chapter 9, Title 63 of the 1976 Code is amended by adding:

"Section 63-9-70.    (A)    No person or entity other than the Department of Social Services, a child placing agency licensed in this State, or an attorney licensed in this State may advertise that the person or entity will place or accept a child for adoption.

(B)    Notwithstanding the provisions of subsection (A), a person is not prohibited from advertising that the person desires to adopt if the person has a current preplacement home investigation finding that the person is suitable to be an adoptive parent.

(C)(1)    A person who violates subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.

(2)    The family court shall enjoin a person or entity from violating a provision of this section.

(D)    For purposes of this section, 'advertise' means to communicate by newspaper, radio, television, hand bills, placards or other print, broadcast or electronic medium that originates within this State."

Stepparent and family adoptions

SECTION    10.    Section 63-9-1110 of the 1976 Code, as added by Act 361 of 2008, is amended to read:

"Section 63-9-1110.    Any person may adopt his spouse's child, and any person may adopt a child to whom he is related by blood or marriage. In the adoption of these children:

(1)    no investigation or report required under the provisions of Section 63-9-520 is required unless otherwise directed by the court;

(2)    no accounting by the petitioner of all disbursements required under the provisions of Section 63-9-740 is required unless the accounting is ordered by the court;

(3)    upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-750, that the final hearing must not be held before ninety days after the filing of the adoption petition;

(4)    upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-320(A)(2), of the appointment of independent counsel for an indigent parent; and

(5)    upon good cause shown, the court may waive the requirement, pursuant to Section 63-9-60(A)(2), that the adoption proceeding must be finalized in this State."

Severability clause

SECTION    11.    If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

Time effective

SECTION    12.    This act takes effect upon approval by the Governor.

Ratified the 6th day of May, 2010.

Approved the 12th day of May, 2010."

Responsible Father Registry is Live

As of 1 July 2010 attorney's may search the Responsible Father Registry. This link will take you to the registration page; an attorney who wishes to search the registry for a pending adoption or termination of parental rights matter will need to register through the above link to be authorized to search the registry.

The registration process takes fewer than five minutes to complete, and once complete, the individual registering will receive an e-mail from the Department of Social Services with a confirmation number to set-up an account within five business days of registering. I received my number within an hour of registering.

I have reviewed the website; the search is free and the cost is $50.00 to receive a certificate of diligent search.

Contact my office at 843-267-0906 or lawyerhall@russellslawoffice.com if you need help in registering.

Steps to Adoption Through Department of Social Services

Steps to become an adoptive parent

  • Contact one of the Department of Social Services' regional offices to inquiry and receive application.
  • Application completed and returned to the regional office which serves your resident county.
  • Complete SLED/ Fingerprints and Child Abuse Central register releases on all members of household 18 years and older.
  • Attend 14 hours of preparatory training to help with self evaluation of the types of children which would fit into your family.
  • Fire and sanitation inspections completed on home by the Fire Marshal and DHEC.
  • Home Visits: adoption specialist visits the home and completes interviews for pre- placement investigation.
  • Three/ Four References received and interviewed by adoption specialist.
  • Medicals are required on all family members.
  • Provide copies of birth certificates, Marriage license and divorce petitions and decrees if applicable.
  • During assessment family and agency assess qualifications and readiness to adopt.
  • Approval received and family considered for children along with other approved and waiting families.
  • Placement committee selects family and notifies family and family is presented full background on child/ children for whom family is selected.
  • Family meets child and begins visitation with child.
  • Placement occurs when child and family are ready for move.
  • Post placement period begins and can continue up to 12 months..
  • Finalization of the adoption in Family Court.
  • Adoption Preservation services are available upon request after the finalization of the adoption. Adoption is a lifelong process, counseling and other referral services may be available to the family as needed and requested by the family.

Judge McFaddin Breaks Adoption Finalization Record

This article was copy without editing from  Department of Social Services Websites at this link.

On Wednesday June 2nd, 2010, a record was broken for the number of children adopted in South Carolina in a single day. Sumter County Family Court Judge, The Honorable George M. McFaddin, Jr. will hosted another Adoption Day in Sumter Family Court where he gave the SC Department of Social Services an entire court day to finalize adoptions.

A total of 39 adoptions were finalized. From 9:00 a.m. until 7:00 p.m. Judge McFaddin will finalize adoptions all day with no lunch break. This is at least the fourth such Adoption Day Judge McFaddin has hosted for South Carolina’s waiting children. In November, Judge McFaddin finalized 26 adoptions. Each time he has held Adoption Day in his courtroom, the number of adoptions granted has grown.

Of note, Judge McFaddin does have some assistance with the hearings beyond what one might expect. His assistant is a long haired dachshund named Moose who gently puts the children at ease in what would normally be a daunting courtroom setting. Most of the children are as delighted to pet Moose, before or after their adoption, as Moose is to be coddled by them.

Judge McFaddin works to help children find permanency by calling attention to the many children who await families. While DSS has had 2 record breaking years of adoption finalizations (523 adoptions finalized last fiscal year and 513 adoptions the prior year), many more children continue to await families. Currently, there are approximately 5100 children in foster care in South Carolina and approximately 1713 have the plan of adoption.


What is ICPC?

The Interstate Compact on the Placement of Children(ICPC) is a compact between all 50 state, the District of Columbia and the U.S. Virgin Islands. South Carolina's ICPC statutes are in the Sections 63-9-2200 through 63-9-2290 of the South Carolina Code of Laws, as amended. The compact was instituted among the states to help ensure that a child being moved from one jurisdiction to another for purposes of adoption is protected and his best interests are being looked after.

In South Carolina, adoptive parents who are not residents of South Carolina may adopt only under certain circumstances; the circumstances are listed in Section 63-9-60 of the South Carolina Code of Laws, as amended. In that same section the Code reads:

Before a child is placed within or outside the boundaries of this State for adoption with nonresidents of this State, compliance with [the] Interstate Compact on the Placement of Children is required.

Because compliance with ICPC is required, a basic understanding of it will help ease some of your anxiety in working through the adoption process.

The Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC) has a wonderful website that helps you understand the ICPC better. This link will take you to their Frequently Ask Question Page and you can navigate the website from there to find more help.

Below I have listed one of the questions from the AAICPC website for your review.

How does the ICPC work?

The Interstate Compact on the Placement of Children is an agreement between all fifty states, Washington, D.C. and the U.S. Virgin Islands. The Compact Agreement provides for the movement and safe placement of children between states when the children are in the custody of a state, being placed for private/independent adoption, or under certain circumstances, being placed by a parent or guardian in a residential treatment facility (RTF). The process involves several steps.

In order for an ICPC placement request to get started, a caseworker (or adoption entity) in the state the child is located creates a packet that includes such items as the child’s social, medical, and educational history and the current status of any court case involving the child. The packet will also include information about the person who is being considered for placement of the child in the receiving state so that the receiving state will know who they should be evaluating for possible placement.

Once the placement request packet is created by the local person in the sending state, it gets sent to the central ICPC office in the sending state (usually the state capital, e.g., Austin, Texas). The ICPC central office in the state makes sure everything is in the packet, approves it for sending out, and then transmits it to the ICPC central office in the state where the child would be sent. Once it arrives in the central office of the receiving state of the proposed placement, that office also looks at the packet and if all is in order, the central office will send it down to the social services agency office in the local community where the prospective placement lives. The social services agency will then go out to the home, meet with everyone in the home, do background screening, and make a determination as to whether the home should be approved for the child to come and live there.

A completed home study report is then sent from the local agency to the central ICPC office in that state and the placement request is either approved or denied based on the recommendation of the home study report. The packet is then sent from the receiving state to the central office in the first state for review. Finally, the local office that started the placement request is sent a copy of the completed home study along with documentation of the receiving state’s decision to either approve or deny the placement request. If the request has been approved by the receiving state, the child can be placed in the chosen home.

While there is much more detail to the process in terms of the forms, financial arrangements for the child, and licensing that may need to be put in place, this is a simple overview of each of the steps that the placement request process will take to go from the local level in one state, through the central office of each state, to the local level in the other state and back again. The process ensures that when children are placed out of state, they are placed in a safe and nurturing environment that can meet their particular needs.

 

Thinking About Adopting an Older Child?

I think adoption can be a wonderful process in which a family is legally made. As most of us who have families are aware it take more than a piece of paper to make a family a family, and under the best of circumstances, raising children can be and in most instances is a challenge.

I hope that those of you who are thinking about adopting an older child are keeping in mind the child you are adopting has a history. Some of the older children that are in the Department of Social Services custody or in an orphanage in a foreign country have been abused and neglected; this abuse and neglect leads to psychological issues that may be very trying on your already existing family.  

The question is not whether older children should be adopted or not; the question is are you and your family ready to adopt an older child.

The Department of Social Services provides 14 hours of training and evaluation to help you determine which type of child is best suited for your family; this services is offered for those parents that are seeking to adopt through the Department of Social Services. More information can be found at this link concerning the adoption of children in the Department of Social Services custody.

I make sure my clients know that once they have adopted the child, the child is theirs. I do this at the initial interview and on the record at the final hearing. You cannot give the child back without adverse legal consequences; you cannot just put the child on a plane and expect life to return to "normal." 

Before you adopt a child, please make sure you and your family are ready and willing to take on the challenges that come with having a new family member. This is especially true with older children; their customs, traditions, and worldview may be very different from yours; unneeded conflict may arise if you have not prepared yourself to weather any potential storm.

Adoption is a wonderful opportunity to create a family through law; let's keep it that way.

 

Daniel's Law: Safe Haven for Abandoned Child and His Parents

Section 63-7-40 of the South Carolina Code of Laws, as amend, provides distressed young women and men an opportunity to surrender a new born child without being prosecuted for abandoning the child.

The above section provides that a person who leaves an infant at a  safe haven or directs another person to do so must not be prosecuted for any criminal offense on account of such action if:

(1) the person is a parent of the infant or is acting at the direction of a parent;

(2) the person leaves the infant in the physical custody of a staff member or an employee of the safe haven; and

(3) the infant is not more than thirty days old or the infant is reasonably determined by the hospital or hospital outpatient facility to be not more than thirty days old.
 

Safe haven as defined by statute means a hospital or hospital outpatient facility, a law enforcement agency, a fire station, an emergency medical services station, or any staffed house of worship during hours when the facility is staffed. 
 

Please note that you must leave the child with a staff member or an employee of the safe haven and no one else. Please also note that this law protects you from prosecution for leaving the child as outlined above; it does not protect your from any other abuse or neglect that may have occurred to the child prior to you surrendering the child.

Surrendering your child is conclusive evidence that the legal requirements for terminating your parental rights have been satisfied, and you essentially lose all your parental rights. This only applies to the person who left the child at the safe haven or the person who instructed someone else to do so for her. 

South Carolina Department of Social Services provides a brochure concerning Daniel's Law at https://dss.sc.gov/content/library/forms/files/2493.pdf. This brochure provides another explanation of Daniel's Law.

Remember you are protected if you follow the law when surrendering your child; if you do not follow the law then you forgo your statutory protection. Please call the South Carolina Department of Social Services at 1-888-722-2580 if you have any questions.

 

 

 

Had Sex: Register to Keep Parental Rights

If you want to protect your parental rights as a father you need to register at the Responsible Father Registry.

Please read my blog post at http://www.southcarolinaadoptionlaw.com/2009/12/articles/biological-father-1/john-doe-rip-responsible-father-registry-is-law-1-januarly-2010/  and Responsible Father Registry Q & A  to help you more fully understand the Responsible Father Registry.

Putative Father Registry: Fathers Step-up or Shut-up

The text below is extracted  from www.justia.com and gives a great summary of a U.S. Supreme Court Case involving unwed fathers' rights and the putative father registry. After reading this case, I doubt the new South Carolina Responsible Father Registry will have any serious U.S. Constitutional challenges.

U.S. Supreme Court

Lehr v. Robertson, 463 U.S. 248 (1983)

Lehr v. Robertson

No. 81-1756

Argued December 7, 1982

Decided June 27, 1983

463 U.S. 248

Syllabus

Appellant is the putative father of a child born out of wedlock. Appellee mother of the child married another man (also an appellee) after the child was born. Subsequently, when the child was over two years old, appellees filed an adoption petition in the Ulster County, N.Y. Family Court, which entered an order of adoption. Appellant never supported the child or offered to marry appellee mother, did not enter his name in New York's "putative father registry," which would have entitled him to notice of the adoption proceeding, and was not in any of the classes of putative fathers who are entitled under New York law to receive notice of adoption proceedings. After the adoption proceeding was commenced, appellant filed a paternity petition in the Westchester County, N.Y. Family Court. Appellant learned of the pending adoption proceeding several months later. Shortly thereafter, his attorney sought a stay of the adoption proceeding pending the determination of the paternity action, but by that time the Ulster County Family Court had entered the adoption order. Appellant filed a petition to vacate the adoption order on the ground that it was obtained in violation of his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Ulster County Family Court denied the petition, and both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.

Held:

1. Appellant's rights under the Due Process Clause were not violated.

(a) Where an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban v. Mohammed, 441 U. S. 380, 441 U. S. 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. But the mere existence of a biological link does not merit equivalent protection. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

(b) Here, New York has adequately protected appellant's inchoate interest in assuming a responsible role in the future of his child. Under New York's special statutory scheme, the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any adoption proceedings. The State's conclusion that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees cannot be characterized as arbitrary. The Constitution does not require either the trial judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights.

2. Nor were appellant's rights under the Equal Protection Clause violated. Because he has never established a substantial relationship with his child, the New York statutes at issue did not operate to deny him equal protection. Cf. Quilloin v. Walcott, 434 U. S. 246. Appellee mother had a continuous custodial responsibility for the child, whereas appellant never established any custodial, personal, or financial relationship with the child. In such circumstances, the Equal Protection Clause does not prevent a State from according the two parents different legal rights. Caban v. Mohammed, supra, distinguished.

54 N.Y.2d 417, 430 N.E.2d 896, affirmed.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined.

 Link to the Full Text of Case: http://supreme.justia.com/us/463/248/case.html

Death Date Changes for John Doe: RIP on 1 July 2010

Though the statute does not require a search of the Responsible Father Registry until 1 July 2010, it was my belief that attorneys would be able to search the registry starting 1 January 2010. This would have been helpful because it would have immediately eliminated the need to serve John Doe in adoptions case.

I spoke with the general counsel of the South Carolina Department of Social Services concerning whether or not we could immediately start searching the registry. It is my understanding from my conversation with her that we will not be able to access the registry until 1 July 2010. John Doe lives a few more months.

Please read my blog post on the Responsible Father Registry and my blog post of the change in the notice requirement implemented in the Responsible Fathers Registry for a more full picture of how the registry law is going to work.

Adoption Tax Credit Updated for 2010

The updated tax credit for 2010 is $12,170.00 and will sunset at the end of 2010 to $6,000.00 for special needs child adoptions and $5,000.00 for all other qualified adoptions according to William Perez in his blog.

Please view my earlier blog for a full explanation of the adoption tax credit.

Please contact your congressman and senators and ask each of them to keep the tax credit at the present level and not to revert back to the pre-2001 level. You can find your congressman's and senators' contact information at http://www.congress.org/congressorg/directory/congdir.tt.

Adult Adoptions

Adult Adoptions are allowed in South Carolina under Section 63-9-1120 of its Code of Laws, as amended. "An adult person may be adopted by another adult person with the consent of the person to be adopted or his guardian and with the consent of the spouse, if any, of a sole adoptive parent, filed in writing with the court...A petition for the adoption must be filed with the family court in the county where the adoptive parents reside."

The Law Office of David H. Baum out of California answers a few of the questions you may have about adult adoptions at  http://www.adoptlaw.com/faqadult.html. They questions and answers are general and substantially conform to South Carolina law. If you have any further questions, you can contact me via e-mail or phone. My e-mail address is lawyerhall@russellslawoffice.com and my phone number is 843-267-0906.

Yes, my office does handle adult adoptions.

Two Witnessess Required for a Consent and Relinquishment

In an adoption, the adoptive parents may need to obtain a consent and relinquishment from the biological mother and father. To be valid, South Carolina Code of Laws Section 63-9-340 provides that the consent and relinquishment "must be signed in the presence of two witnesses one of whom must be on 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;
  4. when the consent or relinquishment is obtained outside of this State, by an attorney licensed to practice law in that state, by a person designated by an agency of that state, by a person or agency authorized by that state's law to obtain consents or relinquishments or to conduct investigations for adoptions, or by a qualified resident of that state authorized by a South Carolina family court."

Domestication of Foreign Adoptions

The guidelines for obtaining a certificate of a foreign birth and domesticating a foreign adoption can be found at the South Carolina Judicial website. These guidelines will help you determine if you wish to proceed on your own or you wish to have the help of an attorney in domesticating your foreign adoption. 

 

Remain Anonymous if You Wish

South Carolina law provides that "the petitioner [to an adoption] may employ the use of fictitious names where necessary to avoid disclosure of identities of parties or persons. In addition, all adoptions are sealed in South Carolina. These two statutory provision, along with discretion on your part, will help you remain anonymous throughout the adoption process.

It is up to you to determine if you want to remain anonymous or not. The law helps you remain anonymous; is does not require you to remain anonymous.

If you chose, you may be part of the pregnancy and birth of the child. In some instances, especially with older children, you may wish to allow the birth parents to visit with the child and be involved in the child's life. The level of involvement by you in the birth and by the birth parents in child's life after the adoption is completely up to you. The  level of involvement by you and the birth parents can range from no involvement (complete anonymity) to full involvement or something in between; the chose is yours.

 

Children Who may be Adopted

Any child present within this State at the time the petition for adoption is filed, irrespective of place of birth or place of residence, may be adopted.

Guardian Ad Litem

South Carolina law provides that, "[b]efore any hearing is held on the adoption or any matter related to the adoption, the court shall appoint a guardain ad litem for the [child being adopted], and the [child being adopted] must be served with a copy of the pleading. However, if the [child being adopted] is fourteen years of age or younger, the child may be served by service upon his guardian ad litem or other person with whom he resides."

The guardian ad litem, generally an attorney in an adoption action, is appointed by the court to make a recommendation to the court concerning whether or not the child should be adopted. The guardian ad litem performs a thorough investigation to included reviewing the adoptive parents' file; interviewing the adoptive parents, the child, and any other person the guardian ad litem deems necessary to interview; and any other investigation the guardian ad litem may deem necessary. This investigation helps him make his recommendation.

The standard the guardian ad litem uses in adoption cases is the best interest of the child standard. After the guardian ad litem has finished his investigation, he will generally reports his finding to the adoptive parents' attorney. If all is well, the adoptive parents' attorney will request a final hearing. If the guardian ad litem has concerns, the adoptive parents' attorney will work with the adoptive parents and the guardian ad litem to address the concerns.

If the adoptive parents have a positive home study and if the adoption is not contested, the guardian ad litem generally does not have any concerns. Of course, you need to remember that the guardian ad litem represents the child. Through his investigation he is trying to determine if the adoptive parents adopting the child is in the child's best interest; he will make his recommendation to the court accordingly.

Who May Adopt a Child?

Section 63-9-60 of the South Carolina Code of Laws provides that any South Carolina resident may petition the court to adopt a child.

Placement of children for adoption pursuant to this article is limited to South Carolina residents with exceptions being made in the following circumstances only:

(a) the child is a special needs child, as defined by Section 63-9-30 (Please see the definition below in "Continue Reading");

(b) there has been public notoriety concerning the child or child's family, and the best interests of the child would be served by placement outside this State;

(c) the child is to be placed for adoption with a relative related biologically or by marriage;

(d) at least on of the adoptive parents is in the military service stationed in South Carolina;

(e) there are unusual or exceptional circumstances such that the best interests of the child would be served by placement with or adoption by nonresidents of this State; or

(f) the child has been in foster care for at least six months after having been legally freed for adoption and no South Carolina resident has been identified as a prospective adoptive home.

Interstate adoptions are much more complex than an intrastate adoption; please move forward with great care if you are adopting interstate. If the child fits into subsection (a)-(d) and (f) above, the interstate hurtles are much easier to leap because these subsections more clearly define the category in which the child needs to fit to be considered an exception to the rule limiting adoption to South Carolina residents.

If you are trying to work with subsection (e) which is much more ambiguous than the rest, proceed with caution. Though you may ultimately show the court that the circumstances are unusual or exceptional and that the best interest of the child would be served by placement with or adoption by nonresident of this State, the financial and emotion cost to do so could be great.

The Courts have determined that the selection of the adoptive parents by the biological parent or parents is an unusual and exceptional circumstance. Even under this circumstance, I advise you to proceed with caution because you may need the mother to testify that she in fact selected the adoptive parents. The problem arises when you do need the biological mother to testify and she has changed her mind and does not want to give her child up for adoption. Though the biological mother in unable to withdrawal her consent and relinquishment without an order from the court, she can refuses to testify or testify that she did not pick the adoptive parents.  If this is the case, then the Court will probably rule that there is no unusual and exceptional circumstances; this leaves the adoptive parents stuck in South Carolina with a child that they are unable to leave the state with.  It essentially forces the adoptive parents to relinquish custody of the child or fight a battle that is not winnable because the financial and emotional burden is to great and the outcome so uncertain.

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South Carolina Children's Code Moves to Title 63

The South Carolina Children's Code has moved to its new home in Title 63; the South Carolina Adoption Act's new home is in Chapter 9 of Title 63. Because the South Carolina Children's Code has moved from Title 20 to Title 63, the South Carolina Judicial Department has provided a conversion table to help practitioners and laymen alike maneuver between the old code sections and the new code sections; this conversion table is very useful to those who are researching pre-conversion case law.

J. Benjamin Stevens of the South Carolina Family Law Blog posted a brief explanation of why the legislators moved the Children's Code to it new home by itself in Title 63.

 

 

Who has Custody of the Adoptee during the Adoption Process?

Section 63-9-510 of the South Carolina Code of Laws provides that the adoptive parents have temporary custody of the adoptee once they receive the adoptee into their home and a petition for adoption has been filed.

Step-Parent Adoption

Four requirements of third-party adoptions are eliminated or waived by Section 63-9-1110 of South Carolina Code of Laws for step-parent adoptions; these eliminations and waivers are subject to the discretion of the court.

  1. Unlike third-party adoptions, step-parent adoptions require no investigation or report on the adoptive parent nor background reports on the biological parents. This greatly reduces the time and money spent on the adoption.
  2. The requirement of an accounting of all money spent on the adoption is eliminated.
  3. The court may waive the requirement that the final hearing must not be held before ninety days after the filing of the adoption petition. Waiving  this ninety day waiting period obviously moves the adoption process forward more quickly.
  4. The court may also waive the appointment of independent counsel for an indigent parent. This waiver also reduces the time spent on the adoption process.

 

 

 

 

Adoption Tax Credit

This year seems to be the year of tax credits; this post is made up almost exclusively of William Perez's discussion on the adoption tax credit. 

Adoption Tax Credit:

Tax credit of up to [$12,150 in 2009] for adopting a child

By William Perez, About.com

You qualify for the adoption tax credit if you adopted a child and paid out-of-pocket expenses relating to the adoption. The adoption credit is calculated on Form 8839 Qualified Adoption Expenses (PDF). You may claim an adoption credit of up to $12,150 (for tax year 2009) per eligible child. 

Adoption Tax Credit Amounts

2009: $12,150
2008: $11,650
2007: $11,390
2006: $10,960

Adoption Tax Credit Phase-out Ranges

2009: $182,180 - $222,180
2008: $174,730 - $214,730
2007: $170,820 - $210,820
2006: $164,410 - $204,410

The credit is reduced based your modified adjusted gross income. The IRS provides a worksheet for figuring your modified adjusted gross income for the adoption credit in the Instructions for Line 8 of Form 8839. Any income excluded from tax using the Foreign Earned Income Exclusion must be added back for the purposes of determining the phase-out range for the adoption credit.

Adoption Tax Credit Eligibility Requirements

To be eligible for the adoption credit, you must:

  • Adopt an eligible child, and
  • Pay qualified adoption expenses out of your own pocket.

Eligible Children include:

  • any child age 17 or younger, or
  • a child of any age who is a US citizen or resident alien and who is physically or mentally incapable of caring for himself or herself.

Qualified Adoption Expenses are calculated by:

  • Adding up all the expenses related to the adoption,
  • Subtracting any amounts reimbursed or paid for by your employer, government agency, or other organization.

Adoption expenses include any and all costs directly relating to your adoption and that are reasonable and necessary for your adoption. Expenses include adoption fees, legal fees, court costs, and travel expenses.

Taxpayers who adopt a special needs child can claim the full amount of the adoption credit without regard to the actual expenses paid in the year the adoption becomes final.

Eligible expenses must be "directly related" to the adoption of an eligible child. This may include adoption fees, legal fees, and court costs. Expenses for a failed adoption might qualify for the credit if followed by a successful adoption, but the two adoption efforts would be considered as one adoption and subject to the dollar limit per eligible child. The editors of JK Lasser's Your Income Tax advise:

"Do not include expenses paid or reimbursed by your employer or any other person or organization. You may not claim a credit for the costs of a surrogate parenting arrangement or for adopting your spouse's child." (page 469)

When to Claim the Adoption Credit

What year you can claim the adoption credit depends on when the adoption was finalized and whether the adopted child is a US citizen, resident alien, or foreign national.

If the child is a US citizen or resident alien, then you take the adoption credit in the following order:

  • for expenses paid before the adoption is final, you take the adoption credit in the year after your expenses were paid,
  • for expenses paid in the same year that the adoption is final, you take the adoption credit in the same year, and
  • for expenses paid in the year after the adoption is final, you take the adoption credit in the year the expenses were paid.

For example, you adopted a child in 2007, but you paid adoption expenses in 2006, 2007, and 2008. Your 2006 expenses are taken on your 2007 tax return (they must be delayed by one year because the adoption was not final). Your 2007 expenses are taken on your 2007 tax return (because they occurred in the same year as the adoption became final). You take your 2008 expenses on your 2008 tax return. In this example, your 2007 adoption expenses include both your 2006 and your 2007 expenses.

If the child is a foreign national, then you take the adoption credit only in the year when the adoption becomes final. Any expenses paid in the year after the adoption is finalized, you can take a credit for those expenses in the year that you paid them.

If your adopted child does not yet have a Social Security Number, you must apply for an Adoption Tax ID Number (ATIN) in order for you to begin claiming your adopted child as a dependent. The IRS provides comprehensive information on the Adoption Taxpayer Identification Number.

Dollar Limitations for the Adoption Credit

The maximum dollar amount you can claim for the adoption tax credit is limited by actual expenses you paid, by the phase out range for income, and by the interaction of the adoption credit with the foreign tax credit and the alternative minimum tax.  

Carrying Forward the Adoption Credit

Any adoption credit in excess of your tax liability can be carried forward to the next tax year. Excess adoption credits can be carried-forward for five years and is used up on a first-in, first-out basis. The IRS provides a Credit Carryforward Worksheet in the Instructions for Form 8839.

Adoption Tax Credit Resources

 

The Give and Take of a Consent and Relinquishment

"The legal rules on the timing of consent 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 for newborns."

Joan Heifetz Hollinger

 

South Carolina does not have a waiting period before a consent and relinquishment (hereafter "consent") becomes effective; the consent is effective immediately and cannot be withdrawn without an order from the court.

Under South Carolina Law, the biological parent wishing to withdraw her consent  must show that the withdrawal is in the best interest of the child and that the consent was not given voluntarily or was obtained under duress or through coercion. This post will focus on the voluntariness of the consent.

In McCann v. Doe, the South Carolina Supreme Court examines a withdrawal of a mother's consent. After the Court recites the facts, it analyzes the voluntariness of the consent and concludes the consent was not given voluntarily.

The Court gives the definition of duress as "'a condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. '"  It than proceeds to put emphasis on  "emotional stressors" as it determines whether the consent was entered into voluntarily.

The dissenting opinion with which I agree states:

The majority concludes that the evidence showed McCann's "emotional stressors and suffering caused impaired functioning," which in turn rendered her relinquishment involuntary. However, an action is involuntary when it is performed under duress, force, or coercion, and the crux of this case really is whether McCann acted while under duress...

In my opinion, there is no compelling evidence that McCann's "emotional stressors" were anything but internal in nature. Therefore, although I would agree with the family court's conclusion that McCann was in an emotional state, the family court erred in finding her consent was given involuntarily. Circumstances such as temporary depression or emotional distress simply are not sufficient, in and of themselves, to invalidate a consent to adoption.

Moreover, to suggest that because others offered to support McCann regarding her adoption decision, this encouragement somehow acted to coerce McCann into signing the relinquishment is a sad commentary, indeed. Support for a parent's choice to place a baby for adoption is something that should be promoted, although clearly the decision should never be forced upon a parent...

Of most importance to the instant case is the relinquishment form which was entitled "CONSENT TO ADOPTION." As previously mentioned, and as conceded by the majority, this form complied with the statutory requirements...The purpose of these statutes is "to ensure that birth parents freely and voluntarily consent to relinquish there particular child, and do not do so under conditions of duress.

The South Carolina legislators have put several safeguards in place to ensure that a birth parent is not under duress when she consents to the adoption and relinquishes her parental rights. One of the safeguards is the form and substance of the document the birth parent signs. Another safeguard is the requirement of having the consent and relinquishment signed in the presence of two witnesses. If the consent and relinquishment is taken within this state, one of the witnesses is required to be a family court judge, an attorney who does not represent the adoptive parents, or a person certified by the Department of Social Service to take a consent and relinquishment . If the consent and relinquishment is taken outside of this state then an attorney licensed in the state or jurisdiction within which the consent and relinquishment is signed is required to be one of the witnesses.

In this case, the Court seemed to be bending the facts to its will rather than rendering an opinion based on the facts when it focused on the inner turmoil of the birth mother rather than any external coercion that may have occurred. The Court acknowledged that the consent and relinquishment was proper in form and substance; the facts discussed in the opinion indicate that the attorney taking the consent explained the legal ramification of signing the consent  and the birth mother acknowledged she understood the legal ramification of signing the consent. Yet under the guise of the "totality of the circumstance" the Court rendered an opinion contrary to these facts and based on the Court's expanded definition of duress.

This opinion has the potential to make the adoption process less certain and more costly. It seems that a birth mother now only needs to show that several "emotional stressors" overwhelmed her and made her feel like she had no other choice but to release her baby for adoption; in these cases, the lower courts will be apt to find that the consent was entered into involuntarily because the South Carolina Supreme Court expanded the definition of duress to include these internal pressures caused by "emotional stressors."