South Carolina Adoption Law Blog : South Carolina Adoption Lawyer & Attorney : Russell Hall Law Firm : Termination of Parental Rights, Relinquishment

“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.

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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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

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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.

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Is John Doe dead?  Jenny Horne, a co-sponsor, of the new Responsible Father Registry law says yes in an article she wrote in The Summerville Journal Scene:

The Responsible Birthfather Registry Act will require fathers who wish to be notified of a termination of parental rights proceeding to take the affirmative step of registering with a confidential state database. This registry can then be checked by DSS [or the adoptive parents' lawyer in private adoptions] during the termination of parental rights (“TPR”) proceedings before a child is adopted into a permanent and loving home. This new registry does away with the antiquated practice of placing Joe Doe notices in the local newspapers.

If the mother of a child who is being placed for adoption is unmarried, the courts generally require the adoptive parents to serve any potential unknown father by adding John Doe as a defendant and serving John Doe via a newspaper in the county in which the child was conceived. This method of terminating the rights of a potential unknown father is fraught with legal uncertainty and a potential challenge by the father as illustrated in Brown v. Malloy; this case is a fact intensive case in which the father challenged the termination of his rights and the adoption of his child. All four issues raised by the father in the case concern the John Doe notice. 

The Responsible Father Registry should be in place on 1 January 2010 and will require a potential father to register with the Registry to ensure he preserves his parental rights; eliminating the need for John Doe notices.

The Responsible Father Registry law makes clear the only notice that the father is required  to receive concerning the mother's pregnancy is the sexual intercourse itself; his "sexual intercourse or his consent to artificial insemination with the biological mother is deemed to be notice to the unmarried biological father of the biological mother's pregnancy." In essence, if a man has sex with a woman and wants to preserve his parental rights to a child that may have been conceived from that intercourse, he must register with the Registry. This will eliminate any legal uncertainty concerning the father's rights and places the responsibility for preserving his rights squarely on his own shoulders. John Doe is dead.

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Under certain circumstances, the adoptive parents are required to give an unmarried father notice of the adoption proceeding. The statute list seven categories of fathers whom the adoptive parents are required to send notice of the adoption proceeding.

The Governor signed into law the Responsible Father Registry on the 2 June 2009. This new law changes the notice requirement slightly. The notice requirement is effective in its present form through 1 July 2010; on 1 July 2010, the new notice requirement replaces the need to notify unmarried fathers from whom a consent and relinquishment is not required with the need to notify unmarried fathers who have registered with the Responsible Father Registry. The adoptive parents are still required to notify the following unmarried fathers under the new law without the need for the father to register:  

1. a person adjudicated by the court to be the father;
2. a person whose consent and relinquishment is required but cannot be obtained;
3. a person listed on the birth certificate as the father;
4. a person who openly lives with the child or the child's mother or both and holds himself out as the child's father;
5. a person identified by the mother in a sworn, written statement as the father, and;
6. a person whom the court finds mentally incapable of giving consent and relinquishment.

Under the new law, the attorney for the adoptive parents will make a request of the department  to determine if an unmarried father has taken responsibility for the child by registering with the Responsible Father Registry. If the department determines that a father has taken responsibility for the child, the department will furnish the attorney with the name of the father. The adoptive parents will then be responsible for notifying the father of the adoption proceeding.

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Under South Carolina's notice statute, the parental rights of an unmarried father who is required to be notified are terminated if he does not request a hearing within thirty days after receiving the required notice. Though the statute does not directly state the father's rights are to be terminated it does require the adoptive parents to including the following language in the notice—failure to file a response within thirty days of receiving notice constitutes consent to the adoption of the child and forfeiture of all rights and obligations of the person...with respect to the child. Because the statute requires the adoptive parents to include the language in the notice, South Carolina courts have implied that the father's rights have been forfeited and he has consented to the adoption of the child if he does not request a hearing within thirty days.

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The requirement for whether or not the biological father signs a consent and relinquishment depends on whether he is married to the mother or not and if not, his involvement in the child's life.

It seems natural to assume that if the father is married to the mother at the time of conception or birth, the adoptive parents  would be required to obtain a consent and relinquishment from him for an adoption proceeding to move forward. This assumption is correct; the adoptive parents would be required to obtain a consent and relinquishment from the father.

For unmarried fathers the requirement for a consent and relinquishment depends on when the child was placed with the adoptive parents and the level of the father's involvement in the child's life. The following standards apply to unmarried fathers:

1. If the child is placed with the adoptive parents more than six months after the child was born then the adoptive parents would be required to obtain a consent and relinquishment from the father only if he has paid child support regularly and he has either visited with or communicated with the child monthly;

2. If the child is placed with the adoptive parents less than six months after the child was born then the adoptive parents would be required to obtain a consent and relinquishment from the father:

a.  if he has lived with the mother and child or child and if he has held himself out as the child's father; or,

b. if he has paid child support or has paid for prenatal and birth expenses in connection with the mother's pregnancy.

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