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 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.

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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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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.

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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.

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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.

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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.

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