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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the grounds to terminate a parent's rights is if the child has spent 15 of the last 22 months in foster care.

The Courts in ruling on this ground for termination of parental rights will need to ask why the child has been in foster care for 15 months and is this delay in reuniting the child with the parent or parents the fault of someone other than the parent or parents. The facts concerning the delay are key to whether or not you can terminate the parents' rights on this ground.

In a recent South Carolina Supreme Court Case, the Court stated that "[w]here there is 'substantial evidence that much of the delay...is attributable to the acts of others,' a parent's right should not be terminated based solely on the fact that the child has spent greater than fifteen months in foster care."

You can find the above-mentioned opinion at http://www.sccourts.org/opinions/advSheets/no352011.pdf at page 14 through 25.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Termination of parental rights (TPR) is the process by which all future rights and responsiblities of the biological parents are terminated.

South Carolina Code lists eleven grounds for the termination of parental rights.

Two of the more frequently used grounds for the terminatin of parental rights in a private adoption action are:

1. The 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 visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit, and;
2. The 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. 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 the custodian and the ability of the parent to provide support.

These two ground are independent of one another and only one needs to be shown for the judge to grant the termination of the parent's rights.

The judge has a great deal of discretion; even though you may be able to show that the biological parent has wilfully failed to visit or support the child, the judge may determine after reviewing all the facts that it is not in the best interest of the child to terminate the parent's rights.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link