I have been working with folks on adoption matters for some time now. One thing that I have learned that has benefited several of my clients is that gaining custody of a child that my clients are seeking to adopt is a more sound approach than attempting to adopt the child immediately.
One specific reason to do this is when my clients’ have no legal rights to the child in the first place, which occurs when a parent, often the mother, is unable to care for a child for a variety of reasons and asks friends to care for the child. In this situation, it is much more common for the parent to be willing to allow the friends to have legal custody of the child and the parent to maintain some rights to the child than for the parent to relinquish all her rights and consent to an adoption.
Even if I believe my clients have grounds to terminate the parent’s rights and move forward with adoption, I encourage them to consider custody by agreement first if it is an option. I do this if it seems likely that the TPR is going to be contested. Once you open the TPR and adoption case, there is a potential for family members of the mother, potential father, and his family to get involved, which makes the TPR case much more complicated and much more costly.
Once my clients have custody and seek TPR and adoption in the future (if TPR grounds remain or if TPR grounds occur during the period after the time the clients gained custody), they will most likely continue to maintain legal custody if the TPR is unsuccessful. Also, custody by agreement is substantially less cost-prohibitive than a contested TPR trial, and it gets you to almost what you want as the custodian of the child.
The titled case determined that the plain meaning of section 63-9-60 of the South Carolina Code of Laws, as amended, affords standing to foster parents if they are South Carolina residents.
I have linked to the titled case, and a case referred to as Youngblood to help the reader understanding standing and also to understand the nuance of statutes and case law.
“We acknowledged in Youngblood that the foster care relationship is a temporary and contractual relationship created by the State, and we further noted foster care is “a temporary living arrangement … utilized while permanent placement plans are being formulated for the involved children.” 402 S.C. at 321–22, 741 S.E.2d at 520 (quoting 10 S.C. Code Ann. Regs. 114-550(A)(1) (2012) ). Accordingly, we held “the foster parent relationship, absent statutory law to the contrary, is insufficient to create a legally protected interest in a child and therefore, does not create standing to petition to adopt.” Id. at 322, 741 S.E.2d at 520. It is indeed settled that the foster care relationship is temporary and does not in and of itself create standing to commence a private adoption action. However, this does not foreclose the existence of standing for foster parents under section 63-9-60, provided the foster parents reside in South Carolina, and provided the foster child has not been placed for adoption by DSS (or by agency under contract with DSS).”
Justice Hearing, in her concurring opinion, noted her concerns about the ruling and asked that the General Assembly do its job to clean up a statutory mess. “….I am concerned that foster parents and others who are anxious to adopt a child will hail our decision today as a green light to file an adoption action when a child is taken into protective custody—at a time when DSS is working to fulfill its statutory mandate for reunification. Such actions will burden our family court system and may not always produce results which are best for the child and his or her family. However, finding absurd results in order to produce a more logical and orderly result is not the prerogative of this Court, and I trust the General Assembly will act to change the statute if the current plain language does not reflect its true intent.” S.C. Dep’t of Soc. Servs. v. Boulware, 809 S.E.2d 223, 422 S.C. 1 (S.C. 2018)
“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:
(2) The child has been removed from the parent pursuant to subarticle 3 or Section 63-7-1660 and has been out of the home for a period of six months following the adoption of a placement plan by court order or by agreement between the department and the parent and the parent has not remedied the conditions which caused the removal.”
Most clients I have had the opportunity to represent tend to take longer than six months to remedy the conditions which caused the removal of the child. Fortunately, if my client is making progress on a treatment plan, the Department of Social Services general gives him or her more time to finish it.
This new list of priorities was established by Order of Supereme Court of South Carolina with Appellate Case No. 2015-001725 signed on 20 January 2016.
In the event an attorney of record is called to appear simultaneously in actions pending in two or more tribunals of this State, the following list shall establish the priority of his obligations to those tribunals:
(1) The Supreme Court.
(2) The Court of Appeals.
(3) The Commission on Judicial Conduct, the Commission on Lawyer Conduct, and the Committee on Character and Fitness.
(4) The Family Court – merits hearings involving child abuse, child neglect, and termination of parental rights; juvenile criminal hearings where the juvenile is in detention or otherwise in state custody.
(5) The Circuit Court – General Sessions.
(6) The Circuit Court – Common Pleas, Jury Term.
(7) The Family Court – all cases not referenced in (4) above.
(8) The Circuit Court – Common Pleas, Non-Jury Term.
(9) The Administrative Law Court.
(10) Alternative Dispute Resolution Conferences conducted pursuant to the SC Court-Annexed ADR Rules.
(11) The Probate Court.
(12) Magistrates and Municipal Courts.
(13) Other Administrative Bodies or Officials.
Even the simplest of adoptions require a person to have the knowledge of the processes and procedures needed to terminate the rights of the parent or parents and then establish the rights of the adoptive parent or parents. Each adoption process has many steps involved. I am often asked whether it is possible to do an adoption without an attorney. I respond that it is. I then tell them that it is also possible for me to run a marathon. Adoptions like marathons require a substantial amount of training to be done to completion and to be done correctly. I will not be running a marathon anytime soon because I am unwilling to put the time in to train to the level necessary to complete the marathon.
A local TV station interviewed me concerning a website that offered forms for step-parent adoptions for $325.00. A woman purchased the forms to facilitate the adoption and was unable to complete the adoption for one reason or another. I stated in the interview that, “Ultimately you’re getting a form, you’re not getting the advice of an attorney and that’s the part people don’t understand.” The advice of an attorney often cost more money than folks are willing to pay. The results of almost all the adoption I have been a part of as an attorney or as a GAL with an attorney representing the adoptive parents has been the approval of the adoption. Which was more costly, the failed adoption or the advice of an attorney? I guess it depends on your perspective.
Artificial Insemination is mentioned one time in the South Carolina adoption statutes under the Responsible Father Registry statute. The implication is that a father who consents to artificial insemination continues to have rights to the child and may preserve those rights by filing with the Responsible Father Registry. Section 63-9-820(L) of the South Carolina Code of Laws reads:
An unmarried biological father’s failure to file a claim of paternity with the registry is deemed to be a lack of proper diligence under Section 63-9-770(B). An unmarried biological father’s lack of knowledge of the biological mother’s pregnancy does not excuse an unmarried biological father’s failure to file a claim of paternity pursuant to this chapter. An unmarried biological father’s 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.
The parent/parents that use artificial insemination with the sperm of a third party to expanded their family will need to terminate the parental rights of the biological father to ensure that his rights to the child are severed.
The service of the petition for termination of the parental rights must be served on a child if the child is fourteen years of age or older; and it must be served on the child’s guardian if the child is under the age of fourteen.
The direct service on the child that is fourteen years of age or older seems to correlate with the requirement that a child that is fourteen years of age or older is required to consent to his or her adoption.
“Withdrawal of any consent and relinquishment is not permitted except by order of the court after notice and opportunity to be heard is given to all persons concerned, and except when the court finds that the withdrawal is in the best interest of the child and that the consent or relinquishment was not given voluntarily or was obtained under duress or through coercion. Any person attempting to withdraw consent or relinquishment shall file the reasons for withdrawal with the family court. The entry of the final decree of adoption renders any consent or relinquishment irrevocable.” Section 63-9-350 of South Carolina Code of Laws, as amended
The long and short of signing a consent and relinquishment is that once signed, withdrawing it is very difficult. The burden is on the person withdrawing the consent to show the court that the withdrawal is in the best interest of the child and that it was not given voluntarily or was obtained under duress or through coercion. To help you understand the legal definition of duress, please review this blog post and this case.
I place this checklist in all my adoption files.
This Adoption is:
Step-parent adoption or adoption related by blood or marriage
The following documents have been filed with the Clerk of Court:
Order appointing GAL
Proper service of Order appointing GAL on the GAL
Answer of GAL
Proof of service of Summons and Complaint on:
Biological parents (if no consent/relinquishment or TPR)
Child to be adopted (if 14 years or older)
GAL or child (if 13 years or younger)
Proof of Service by Publication (if served by Publication)
Notice to named biological father
Responsible Father Registry Search Results
Mother’s Consent Relinquishment (if given)
Father’s Consent Relinquishment (if given)
Consent of Child if age 14 or older
Pre-placement Investigation signed within one year of date of placement (not required if step-parent adoption or related by blood or marriage)
Post-Placement Investigation (not required if step-parent adoption or related by blood or marriage)
Medical & Social History (not required if step-parent adoption or related by blood or marriage)
Itemized Accounting (not required if step-parent adoption or related by blood or marriage)
Adoption Placement Certificate (if DSS placement)
Answer of DSS (if DSS placement)
Service of Summons and Complaint on DSS (if DSS placement)
Notice of Hearing to DSS (if DSS placement)
Interstate Compact Approval (if child is placed out of state or placed in S.C. from another state)
Order of Exceptional Circumstances (if child is placed in another State from S.C.)