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

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

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

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of adoption or termination of parental rights (South Carolina law has no such provision, and the consent can only be withdrawn up until the final decree if the consent was given under duress and if it is in the child’s best interest).

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

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

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

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

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

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

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

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

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

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

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

ADOPTION CHECKLIST

                                                                                     

Plaintiffs vs. Defendants

 

20____-DR-____-_____

                                                                 ADOPTION CHECKLIST

This Adoption is:

            Step-parent adoption or adoption related by blood or marriage

            Non-relative adoption

 

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

            Summons

            Complaint

            Order appointing GAL

            Proper service of Order appointing GAL on the GAL

            Answer of GAL

Proof of service of Summons and Complaint on:

           Biological parents (if no consent/relinquishment or TPR)

             Child to be adopted (if 14 years or older)

           GAL or child (if 13 years or younger)

            Proof of Service by Publication (if served by Publication)

            Notice to named biological father

____    Responsible Father Registry Search Results

            Mother’s Consent Relinquishment (if given)

            Father’s Consent Relinquishment (if given)

            Consent of Child if age 14 or older

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

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

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

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

            Adoption Placement Certificate (if DSS placement)

            Answer of DSS (if DSS placement)

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

            Notice of Hearing to DSS (if DSS placement)

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

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

 

Date:________________   

 

________________________________________

Attorney for Plaintiffs

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

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

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

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

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

Area Adoption Offices

Area A

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

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

Area B

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

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

Area C

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

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

Area D

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

“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.

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.

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.

 

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

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