South Carolina Adoption Law Blog

Husband: Presumptive Legal Father

Russell W. Hall III — Fri, 27 Jan 2012 09:23:55 -0500

“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.

TPR: Best Interest of the Child

Russell W. Hall III — Fri, 20 Jan 2012 08:17:39 -0500

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.

TPR: Clear and Convincing Evidence

Russell W. Hall III — Mon, 09 Jan 2012 08:37:55 -0500

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.

Don't Forget the Letter of Compliance

Russell W. Hall III — Wed, 14 Dec 2011 16:08:17 -0500

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: http://www.southcarolinaadoptionlaw.com/2011/05/articles/adoption/interstate-adoption-1/aaicpc-website/

SC State Treasurer Loftis proclaims National Adoption Day in SC

Russell W. Hall III — Fri, 18 Nov 2011 17:17:41 -0500

http://myrtlebeach.thedigitel.com/event-calendars/sc-state-treasurer-loftis-proclaims-national-adopt-33439-1118

Martina McBride Will Host Adoption Special on CBS

Russell W. Hall III — Fri, 18 Nov 2011 16:04:03 -0500

http://www.cmt.com/news/news-in-brief/1674665/martina-mcbride-will-host-adoption-special-on-cbs.jhtml

Not All Adoption Experiences Are Wonderful

Russell W. Hall III — Fri, 18 Nov 2011 15:24:05 -0500

During this month of celebrating the wonders of adoptions I want to remind fellow attorneys and potential adoptive parents that like other wonderful endeavors adoption has a potentially nasty underbelly. This article describes the content of a new book, FINDING FERNANDA, concerning adoption and human trafficking; the worst of the worst as far a nasty underbellies are concerned.

I plead with attorneys and potential adoptive parents to be ever vigilant as we proceed with adoption to help stop the abuses described in this book and help ensure that all adoptions will be celebrated as a grand way to allow loving parents to bring deserving children into their home. May our efforts be so great that we never have to hear of such atrocities as are cited in this book again.

South Carolina Adoption Statutes Have Been Moved

Russell W. Hall III — Tue, 15 Nov 2011 11:08:37 -0500

The new location for the South Carolina Adoption Statutes can be found here. Please note that most of my old posts referencing statutes are linked to the old web location; when I click on the links in the old posts, they take me to a page with the following statement:

Error: Resource not found (404)

The web page or resource that you are requesting has been removed or is now located on a different page. Please refer to our home page for the information you want as links may have changed.

On the left of that page you will see a "South Carolina Law" tab; that tab will lead you to the complete list of South Carolina statutes. South Carolina Adoption law is under Title 63, Chapter 9. I will be working on the change over from the old link to the new one in my older post as time permits.

November is Adoption Month!

Russell W. Hall III — Tue, 01 Nov 2011 20:38:15 -0500

Tax Credit is Extended Through 2012

Russell W. Hall III — Fri, 28 Oct 2011 13:44:41 -0500

Read at about.com to find out what you need to do to claim your tax credit. Please remember that the money spent on the adoption of a spouse's child is considered an unqualified expense, and therefore, you cannot claim the expense for the adoption of your spouse's child for the tax credit.

DSS: 15 Months in Foster Care

Russell W. Hall III — Tue, 18 Oct 2011 09:03:10 -0500

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.

Adoption and the Hague Adoption Convention

Russell W. Hall III — Fri, 14 Oct 2011 09:53:33 -0500

The U.S. Department of State explains the Hague Adoption Convention at Understanding the Hague Convention Page. The long and the short of it is that intercountry adoptions amoung Hague Convention Countries are heavily regulated by both the U.S. (which is a Hague Convention Country) and the other Hague Convention Country. One of the requirements is that you will need to work with an agency that is an accredited adoption agency if you wish to adopt children from a Hague Convention Country. The above web page has both a list of accredited adoption agencies for each state and a list of Hague Convention Countries.

Please note that there are several exceptions that may exclude your adoption from the rigors of the Hague Convention. Before seeking out an accredited adoption agency, I would advise you to consult with an attorney well versed in both adoption and immigration law to determine if the child you wish to adopt is excepted from the Hague Adoption Convention.

The attorneys at Steffas and Associates, P.C. understand well the junction between adoption law and immigration law. They are well able to give you guidance concerning the Hague Adoption Convention and it exceptions. Ms. Steffas and her associates may be contacted at www.SteffasLaw.com.

Adoption Financing

Russell W. Hall III — Mon, 03 Oct 2011 14:48:10 -0500

Great resources for those seeking to finance their adoption are found at http://www.squidoo.com/adoptionfinancing.

Dale Dove: A Miracle Worker

Russell W. Hall III — Wed, 28 Sep 2011 07:25:31 -0500

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.

TPR:According to the Parent's Means

Russell W. Hall III — Mon, 08 Aug 2011 13:23:17 -0500

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.

Exception to the South Carolina Rule

Russell W. Hall III — Sat, 16 Jul 2011 12:32:22 -0500

South Carolina law was amended last year to require all private adoptions of children being placed in South Carolina to be initiated and finalized in South Carolina. I affectionately call it the "South Carolina Rule." The law is explained in this blog post.

Section 63-9-1110(5) of the South Carolina Code of Laws outlines the the family exception to the rule:

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:...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.

Fresh Air Experience: A Worthy Cause for Kids

Russell W. Hall III — Wed, 06 Jul 2011 13:41:55 -0500

Below is a verbatim e-mail from Sara at Fresh Air Fund; she is right I do not blog about anything except adoption law and related stories. I guess she got me at a weak moment.

Good Luck!

"Hi

I know that this isn't something that you typically post about, but I thought that you and the readers of South Carolina Adoption Law Blog would care about this issue. Even though the Summer is in full swing, The Fresh Air Fund is still in need of 850 host families. Host families are volunteers who open their hearts and homes to children from the city to give them a Fresh Air experience that can change lives. If you could help to get the word out it would really help us place these wonderful children into a loving host family. It's only for up to two weeks, but it's an experience that can change their lives forever.

I've put together a microsite which explains everything, so please feel free to use any of the images, graphics, banners, or copy:

http://freshairfundhost.org

I was hoping you could help by posting a mention, tweet, or by putting up one of our banners on your site. Please let me know if you are able to help or if you have any questions.

Thank you so much,

Sara
--
Sara Wilson,
www.freshair.org
facebook.com/freshairfund
Twitter @freshairfund"

Consents and Relinquishments Made Simple (Part 1)

Russell W. Hall III — Tue, 14 Jun 2011 14:00:21 -0500

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.

Another Attorney's Analysis of Roe v. Reese

Russell W. Hall III — Tue, 10 May 2011 15:08:38 -0500

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.

Supreme Court: Father Needs to Grasp Opportunity and Accept Measure of Responsibility to Protect Rights

Russell W. Hall III — Wed, 04 May 2011 15:37:14 -0500

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.