The second stage of the adoption is creating the legal relationship of parent and child between the adoptive parents and the minor child.

When you hear about an adoption action or an adoption case, it typically is referring to the lawsuit brought by the adoptive parents in which they seek both the termination the parental rights and the adoption. Although there are situations where the termination of parental rights and the adoption are done in two separate lawsuits, South Carolina law typically allows adoptive parents to file one lawsuit to address both the request for termination of parental rights and the request to adopt.

Two separate lawsuits are most common in cases where DSS has custody of the child because he/she was abused or neglected by the parents and they file an action for the sole purpose of terminating the rights of the parents to the child.

In order to terminate the parental rights of a biological mother, biological father or legal father, a couple who wants to adopt the minor child must show to a court two key facts. The first fact is that there is a legal ground for terminating the parental rights of the parent (TPR). There are currently eleven different grounds for terminating the parental rights of a biological or legal parent. The most commonly used grounds in a TPR action are (1) the parent’s failure to visit with the child for more than six months, (2) the parent’s failure to support the child for more than six months, (3) the parent’s failure to complete a DSS treatment plan and (4) the parent suffers from diagnosable condition, typically a drug addition or mental health condition, which prevents them from being able to provide a minimal level of care for the child. Once the adoptive parents are able to show to a court a legal ground for terminating a parent’s rights, the second fact that they must show to a court is that terminating that parent’s rights is in the child’s best interests.

A biological or legal parent of a child can give up or relinquish their rights to their child. If they are willing to do so, they must sign a Consent and Relinquishment for Adoption form. A Consent and Relinquishment for Adoption form is simply a document in which the parent voluntarily gives up any rights and obligations to the child up and consents to the Family Court granting an adoption of that child by another family.

Terminating the parental rights of all the biological parents and the legal father is a necessary precursor to being able to adopt the child. Terminating a parent’s rights to their child requires that the parent either voluntarily relinquish their rights to the child or that the Family Court take away their rights to the child.

Once all the parental rights of the biological mother, biological father and legal father have been terminated, then the hopeful adoptive parents must show to the court that creating the legal relationship of parent and child between them and the child is in the child’s best interests.

If an adoptive couple can convince a family court judge that (1) there is a legal basis to terminate the parental rights of the parents, (2) that the termination of parental rights is in the child’s best interests and (3) that creating a new parent and child relationship between the child and the hopeful adoptive parents is in the best interests of the child, then an adoption will be granted.

In Michael P. and Lisa P. v. Greenville County Department of Social Services, Michael and Lisa P. were the Foster Parents for a young child.  After talking to DSS about adopting the child, Michael and Lisa decided to allow the child to be placed in another “pre-adoptive home” instead of keeping the child with them and seeking to adopt him themselves.  Michael and Lisa’s decision was based in large part on the representations by the DSS caseworker that the child would be placed for adoption with a young couple and that they may be able to be involved with the child even after the adoption.  Based on what they were told by DSS, they agreed to allow the child to be adopted by a younger, childless couple.

After the former Foster Parents agreed to allow the child to be placed in another home, DSS placed the child for adoption in the home of a single female.

When Michael and Lisa P. learned that the child had not been placed in a pre-adoptive home like the one that had been described to them, they filed an action in Family Court asking to be able to adopt the child or, if they could not adopt, to have custody of the child.

The Family Court said, and the Court of Appeals agreed, that Michael and Lisa P. no longer had the right to request custody of the child or to adopt the child.  The Courts said that Michael and Lisa P. lost the right to ask for custody or adoption when they volutarily agreed to allow the child to leave their home and to be moved to another foster home.

The Court did note that Michael and Lisa P. had the opportunity to object to the removal of the child from their home for a period of 30 days after the child left.  Because they did not object within that 30 day period, they lost the right to ask for custody or an adoption.

The lessons to be learned from this case are:

If you are a foster parent and agree to allow the child to leave your home, you will lose the right to ask for custody or to adopt the child.  This applies even when DSS has made promises to you that they did not keep or told you information that was not true.

If DSS removes the child from your home against your wishes, you must file an objection to the removal.  You will have a limited amount of time to file the objection and if you miss the deadline, you will lose your right to request custody or adoption.  If you do file in time, you will have the ability to fight the decision of DSS and possibly have the child returned to your home.

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