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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The statutory grounds are set out in South Carolina Code Section 63-7-2570.  Below is a short description of each ground in the order they are given in the statute:
1.    The parent abused or neglected the child and because of the severity or repetition of the abuse or neglect it is unlikely that the parent’s home can be made safe for the child within the next 12 months.
2.    The child was removed from the parents because of abuse or neglect and the parent has not remedied the conditions which caused the removal within 6 months after a placement plan was put into effect by agreement or court order.
3.    The parent has willfully failed to visit the child for a period of more than 6 months.
4.    The parent has willfully failed to financially support the child for a period of more than 6 months.
5.    The presumptive legal father of the child is not its biological father and it would be in the child’s best interest to terminate the presumptive father’s parental rights.
6.    The parent suffers from a diagnosable condition which makes it unlikely that the parent can provide minimally acceptable care for the child.  Diagnosable conditions include alcohol or drug addition, mental illness and extreme physical incapacity.
7.    The parent has abandoned the child by willfully deserting the child or willfully surrendering physical possession of the child without making adequate arrangements for the needs or continuing care of the child.
8.    The child has been in foster care for 15 of the last 22 months.
9.    The parent was found guilty of certain crimes and the acts which the parent was convicted of resulted in the death or hospitalization of the child.
10.    The parent was found guilty of murdering the child’s other parent.
11.    The parent was convicted of the crime of criminal sexual conduct for the sexual act which resulted in the conception of the child.  There is an exception to this rule for cases where the crime of criminal sexual conduct was based on the parents’ ages and not on non-consensual sexual conduct.

Every child that is born whether born through traditional conception or through the use of artificial reproductive technology has at least two biological parents.  Sometimes a child may also have other legal parents.  The most common type of case where there is both a biological parent and a legal parent is where the mother of the child was married to one man at the time of conception but is actually pregnant by another man.  In this case, her husband would be known as the legal father of the child and the man by whom she became pregnant would be the biological father of the child.  In cases where the child is conceived through the use of a surrogate or gestational carrier, each of the individuals involved in the process and their spouse may be able to assert parental rights to the child based on a biological or legal connection to the child.
Before an adoption can take place the parental rights of the biological and legal parents must be terminated. Terminating the parental rights of a biological or legal parent to a child simply means that in the future the child and that parent are considered strangers.  The biological parent would no longer have any claim to custody or visitation with the child nor would they have any obligation to provide child support for the child. From the date of termination, they would be treated just the same as any person on the street in matters related to that child.
In uncontested adoptions, the parental rights of biological and legal parents are terminated based on the voluntary relinquishment of those rights by the parent.  This voluntary relinquishment of parental rights is done in a written document which is explained in detail to the parent before signing and is witnessed by an attorney or licensed social worker.  To be valid, this document must contain certain language described by statute and is typically referred to as a Consent and Relinquishment for Adoption.
In contested adoptions (adoptions where the biological or legal parents do not consent to the termination of their parental rights and adoption by the prospective adoptive parents), the parental rights of the biological and legal parents can only be terminated by an order of the Family Court.  In these cases, an interested party, typically the prospective adoptive parents or the Department of Social Services, will file an action in Family Court seeking to terminate the parental rights of the biological and/or legal parents.  The party asking to terminate the parents’ parental rights must show the court that there is a legal ground for the termination and that the termination is in the child’s best interest.  Currently there are eleven legal grounds for terminating the parental rights of a biological or legal parent.  The legal grounds for termination of parental rights are set forth in South Carolina Code § 63-7-2570.  The legal grounds for terminating the parent’s parental rights must be shown by “clear and convincing evidence.”  This standardis a more difficult to meet than the standard level of proof in civil cases which is “by a preponderance of the evidence”, but is less difficult to meet than “beyond a reasonable doubt” which is the standard in criminal cases.  If the party asking to terminate the parents parental rights cannot prove one of the legal grounds for termination by “clear and convincing evidence”, the Family Court will not terminate that parent’s rights and the child will not be free for adoption.
Once the party asking to terminate the parents’ parental rights has proven one legal ground for termination by “clear and convincing evidence”, then the next consideration for the Family Court is whether the termination is in the child’s best interest.  In determining whether the termination of parental rights is in the child’s best interest the Court looks at all the circumstances related to the child’s current situation.  After reviewing those circumstances, the Family Court Judge will determine whether or not in his or her opinion it is in the best interest of the child to terminate the parental rights.  If the Family Court Judge determines that it is in the child’s best interest to terminate the parental rights of the biological or legal parent, he or she will issue an order terminating those parental rights after which the child will be free for adoption.  If the Family Court Judge determines that it is not in the best interest of the minor child for the parental rights of the biological and/or legal parents to be terminated, then the Court will deny the request for the TPR and the child will not be free to adoption.  In the event that the request to terminate the parental rights of a biological or legal parent is denied, a party may later bring a request to terminate the parental rights of the same parent again in the future.  However, the new request will have to be based upon facts and circumstances that occurred after the date when the court denied the first request to terminate the parents’ parental rights.

This scenario happens often enough that the South Carolina legislature included a specific provision in our adoption laws for dealing with Consents and Relinquishments obtained outside the state of South Carolina. South Carolina Code Section 20-7-1705(4) tells us exactly what must be done when a birth parent wishes to sign a Consent and Relinquishment outside of South Carolina for an adoption in South Carolina.

20-7-1705 (4) addresses both the procedures for signing Consents and Relinquishments outside of South Carolina and the contents of the documents.

First, the document has to be witnessed by 2 people one of which must be (a) an attorney licensed in that state, (b) someone designated by an agency of that state, (c) someone authorized by that state’s laws to take consents or relinquishment or to do adoption investigations or (d) a qualified resident of that state authorized by a South Carolina court to witness the document.

Secondly , the document must either substantially comply with the South Carolina statute governing the contents of Consents and Relinquishments or, in situations when the person signing is a resident of the state where the document is being signed, the document meets the legal requirements for Consents and Relinquishments of the state where it is being signed.

There are certain requirements for a Consent and Relinquishment to be valid in South Carolina. These requirements address both the contents of the documents they sign as well as the procedures that they go through in signing the documents and having them witnessed.

After a Consent and Relinquishment is signed by a birth parent, the Consent and Relinquishment is later submitted to a Family Court Judge at a hearing who will determine whether or not the birth parent voluntarily signed the document, whether the document was properly executed and whether the document contained the necessary information.

If the Consent and Relinquishment is determined to have been given voluntarily, contains the necessary information and was properly executed the court will accept it and terminate the biological parent’s parental rights to the child based upon their Consent and Relinquishment.

We give notice to John Doe by publishing a document called “Notice of Adoption Proceedings” in a newspaper of general circulation.  Typically the selected newspaper is in the city or county where it is believed that the child was conceived.
We serve John Doe so that any man who we do not know the true identity of but who is or, may claim to be, the biological father of the child gets the required opportunity to know about and participate in the adoption action. If biological father was not given notice of the adoption action and the opportunity to participate, he can later attempt to have the adoption set aside.  I and many other attorneys believe that the cost associated with serving John Doe with notice of the adoption proceedings in a local newspaper is justified to reduce or eliminate the possibility that another man could later come back and attempt to upset the adoption by claiming he is the biological father of the child and was never given any notice of the adoption proceedings.

In almost all cases those efforts are not treated as being successful unless we are able to obtain a genetic test (DNA test) confirming the biological relationship between the man and the child. If those efforts are unsuccessful and the identity of the biological father cannot be determined with some certainty then John Doe is used as the name for the unknown father. John Doe (or another generic name such as Richard Roe) is the name given to the unknown biological father of the child.

Every adoption is different so some of the information you find here will apply to your situation and some will not. As the information on this site grows, you will be able to find information that applies to the adoption of infants, the adoption of children in foster care, and the adoption of step-children and other related children. You will find information that applies to both contested adoptions where one or more birth parents object to the termination of their parental rights and the adoption and to consensual adoptions where everyone agrees that the adoption is in the child’s best interest. You will also find information about assisted reproductive technology and the growing number of cases involving surrogate mothers and gestational carriers.

I hope you find this information helpful.

David M. Collins, Jr.
Attorney at Law