How Are Parental Rights Terminated So Adoption May Proceed in South Carolina?
Full Question:
Answer:
A parent may also have rights terminated, either by voluntary relinquishment or judicial termination. A judicial termination requires proof that the parent is unfit and/or poses a threat of harm to the child. The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, or the parent is convicted an a child abuse offense. A termination of parental rights voids any rights and obligations toward the child. The parent will no longer have rights to custody or visitation and will no longer owe a duty of support.
Termination of parental rights will typically end the obligation for child support at that point, but not erase liability for past due support. Often, relinquishment of parental rights will not be allowed if done for the purpose of avoiding child support payments.
Please see the following SC statutes to determine paplicability:
"Section 63-7-2530. (A) A petition seeking termination of parental
rights may be filed by the Department of Social Services or any
interested party.
(B) The department may file an action for termination of parental
rights without first seeking the court's approval of a change in the
permanency plan pursuant to Section 63-7-1680 and without first seeking an
amendment of the placement plan pursuant to Section 63-7-1700.
(C) The hearing on the petition to terminate parental rights must be
held within one hundred twenty days of the date the termination of
parental rights petition is filed. A party may request a continuance that
would result in the hearing being held more than one hundred twenty days
after the petition was filed, and the court may grant a continuance in
its discretion. If a continuance is granted, the court must issue a
written order scheduling the case for trial on a date and time certain."
Service of petition for termination of parental rights
SECTION 4. Section 63-7-2550 of the 1976 Code, as added by Act 361 of
2008, is amended to read:
"Section 63-7-2550.(A) A summons and petition for termination of
parental rights must be filed with the court and served on:
(1) the child, if the child is fourteen years of age or older;
(2) the child's guardian ad litem, appointed pursuant to Section
63-7-2560(B), if the child is under fourteen years of age;
(3) the parents of the child; and
(4) an agency with placement or custody of the child.
(B) The right of an unmarried biological father, as defined in
Section 63-9-820, to receive notice of a termination of parental rights
action must be governed by the notice provisions of Section 63-9-730(B)(1),
(3), (4), (5), and (6), and Subarticle 8, Chapter 9."
Severability
SECTION 5. If any section, subsection, item, subitem, paragraph,
subparagraph, sentence, clause, phrase, or word of this act is for any
reason held to be unconstitutional or invalid, such holding shall not
affect the constitutionality or validity of the remaining portions of
this act, the General Assembly hereby declaring that it would have passed
this act, and each and every section, subsection, item, subitem,
paragraph, subparagraph, sentence, clause, phrase, and word thereof,
irrespective of the fact that any one or more other sections,
subsections, items, subitems, paragraphs, subparagraphs, sentences,
clauses, phrases, or words hereof may be declared to be
unconstitutional, invalid, or otherwise ineffective.
Time effective
SECTION 6. This act takes effect July 1, 2009, except that those
provisions of Section 1 of this act pertaining to the establishment of the
Responsible Father Registry and the receipt of claims of paternity by the
registry take effect January 1, 2010, and those provisions of Section 1
of this act and Section 63-9-730 of the 1976 Code, as amended by Section
2 of this act, affecting an unmarried biological father's right to
receive notice in a termination of parental rights or an adoption action
by filing a claim of paternity and Section 63-7-2550(B) of the 1976
Code, as added by Section 4 of this act, apply to termination of parental
rights actions and adoption actions filed on or after July 1, 2010.
§ 63-7-2540. Content of petition.
A petition for the termination of parental rights must set forth the:
(1) basis of the court's jurisdiction;
(2) name, sex, date, and place of birth of the child, if known;
(3) name and address of the petitioner and the petitioner's
relationship to the child;
(4) names, dates of birth, and addresses of the parents, if known;
(5) names and addresses of a:
(a) legal guardian of the child; or
(b) person or agency having legal custody of the child; and
(6) grounds on which termination of parental rights are sought and the
underlying factual circumstances.
§ 63-9-310. Persons who must give consent or relinquishment.
(A) Consent or relinquishment for the purpose of adoption is required
of the following persons:
(1) the adoptee, if over fourteen years of age, except where the court
finds that the adoptee does not have the mental capacity to give
consent, or that the best interests of the adoptee are served by not
requiring consent; and either
(2) the parents or surviving parent of a child conceived or born
during the marriage of the parents; or
(3) the mother of a child born when the mother was not married; and
either
(4) 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 more than six months after the child's birth, but only if the
father has maintained substantial and continuous or repeated contact
with the child as demonstrated by:
(a) payment by the father toward the support of the child of a fair
and reasonable sum, based on the father's financial ability; and
either
(b) visits by the father to the child at least monthly when the father
is physically and financially able to do so, and when the father is
not prevented from doing so by the person or agency having lawful
custody of the child; or
(c) regular communication by the father with the child or with the
person or agency having lawful custody of the child, when the father
is physically and financially unable to visit the child, or when the
father is prevented from visiting the child by the person or agency
having lawful custody of the child.
The subjective intent of the father, if unsupported by evidence of the
acts specified in subitems (a), (b), and (c) of this item (4) of
subsection (A) of this section, does not preclude a determination that
the father failed to maintain substantial and continuous or repeated
contact with the child. In making this determination, the court may not
require a showing of diligent efforts by any person or agency having
lawful custody of the child to encourage the father to perform the acts.
A father of a child born when the father was not married to the child's
mother, who openly lived with the child for a period of six months within
the one-year period immediately preceding the placement of the child for
adoption, and who during the six-months period openly held himself out to
be the father of the child is considered to have maintained substantial
and continuous or repeated contact with the child for the purpose of this
item (4) of subsection (A) of this section; or
(5) 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:
(a) the father openly lived with the child or the child's mother for a
continuous period of six months immediately preceding the placement of
the child for adoption, and the father openly held himself out to be
the father of the child during the six months period; or
(b) the father paid a fair and reasonable sum, based on the father's
financial ability, for the support of the child or for expenses incurred
in connection with the mother's pregnancy or with the birth of the
child, including, but not limited to, medical, hospital, and nursing
expenses.
(B) Consent or relinquishment for the purpose of adoption is required
of the legal guardian, child placing agency, or legal custodian of the
child if authority to execute a consent or relinquishment has been
vested legally in the agency or person and:
(1) both the parents of the child are deceased; or
(2) the parental rights of both the parents have been judicially
terminated.
(C) Consent is required of the child placing agency or person
facilitating the placement of the child for adoption if the child has
been relinquished for adoption to the agency or person.
(D) If the consent of a child placing agency required by this
subsection is not provided to any person eligible under Section 63-9-60,
the agency has an affirmative duty to inform the person who is denied
consent of all of his rights for judicial review of the denial.
(E) Consent or relinquishment for the purpose of adoption given by a
parent who is a child is not subject to revocation by reason of the
parent's minority.
(F) Under no circumstances may a child-placing agency or any person
receive a fee, compensation, or any other thing of value as consideration
for giving a consent or relinquishment of a child for the purpose of
adoption and no child-placing agency or person may receive a child for
payment of such fee, compensation, or any other thing of value.
However, costs may be assessed and payment made, subject to the
court's approval, for the following:
(1) reimbursements for necessary, actual medical, and reasonable
living expenses incurred by the mother and child for a reasonable
period of time;
(2) the fee for obtaining investigations and reports as required by
Section 63-9-520;
(3) the fee of the individuals required to take the consent or
relinquishment, as required by Section 63-9-340(A);
(4) the fee of a guardian ad litem appointed pursuant to Section
63-9-720;
(5) reasonable attorney's fees and costs for actual services rendered;
(6) reasonable fees to child-placing agencies; and
(7) reasonable fees to sending agencies as defined in Section
63-9-2200(2)(b), the Interstate Compact on the Placement of Children.
The court may approve an adoption while not approving unreasonable
fees and costs.
§ 63-9-320. Persons not required to give consent or relinquishment.
(A) Notwithstanding the provisions of Section 63-9-310, consent or
relinquishment for the purpose of adoption is not required of the
following persons:
(1) a parent whose rights with reference to the adoptee have been
terminated pursuant to Article 7, Chapter 7;
(2) a parent whom the family court finds to be mentally incapable of
giving consent or relinquishment for the purpose of adoption and whom the
court finds to be unlikely to provide minimally acceptable care of the
adoptee and whose capacity is unlikely to be restored for a reasonable
period of time, and, in the court's judgment, it would be detrimental to
the adoptee to delay adoption. The court shall appoint a guardian ad
litem for an incompetent parent for whom there has been no prior
appointment and shall appoint independent counsel for an incompetent
parent who is indigent. However, upon good cause shown, the court may
waive the requirement for the appointment of independent counsel for an
incompetent and indigent parent;
(3) the biological parent of a child conceived as a result of that
parent's criminal sexual conduct or incest as found by a court of
competent jurisdiction unless, with respect to a conviction for criminal
sexual conduct, the sentencing court makes specific findings on the
record that the conviction resulted from consensual sexual conduct where
neither the victim nor the actor were younger than fourteen years of age
nor older than eighteen years of age at the time of the offense.
(B) A parent who has executed a relinquishment pursuant to Section
63-9-330 to a person facilitating the adoption or to a child placing
agency for the purpose of adoption of his child is not required to
execute a separate consent document also.
§ 63-9-330. Form and content of consent and relinquishment.
(A) Consent or relinquishment for the purpose of adoption, pursuant to
Section 63-9-310, must be made by a sworn document, signed by the person
or the head of the agency giving consent or relinquishment after the
birth of the adoptee, and must specify the following:
(1) the permanent address of the person or agency making the sworn
written statement;
(2) the date, time, and place of the signing of the statement;
(3) the date of birth, race, and sex of the adoptee and any names by
which the adoptee has been known;
(4) the relationship of the adoptee to the person or agency giving
consent or relinquishment;
(5) the name and address of the adoptee's mother or father;
(6) that the consent or relinquishment by the person or agency
forfeits all rights and obligations of the person or agency with
respect to the named adoptee, including any future child support
obligation. Giving consent or relinquishment does not relieve a person
from the obligation to pay a child support arrearage unless approved
by the court;
(7) that consent or relinquishment once given must not be withdrawn
except by order of the court upon a finding that it is in the best
interests of the child, and that the consent or relinquishment was not
given voluntarily or was obtained under duress or through coercion;
and that the entry of the final decree of adoption renders any consent
or relinquishment irrevocable;
(8) that the person or agency giving the consent or relinquishment
understands that consent or relinquishment must not be given if
psychological or legal advice, guidance, or counseling is needed or
desired and that none is needed or desired;
(9) that the person or agency giving the consent or relinquishment
waives further notice of the adoption proceedings, unless the proceedings
are contested by another person or agency;
(10) that the person or agency giving the consent or relinquishment is
doing so voluntarily, and the consent or relinquishment is not being
obtained under duress or through coercion; and
(11) that the person or agency giving the consent or relinquishment
has received a copy of the document.
(B) When a child placing agency accepts a relinquishment for the
purpose of adoption, which gives the agency the right to consent to an
adoption of the child, and which contains the information required in
subsection (A) of this section, the consent of the agency for the purpose
of adoption is not required to meet the requirements of subsection (A).
However, the sworn document relinquishing the child must be filed with
the court pursuant to subsection (C) of Section 63-9-710.
