South Carolina Lawyer
SC Lawyer, May 2009, #1.
The Law, Procedure and Art of Witnessing a Consent for Adoption
South Carolina LawyerMay 2009The Law, Procedure and Art of Witnessing a Consent for AdoptionBy James Fletcher ThompsonEach year in South Carolina, approximately 1,600 children are placed for adoption. Three quarters of these children are placed privately; the others are placed through the foster care system. In many of the foster care cases, and nearly all the private adoptions, one or both birth parents execute a Consent for Adoption document. These documents must be witnessed by either a family court judge, a certified adoption investigator or an attorney who does not represent the adoptive parents. S.C. Code Ann. § 63-9-340 (Supp. 2008). It is indeed a significant responsibility to serve as a witness to this emotionally charged event, which is life-changing to birth parent, adoptive parent and child.
The consent document
The form and content of the consent document is statutorily mandated; S.C. Code Ann. § 63-9-330 sets forth the requirements that "must" be specified in the document. However, it is not uncommon for practitioners to use a consent form that mistakenly deletes one of the requirements of the statute or that fails to take into consideration one of the two amendments to Section 63-9-330. Although a consent should contain every element required by law, most states appear to follow a "substantial compliance" rule of thumb in deciding whether to invalidate a consent. Uncertainty regarding whether South Carolina courts will adopt a "substantial compliance" or a "strict compliance" standard presents a strong admonition to the attorney to review the document carefully in order to ensure that it complies with Section 63-9-330 before presenting it to a birth parent.
While it is important for all statutory language to be present in the consent document, Section 63-9-330 does not prevent additional language from being added to a consent. It is not uncommon for a consent document to have additional language inserted, for instance, stating that the birth parent is aware that she will no longer have visitation rights to the child. There may also be an additional, clearly worded statement that the birth parent cannot change his or her mind after signing.
Some additional language, however, may cause a consent document to be void ab initio. In McLaughlin v. Strickland,a birth father wrote in the consent document that he retained visitation rights with the child. 279 S.C. 513, 309 S.E.2d 787 (1983). The S.C. Supreme Court held that this conditional relinquishment is "inconsistent with consent" and therefore declared the consent invalid.If a consent is void, a birth parent does not need to withdraw the consent under Section 63-9-350; the birth parent is returned to the parent's legal position before signing the consent.
Directed placements: Are they permissible?
In a directed placement, the adoptive parents are named in the consent document, and the birth parent executes the consent with the understanding that the named adoptive parents are indeed adopting the child. In private adoptions, this practice is routine.
Some practitioners believe that by listing specific adoptive parents in the consent, this practice voids the consent as being "conditional" under the McLaughlin v. Strickland analysis. Other practitioners disagree, arguing that the birth mother is not reserving any parental rights, she is merely directing the person who will be bestowed with the entire penumbra of her parental rights; that is, her consent is conditional only in the direction her consent is given but not conditional in the totality of the rights she relinquishes. While no South Carolina case law exists on this point, countless directed placement consents have been approved by the family courts of this state.
In a directed placement, should the court later find the designated adoptive parents to be unfit or should the adoptive parents choose not to pursue the adoption, the consent must not be used for another unspecified adoptive family. To do otherwise may constitute fraud under Section 63-9-770.
Promises of post-placement contact/visitation: the side agreement
Under McLaughlin v. Strickland, it is clear that a birth parent cannot retain visitation privileges within the text of the consent document. However, what would be the result of a birth parent and adoptive parents entering a written or oral side agreement? For instance, a birth parent may be willing to execute the consent if they were promised ongoing contact and/or visitation with the prospective adoptive parents (often the foster parents). In both private adoptions and in Department of Social Services (DSS) cases, it has long been a concern that promises of...