SC Lawyer, May 2009, #1. The Law, Procedure and Art of Witnessing a Consent for Adoption.

• Author: By James Fletcher Thompson

South Carolina Lawyer

2009.

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 post adoption contact or visitation would void an executed consent. In an effort to address these concerns, Section 20-7-1700 (now Section 63-9-330) was amended in 2002, adding the following language:

(D) The validity of the final decree of adoption is not affected by an agreement entered into before the adoption between adoptive parents and biological parents concerning visitation, exchange of information, or other interaction between the child and any other person. Such an agreement does not preserve any parental rights with the biological parents and does not give to them any rights enforceable in the courts of this State.

While these side agreements are now permissible, these agreements must be handled with care. Section 63-9-760(D) clearly states that these promises of post placement contact/visitation are unenforceable. However, one must read Section 63-9-760(D) in conjunction with Section 63-9-770, which states that even after an adoption is finalized, the court has inherent authority to set aside an adoption based on extrinsic fraud. Extrinsic fraud is "fraud that induces a person not to present a case or deprives a person of the opportunity to be heard." S.C. Code Ann.§ 63-9-770(B) (Supp. 2008). In short, intrinsic fraud is fraud that occurs in the courtroom, while extrinsic fraud is fraud that takes place outside of the courtroom. Hagy v. Pruitt, 339 S.C. 425, 431-2, 529 S.E.2d 714, 717-8 (2000).Therefore, while offers of post placement contact/visitation are unenforceable under Section 63-9-760(D), these offers must be made in good faith; if these offers constitute extrinsic fraud, then the adoption would be jeopardized under Section 63-9-770(B).

What is the immediate legal effect of a valid consent?

The biological mother who is unmarried has custody of her child before the consent is signed. S.C. Code Ann.§ 63-17-20(B) (Supp. 2008). After she executes the consent, the statute is silent as to whether the agency or attorney handling the adoption is thereby granted custody of the child. The statute is also silent as to whether, in a directed placement, the adoptive parents receive immediate custody of the minor child. The statute is clear that once the adoptive parents have received the child into their home and the petition for adoption has been filed, the adoptive parents are granted temporary custody of the child and are responsible for the care, maintenance and support of the adoptee, including any necessary medical or surgical treatment. S.C. Code Ann.§ 63-9-510 (Supp. 2008).

As to child support, the 2002 amendment of Section 20-7-1700 (now Section 63-9-330) states that a signed consent ends the birth parent's future child support obligations. However, the birth parent is not relieved from obligations to pay child support arrearages unless relief is approved by the court.

As to parental rights, the signing of a consent for adoption does not immediately terminate the parental rights of the birth parent. Those rights are terminated only after the final decree of adoption is issued, when the relationship of parent and child then vests with the adoptive parents. S.C. Code Ann.§ 63-9-760(A) and (B) (Supp. 2008).

Timing of a consent

Prior to 1996, the adoption statute was silent regarding whether a consent could be signed by a birth parent prior to the birth of the child. It was not uncommon, especially for biological fathers, to execute consents prior to the birth of the child. The 1995 case of Doe v. Clark ended the practice of pre-birth consents. 318 S.C. 274, 457 S.E.2d 336 (1995).

Both Doe v. Clark and the subsequent 1996 amendment to Section 20-7-1700 (now Section 63-9-330) require that the consent must be signed after the birth of the child. South Carolina is not alone in this requirement; 20 states allow a consent to be signed any time after the birth of the child. A good rule of thumb may be to require a 24- hour passage of time after the birth, or perhaps more, before a consent is executed. Giving the birth mother an additional reflection period-more than is required by statute-may be desirable. McCann v. Doe, 377 S.C. 373, 383, 660 S.E.2d 500, 506 (2008). This is especially true if the birth mother did not work with the attorney/agency during the pregnancy, but is now making her adoption decision only hours after birth.

Withdrawal of consent

Assuming a consent signed by a birth parent meets the requirements of Section 63-9-330, and the document has been executed as required by Section 63-9-340, the birth parent's burden of proof is challenging. First, the birth parent must prove that the consent was involuntarily given or obtained under duress or coercion. S.C. Code Ann.§ 63-9-350 (Supp. 2008). Second, the withdrawal of the consent must be in the best interest of the child. Id.

South Carolina courts have been reluctant to find that a consent that was signed by a birth parent was given involuntarily or under duress or coercion. In Phillips v. Baker, the court adopted a rigid standard for establishing duress: The birth mother must show "a condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party, and causes him to do an act or form a contract not of his own volition." 284 S.C 134, 137, 325 S.E.2d 533, 535 (1985) (emphasis added).

In 2008, the S.C. Supreme Court provided a new approach to the issue of duress and coercion in Doe v. McCann, 377 S.C. 373, 660 S.E.2d 500 (2008). McCann, the birth mother, signed a Consent for Adoption document 43 hours after delivering the child. An attorney who did not represent the prospective adoptive parents witnessed McCann's consent. He testified that McCann was resolved in her decision to place the child for adoption and that she did not appear to be in any unusual emotional distress. However, he was not informed of a psychiatric evaluation or of the mother's highly emotional state that had prompted that evaluation.

Three days later, McCann sought to withdraw consent, alleging her consent was not voluntarily given due to numerous emotional stressors, many of which were unrelated to the adoption. In a bifurcated trial, the court first held that consent was not voluntarily given. The court then proceeded to find that the revocation of the consent was in the child's best interest.

The Supreme Court framed the "main question" in the McCann case as "whether the totality of the circumstances, including emotional stressors amounts to signing the consent for adoption involuntarily or pursuant to duress or coercion." Id. at 382-3, 600 S.E.2d at 505. McCann described her stressors as follows: 1. Her boyfriend had died tragically in a car accident two years prior; 2. Her father had died from pancreatic cancer the prior year; 3. The pregnancy was the result of a rape; 4. She hid her pregnancy from her mother, sister, friends and coworkers because she was ashamed and afraid of their reaction; and 5. She had lost her job during her pregnancy when the restaurant she managed closed down.Id. at 377, 660 S.E.2d at 502.

The Court noted the more "traditional attack" on a consent is that it was given under duress or pursuant to coercion, as defined as "improper external pressure." Id. at 385, 600 S.E.2d at 506. However, the Court then went a step further, adopting the "totality of the circumstances" analysis:

Certainly, many people suffer tragedies in their personal lives that do not rise to the level of the legal definition of duress. In most instances, suffering tragedies prior to having a baby, without more, would not render involuntary a decision to relinquish the child for adoption. However, duress is only one consideration, and the Court may look to other factors, including the totality of the circumstances, in making the voluntariness determination.Id. at 385-6, 600 S.E.2d at 507.

As the dissent noted, McCann's stressors were "internal in nature" and not improper external pressure, and "were not generated or caused by the people around her " Id. at 392, 660 S.E.2d at 510 (Waller, J., dissenting); id. at 392, 660 S.E.2d at 511 n.12 (Waller, J., dissenting). Nonetheless, pursuant to the "totality of the circumstances" standard, the Court allowed McCann to withdraw her consent.

McCann is South Carolina's first case allowing a consent document to be withdrawn. The subjective "totality of the circumstances" legal standard, and its focus on internal stressors, introduces considerable uncertainty surrounding executed consent documents, whereas previously, executed consents were relied upon for their permanency and finality.

Guidelines for witness of consent document

The lessons learned from McCann seem to dictate the following procedure for witnessing a consent document:

1. Compliance with Section 63-9-330

Compliance with Section 63-9-330 regarding the form and content of the consent document is the threshold question to resolve.

2. Medication issues

At least four hours since pain medication was administered to the birth mother should have elapsed, and approval should be obtained from the doctor or nursing staff before a consent is signed.

3. Oral summary of hospital stay

It is essential to obtain a HIPAA compliant medical release form in order to allow the attorney/agency to discuss the birth mother's hospital stay with the doctor, nurse or hospital social worker. As is evident in the McCann case, it is important to be made aware of any medical or psychological occurrences that could affect the voluntariness of the consent.

4. Need for psychological evaluation or assessment

If the birth mother has a history of mental health issues or if she has had a particularly remarkable reaction to her adoption plan (including being stoic and non-interactive regarding her feelings), a psychiatric or psychological evaluation is in order. Importantly, this evaluation should consider whether the birth mother understands the nature, scope and effect of her adoption decision, not just her general psychological condition, as was at issue in McCann.

5. Witness with expert credentials

Some display of emotion may well be a good indication that the birth mother appreciates the permanency and finality of the adoption decision she is making. However, when a proposed consent of a birth mother takes on a heightened emotional complexity, it is advisable to move beyond the literal requirements of the statute and supply additional layers of protection to the birth mother. The use of witnesses with heightened credentials may be necessary (masters in professional counseling, Ph.D. in clinical psychology, MD in psychiatry). Not only does this witness supply an additional layer of protection to the birth mother, but also serves as an added assurance that the finality and permanency of the consent will be respected, should it be later challenged by the birth parent.

6. Completely impartial witness

Choosing the witnesses for a consent requires the exercise of sound judgment. For instance, if the prospective adoptive parent's home study was prepared by a certified adoption investigator (CAI), it may be perceived as a conflict of interest for that same CAI to take the birth mother's consent. Also, some judges have recently called for a change in the long-standing procedure of allowing a CAI, who works for an adoption agency, to take the consent of a birth mother who has been working with that agency. It has been suggested that, because an adoption agency receives a child placement fee from the prospective adoptive parents, it may be perceived as a conflict of interest for a CAI employed by that same agency to witness the consent. Perhaps a better practice would be for the CAI to serve as the second witness or not to serve as a witness at all.

7. Word by word review

In any litigation seeking to withdraw a consent, it is axiomatic that the question will be asked as to whether the witness went over each line of the consent, word for word, with the birth parent. Because there is often a considerable passage of time between the day the consent is witnessed and when testimony regarding the consent may be offered, it is vital that the witness have a tried and true protocol for each consent witnessed. If a witness always reads the document, word for word, aloud to the witness, he will not have a problem truthfully testifying that he did so on the occasion in question.>

8. Initialing of each paragraph

Following the reading aloud of each paragraph to the birth parent, the witness should ask if the birth parent has any questions about that paragraph. If there are none, the birth parent should be asked to initial that paragraph.

9. Meaning of TPR and adoption

The consent document refers to adoption and TPR. As stated above, the witness should have a protocol when witnessing a consent: having the birth parent define, in the parent's own words, the terms of adoption/TPR. This practice is a good check on a later claim that the birth parent did not understand the document, was not paying attention, etc. This practice is also a good check on a later claim that the birth parent thought that the consent was only a custody agreement or that the birth parent somehow could later change his or her mind.

10. Expectation of visits or post-adoption contact

Explain the interplay between Sections 63-9-760(D) and 63-9-770(B).

11. Alternatives to adoption

While it is preferable that discussions about adoption alternatives take place days or weeks prior to the signing of the consent, the signing of the consent document is the last opportunity to ensure that all alternatives to adoption have been discussed.

12. Delaying the signing

It is always helpful to tell the birth mother that she can sign the consent today, she can sign it tomorrow, she can sign it next week or she can choose not to sign it at all. Letting the birth mother know that there is no time pressure on the execution of the document is important to the duress, coercion, voluntariness component of the statute. This reflection period is especially important if the attorney/agency has not been working with the birth mother for a significant period of time prior to birth.

13. Custody agreement; placing child in private foster care

Adoption attorneys, agencies and DSS offer an interim foster care arrangement with birth parents who are contemplating adoption. Adoption should never be a permanent solution to a temporary problem. It is important that the birth mother understands that the child can be maintained in a safe and proper environment for a few days or weeks while she further contemplates her adoption decision.

14. Witness's role

Explaining carefully to the birth mother the witness's role is a good first step toward making sure that the questions asked of the birth parent are not misconstrued as being judgmental or confrontational. It is equally important that the witness not be perceived as a promoter of adoption. The witness to a consent for adoption has a delicate, nuanced and potentially paradoxical role to play. South Carolina public policy promotes adoption and lauds birth mothers who make a loving and unselfish decision for their child. The witness may well share this view. Simultaneously, the public policy of our state, as manifest in the adoption code, recognizes the awesome implication of a consent, requiring that birth mothers considering adoption be given an opportunity for legal advice, counseling and freedom from duress or coercion. Therefore, the witness must walk a delicate balance between respecting the birth mother's adoption decision and yet not implying advocacy for that adoption decision.

James Fletcher Thompson has offices in Spartanburg and Charleston. He is the author of an upcoming book to be published by the South Carolina Bar on termination of parental rights, adoption and assisted reproduction, from which this article is an excerpt.