Vol. 14, No. 5, Pg. 14. Current uncertainty in South Carolina adoption law: The need for a putative father registry.

• Author: By Mark C. Fava

South Carolina Lawyer

2003.

Vol. 14, No. 5, Pg. 14.

Current uncertainty in South Carolina adoption law: The need for a putative father registry

14Current uncertainty in South Carolina adoption law: The need for a putative father registryBy Mark C. FavaDuring the past 10 years, the South Carolina courts have painstakingly struggled with the issue of a biological father's constitutional rights with respect to the adoption of his child by a wanting couple. Whether the biological father must consent to a pending adoption has troubled the courts in numerous closely contested cases. This article highlights the current status of the law and discusses the statutory remedy that would remove the confusion and costly litigation associated with this dilemma.

16 The court's struggle

The recent case of Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct. App. 2002), cert. denied, Shearouse Adv. Sh. No. 6 (S.C. Sup. Ct. Feb. 18, 2003) is an excellent example of the current struggle. In that case the court considered whether the unwed father's consent to the adoption of his biological child was required. The test used by the courts has been whether the biological father has made sufficient prompt and good faith efforts to assume parental responsibility. If so, the father's biological relationship requires constitutional protection. Id. at 50, 567 S.E.2d at 901. In a merits hearing more than a year after the child's birth, the family court initially determined the biological father's consent was required. Having not been secured, the adoption could not go forward. The adoptive parents, who had taken the infant home from the hospital after birth, appealed the family court's ruling. While the appeal was pending, the child remained with the adoptive parents and the biological father was granted supervised visitation. Id. at 47-48, 567 S.E.2d at 899-900.

On appeal, the Court of Appeals reversed the family court's decision. The court found that the biological father had not made the requisite good faith efforts. The court terminated the biological father's rights and allowed the adoption to proceed without his consent. Ironically, in a decision more than two years after the baby boy's birth, the court wisely noted "it is in the best interests of the minor child to resolve this matter as expeditiously as possible."Id. at 56, 567 S.E.2d at 904 (emphasis added).

The Arscott court's analysis depended on the statute governing a biological father's consent when he has not openly lived with the mother prior to the child's birth. In such cases, South Carolina Code § 20-7-1690(A)(5) requires his consent if he has paid a reasonable sum for the support of the child or for pregnancy incurred expenses. S.C. Code Ann. § 20-7- 1690(A)(5)(b)(Law. Co-op. Supp. 2001).

However, if the biological father has not lived with the birth mother and she rejects his efforts to pay for the child's support, his consent would never be required under the statute's literal application.

The highly subjective "sufficient prompt and good faith efforts" test

A literal application of § 20-7- 1690(A)(5)(b) appears easy. However, in Abernathy v. Baby Boy, 313 S.C. 27, 437 S.E.2d 25 (1993), a landmark adoption case, the South Carolina Supreme Court stated that literal compliance with the statute was not necessary for the father to develop a constitutionally protected relationship with the child. The Court recognized that "an unwed father's ability to cultivate his opportunity interest in his child can be thwarted by the refusal of the mother to accept the father's expressions of interest in and commitment to the child." The Abernathy Court stated that the biological father's constitutional rights vest not only when he complies literally with the statute, "but also when he undertakes sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute." Id. at 32, 437 S.E.2d at 29.

The highly subjective Abernathy test has been discussed in many opinions since 1993. It poses problems for all involved in a biological father consent case. Practitioners representing the biological father, the adoptive parents or serving as the infant's guardian ad litem must be familiar with the test. As the Arscott Court noted, "[t]he importance of analyzing the facts of each specific case cannot be overestimated." Arscott, 351 S.C. at 49, 567 S.E.2d at 900.

In Arscott, the Court of Appeals looked to Abernathy and other recent adoption cases to conclude that the biological father did not have rights to the child. Several important factors repeatedly emerge in the adoption cases applying Abernathy.

Challenges for the biological father and his attorney

With respect to the biological father, amere biological connection guarantees no constitutional protection. Parental rights require the...