Youngblood is Old News in Adoption Law All South Carolina Residents have Statutory Standing to Seek Adoption, 0319 SCBJ, SC Lawyer, March 2019, #46

• Author: By Robert S. Trey Ingram III
• Position: Vol. 30 Issue 5 Pg. 46

Youngblood is Old News in Adoption Law All South Carolina Residents have Statutory Standing to Seek Adoption

Vol. 30 Issue 5 Pg. 46

South Carolina BAR Journal

March, 2019

By Robert S. "Trey" Ingram III

Every family court lawyer even remotely familiar with foster care and adoption in the last five years is likely well-versed in references to Youngblood v. S.C. Dep't of Soc. Serus., 402 S.C. 311, 741 S.E.2d 515 (2013). Many of those practitioners are probably also quite familiar with its decade-old predecessor Michael P. v. Greenville County Dep't of Soc. Serus., 385 S.C. 407, 684 S.E.2d 211 (Ct.App. 2009). However, 2018 was quite a year for South Carolina adoption law. The South Carolina Supreme Court issued two significant opinions - S.C. Dep't of Soc. Serus. v. Boulujare, 422 S.C. 1, 809 S.E.2d 223 (2018) and S.C. Dep't of Soc. Serus. v. Smith, 423 S.C. 60, 814 S.E.2d 148 (2018). In addition, statutory standing was revamped courtesy of the General Assembly. Because of these changes, citing Youngblood has become a thing of the past.

This article provides a brief, yet instructive, refresher on Michael P. and Youngblood, followed by an overview of the latest progeny of foster care/adoption opinions from the South Carolina Supreme Court (Boulujare and Smith) as well as the infamous (and now newly revised) title 63, chapter 9, section 60 of the South Carolina Code. For those anxious for a conclusion up front, the main take away of the 2018 changes is that now any South Carolina resident has statutory standing to petition the family court for an adoption of any child in this state regardless of who has legal or physical custody of the child.

The Old: Michael P. and Youngblood

Youngblood (and to a lesser extent Michael P.) have been cited against foster parents in South Carolina Department of Social Services (DSS) cases for years in arguments that went something like this: "These are merely the foster parents; they do not have standing to intervene or to petition the family court to adopt a child in foster care. See Youngblood; Michael P."

An admittedly oversimplified explanation of the holding in Michael P. is that former foster parents lacked statutory standing to petition the family court to adopt a child in foster care who had been removed from their home and " placed" for adoption in another home by DSS. The Court of Appeals explained: We find the plain meaning of the statute and intent of the Legislature when enacting subsection (B) of 63-9-60 was to clarify that not just "any South Carolina resident" can petition to adopt a child when the child has been placed by DSS in another home for the purposes of adoption. Accordingly [the foster parents] do not have standing based on this statute because Child was placed by DSS in [a different pre-adoptive home] for purposes of adoption.

Michael P., 385 S.C. at 415, 684 S.E.2d at 216.

Here the Court of Appeals first announced its interpretation that section 60(B) of the South Carolina Adoption Act conditioned or limited subsection (A) on who may petition to adopt a child; and the condition or limitation imposed was this: "when the child has been placed by DSS in another home for the purposes of adoption." Id. "[A]s former foster parents, who declined to challenge DSS's removal of Child, [foster parents] do not have standing to initiate a private adoption action once Child was placed by DSS into a different pre-adoptive home." Id. at 418, 684 S.E.2d at 217.

By comparison, again in overly simplified terms, the nuance of the Youngblood holding was that foster parents lacked statutory standing to petition to adopt children still in their homes if DSS had "placed" them elsewhere by merely selecting a different adoptive resource. Like the Court of Appeals, the Supreme Court interpreted section 60 so as to deprive foster parents of statutory standing when the family court order granted a termination of parental rights and vested DSS with authority to consent to adoption and when DSS had "placed" the child for adoption. The Court explained: Thus, while section 63-9-60(A) broadly grants standing to "any South Carolina resident," section 63-9-60(B) makes that grant of standing inapplicable to a child placed for adoption by DSS."

Youngblood, 402 S.C. at 318, 741 S.E.2d at 518.

Importantly, the Supreme Court clarified and expressly defined what is meant by the verb "placed": Rather than its ordinary meaning connoting a change in physical location, the verb "place" is used by the statutory language and DSS to mean the selection of an adoptive family. While Child had been placed with another family as of March 17, 2009, she physically remained in the care of the [foster parents] at that time.

Id., at 314, 741 S.E.2d at 516, n.2. Accordingly, once authorized by the family court, DSS could "place" a child through "the selection of an adoptive family" and thereby divest a ll others of statutory standing under section 60.

So under these old rules, if a child in foster care had been "placed" and moved to another home for purposes of adoption, the Michael P. holding prevented the former foster parents from petitioning the court for adoption. If instead the child remained in the foster home, but DSS had "placed" by formally selecting a different adoptive family, the Youngblood holding was operative to prevent even the current foster parents from seeking adoption.

The New: Boulware and Smith

Despite the clarity of the bright line test established by Michael P. and Youngblood (i.e. standing pursuant to section 60 for adoption of a child in foster care hinges upon whether or not DSS has "placed" the child for adoption), the line was quickly blurred by expansive and ultimately overreaching arguments. So much so that within four short years of Youngblood, the Boulware case made its way up to the Supreme Court for oral arguments. Boulware thus provided the opportunity in May 2017 to revisit Youngblood in light of expansive interpretations argued by DSS and birth parents' attorneys.

The expansive posture of DSS (and others) as to Youngblood and section 60 when it came to any foster parent seeking adoption was on full display in Boulware:

At oral argument, DSS asserted the word "placed" as used in section 63-9-60(B) simply refers to when a child is initially placed in DSS custody. At oral argument, Aunt and Uncle asserted the word "placed" refers to when a child is placed in the foster parents' home, regardless of whether the placement is for adoption. These interpretations do not comport with either a plain reading of the statute or our interpretation of the word "placed" in Youngblood.

Boulware, 422 S.C. at 13, 809 S.E.2d at 229, n.8. The argument asserted by DSS in Boulware was not unique to that specific case; it was the argument DSS made routinely against foster parents, even foster parents - like those in Smith - who had the adoptive consent of a natural parent, petitioning the court for adoption of a child in DSS custody without its permission -and even when the family court had not yet vested DSS with the authority to place for adoption. It is an argument that even the Court of Appeals accepted before being overturned by the Supreme Court. Id., at 3-4, 809 S.E.2d at 224 (citing S.C. Dep't of Soc. Serus. v. Boulware, No. 2016-UP-220, 2016 WL 2944266 (S.C. Ct.App. May 19, 2016).

The Supreme Court articulated its agreement with the central argument of the petitioners in Boulware regarding their standing to seek adoption and its rejection of the expansive arguments of DSS and the conclusions reached by the Court of Appeals as follows: Petitioners contend they have standing under section 63-9-60 because they are residents of South Carolina and because they brought their adoption action (1) before DSS placed Child for adoption but while Child was placed in foster care with Petitioners and (2) before DSS was vested with authority to consent to an adoption. We agree. The reasoning employed by the court of appeals would undermine the broad grant of standing we recognized in Youngblood and would rewrite section 63-9-60(B) to (1) read that once DSS acquires custody of a child, that child has been "placed," and (2) require that DSS approve the adoptive placement of a child with a particular family before that family has standing to petition for adoption. Neither of these interpretations is supported by a plain reading of the statute.

Boulware, 422 S.C. at 10, 809 S.E.2d at 227.

Just a few months later, in October 2017, the Supreme Court heard oral arguments in yet again another case involving a foster parent adoption and whether or not section 60 afforded standing. S.C. Dep't of Soc. Serus. v. Smith, 423 S.C. 60, 814 S.E.2d 148 (2018). While the main thrust of the Smith opinion deals with grounds for the termination of parental rights, and primarily those of an incarcerated parent, a significant portion of the opinion addresses statutory standing for adoption. It is worth noting here that the statutory standing requirements for purposes of bringing an action for a termination of parental rights, which is often sought in tandem with adoption, is governed by title 63, chapter 7, section 2530 of the South Carolina Code and its accompanying jurisprudence, all of which is beyond the scope of this article. As a further aside, the Smith opinion also addressed a compelling argument worth reading that a secure, psychological attachment relationship between child and caregiver "trumps biology" when considering a child's best interest. Id. at 89, 814 S.E.2d at 163. But as it relates to standing for adoption, the Supreme Court, citing its own recent decision, reinstated a bright line rule: Boulujare compels a simple analysis in the instant case. Foster Parents are South Carolina residents and filed their private adoption action on November 9, 2013. At the time Foster Parents filed their private action, Child had not been placed for adoption by DSS -Child was only placed by DSS in Foster Parents' home for "fostering." Therefore, we hold Foster Parents have statutory standing to bring their private adoption action.

Id. In other words, DSS had not placed the child for adoption, nor did they have the authority to do so; therefore, the foster parents were not deprived of statutory standing under section 60.

So, the new rules (reestablished by Boulujare and Smith were quite simple and clear once again: statutory standing under section 60 (as it then read) hinged upon whether or not petitioners were South Carolina residents and whether or not the child had been placed for adoption by DSS.

The Newest: S.C. Code Section 63-9-60 (2018)

Some may wonder why this article has carefully analyzed four cases all interpreting one statute without ever actually quoting the statute for the reader. But there is good reason for this: the statute was completely rewritten by the General Assembly in light of the above developments in case law and arguments made by litigants across the state. All told, the Court of Appeals specifically referenced the legislature four times in Michael P., while the Supreme Court did so three times in Youngblood and no fewer than 16 times in Boulware, occasionally even calling the legislative scheme "curious." Youngblood v. S.C. Dep't of Soc. Servs., 402 S.C. 311, 320, 741 S.E.2d 515, 519 (2013). In fact, an entire section of the Boul-ware opinion addresses the settled rule of statutory construction that plain meanings are only disregarded "if the result is so patently absurd the General Assembly could not have intended it" and then goes on to overturn the Court of Appeals' ruling that "granting standing to Petitioners would yield the absurd result of encouraging foster parents to prematurely petition for adoption." Boulware, All S.C. at 10, 809 S.E.2d at 227-228.

Given this developing jurisprudence and even judicial requests for clarification, it is fitting that the legislature responded to the hotly debated issue of statutory standing with a revision to the focal point of section 60. In fact, the legislature expressly articulated the following in its preamble to the revised code section: Whereas, recent South Carolina court opinions have so interpreted the meaning of Section 63-9-60 as to deny residents of this State standing to bring or maintain an action for the adoption of any child in the temporary custody of the Department of Social Services; and

Whereas, the General Assembly by this act wishes to reassert its legislative intent with regard to the adoption of children in this State by residents of South Carolina only, except in unusual or exceptional circumstances, to affirm the right of residents of South Carolina to bring actions for the adoption of children in the temporary custody of the department, and to correct the typographical error in the cross-reference in Section 63-9-750. Now, therefore,

H.R. 3442, 122d Gen. Assemb., Reg. Sess. (S.C. 2018). This reassertion of legislative intent with regard to a preferential treatment of residents over nonresidents would require more space than this article allows but suggests that the intended legislative scheme may have been misunderstood since Michael P. in 2009.

In order for the reader to understand and appreciate the pertinent 2018 changes, below is a "track changes" version of the newly revised title 63, chapter 9, section 60 of the South Carolina Code: (A)(1) Any South Carolina resident may petition the court to adopt a child.

(B)(1) Placement of children for adoption pursuant to this article is limited to South Carolina residents with exceptions being made Any nonresident of South Carolina may petition the court to adopt a child in the following circumstances only:

(a) the child is a special needs child, as defined by Section 63-9-30;

(b) there has been public notoriety concerning the child or child's family, and the best interests of the child would be served by placement outside this State;

(c)(b) the child is to be placed for adoption with a relative related biologically or by marriage;

(d)-(c) at least one of the adoptive parents is in the military service stationed in South Carolina;

(e)-(d) there are unusual or exceptional circumstances such that the best interests of the child would be served by placement with or adoption by nonresidents of this State; or

(f)(e) the child has been in foster care for at least six months after having been legally freed for adoption and no South Carolina resident has been identified as a prospective adoptive home;

(f) all persons required to give consent to the adoption pursuant to Section 63-9-310 have specifically consented to the adoption by the nonresident; or

(g) the department or any agency under contract with the department has placed the child with the nonresident for purposes of adoption.

(2) A person who files a petition pursuant to subsections (A) and (B) shall not use public notoriety concerning a child or child's family to support or to evidence his petition to adopt a child.

(2)((3) Before a child is placed within or outside the boundaries of this State for adoption with nonresidents of this State, compliance with Article 11 (Interstate Compact on the Placement of Children) is required, and a judicial determination must be made in this State that one of the circumstances in items (a) through (f) of subsection (A)(1) subsection (B)(1)(a)-

(g) applies, whether or not the adoption proceedings are instituted in this State. Additionally, in order to determine if any of the circumstances in items (a) through (f) of subsection (A)(1) subsection (B)(1) (a)-(g) apply so as to permit placement with a nonresident for the purpose of adoption or adoption by a nonresident, a petition may be brought for the determination before the birth of the child or before placement of the child with the prospective adoptive parents. In ruling on this question the court must include in its order specific findings of fact as to the circumstances allowing the placement of a child with a nonresident or the adoption of a child by a nonresident. The court also must analyze the facts against the objective criteria established in Sections 16-3-1060 and 63-9-310(F) and make specific findings in accordance with the pertinent law and evidence presented. The order resulting from this action does not prohibit or waive the right to refuse to consent to a release of rights or relinquish rights at a later time or to withdraw a consent or relinquish at a later time as provided in this article. The order must be merged with and made a part of any subsequent adoption proceeding, which must be initiated and finalized in this State.

(B) This section does not apply to a child placed by the State Department of Social Services or any agency under contract with the department for purposes of placing that child for adoption.

(4) Neither the department nor its contractors may delay or deny the placement of a child for adoption by a nonresident if that nonresident has been approved for adoption of the child by another state authorized to approve such placements pursuant to the Interstate Compact on Placement of Children. The department shall provide an opportunity for a hearing, in accordance with the department's fair hearing procedures, to a nonresident who believes that the department, in violation of this section, has delayed or denied placement of a child for adoption.

(C) A petition for adoption of a child may be filed pursuant to this section regardless of which individual or entity has custody of the child. When the department has custody of a child, the rights granted herein to South Carolina residents and nonresidents shall not be diminished, invalidated or negatively affected in any way."

Id.

The above comparison reveals at least three significant aspects to appreciate. First, the legislature maintained the distinction between residents and nonresidents in subsection (A) when it comes to adopting South Carolina children. There are no qualifying tests or requirements of South Carolina resident in order to have statutory standing to petition the family court for an adoption, whereas nonresidents must satisfy one of the delineated special circumstances.

Second, and most relevant to the discussion in this article, the legislature completely struck the language from subsection (B) concerning the inapplicability of statutory standing when a child is placed by DSS for adoption. That language was the primary focus of great debate in Michael P., Young-blood, Boulware and Smith as well as many other cases litigated throughout the State for the last decade. No longer does DSS have any ability to deprive a foster parent (or any person) of statutory standing by simply selecting a different adoptive family.

Lastly, to eliminate any doubt, the legislature added subsection (C) to make plain their intent that statutory standing does not depend upon who has custody of the child in question. Again, DSS does not get to deprive a resident or nonresident of the right to seek adoption simply because DSS has custody; the adoption petitioner's rights "shall not be diminished, invalidated or negatively affected in any way" by the department's legal or physical custody of the child. S.C. Code Ann. § 63-9-60(C) (2019).

Adoption standing at present and beyond

2018 was a banner year for South Carolina adoption law, with two Supreme Court opinions and an Act of the General Assembly. With its 2018 revisions, the legislature made standing for adoption abundantly clear and simple once again: South Carolina residents have the statutory right to petition the family court for adoption of a child in South Carolina, while nonresidents have the right to do so only in limited circumstances. The statutory rights of South Carolina residents and nonresidents to petition the family court for adoption of a child in South Carolina (or to intervene or to be joined as a necessary party) exist regardless of who has physical or legal custody of the child. Standing of course is not outcome determinative; as wisely put by the Supreme Court: "We do not decide today who, if anyone, Child's adoptive parents will be—we simply recognize Petitioners' standing to ask." Boulware, 422 S.C. at 13-14, 809 S.E.2d at 229.

Robert S. "Trey" Ingram III practices real estate and adoption law at Holiday Ingram in Greenville. Trey and his wife, Kelli, are parents of six children by birth, foster care and adoption.