Adoptive Parents v. Biological Parents
| Decision Date | 16 March 1994 |
| Docket Number | No. 24100,24100 |
| Citation | 315 S.C. 535,446 S.E.2d 404 |
| Parties | Ex Parte ADOPTIVE PARENTS, Appellants/Respondents, v. BIOLOGICAL PARENTS, and Charleston County Department of Social Services, Respondents, Intervenor/Respondent. In re BABY BOY W., Respondent/Appellant. . Heard |
| Court | South Carolina Supreme Court |
Desa A. Ballard, of Ness, Motley, Loadholt, Richardson & Poole, P.A., Barnwell; and Richard C. Bell, Charleston, for appellants/respondents Adoptive Parents.
Thomas P. Lowndes, Jr., Charleston, for respondents, Biological Parents.
Katrina L. Patton, of Charleston, guardian ad litem for appellant Baby Boy "W."
Tana G. Vanderbilt and N. Bruce Holland, Columbia, for intervenor/respondent South Carolina Dept. of Social Services.
Cameron B. Littlejohn, Jr., Columbia, for amicus curiae, South Carolina Atty. Gen.,
Susan L. Biro, of Scherr & Biro, Washington, DC; Dale Johnson, of San Antonio, TX; and James E. Thompson, of Spartanburg, for amicus curiae American Academy of Adoption.
This appeal arises from a family court order finding that "unusual and exceptional circumstances" were not present, pursuant to S.C.CODE ANN. § 20-7-1670(e) (Supp.1992), in an attempted adoption of a South Carolina infant by an out-of-state couple. We reverse and remand for a hearing de novo.
The potential adoptive parents (hereinafter adoptive parents) are residents of the State of New York, while the biological parents were residents of South Carolina at the time of the child's birth. 1 The adoptive parents were specifically selected by the biological parents, and both sets of parents spent time together during at least the last two weeks of the pregnancy. There is also evidence that the adoptive parents were present in the delivery room and actually participated in the birth of the child. A home study in New York was completed prior to the birth of the child, and the results of the home study were presented to authorities in South Carolina.
On December 3, 1992, one day after the birth of the child, the adoptive parents filed a petition for adoption in the family court. A hearing was convened the following day to determine the unusual or exceptional circumstances such as to justify placement of a South Carolina born baby with out-of-state proposed adoptive parents. Present at the hearing were the adoptive parents, the child, and their attorney who submitted the affidavits and consent forms of the biological parents. Because the biological parents were not in attendance, the presiding judge continued the hearing until the attorney for the adoptive parents was able to contact and bring the biological parents to court. 2 During this same time period, the South Carolina Interstate Compact Office on the Placement of Children coordinated with the New York Interstate Compact Office with each granting telephonic approval, on December 10, 1992, for the adoptive parents to return to New York. 3
On December 11, 1992, the continued hearing was reconvened and the depositions of the biological parents were submitted to the court. At this same hearing, the family court appointed a guardian ad litem to represent the interests of the infant. The guardian ad litem recommended that the adoption be approved and the family court took the matter under advisement. On February 26, 1993, the family court issued its order finding that unusual or exceptional circumstances did not exist and requiring the adoptive parents to appear before the court on March 12, 1993 to show cause why the infant should not be turned over to the South Carolina Department of Social Services.
The biological parents filed affidavits showing that they intended to revoke their consents if the adoption was not permitted, and the adoptive parents and the child filed Motions for Reconsideration. Subsequently, the family court issued a second order requiring that the child be surrendered on March 12, 1993. The adoptive parents and the child filed the notice of appeal along with a petition for supersedeas. On March 12, 1993, an order was issued by a single Supreme Court Justice superseding the family court order which required the adoptive parents to surrender the child. This order for supersedeas directed that the child remain with the adoptive parents, pending the family court's final determination on the petition for adoption, and for counsel to be appointed to represent the biological parents.
In the afternoon of March 12, 1993, the family court held a hearing on the adoptive parents' and child's Motions for Reconsideration. After considering and then rejecting the inclusion of the Department of Social Services as a party, the family court denied the Motions for Reconsideration. The consolidated appeal of these family court orders is now before the Court.
The main issue on appeal is whether the participation of prospective adoptive parents in the birth process, the subsequent parent/child bonding, and the express selection of the adoptive parents by the biological parents constitute unusual and exceptional circumstances which are sufficient to support an interstate adoption pursuant to S.C.CODE ANN. § 20-7-1670(e) (Supp.1992).
The adoption process has undergone significant change since the passage of the Adoption Act in 1986. S.C.CODE ANN. §§ 20-7-1646 et seq. (Supp.1993). Prior to 1986, South Carolina had the national reputation as a "baby selling" state. To eliminate this problem, the General Assembly established significant restrictions on adoptions by non residents. To illuminate the procedural posture of this case, we have included some of the more significant requirements of the Adoption Act.
Generally, the persons who may petition for adoption are South Carolina residents; however, some provisions for out-of-state residents are in place, particularly for special-needs children, relatives, where one adoptive parent is in military service, or where the child or family is subject to public notoriety. See S.C.CODE ANN. § 20-7-1670 (Supp.1993). This same statute also lists as an additional ground for allowing out-of- state residents to adopt the existence of other "unusual or exceptional circumstances." Id. These circumstances are to be determined by the court and such hearing can occur either prior to birth or after birth upon a petition to the court. Id. The family court must address the unusual or exceptional circumstances before any potential out-of-state placement of the child can be completed. In addition, the family court must determine that the placement will be in compliance with the Interstate Compact on the Placement of Children which is codified at S.C.CODE ANN. §§ 20-7-1980 et. seq. (Supp.1993).
The petition for an Order of Unusual or Exceptional Circumstances which arose in this case should not be confused with the final hearing or the Final Order of Adoption. The petition for adoption must normally be filed within sixty days from the date the child is placed with the potential adoptive parents. See S.C.CODE ANN. § 20-7-1730 (Supp.1993). After the child is placed with the potential adoptive parents and the petition for adoption of unusual or exceptional circumstances is filed, temporary custody is vested in the potential adoptive parents. It is normally at this point that a finding is required for out-of-state adoptive parents. See S.C.CODE ANN. § 20-7-1738 (Supp.1993). The final hearing for adoption then takes place at a time which is no sooner than ninety days and no later than six months after filing the adoption petition. See S.C.CODE ANN. § 20-7-1760 (Supp.1993). This latter time period is modifiable based on special-needs children (twelve months) or in the discretion of the court for good cause shown. Id.
The posture of the present case is all in the pre-final adoption stage. The out-of-state residents, who are the potential adoptive parents, petitioned the family court for an Order of Unusual or Exceptional Circumstances which they thought was required for compliance with the Interstate Compact on the Placement of Children. At the present time, there has been no hearing on the final adoption because all of the proceedings in this matter have been held in abeyance pending the outcome of this appeal. It is against this procedural framework that our legal analysis must begin.
In deciding whether the participation of prospective adoptive parents in the birth process, the subsequent parent/child bonding, 4 and the express selection of the adoptive parents by the biological parents constitute unusual and exceptional circumstances which are sufficient to support an interstate adoption, we begin with the statutory language. S.C.CODE ANN. § 20-7-1647 (Supp.1992), provides:
[t]he purpose of this subarticle is to establish fair and reasonable procedures for the adoption of children and to provide for the well-being of the child, with full recognition of the interdependent needs and interests of the biological and the adoptive parents. However, when the interest of a child and an adult are in conflict, the conflict must be resolved in favor of the child. Children may be adopted by or placed for adoption with residents of South Carolina only, except in unusual or exceptional circumstances. [Emphasis added].
The language "unusual or exceptional circumstances" appears again in S.C.CODE ANN. § 20-7-1670 (Supp.1992), which provides in relevant part:
[a]ny South Carolina resident may petition the court to adopt a child. Placement of children for adoption ... is limited to South Carolina residents with exceptions being made in the following circumstances only:
. . . . .
(e) 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. [Emphasis added].
The family court judge found that there was "no evidence that it...
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