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Domestic Relations – Adoption – Foster Parents – TPR – Incarcerated Father

Where the foster parents are the only parent figures the five-year-old child has ever known, and where the incarcerated father did not make much of an effort to contact the child, the court finds that termination of the father’s parental rights and adoption by the foster parents is in the child’s best interest.

We reverse the Court of Appeals’ decision and remand for reinstatement of the family court’s order of termination of parental rights (TPR) and adoption by the foster parents.

The child’s birth mother has relinquished her parental rights and expressed a desire for the foster parents to adopt the child. The birth father contests TPR, and the paternal grandmother also seeks to adopt the child.


It is true that the father turned himself in to Maryland authorities so he could plead guilty to outstanding Maryland charges, serve his prison sentence, and then begin his life with the mother and the child. After completing his Maryland sentence in 2013, the father was transported to Virginia to serve time for other charges.

While some may consider admirable the father’s efforts to put his troubles behind him, the fact remains that the father was a “wanted man” in two states. We are not inclined to give him credit for voluntarily surrendering his status as a fugitive from justice, as it was incumbent upon him to do so. Even if the father were entitled to some dispensation for surrendering to Maryland authorities, he did nothing to prepare for and provide the proper care of the mother and child during his incarceration.

The mother had a history of drug abuse and instability; nevertheless, the father left the pregnant mother without money or a plan for her or the child’s well-being. Further, the father had money in his prison account but did not send any money for the mother’s or child’s care. Even though the paternal grandmother provided for the mother for several months while she was pregnant, it was the mother who reached out to the grandmother for assistance – not the father.

Despite his incarceration, the father had the ability to place phone calls and write letters. It was not until May 2, 2014 – almost an entire year after the child’s birth and several months after litigation had commenced – that the father finally wrote to DSS about the child and sent a letter to his attorney, enclosing a birthday card for the child.

There is no evidence explaining why the father failed to reach out to the child sooner, and there is no evidence that the father made any other attempts to contact the child.

We find additional clear and convincing evidence of the father’s abandonment of the child through his relinquishment of his parental rights in conjunction with his consent to the grandparents (the father’s mother and then-stepfather) adopting the child. Although the father argues this was a tactical move for him to maintain a relationship with the child, this maneuver clearly establishes the father’s settled purpose to forgo his parental duties.

We find clear and convincing evidence supports a finding that TPR is appropriate on the ground of abandonment.

Failure to Visit

The father’s first and only attempts to communicate with the child occurred after the foster parents filed their complaint alleging TPR was appropriate based in part on the father’s abandonment and willful failure to visit the child. The evidence clearly establishes these communications were judicially motivated.

We find the father’s actions insufficient to cure his willful failure to visit the child. Therefore, TPR is warranted on this ground.

Best Interest

The child was placed in foster care shortly after her birth, and she has now lived with the foster parents for more than four years. The father has never met the child, and he has willfully failed to play a meaningful role in the child’s life.

We disagree with DSS’s recommendation of relative placement with the grandmother. Relative placement would have had the grandmother serving as a placeholder for the father until he finished his prison sentence, and the uncertainty of the father’s desire and ability to parent weighs heavily against the child’s stability and permanency. The grandmother admitted in her pleadings that the father – her own son – was not a “capable, suitable, fit, or proper person[] to be granted custody of Child.”

This court will not prolong the uncertainty of the child’s stability and permanency any longer. Therefore, we find TPR is in the child’s best interest.


Where the foster parents are South Carolina residents, and where they filed their private adoption action before the child was placed for adoption by DSS, the foster parents have statutory standing to bring a private adoption action.


The foster parents are the only parent figures the child has known, and an expert in child development and attachment testified that the child was “securely attached” to the foster parents and believed the child’s removal from the foster parents’ home would be traumatic for her and would have permanent implications. Because the child is strongly bonded with the foster parents, it is not in her best interest to be removed from their home.

Although the grandmother has consistently visited the child, we agree with the expert’s assessment that the child has not spent a sufficient amount of time with the grandmother to develop an “attachment relationship.” We admire the grandmother’s strong sense of family and the fact that she will go to extraordinary lengths to preserve her family unit.

However, after thoroughly considering the record and the child’s best interest, we conclude the foster parents’ petition to adopt the child should be granted.


South Carolina Department of Social Services v. Smith (Lawyers Weekly No. 010-047-18, 26 pp.) (George James Jr., J.) Appealed from Union County Family Court (Rochelle Conits, J.) On writ of certiorari to the Court of Appeals. James Fletcher Thompson and Larry Dale Dove for Petitioners; Melinda Inman Butler, Debra Matthews, Carol Ann Tolen, David Simpson, and Shawn Reeves for Respondents; Allison Boyd Bullard for Amici Curiae. S.C. S. Ct.


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