Unless a parent is deceased or a biological father has failed to develop parental rights, one must pursue a termination of parental rights (TPR) before any adoption can take place (the TPR and adoption can be pursued simultaneously). Further, in rare circumstances–typically when a parent poses an extreme risk of danger to the child–one can pursue TPR even without pursuing adoption.
There are two methods of obtaining TPR: voluntarily or involuntarily. The process of voluntary relinquishment is governed by S.C. Code § 63-9-330. The consent to relinquishment of parental rights must be witnessed by two persons, one of whom must be independent counsel for the relinquishing parent. Even after the consent is executed, a family court judge must still approve the TPR and a guardian ad litem must be appointed for the child as part of the relinquishment process.
Assuming the consent is properly executed, voluntary relinquishment is a relatively easy and inexpensive process that frees the child up for adoption. Often, especially in private actions, the adoption is achieved at the same time the relinquishment is approved by the court. However non-technical defects in the consent process can render the consent invalid. Brown v. Baby Girl Harper, 410 S.C. 446, 766 S.E.2d 375 (2014). An experienced adoption attorney should prepare the consent documents and guide the process of executing the consent.
To terminate parental rights involuntarily, one must prove a termination ground and demonstrate that the termination is in the best interests of the child–both by a heightened “clear and convincing evidence” standard. South Carolina’s TPR grounds are set forth in S.C. Code § 63-7-2570. An indigent parent is entitled to a court appointed attorney and a guardian ad litem must be appointed for the child. S.C. Code § 63-7-2560. In prosecuting an involuntary TPR, one must be prepared to demonstrate (with a heightened evidentiary burden) both the statutory ground for TPR and that TPR is in the minor child’s best interests. The evidence on the “best interests” requirement is akin to a custody trial in which the defending side has a court-appointed lawyer and the prosecuting side has a higher evidentiary burden. Thus, an involuntary TPR is rarely accomplished unless it as part of an adoption.
It is hardly impossible–or in many cases even extremely difficult–to prevail on an involuntary TPR, but it does require preparation. Because a TPR is the “death penalty” of family law litigation–in that the consequences are extreme, permanent, and irreversible–few such cases resolve without a contested trial. For involuntary TPR cases, an experienced adoption attorney is often outcome determinative.
If you would like to retain Gregory Forman to pursue or defend a termination of parental rights please contact him here.
