When will the family court grant a grandparent adoption?

In Swain v. Bollinger, decided this week, the SC Supreme Court granted a grandparent adoption, overturning the family court and Court of Appeals’ decisions in the case.

A grandparent’s decision to adopt a grandchild can be difficult because it necessarily involves terminating the natural parent’s parental rights, but it may also be necessary to provide a child the stability and protection that they deserve.

Below, we will discuss the issues in Swain v. Bollinger, including:

• How a grandparent adoption in SC works,
• The grounds for termination of parental rights, and
• When it is in the best interests of the child to terminate parental rights and allow a grandparent to adopt the child.

WHEN WILL THE FAMILY COURT GRANT A GRANDPARENT ADOPTION?

Before a grandparent can adopt a grandchild, as with any adoption, the natural parent’s parental rights must be terminated.

The grandparent must prove 1) at least one of the 12 statutory grounds for termination of parental rights and 2) that TPR is in the best interests of the child:

In order to terminate parental rights, the court must find by clear and convincing evidence that at least one of the twelve statutory grounds has been established and that TPR is in the best interest of the child. S.C. Code Ann. § 63-7-2570 (2010). “In a TPR case, the best interest of the child is the paramount consideration.” Stasi v. Sweigart, 434 S.C. 239, 256, 863 S.E.2d 669, 678 (2021). Further, “The interests of the child shall prevail if the child’s interest and the parental rights conflict.” S.C. Code Ann. § 63-7-2620 (2010). The focus of this inquiry must be on “the child’s perspective, and not the parent’s, as the primary concern when determining whether TPR is appropriate.” S.C. Dep’t of Soc. Servs. v. Smith, 423 S.C. 60, 85, 814 S.E.2d 148, 161 (2018) (internal citation omitted).

In Swain, it was undisputed that there were statutory grounds for the termination of parental rights, but the family court held that the adoption was not in the best interests of the child. The SC Supreme Court reversed, finding that the family court’s reasons for finding that adoption was not in the child’s best interests were not valid, and granted the adoption.

Grounds for Termination of Parental Rights

There are 12 statutory grounds for termination of parental rights, found in SC Code § 63-7-2570:

1. The child has been abused or neglected, and it is not likely the home can be made safe within 12 months,
2. The child has been removed from the home for longer than six months, and the parent has not remedied the conditions that caused the removal,
3. The child has lived outside of the parent’s home for longer than six months, and the parent has willfully failed to visit the child,
4. The child has lived outside of the parent’s home for longer than six months, and the parent has willfully failed to financially support the child,
5. The presumptive legal father is not the biological father, and termination of the presumptive legal father’s parental rights is in the child’s best interests,
6. The parent has a diagnosable condition (including addiction) that makes it unlikely the parent will provide minimally acceptable care for the child, the condition is unlikely to change within a reasonable time, and the parent fails to complete or fails to participate in treatment,
7. The child has been abandoned by the parent,
8. The child has been in foster care for 15 of the most recent 22 months,
9. The parent has been convicted of physically abusing another child in their care and the abuse resulted in death or hospitalization,
10. The parent has been convicted of the murder of the child’s other parent,
11. The child was conceived as the result of criminal sexual conduct, not including consensual statutory rape where neither parent was younger than 14 or older than 18 years old, or
12. The parent is convicted of murder, homicide by child abuse, or voluntary manslaughter of another child of the parent.

In Swain, the Court notes that the father:

• Was addicted to drugs,
• Was arrested for criminal solicitation of a minor,
• Pled guilty to several other crimes and was sentenced to seven years in prison,
• Did not pay child support despite a court order to pay $57 a week,
• Only saw the child four times over the child’s life, two of which were when she was an infant,
• Admitted in court that the child would not recognize him, and
• Was abusive to the mother and the family pet.

The Court found that it was undisputed that there were statutory grounds for TPR, and the only issue was whether TPR and adoption were in the child’s best interests.

Best Interests of the Child

The family court apparently held that TPR and adoption by the grandfather were not in the child’s best interests due to the perceived impropriety of having the grandfather and mother (grandfather’s daughter-in-law) listed as parents on the child’s birth certificate.

The SC Supreme Court disagreed, saying (without saying) that this is a ridiculous reason to deny the adoption:

We find this concern perplexing since neither Mother, Grandfather, nor the guardian ad litem expressed any reservations about listing Grandfather as Child’s father. Further, the modern day family structure reflects itself in many forms—a historical change from the nuclear family that society traditionally viewed as the norm. See Troxel v. Granville, 530 U.S. 57, 63 (2000) (“The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.”). Indeed, Grandfather and Mother, who consented to the adoption, simply want Child’s birth certificate to reflect the only family she has ever known. Declining to grant TPR and adoption based in part on how the birth certificate would appear is not a proper consideration in ascertaining the best interests of the child.

The SC Supreme Court also rejected the family court’s reasoning that, because the grandfather already had custody of the child, adoption would not promote stability. Custody and adoption are two separate statuses, and adoption provides a level of stability that is above and beyond a simple custody determination:

• Adoption provides a level of permanency that a custody determination cannot,
• Without the adoption, the father would be free to demand visitation or file a custody action, which, considering the child does not know who he is, would probably not be in the child’s best interests,
• As the grandfather’s legal child, the child would qualify for the grandfather’s social security benefits,
• The child has only known the grandparents’ home, “and the grant of TPR and adoption would afford legality and permanency to what has been her living situation since shortly after her birth,” and
• The father’s professed attempts at rehabilitation (while still in prison) were too little, too late, and “a child’s permanency should [not] be held in abeyance for years until a parent is prepared to resume his or her parental responsibilities.”

In many cases, the natural parent will consent to the TPR and adoption. When the natural parent does not consent, however, we must prove 1) at least one statutory ground for TPR, and 2) that TPR and adoption are in the child’s best interests.

GOT AXELROD?

Your Myrtle Beach family law attorney at Axelrod and Associates can help you to decide whether termination of a parent’s rights is necessary and we can help to complete your adoption proceedings. We also help clients who are fighting an unjust termination of parental rights, and we understand the irreversible effect that TPR has on a parent and child’s lives.

If you are considering adoption, or if you are facing a termination of parental rights, we want to help. Call Axelrod and Associates today at 843-916-9300 or fill out our contact form to set up a consultation.