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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:
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.
There are 12 statutory grounds for termination of parental rights, found in SC Code § 63-7-2570:
In Swain, the Court notes that the father:
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.
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:
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.
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.
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