Unusual birth certificate no obstacle to adoption 

The grandparents of an Abbeville County girl have been granted adoption after the South Carolina Supreme Court reversed a Court of Appeals decision and found that declining to grant a termination of the biological father’s parental rights and adoption based in part on how the child’s birth certificate would appear wasn’t a proper consideration in ascertaining the best interests of the child.

Reginald Swain and his wife are the maternal grandparents of a girl who was born in 2011. A few months after the girl’s birth, the Department of Social Services removed the girl from the care of her biological parents and placed her with the Swains.

Subsequently, the girl’s biological father, Daniel Bollinger, was arrested for criminal solicitation of a minor and was granted bond. While out on bond, he committed several more crimes, to which he pleaded guilty in 2017 and was sentenced to seven years in prison. Over the course of the child’s life, Bollinger only saw her four times, two of which occurred when she was an infant.

In July 2018, Swain filed a complaint requesting the court terminate Bollinger’s parental rights and grant an adoption. At a contested trial in 2019, Bollinger didn’t dispute the Swains’ testimony, but contended that his behavior had been driven by his addiction to crack cocaine, and once incarcerated, he began treatment and completed other programs primarily focused on character development.

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After the trial, Abbeville County Family Court Judge Matthew P. Turner issued an order finding that even though Swain had established grounds for the termination of parental rights (TPR), he failed to establish that it was in the child’s best interests to do so—based in large part on the fact that her birth certificate would include her grandfather and mother as parents. Turner also found that a denial of TPR and adoption wouldn’t affect the girl’s stability since her grandparents already had legal custody.

The Court of Appeals affirmed in an unpublished opinion, acknowledging that Bollinger’s conduct could have been grounds for TPR if the case had been a DSS adoption, but because the grandparents already had legal custody of the girl, TPR wouldn’t promote stability.

The Supreme Court granted review, and in a Jan. 5 opinion written by Justice Kaye G. Hearn, the court unanimously reversed the two lower courts, finding that TPR and adoption were both in the child’s best interests.

Hearn began by noting that the only issue before the court concerned the best interests of the child, as neither party disputed the family court’s finding that Swain had established grounds for terminating Bollinger’s parental rights.

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“In addressing this question, the family court appeared to give undue weight to the fact that—should the court grant the relief requested—Grandfather and Mother would be listed as ‘parents’ on Child’s birth certificate,” Hearn wrote. “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.”

“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 court also rejected the idea that because the grandparents already had custody, TPR and adoption wouldn’t promote stability for the girl, as custody and adoption are two distinct statuses, with the latter providing a level of permanency that a custody determination cannot. Also, as Swain’s legal child, the girl would qualify for his Social Security benefits, which would clearly be in her best interests.

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Without an adoption, Hearn wrote, a biological parent would be free to attempt to inject themselves into a child’s life at any time, either by demanding visitation or by bringing an action for custody.

“When everyone—including Father—agrees that Child does not even know who he is, it is difficult to fathom how this could possibly be in Child’s best interest,” Hearn wrote. “It is significant that the only home Child has known is her grandparents’, and the grant of TPR and adoption would afford legality and permanency to what has been her living situation since shortly after her birth. Notwithstanding Father’s improvement while incarcerated, his actions came far too late to justify disrupting the Child’s life when all she has ever known is living in her grandparents’ home with her mother.”

Jane Hawthorne Merrill of Hawthorne Merrill Law in Greenwood and Scarlet Bell Moore of Greenville represented Swain. Heather Vry Scalzo of Byford & Scalzo in Greenville represented Bollinger.

The six-page decision is Swain v. Bollinger (Lawyers Weekly No. 010-001-22.) The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

The post Unusual birth certificate no obstacle to adoption (access required) first appeared on South Carolina Lawyers Weekly.