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Adoption Undone

By Michael Frisch

The South Carolina Supreme Court has reversed an adoption decree

In this adoption matter, Petitioner Nila Collean Carter sought to revoke her consent to the adoption of her two biological children. Throughout the resulting procedural morass, Petitioner was never provided an opportunity to be heard on the merits of her claim before the adoption was finalized…Because Petitioner’s Rule 60(b) motion was timely filed and sufficiently alleged extrinsic fraud, we reverse and remand this matter to the family court for further proceedings.

The problem was the candor of counsel for the adopters

the Adoptive Couple, through counsel, requested a final adoption hearing. The Adoptive Couple’s counsel gave no notice to the Carters. On December 15, 2014, a final hearing was held in the adoption case and a final order of adoption was issued on that date by a seventh family court judge who, according to the record before us, was unaware of the Carters’ pending challenge to the consents. Although counsel for the Adoptive Couple was well aware of the Carters’ separate pending challenge, the final adoption hearing transcript includes no reference to this. Rather, when the family court judge asked if there was anything else that needed to be placed on the record before the first witness was sworn, counsel for the Adoptive Couple never mentioned the Carters’ pending action and stunningly responded “I think we’re good, Your Honor.” We are confident the family court judge would not have proceeded with the adoption had he been made aware of the separate pending action. However, without the benefit of this critical information, the family court entered an order approving the adoption.

Thus

The court of appeals erred in finding the Carters’ Rule 60(b) motion did not sufficiently allege extrinsic fraud. The Carters’ motion expressly asserted “extrinsic fraud” and specifically cited section 63-9-770, which is the statutory provision addressing the family court’s authority to set aside an adoption decree on that basis. The motion further alleged the Carters were misguided and misled into signing the consents and waiving the right to notice of the proceedings and that their subsequent attempts to appear and be heard as to the validity of the consents were repeatedly thwarted by opposing counsel.

Moreover, at the heart of the extrinsic fraud claim is the Adoptive Couple’s effort, through counsel, to push through the final adoption hearing knowing full well of the Carters’ repeated requests to be heard on their pending separate action. Most troubling is counsel’s failure to be candid with the family court when asked if there was “anything else.” These specific averments manifestly state a claim for extrinsic fraud. Thus, extrinsic fraud was sufficiently alleged in the Rule 60(b) motion, and the court of appeals erred in affirming the family court’s dismissal on that basis.

 (Mike Frisch)