Adoptions continue to make news in South Carolina.
While you may not have heard of this particular case (being Jennifer Brown v. Baby Girl Harper, a minor under the age of seven, and Holly Lawrence, Appellate Case No. 2014-001746), Baby Girl Harper has recently past her first birthday. A few months ago, the South Carolina Supreme Court took on the enormous and sad responsibility of removing Baby Girl Harper from the home of her Adoptive Mother, Ms. Lawrence, and directing that she be returned immediately to her birth mother, the Petitioner Jennifer Brown.
Baby Girl Harper had, by the Supreme Court’s description, been raised by a loving mother this past year, her Adoptive Mother Ms. Lawrence, who had been caring for Baby Girl Harper since she was 3 days old. Yet, in spite of her loving care, the South Carolina Supreme Court directed that Baby Girl Harper be returned to her birth mother. An adoption which ends this badly is certain to be very painful for all involved, the biological parent(s), the adoptive parent(s), and the Charleston Family Court attorney alike.
So what went wrong in this case?
Relying upon the 10-page opinion issued by the South Carolina Supreme Court (I wish to emphasize that I am not involved in this case, have never been involved in this case, and have no “insider information” about this case) there are multiple problems which caused this adoption to fail.
First and foremost, there needs to be an understanding on all sides that adoption itself is strictly a creation of statutes – it is not considered to be a “natural right” and thus only exists in such form as the Legislature provided, when the adoption statutes were set in place. (See South Carolina Adoption Act, S.C. Code Ann Secs 63-9-310(A)(3)). Accordingly, strict compliance with the terms of the South Carolina Adoption Act is required in order to successfully terminate the relationship between biological parents and their child, and to create that relationship of parent and child between an adoptive parent and a child born to others. I have previously written (see posting of August 8, 2014) on the importance of proper notice in adoption proceedings. In the instance of Baby Girl Harper and her first year of life, the focus here is on other aspects of adoption.
There is nothing more critical in any adoption than simply doing it correctly. In Baby Girl Harper’s case, the Court focuses on what they term “material and egregious” defects in execution of the Consent for Adoption. This is NOT to say that these were the only problems with this adoption; indeed, the wording of the Order suggests other problems equally as serious, but the nature of judicial review is such that the court deals with the most pressing or obvious problems first, and these alone may be so serious that they do not need to deal with, or reach, ALL of the problems.
In this case, the biological mother signed a Consent relinquishing her rights to her biological child, Baby Girl Harper, and consenting to the adoption by the Adoptive Mother. (NOTE: no mention was made of the biological father, but Notice issues were not reached in this case.) Birth Mother did not dispute that she did, in fact, sign the Consent. The legislature imposed conditions upon signing of Consents, however, which were not followed in this case. The requirements of the statutes are very clear, precise, and mandatory:
a. The provisions of the Consent must be discussed with the biological parent prior to the signing of the case.
In this instance, the birth mother met with the Adoptive Mother’s attorney prior to actually signing the Consent, and this Charleston Family Court attorney later described to the other witnesses that he and the birth mother had discussed the Consent to her satisfaction. Although this is not given as a reason for finding the Consent fatally flawed, the Adoptive Mother’s attorney is NOT the proper person to be discussing the Consent with the birth mother; in fact, she should be discussing the Consent with other professionals, specifically NOT including the legal representative of the Adoptive Mother. The statute defines those persons who should be witnesses to Consents, and also requires that each witness provide written certification that, before the signing of the Consent, its provisions were discussed with the person providing the Consent. The written certifications must also state that based on this discussion, it is the opinion of each witness that consent is being given voluntarily and that it is not being obtained under duress or through coercion. See S.C. Code Ann. Sec. 63-9-340(A) for exact terms.
b. Baby Harper’s biological mother signed her Consent in the presence of Adoptive Mother’s Charleston Family Court attorney and of another witness (who was an employee of a neighboring office).
The second witness described here did not witness the biological mother initialing all the provisions of the Consent, only her signature, nor was she present for any discussion about the Consent with the biological mother –such as would be necessary for her to sign a certification that she believed the biological mother to be providing her Consent voluntarily and not through duress of coercion. To further add to these issues, one of the witnesses MUST be an attorney licensed to practice in SC who does NOT represent the potential adoptive parents. In Baby Harper’s case, an attorney was called in from the hall as she was passing by, and asked to perform this service. The biological mother had already signed the Consent, and this attorney was not witness to the signing, nor did she have any discussions with the biological mother – including whether or not she was providing her Consent voluntarily and without duress or coercion.
Why is it necessary or reasonable to avoid the clear and precise language of the statutes which govern adoption in this State? While not the subject of full discussion in this particular opinion, there were other issues raised which suggest that things were not on the “up and up” in this adoption:
1) The biological mother was described as being young, without prenatal care at all, and had given birth without the knowledge of her own family. Warning signs here: such a mother may have psychological issues or depression issues or even medical issues which could prevent her from signing a Consent without the buffer of time to think and professional assistance to understand her own decision-making. A Charleston Family Court attorney involved in an adoption should be looking for warning signs such as these;
2) The adoption itself was put together by way of the nurse midwife who delivered Baby Girl Harper bringing up and facilitating the adoption of the baby by a cousin, who eventually became the Adoptive Mother. Warning signs here: given her own lack of any prenatal care, a young woman in a tenuous situation without family involvement may be overly susceptible to personal interest or concern. Accordingly, the involvement of other professionals – persons without a stake in the outcome – becomes even more important. Any Charleston Family Court attorney involved in an adoption should be looking for warning signs such as these;
3) During the course of placing Baby Girl Harper with Adoptive Mother, the nurse midwife who put them together arranged to check the baby and her biological mother out of the hospital at such a time and in such a manner as her colleagues would not be aware of what she was doing. The Court’s opinion describes her as “hiding her vehicle behind bushes” so that she would not be seen checking them out of the hospital. Subsequently, the issue of secrecy raised its head, with the birth mother being told not to discuss where she was going, by the Adoptive Mother. This is a serious amount of “smoke” suggesting that there is some “fire” which needs to be concealed. These details should have been made known to the Adoptive Mother’s Charleston Family Court attorney. One only hopes that this behavior did not take place at that attorney’s suggestion. Again, warning signs;
4) The use of the Adoptive Mother’s attorney to discuss the Consent with the birth mother, while already reviewed in this post, is worthy of further discussion. Every Charleston Family Court attorney has a particular role in any given case, and needs to be very careful of the boundaries of his or her role. To do otherwise is to undercut and possibly fatally jeopardize the goals of one’s own client. In this case, the Adoptive Mother’s attorney should have put up “firewalls” between himself or herself and the biological mother, and following the statutory requirements for independent representation for the biological mother. To disregard the potential conflicts, and to open the potential questioning of the Consent, as eventually came about here, is a disservice to one’s own client (in this case, the Adoptive Mother) and, most importantly, to Baby Girl Harper.
5) Baby Girl Harper was 3 days old when her birth mother signed a Consent to her adoption, and relinquished custody of her to the Adoptive Mother. She was 8 days old when her birth mother sought to revoke her Consent. She was a year old when the Court rendered its decision. Of everyone involved in this situation, she arguably suffers the most – having to leave the only mother she has ever known, and return to the mother of whom she was born exactly one year earlier. All of this could have been easily avoided, and should have been avoided for her sake. Rules of adoption are meant to be followed, to the letter, and there is no excuse for not doing so. Failing to follow the rules of adoption suggests more than a lack of understanding; it suggests that there is a compelling reason for NOT following the rules of adoption, such that the adoption might not happen if the rules were actually followed. Perhaps that is not the case here, for Baby Girl Harper, but the information which is available in the Court’s opinion is suggestive of this.
Finally, and most importantly, Happy 1st Birthday to Baby Girl Harper. May all the adults who love her shower her with that love, with thoughtfulness, with compassion and with understanding, all the days of her life.