Articles Posted in Family Law

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Petitioners Edward and Tammy Dalsing (Foster Parents) sought to adopt a young girl (Child). Foster Parents' private action for termination of parental rights (TPR) and adoption was consolidated with the South Carolina Department of Social Services' removal action against Erica Smith (Mother) and Andrew Myers (Father). At the final hearing, the family court: (1) adopted the permanent plan of TPR and adoption; (2) terminated Mother's parental rights; (3) found Father was not a person whose consent was required for Child's adoption, but as a further sustaining ground, terminated Father's parental rights; and (4) granted Foster Parents' petition for adoption. Father appealed, and the court of appeals vacated in part, reversed in part, and remanded the case to the family court for a new permanency planning hearing. The court of appeals ruled the family court erred in terminating Father's parental rights, finding Foster Parents failed to prove by clear and convincing evidence a statutory ground for TPR existed. The court of appeals found the record did not contain clear and convincing evidence to show that Father abandoned Child, willfully failed to visit Child, or willfully failed to support Child. The court of appeals remanded the matter to the family court for a new permanency planning hearing. The South Carolina Supreme Court granted certiorari to review the court of appeals' decision. “Although the court of appeals' list of actions taken by Father may appear sufficient to find clear and convincing evidence did not support this statutory ground for TPR, a close analysis of the record reveals otherwise. Several of the actions listed separately by the court of appeals were not actually separate and distinct actions, but rather occurred within a month's time of one another, and approximately one year after Child's birth.” The Court found the trial court record contained clear and convincing evidence that Father abandoned Child. The Court therefore reversed the court of appeals and reinstated the family court's grant of adoption to Foster Parents. View "So. Carolina Dept. Social Svcs v. Smith" on Justia Law

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Petitioner Nila Collean Carter sought to revoke her consent to the adoption of her two biological children. Throughout the proceedings, Petitioner was never provided an opportunity to be heard on the merits of her claim before the adoption was finalized. The South Carolina Supreme Court issued a writ of certiorari to review the court of appeals' unpublished decision affirming the family court's denial of Petitioner's motion to set aside the final adoption decree pursuant to Rule 60(b), SCRCP. Because Petitioner's Rule 60(b) motion was timely filed and sufficiently alleged extrinsic fraud, the Supreme Court reversed and remanded this matter to the family court for further proceedings. View "Ex Parte: Carter" on Justia Law

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Petitioner Nila Carter sought to revoke her consent to the adoption of her two biological children. Petitioner was never provided an opportunity to be heard on the merits of her claim before the adoption was finalized. The South Carolina Supreme Court issued a writ of certiorari to review the court of appeals' unpublished decision affirming the family court's denial of Petitioner's motion to set aside the final adoption decree pursuant to Rule 60(b), SCRCP. Because Petitioner's Rule 60(b) motion was timely filed and sufficiently alleged extrinsic fraud, the South Carolina Supreme Court reversed and remanded this matter to the family court for further proceedings. View "Ex Parte: Carter" on Justia Law

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In this case, the South Carolina Supreme Court had to decide whether Petitioners Edward and Tammy Dalsing had standing to pursue a private action to adopt a child who had been placed in their foster care by the South Carolina Department of Social Services (DSS). Law enforcement took the minor child (Child) into emergency protective custody after discovering an active methamphetamine lab outside the home where Child resided with Allyssa and Jonathan Boulware. Child was sunburned, had several insect bites, suffered from severe diaper rash, and tested positive for methamphetamine, cocaine, and marijuana. DSS placed Child in foster care with Petitioners on the same day and then commenced an abuse and neglect removal action. Child's biological parents were Allyssa Boulware and John Stafford (Parents), and Child's legal father by marriage is Jonathan Boulware. The instant controversy began when DSS and Parents reached an agreement for Child to be placed with relatives Darryl and Ruth Ann Armstrong (Aunt and Uncle) in order to give Parents more time to work on a treatment plan. The proposed placement with Aunt and Uncle was not an adoptive placement. DSS intended to close its case after Parents completed the treatment plan. Petitioners immediately moved to intervene in DSS's removal action and commenced a private TPR and adoption action. The family court held a second permanency planning hearing, but declined to rule on DSS's new permanent plan of relative placement with Aunt and Uncle until the court ruled on Petitioners' motion to intervene. The family court found Petitioners did not have standing, and the court of appeals affirmed. S.C. Dep't of Soc. Servs. v. Boulware. The Supreme Court reversed and remanded to the family court, concluding Petitioners had standing to pursue a private adoption under the facts of this case. View "S.C. Dep't of Soc. Servs. v. Boulware" on Justia Law

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Diane and Otis Bass had three children: Brittany, Hanna, and Alex. All three children were special needs, but Hanna and Alex were also autistic. Otis worked outside the home, and Diane cared for the children. Due to their forms of autism and their other cognitive issues, both Hanna and Alex were prescribed Clonidine to help them sleep at night, in addition to other medications. A compounding pharmacy filled the Clonidine prescription. In April 2008, the prescription was inadvertently mixed at one thousand times the recommended concentration. Diane administered the wrongly compounded Clonidine to Hanna and later to Alex. Both children had serious reactions that required hospitalization. DSS received a report that two special needs children were in the hospital due to "possible poisoning by parents." The agency assigned an overall danger rating of "medium" to the case. A caseworker assigned to the case recommended the children be removed from the Bass home and placed with Diane's sister, Linda. Linda would later learn that the compounding pharmacy improperly filled the Clonidine prescription. Linda notified DSS, and the agency subsequently concluded that the medication was the cause of the children's hospitalization. This revelation led to the eventual return of the children to Diane and Otis. However, DSS continued to make announced and unannounced visits at the Bass home through the end of 2008 and refused to remove its finding that Diane and Otis "harmed their children" from the agency's file on Petitioners. Petitioners filed a lawsuit against DSS, the compounding pharmacy, and the pharmacist, alleging negligence and gross negligence, and seeking actual and punitive damages. After settling with the pharmacy and the pharmacist, Petitioners served DSS with an amended complaint alleging causes of action for gross negligence, defamation, and outrage, and sought actual damages. DSS moved for a directed verdict at the conclusion of Petitioners' case, and again at the conclusion of all of the evidence. The trial judge denied both motions. At the conclusion of the evidence, Petitioners withdrew their defamation cause of action, and moved for a directed verdict regarding DSS's defenses of discretionary immunity and negligence of a third party. The trial judge granted Petitioners' motions for directed verdict as to those defenses. Ultimately, the jury returned a verdict for Petitioners, and awarded them $4 million in damages. DSS subsequently filed motions for judgment notwithstanding the verdict (JNOV), for new trial absolute, and to reduce the verdict. The trial court issued an order denying DSS's post-trial motions. However, the trial court granted DSS's motion to reduce the verdict. The court of appeals reversed the jury's verdict. The Supreme Court reversed the court of appeals, finding the trial court did not err in its decision. View "Bass v. SCDSS" on Justia Law

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This case went before the South Carolina Supreme Court on cross-appeals from Whitney Moore (Wife) and Arthur Moore, III, (Husband) of an order of the family court valuing and dividing the parties' closely held business, Candelabra. After review, the Court affirmed the family court's inclusion of Wife's enterprise goodwill in the business as marital property. The valuation and equitable division award was modified, however, and the case was remanded for further proceedings. View "Moore v. Moore" on Justia Law

Posted in: Family Law

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Petitioner Frank Pedery argued the court of appeals erred in affirming the family court's termination of Respondent Bonnie McKinney's alimony obligation to him and the family court's failure to award Pedery attorney's fees. In June 2009, McKinney sought a reduction or termination of her alimony obligation based on Pedery's continued cohabitation with his paramour, Cynthia Hamby, and a substantial change of circumstances. According to McKinney, a decrease in her income and deterioration of her health constituted the substantial change in circumstances. On August 26, 2011, the family court issued an order terminating McKinney's alimony obligation based on its finding that Pedery "continuously resided with [Hamby] for not only in excess of ninety days but on a continuous basis for an extended period of time . . . ." The court of appeals affirmed the family court's order. Pedery argues that McKinney failed to meet her burden of proof with regard to her argument that Pedery continuously cohabitated with Hamby for purposes of S.C. Code Ann. 20-3-130(B). After review, the Supreme Court agreed, "[w]e do not deny that the facts indicate that Pedery and Hamby's living situation is a permanent arrangement of a romantic nature. Rather, we focus on the specific requirement under the plain language of section 20-3-130(B). If the statute merely required the supported spouse to "reside with" his paramour, then termination of McKinney's alimony obligation would be proper. However, the statute mandates cohabitation for ninety consecutive days. The Court found that the testimony in the record concerning McKinney's changed income and health issues could support, at least, a reduction in McKinney's alimony obligation. Therefore the case was remanded the case for the family court to determine whether McKinney's alimony obligation should be reduced or terminated on the basis of a change in circumstances in her health and income. View "McKinney v. Pedery" on Justia Law

Posted in: Family Law

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Husband Michael Buist and Wife Katie Buist married in 1999 and had one child. In 2007, Wife filed for divorce, seeking, inter alia, attorneys' fees and costs. In 2009, the family court granted the couple a divorce on the grounds that they had lived separate and apart for one year. In November 2009, the family court conducted a final hearing, receiving testimony from Husband, Wife, their witnesses, and a guardian ad litem (GAL) regarding contested issues of division of marital assets, child custody and visitation, and child support. At the hearing, Wife's attorney submitted a fee affidavit requesting approximately $15,000 in attorneys' fees. Husband's attorney did not object to the affidavit, but submitted his own fee affidavit regarding his earlier motion for a rule to show cause. In the final divorce decree, the family court ordered Husband to pay $8,000 towards Wife's attorneys' fees and costs within 180 days. The court also ordered Husband and Wife to each pay half of the $2,768.90 owed to the GAL within 180 days. Finally, the family court ordered Wife to pay Husband's attorney $3,050 in regards to Husband's motion for a rule to show cause. Husband appealed, arguing, inter alia, that the family court erred in failing to apply the factors set forth in "Glasscock v. Glasscock" or "E.D.M. v. T.A.M" prior to awarding attorneys' fees to Wife. The Supreme Court affirmed the trial court, finding that because Husband was not sufficiently specific in his objection to the family court's final divorce decree, he waived any objection that the family court did not adequately apply the Glasscock or E.D.M. factors. View "Buist v. Buist" on Justia Law

Posted in: Family Law

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Birth Mother was twenty-three years old when she learned that she was pregnant very late in the pregnancy. She received no prenatal care. She did not tell her parents she was pregnant, even though she lived with them. She gave birth alone after presenting to the emergency room when she went into labor with Baby Girl. Shortly after the birth, Birth Mother mentioned to hospital staff that she might be interested in placing Baby Girl for adoption. Other hospital workers were aware that Birth Mother was considering adoption, including the nurse midwife who delivered Baby Girl. The nurse midwife told Birth Mother that the nurse midwife's cousin, Adoptive Mother, was considering adoption, and gave her Adoptive Mother's telephone number. Birth Mother agreed to have Adoptive Mother adopt Baby Girl. Adoptive Mother's lawyer rented office space in an executive suite shared by other law firms, including the law firm where the attorney-witness worked. On the morning of the adoption, Adoptive Mother's lawyer asked the attorney-witness to act as a witness to the execution of the Consent. In addition, Adoptive Mother's lawyer asked a legal assistant from another law firm that also shared the office suite to be the second witness to the adoption. The legal assistant was present when Birth Mother signed the Consent, but did not see her initial the remainder of the document. She understood her role to be that of a witness to Birth Mother's signature. Adoptive Mother's lawyer notarized Birth Mother's signature. However, the attorney-witness did not enter the room until after Birth Mother signed the Consent, although she had the impression that Birth Mother had signed the Consent shortly before she entered the room. Neither witness was present for any discussions between Adoptive Mother's lawyer and Birth Mother regarding the Consent. The attorney-witness testified that she believed that Adoptive Mother's lawyer had explained the Consent to Birth Mother outside of her presence. Once the witnesses were in the room, Adoptive Mother's lawyer restated his prior conversation with Birth Mother in summary fashion. The witnesses signed the Consent, and the attorney-witness's law clerk notarized their signatures. The entire transaction lasted approximately ten minutes. Birth Mother left the office with Adoptive Mother's mother, who drove Birth Mother back to the local hotel where she had spent the previous night. Birth Mother spent time alone with Baby Girl there, and then relinquished Baby Girl to Adoptive Mother. However, Birth Mother explained that she "felt immediately that something was not right with the process." Five days later, Birth Mother sent a registered letter to Adoptive Mother's lawyer formally revoking her consent. The family court issued an order in a bifurcated hearing finding the Consent was invalid and requiring Baby Girl's immediate return to Birth Mother. In its order, the family court noted the only issue presented to the court was "whether the consent document was properly executed and, based on that ruling, whether Birth Mother's request for emergency transfer of legal and physical custody of the minor be granted." The court held that the relevant statutory provisions were clear and mandatory, such that strict compliance was required. Adoptive Mother appealed the court of appeals' decision affirming the family court order. Finding no error, the Supreme Court also affirmed. View "Brown v. Baby Girl Harper" on Justia Law

Posted in: Family Law

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In August 2012, then-sixteen-year-old Appellant Stephen W. was charged with possession of marijuana. At the adjudicatory hearing, Appellant moved for a jury trial, claiming that he was entitled to a jury trial under the United States and South Carolina Constitutions. The family court denied Appellant's motion. The family court adjudicated Appellant delinquent and ordered that Appellant spend six consecutive weekends at the Department of Juvenile Justice, complete an alternative educational program, and continue with his prior probation for a period of time not to exceed his eighteenth birthday or until he obtained a G.E.D. Appellant directly appealed to the Supreme Court. He argued that the family court erred in denying his motion for a jury trial in a family court juvenile proceeding. Because there was no constitutional right to a jury trial in a family court juvenile proceeding, the Supreme Court affirmed. View "In the Interest of Stephen W." on Justia Law