On August 4, 2014 the South Carolina Court of Appeals upheld a trial court ruling that a birth mother’s signed consent to the adoption of her child was not valid because it was not properly witnessed.
In the case of Brown v Baby Girl Harper the birth mother signed a document (called a “Consent”) consenting to the adoption of her birth child by the Browns. There was no dispute that the birth mother voluntarily signed the Consent. The problem for the adoptive parents was that their attorney did not strictly comply with the requirements of the adoption statute in gaining the required Consent of the birth mother. The birth mother’s Consent was not signed before an attorney who was not associated with the adoption and there was no witness certification that the contents of the Consent had been reviewed with the birth mother in advance of her signature.
The South Carolina Adoption Statute requires that when a person desires to sign a Consent to the adoption of their birth child, the Consent:
- Must be signed in the presence of an attorney and two witnesses, and
- The witnesses must hear the attorney explain to the birth parent the contents of the document before it is signed.
In the Brown case, the Court of Appeals was very clear:
The plain and mandatory language of section 63-9-340 indicates the legislature intended strict compliance. Subsection (A) states the document “must be signed in presence of two witnesses.” (emphasis added). Subsection (B) states the witnesses “shall” certify that the provisions of the document were discussed with person giving consent “before the signing of the document.” (emphasis added). The requirement in subsection (B) of “certification . . . based on this discussion” indicates the witnesses must have personal knowledge of the discussion based on their observation of it.
Not too long ago South Carolina had modified its adoption laws to require proof that the rights of birth parents towards their birth children were clearly acknowledged prior to the adoption. This requirement was intended to remedy abuses in the adoption practice in South Carolina that had been brought to national attention. In essence, South Carolina was accused of being in the business of “selling babies”.
Words such as “must” and “shall”, when contained in statutes, are important words for attorneys. These words mean strict compliance is required and failure to follow the rules will mean that the attorney will be denied the relief they are requesting. The court has no discretion in the matter.
Whoever represented the adoptive parents in this matter should have known better than to play “fast and loose” with the rules. Adoptions are some of the most serious matters in the family court because they irrevocably and permanently sever the parental rights between parents and their children. The safeguards required in section 63-9-340 are intended to benefit both the adoptive parents and the birth parents.
The birth parents are protected because their fundamental rights towards their children will be acknowledged, explained to them by an attorney not associated with the adoption, and only freely given up after being fully advised of their legal rights. The adoptive parents are protected because the Consent given by the birth parents will be valid and their adoption will be very difficult, if not impossible, to challenge at a later date should someone change their mind.
The adoptive parents in this case must now start from scratch in seeking to adopt a child. A little care, diligence and attention to the requirements of the adoption statute would likely have prevented much heartbreak and suffering when they learned that their much hoped for adoption would not be permitted to proceed.