October 19, 2016
Withdrawn, Substituted and Refiled March 1, 2017
From Union County Rochelle Y. Conits, Family Court Judge
Melinda Inman Butler, of The Butler Law Firm, of Union; and
Nathan James Sheldon, of The Law Office of Nathan J. Sheldon,
LLC, of Rock Hill, for Appellant.
Fletcher Thompson, of James Fletcher Thompson, LLC, of
Spartanburg; and Larry Dale Dove, of Dove Law Group, LLC, of
Rock Hill, for Respondents Edward A. Dalsing and Tammy G.
E. Simpson, of South Carolina Department of Social Services,
of Rock Hill, for Respondent South Carolina Department of
A. Matthews, of Debra A. Matthews, Attorney at Law, LLC, of
Winnsboro, for Respondent Erica Smith.
Lindsey Ann McCallister, of Foster Care Review Board, of
Columbia, for Respondent Foster Care Review Board.
L. Gorski, of South Carolina Guardian ad Litem Program, of
Columbia, for the Guardian ad Litem.
Matthew Barbare, of The Barbare Law Firm, of Greenville, for
Intervenor Sherry Powers.
Andrew Jack Myers (Father) appeals a family court order
terminating his parental rights to his minor daughter (Child)
and granting an adoption of Child to Respondents Edward and
Tammy Dalsing (Foster Parents). On appeal, Father argues the
family court erred by (1) finding his consent was not
required for Child's adoption, (2) terminating his
parental rights, (3) granting adoption to Foster Parents
while finding they lacked standing to file an adoption
petition, (4) allowing Foster Parents to be parties to this
action, and (5) finding Child's permanent plan should be
termination of parental rights (TPR) and
adoption. We vacate in part, reverse in part, and
remand for a new permanency planning hearing.
appeal from the family court, this court reviews factual and
legal issues de novo. Simmons v. Simmons, 392 S.C.
412, 414, 709 S.E.2d 666, 667 (2011); see also Lewis v.
Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).
Although this court reviews the family court's findings
de novo, we are not required to ignore the fact that the
family court, which saw and heard the witnesses, was in a
better position to evaluate their credibility and assign
comparative weight to their testimony. Lewis, 392
S.C. at 385, 709 S.E.2d at 651-52.
we find the issue of Foster Parents' intervention in the
removal action brought by the Department of Social Services
(DSS) is not properly before this court. The October 8, 2014
order allowing Foster Parents to intervene in the DSS action
was by agreement; having consented to the intervention,
Father cannot now challenge it on appeal. See Hooper v.
Rockwell, 334 S.C. 281, 290, 513 S.E.2d 358, 363 (1999)
(providing a party "may not appeal [a] consent order
because such orders are not appealable").
we find the family court erred by considering adoption once
it determined Foster Parents did not have standing to file an
adoption action. Once the family court determined Foster
Parents did not have standing to file an adoption petition,
the issue of adoption was not before the family court, and
the family court did not have the authority to consider it.
See Youngblood, 402 S.C. at 317, 741 S.E.2d at 518
(noting standing is "a fundamental prerequisite to
instituting an action"); Rule 2(a), SCRFC (limiting the
applicability of Rule 54(c), SCRCP, in family court actions
"to the extent it permits the court to grant relief not
requested in the pleadings"); Bass v. Bass, 272
S.C. 177, 179-80, 249 S.E.2d 905, 906 (1978) (finding the
family court erred as a matter of law in awarding the wife
business compensation when she did not assert a claim for
compensation in the pleadings); id. at 180, 249
S.E.2d at 906 ("While it is true that pleadings in the
family court must be liberally construed, this rule cannot be
stretched so as to permit the judge to award relief not
contemplated by the pleadings." (footnote omitted)). We
acknowledge that in certain instances, the family court may
award relief not requested in pleadings. For example, Rule
17(a), SCRFC, permits a defaulting defendant to "be
heard at the merits hearing on issues of custody of children,
visitation, alimony, support, equitable distribution, and
counsel fees." However, we find this rule does not
extend to permit the family court to sua sponte consider
adoption when the party requesting it does not have standing
to make such a request. Because adoption is contrary to
common law, our supreme court mandates that statutes
authorizing adoption must be strictly construed. See
Hucks v. Dolan, 288 S.C. 468, 470, 343 S.E.2d 613, 614
(1986) ("The adoption of a child was a proceeding
unknown to the common law. Adoption exists in this state only
by virtue of statutory authority which expressly prescribes
the conditions under which an adoption may legally be
effected. Since the right of adoption in South Carolina is
not a natural right but wholly statutory, it must be strictly