May 2, 2017
OF CERTIORARI TO THE COURT OF APPEALS
from Union County Coreen B. Khoury, Family Court Judge
Dale Dove, of Dove Law Group, LLC, of Rock Hill, for
M. Spong III, of Winnsboro, Alexandria Marie Wolf, of Callie
A. Charles, LLC, of Spartanburg, Melinda Inman Butler, of The
Butler Law Firm, of Union, and David E. Simpson, of Rock
Hill, and Shawn L. Reeves, of Columbia, all for Respondents.
case, the Court must decide whether Petitioners Edward and
Tammy Dalsing have standing to pursue a private action to
adopt a child who has been placed in their foster care by the
South Carolina Department of Social Services (DSS). The
family court found Petitioners do not have standing, and the
court of appeals affirmed. S.C. Dep't of Soc. Servs.
v. Boulware, Op. No. 2016-UP-220 (S.C. Ct. App. filed
May 19, 2016). We reverse and remand to the family court, as
we conclude Petitioners have standing to pursue a private
adoption under the facts of this case.
AND PROCEDURAL HISTORY
August 27, 2013,  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 are
Allyssa Boulware and John Stafford (Parents), and Child's
legal father by marriage is Jonathan Boulware.
hearing on October 9, 2013, the family court issued an order
finding a permanent plan of reunification with Parents was in
the best interest of Child and adopting a treatment plan
requiring Parents to attend parenting classes and substance
abuse counseling. In February 2014, the family court held the
initial permanency planning hearing and discovered Parents
were not attending substance abuse counseling, were not
supporting Child, and had been arrested for possession of
methamphetamine. The family court approved DSS's
recommendation of a permanent plan of termination of parental
rights (TPR) and adoption, with a concurrent plan of
reunification with Parents. In the meantime, the Foster Care
Review Board issued its report recommending TPR and adoption
within six months.
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 the 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. On May 31, 2014, DSS notified Petitioners of
its intent to remove Child from their home and place Child
with Aunt and Uncle. 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 on June 4, 2014, 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.
September 2014, the family court granted Petitioners'
motion to intervene and granted their request for a full
evidentiary hearing on DSS's motion to change the
permanent plan to a plan of relative placement with Aunt and
Uncle. Aunt and Uncle were added as parties to DSS's
action. At a January 2015 permanency planning hearing, DSS
changed its treatment plan recommendation to TPR and
adoption. The family court approved that plan and scheduled a
TPR hearing for March 2015. The family court also ordered
Petitioners and Aunt and Uncle to be named parties in the DSS
the March 2015 hearing, the family court terminated the
parental rights of Parents. The family court also dismissed
Petitioners' adoption action on the basis Petitioners did
not have standing to pursue a private action for adoption of
a child in DSS custody, citing Michael P. v. Greenville
County Department of Social Services, 385 S.C. 407, 684
S.E.2d 211 (Ct. App. 2009), and Youngblood v. South
Carolina Department of Social Services, 402 S.C. 311,
741 S.E.2d 515 (2013). Relying upon Youngblood, the
family court concluded "the entire legislative scheme
should be allowed to work without interference from foster
parents who are there to take care of the child, not to
generate an adoption for themselves." The court noted
Petitioners and Aunt and Uncle could present their case for
adoption to the DSS adoption committee but ruled none had
standing to pursue a separate adoption action in the family
court. The family court continued:
[T]he terminology in S.C. Code Ann. § 63-9-60 (B), when
read in context with the full law regarding child protective
services actions, requires that the South Carolina Department
of Social Services approve the placement of a child, over
whom they have custody, for adoption by that particular
family before that family will have standing to proceed to
adopt the child.
family court granted custody of Child to DSS "with all
rights of guardianship, placement, care and supervision,
including the sole authority to consent to any adoption . . .
." This appeal followed.
court of appeals affirmed the family court in an unpublished
per curiam opinion. S.C. Dep't of Soc. Servs. v.
Boulware, Op. No. 2016-UP-220 (S.C. Ct. App. filed May
19, 2016). Relying on Youngblood, the court of
appeals held "foster parents do not have standing under
section 63-9-60 to file an adoption petition, regardless of
whether they are former or current foster parents or whether
DSS has made an adoption placement decision."
Id. The court stated its decision was consistent
"with the overall policy of the Children's
Code" and concluded the General Assembly did not intend
"to grant standing to foster parents who file adoption
actions early in the process while foreclosing standing to
foster parents who wait until after DSS has made an adoption
placement decision." Id. We granted Petitioners
a writ of certiorari to review the court of appeals'
appeals 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). Questions of statutory
interpretation are "questions of law, which are subject
to de novo review and which we are free to decide
without any deference to the court below." State v.
Whitner, 399 S.C. 547, 552, 732 S.E.2d 861, 863 (2012).