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South Carolina Department of Social Services v. Boulware

Supreme Court of South Carolina

January 3, 2018

South Carolina Department of Social Services, Respondent,
v.
Allyssa N. Boulware, John A. Stafford, and Jonathan Boulware, Respondents, and Darryl Armstrong and Ruth Ann Armstrong and Edward Dalsing and Tammy Dalsing, Intervenors, Of whom Edward Dalsing and Tammy Dalsing are Petitioners, and Darryl Armstrong and Ruth Ann Armstrong are Respondents. In the interest of a minor under the age of eighteen. Appellate Case No. 2016-001625

          Heard May 2, 2017

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

         Appeal from Union County Coreen B. Khoury, Family Court Judge

          Larry Dale Dove, of Dove Law Group, LLC, of Rock Hill, for Petitioners.

          Ernest 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.

          JAMES, JUSTICE

         In this 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.

         FACTUAL AND PROCEDURAL HISTORY

         On August 27, 2013, [1] 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.

         After a 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.

         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 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.[2] 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.[3]

         In 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 TPR action.

         After 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.

         The 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.

         The 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' decision.

         STANDARD OF REVIEW

         In 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).

         APPLICABLE ...


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