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2007-UP-529 - Adoptive Father and Adoptive Mother v. Child

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Adoptive Father and Adoptive Mother, Respondents,

v.

Child, a minor child under the age of fourteen years, Defendant,

Birth Father and Birth Mother,[1] Appellants.


Appeal From Greenville County
 Aphrodite K. Konduros, Family Court Judge


Unpublished Opinion No. 2007-UP-529
Submitted November 1, 2007 – Filed November 13, 2007   


AFFIRMED


Adam  Fisher, Jr., of Greenville, for Appellants.

Raymond W. Godwin, of Greenville, for Respondents.

Cheryl Truesdale, of Greenville, Guardian ad Litem.

PER CURIAM: In this action for adoption, Birth Father and Birth Mother (collectively Birth Parents) appeal the family court’s decision that their consents to adoption were valid and withdrawing the adoption was improper.  We affirm.

FACTS

Birth Parents were married and had a son (Child) born January 14, 2004, in North Carolina.  The family lived in a two-bedroom apartment in Salisbury, North Carolina.  Birth Mother was diagnosed with obsessive compulsive disorder (OCD), and as a result of her illness, she struggled in raising Child.  Two months after Child was born, Birth Mother began contemplating adoption.  In March 2005, she became more serious about the idea.  Birth Father agreed to the idea because he felt it was in Child’s best interest based on Birth Mother’s condition. 

Birth Mother sought a family to adopt Child who: (1) “knew God”; (2) had no criminal background; and (3) already had a child so Child would have a sibling.  Birth Parents found Adoptive Father and Adoptive Mother (collectively Adoptive Parents), a married couple living in Simpsonville, South Carolina.  Adoptive Parents were married and had a daughter, born in 2001. 

On April 16, 2005, Birth Parents each signed a surrender of parental rights or consent to adoption (the Consent).  In part, the Consent provided, “This consent and the accompanying surrender forfeits all rights and obligations which I may have to the adoptee.”  Additionally, a letter dated April 15, 2005 (the Letter), addressed to Birth Parents was signed by both Adoptive Parents individually, as well as their attorney, stating Adoptive Parents have “agreed to at least three visits a year at a mutually agreeable location and time and date.  They have also agreed to send you pictures and letters at least once a month and also to provide you with a telephone number in order to maintain regular phone contact.”  

Since the signing of the Consent, Child has lived with Adoptive Parents.  On the evening Birth Parents signed the Consent, they felt they had made a horrible mistake and regretted their decision. 

On April 18, 2005, Adoptive Parents filed a summons and complaint for adoption.  Birth Parents filed a motion to intervene in the adoption, to which Adoptive Parents consented.  Birth Parents then filed an answer and counterclaim, which they later amended, asking the family court to set aside the Consents and to return Child to their custody.  The family court held a hearing and issued a temporary order finding the withdrawal of Birth Mother’s Consent was not in Child’s best interest and the Consent appeared voluntary on its face.  Additionally, the court found Birth Father did not raise any issue as to his Consent and denied Birth Parents’ motion for visitation.  Further, the family court ordered the voluntariness of Birth Mother’s Consent be adjudicated at the final hearing. 

Following the final hearing, the family court found Birth Parents had not proved the Consents were invalid or that they were subject to any fraud, coercion, duress, or lack of voluntariness.  Further, the family court determined it was in Child’s best interest to remain with Adoptive Parents.  The family court also found because Birth Parents had not paid any child support for a period exceeding six months, their parental rights were terminated. 

Birth Parents filed a Rule 59(e), SCRCP, motion for reconsideration asserting numerous points of error by the family court.  The family court denied the motion and issued an amended final order correcting what it termed some “minor clerical mistakes.”  This appeal follows.

STANDARD OF REVIEW

On appeal from a family court order, this Court has authority to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.  E.D.M. v. T.A.M., 307 S.C. 471, 473, 415 S.E.2d 812, 814 (1992).  When reviewing decisions of the family court, we note that the family court is in a superior position to judge the witnesses’ demeanor and veracity and give its findings broad discretion.  Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).  This degree of deference is especially true in cases involving the welfare and best interests of a minor child.  Ex parte Morris, 367 S.C. 56, 62, 624 S.E.2d 649, 652 (2006).  When the evidence is conflicting and susceptible to different inferences, the family court has the duty of determining not only the law of the case, but the facts as well, because it had the benefit of observing the witnesses and determining how much credence to give each one’s testimony.  Anders v. Anders, 285 S.C. 512, 514, 331 S.E.2d 340, 341 (1985); see also Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996) (holding where evidence is disputed, the appellate court may adhere to the family court’s findings). 

LAW/ANALYSIS

I.  Misrepresentations

Birth Parents argue the family court erred in failing to find misrepresentations by Adoptive Parents nullified the adoption.  We disagree.

Adoption terminates all rights of a birth parent over the adopted child. McLaughlin v. Strickland, 279 S.C. 513, 517, 309 S.E.2d 787, 790 (Ct. App. 1983).  “This includes termination of visitation rights.”  Id.  If an adoption is to be based on consent, the birth parent must agree to relinquish all rights to the child.  Id.  A qualified consent which attempts to reserve rights in the birth parent does not sufficiently constitute consent to adoption required by law.   Id.

Withdrawal of any consent or relinquishment is not permitted except by order of the court after notice and opportunity to be heard is given to all persons concerned, and except when the court finds that the withdrawal is in the best interests of the child and that the consent or relinquishment was not given voluntarily or was obtained under duress or through coercion.  Any person attempting to withdraw consent or relinquishment shall file the reasons for withdrawal with the family court.  The entry of the final decree of adoption renders any consent or relinquishment irrevocable.

S.C. Code Ann. § 20-7-1720 (Supp. 2006).

South Carolina jurisprudence “disallows the revocation of consent voluntarily given particularly where the adoptive parents have taken the child into their home in reliance upon the consent.”  Ellison v. Camby, 269 S.C. 48, 51, 236 S.E.2d 197, 198 (1977); see also Driggers v. Jolley, 219 S.C. 31, 37, 64 S.E.2d 19, 22 (1951) (recognizing the right to revoke consent is not absolute and noting the trend is in favor of enforcing consent when voluntarily given and accompanied by reliance on the part of the adoptive parents).  “The South Carolina statutory adoption scheme leaves the question of withdrawal in the judge’s discretion, assuming the Consent to Adopt is on file.”  Ellison, 269 S.C. at 51, 236 S.E.2d at 198.

“[A] final decree of adoption may be vacated or set aside because of fraud in the procurement of the judgment.”  Lowe v. Clayton, 264 S.C. 75, 80, 212 S.E.2d 582, 584 (1975).  Parents who sign a consent to adoption waive their right to notice or appearance at the proceeding.  S.C. Code Ann. § 20-7-1700(A)(9) (Supp. 2006).  Thus, if a parent’s consent is fraudulently obtained, such fraud essentially acts to induce the parent not to present a case.  Hagy v. Pruitt, 339 S.C. 425, 431-32, 529 S.E.2d 714, 717-18 (2000).  Accordingly, the allegation that consent was fraudulently obtained sufficiently alleges extrinsic fraud.  Id.  Generally, fraud must be proved by clear and convincing evidence.  Id.

A party asserting a claim for fraud in the inducement to enter into a contract must establish (1) a representation, (2) its falsity, (3) its materiality, (4) knowledge of its falsity or reckless disregard of its truth or falsity, (5) intent that the representation be acted upon, (6) the hearer’s ignorance of its falsity, (7) the hearer’s reliance on its truth, (8) the hearer’s right to rely thereon, and (9) the hearer’s consequent and proximate injury.

Brown v. Stewart, 348 S.C. 33, 41, 557 S.E.2d 676, 680 (Ct. App. 2001) (internal quotations and citations omitted).

Birth Parents assert Adoptive Parents’ failure to honor the visitation and telephone calls as provided by the Letter were misrepresentations.  Birth Mother testified she and Birth Father had not received visitation or photographs, and she believed they would not receive them.  Additionally, Birth Mother testified the visitation, photographs, and phone calls were all an integral part of the agreement.  However, on cross-examination, she admitted Adoptive Parents had not yet had the chance to comply with the visitation. 

Dr. Blake Allen Spence, who is certified to take consent and relinquishments for adoptions and to conduct home studies, took the Birth Parents’ Consents.  He testified Adoptive Parents and Birth Parents discussed visitation after the Consents were signed.  Further, he testified Adoptive Parents did not sign the Letter until after the Consents were signed. 

By Birth Mother’s own testimony, Adoptive Parents have not yet had a chance to comply with the visitation.  The evidence in the record supports the family court’s finding that the Consents were not subject to fraud.[2] Accordingly, the family court did not err in failing to allow Birth Parents to withdraw their Consents.

Additionally, Birth Parents contend errors in Adoptive Parents’ complaint that were later amended at the hearing were also misrepresentations.  These errors include the statements that Adoptive Parents had an adopted child when in actuality the child was their birth child, as well as Child did not own property in the state of Texas, when it should have stated South Carolina.  At the final hearing, Adoptive Parents sought to amend the complaint to correct these errors.  Birth Parents objected and contended the mistakes in the complaint raised issues of credibility.  However, the family court ruled Adoptive Parents could amend the complaint because the reference to Texas was a scrivener’s error, and Adoptive Parents could testify the child was their biological child. 

If Birth Parents took issue with the amending of the complaint, they should have appealed that ruling, not tried to label these errors as misrepresentations.[3]  Further, they do not explain how these seemingly minor errors prejudiced them, and we can discern no prejudice.  Accordingly, we find the family court did not err in failing to find the Consents should be revoked because of misrepresentations or fraud.

II.  Fitness Issues

Birth Parents argue the family court erred because issues exist regarding the fitness of Adoptive Parents.  We disagree.

Birth Parents provide a litany of alleged medical conditions by Adoptive Mother.  They assert Adoptive Mother takes the following medications: Toamax, Migrinal, and Botox injections for migraines; Neurontin for restless leg syndrome; Cymbalta for depression; Welbutrin for depression and anxiety; Lexapro for adjustment disorder; Prevacid for gastrointestinal reflux disease; and Zrytec for an allergic condition.  Birth Parents further contend Adoptive Mother has a history of fibromyalgia, bulimia, back aches, and has chronic situations with depression.  Additionally, Birth Parents allege Adoptive Mother, a doctor, prescribed medications and refills for herself. 

Birth Parents cite Murray v. Murray, 271 S.C. 62, 244 S.E.2d 538 (1978), and Peeples v. Peeples, 270 S.C. 116, 241 S.E.2d 159 (1978), in support of their argument that the fitness issues are sufficient for Adoptive Parents to lose custody of Child.  Both of these cases involve birth parents losing custody of their children to the other birth parent or a grandparent due to mental and emotional instability, and thus, greatly differ from the current situation.  Further, Adoptive Mother is on the medications pursuant to doctor’s orders to correct medical problems.  Many of these problems would not have any bearing on Adoptive Mother’s fitness as a parent.  Additionally, Adoptive Mother is on the medications to treat her problems for depression and anxiety.  In regards to the allegations she wrote her own prescriptions, Adoptive Mother also testified she only extended prescriptions for which she already had a prescription, which did not violate any ethical rules, and she would never write a new prescription for herself. 

Further, Birth Parents argue because Adoptive Father did not testify, there is a presumption his testimony would be adverse to his position, citing to McCowan v. Southerland.  253 S.C. 9, 168 S.E.2d 573 (1969).  In McCowan, the South Carolina Supreme Court found when “facts were peculiarly within [a defendant’s] knowledge” and “[h]e did not testify . . . his unexplained failure to do so raises an inference that his testimony, if it had been submitted, would have been unfavorable to his position.”  Id. at 12, 168 S.E.2d at 574.  Here, Father was not the only party that could testify he was a fit parent.  Adoptive Mother, the guardian ad litem (GAL), Cheryl Truesdale, a clinical psychologist, Dr. Joanne Armstrong, and another witness, Stacy Garrett, all testified Adoptive Father was a fit parent. 

Additionally, Birth Parents contend at the time of the hearing, Adoptive Parents lived in a two-bedroom apartment with Child sharing a room with Adoptive Parents’ daughter.  Although Adoptive Parents did temporarily live in a two-bedroom apartment, it was only for a few months while construction was being completed on their five bedroom home, in which Child has his own bedroom, as well as a playroom and a backyard.  Accordingly, the family court did not err in finding Adoptive Parents to be fit parents.

III.  Best Interest of the Child

Birth Parents maintain it is in the best interest of Child that they raise him.  We disagree.

“In adoption cases the child is the proper focus for the determination.”  Phillips v. Baker, 284 S.C. 134, 136, 325 S.E.2d 533, 535 (1985).  Section 20-7-1720 authorizes the family court to grant a withdrawal of consent to adoption only if “the court finds that the withdrawal is in the best interests of the child . . . .”

At the time Child was placed with Adoptive Parents, his weight was at the twenty-fifth percentile on weight charts for his age, making him severely underweight.  Further, he suffered from a chronic buildup of fluid on his left eardrum, causing partial deafness.  Child also never wore shoes while he lived with Birth Parents and had an abnormality called metatarsus abductus, causing both feet to turn inward.  Additionally, Child had developmental delays in his speech and fine motor skills. 

Child’s physical condition has shown improvement since he has been living with Adoptive Parents.  After several months, his weight increased to the seventy-fifth percentile.  Further, Adoptive Parents have enrolled him in both speech and occupational therapy.  Additionally, Adoptive Parents had Child examined by an ear, nose, and throat specialist, who placed tubes in Child’s ears to alleviate fluid causing Child pain and hearing loss.  Child has also received medical assistance for his metatarsus abductus and can now wear shoes and bear his own weight allowing his walking to significantly improve. 

Further, Adoptive Mother is a pediatrician who currently stays at home with Child.  Dr. Armstrong testified Child had a strong bond with Adoptive Parents.  The GAL testified she had concerns with Child being returned to Birth Parents.  Specifically, when she went to Birth Parents’ apartment for a planned visit, they had very little food in the home.  Further, Birth Mother testified she intended to home school Child, which concerned the GAL because she found Child lacked socialization at the time he was placed with Adoptive Parents and therefore, thought home schooling would be detrimental to him.  Accordingly, the GAL believed it was in Child’s best interest to remain with Adoptive Parents.  From a review of the record, the evidence supports the family court’s decision that revoking the Consents was not in Child’s best interest, and thus, we find no error in the decision.

CONCLUSION

We find the family court did not err in finding the Consents should not be revoked and the adoption should not be withdrawn because of misrepresentations or fraud.  Further, we find the Adoptive Parents are fit parents and not withdrawing the adoption is in Child’s best interest.  Accordingly, the order of the family court is

AFFIRMED.[4]

ANDERSON, SHORT, and WILLIAMS, JJ., concur.


[1] This case is sealed, thus the parties’ names have been changed.

[2] Further, even if Birth Parents met their burden of proving the Consents were given as a result of fraud, they must also prove the withdrawal of their Consents was in Child’s best interest.  See § 20-7-1720.  As discussed in more detail in the third issue, we find the withdrawal of Birth Parents’ consent is not in the best interest of Child. 

[3] Further, Rule 15, SCRCP, provides, “A party may amend his pleading once as a matter of course at any time before or within 30 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial roster, he may so amend it at any time within 30 days after it is served.  Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires and does not prejudice any other party. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fifteen days after service of the named amended pleading, whichever period may be the longer, unless the court otherwise orders.”

[4] We decide this case without oral arguments pursuant to Rule 215, SCACR.