CHARLESTON, SC AND SUMMERVILLE, SC PARENTAL RIGHTS ATTORNEY
This article will work backwards from the premise that the natural parents of any child still retains parental rights over a child until such rights are voluntarily surrendered or there is a finding by a Family Court in South Carolina that the parental rights should be terminated with cause. More often than not, parental rights are voluntarily surrendered by natural parents in the course of giving up a child for adoption. There are legal standards of course to make sure that the surrender of rights is voluntary and not induced by undue influence or by bribery or the like. The real controversy in this area of the law begins when the Family Court must take on litigation to determine whether the parental rights of a natural parent should be terminated involuntarily.
HOW DOES IT BEGIN?
In the vast majority of non-adoption cases that I have observed or worked on, the initiation of a Termination of Parental Rights (TPR) proceeding is usually initiated through an investigation by the Department of Social Services (DSS). DSS will receive a referral, usually from a private source or from law enforcement, where there is some question concerning the health and welfare of the child (the "best interest of the child" standard) and how the child may be endangered by the acts and behaviors of the natural parents. The most obvious cases of child endangerment would involve child abuse, sexual abuse of a child by one of the parents, and lack of nourishment and a healthy environment for the child (lack of food, clothing, adequate living conditions). Upon a report that alleges any type of harm to a child, DSS will begin to investigate the home environment and refer to any law enforcement reports that may address that particular situation.
Any interested party (the other parent, grandparents, legal guardian, adoptive parents) may also initiate an action for the termination of parental rights. In most cases, DSS will join this legal action and a Guardian ad Litem will be appointed to represent the best interest of the child.
ANOTHER INTERESTING POINT ABOUT TPR
In South Carolina, any parent who is subject to an action of Termination of Parental Rights is by law allowed to have legal counsel. Of course the accused parent may hire any attorney of their choosing. If the accused parent can not afford an attorney, then the Family Court will appoint an attorney to represent them in the action.
THE LEGAL EFFECTS OF TERMINATING PARENTAL RIGHTS?
The legal effects of terminating the parental rights of a parent are obvious but must be stated since they are so drastic. The legal effect is that the parent who has their parental rights terminated are treated in the eyes of the law as having never giving birth or being the natural parent of the child. The parent is exiled from the life of the child . . . FOREVER! The parent has no legal right to contact, no legal right to participate in life decisions, you can't even claim them on your taxes. It is as if the birthing of the child never occurred for the natural parents. The child will no longer be able to inherit property as an intestate heir to the estate of the natural parent if parental rights have been terminated. The consequences are in essence "the death penalty" of Family Court.
WHAT GROUNDS MUST EXIST TO TERMINATE PARENTAL RIGHTS?
There are 11 statutory grounds to terminate parental rights in South Carolina. These grounds are found at S.C. Code Ann. 20-7-1572:
- Severe and / or repetitive abuse of the child and that home could not be made safe within 12 months. (previous abuse or neglect can also be considered regardless if home can be otherwise made "safe")
- Child has been previously removed from the home for a period of over 6 months and the parent has not remedied the conditions that led to the removal
- The child has been living outside of the home for more than 6 months and the parent has willfully failed to visit the child. (Family Court will consider distance and ability of parent to visit)
- The child has been living outside of the home for more than 6 months and the parent has willfully failed to support the child or make material contributions to child's life.
- The presumptive legal father, through paternity, is established to not be the child's biological father, and the welfare of the child is best served by terminating the parental rights of the presumptive father
- The parent suffers from a condition unlikely to change during a reasonable period of time, such as drug and alcohol addiction, mental illness and deficiency, or extreme physical incapacity that makes it unlikely that a minimal standard of care can be maintained.
- The child has been abandoned
- The child has been a ward of the state or under state care for 15 of the previous 22 months
- The physical abuse of a child by the parent that resulted in death or the admission to the hospital for inpatient care said child, and the acts committed upon the child led to the conviction or guilty plea of the parent to Criminal Domestic Violence and/or Assault of a High and Aggravated Nature.
- The parent of the child pleads guilty or is convicted of the murder of the other parent
- Conception of the child was the result of criminal sexual conduct by the parent, unless such conduct was the result of the consensual acts by both parents and both parents were between the ages of 14 years and 18 years of age (statutory rape - teenage pregnancy).
THE DANGER OF TPR PROCEEDINGS
Like all areas of the law, there are Termination of Parental Rights cases that are so cut and dry that they can't be disputed. The devil is in those cases that are "gray area" cases or maybe cases that involve a parent who is not actively involved in any type of abuse or neglect of a child. One example I have experience with is what I call the "innocent parent" scenario. Lets say one parent is a heavy drinker and likes to come home and beat on the kids. The other parent defends the kids, protects them, and tries to shelter them from the danger they face. However, the innocent parent doesn't leave the home, doesn't contact law enforcement and just tries to keep this locked up as some type of "dirty family secret" and out of public view. Is the "innocent parent" possibly subject to DSS investigation and possible TPR proceedings. A plain reading of the law would suggest "yes". The most dangerous cases are the ones where bright lines have to be filtered through a shaded lens.
THE MCMILLIAN LAW FIRM - CHARLESTON, SC AND SUMMERVILLE, SC PARENTAL RIGHTS ATTORNEY
The TPR hearing is without a shadow of a doubt the most serious issue that is handled by the Family Court. The rulings by the Court in these matter permanently change families and lives. If you feel that you have the grounds and standing to seek TPR against a parent OR you are subject to a TPR proceeding do not go into this alone. Please seek legal counsel immediately!!
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today.