Our Charleston family law attorneys handle cases involving the prosecution and defense of termination of parental rights (TPR) in the family courts of Charleston, Dorchester, Berkeley, and Colleton counties. In most cases, the best interests of a child are served by having good relationships with both parents. Unfortunately, in some situations it may be better for a child to cut ties with a parent who is deadbeat, abusive, or possessing other characteristics that are detrimental to the child’s wellbeing. We offer the following information for someone who is considering initiating a termination of parental rights case in South Carolina or someone who is facing the defense of such an action.
Legal Grounds for Terminating Parental Rights in South Carolina
The grounds for TPR in South Carolina (as defined by statute) are as follows:
- Abuse or neglect by the parent affecting the child’s safety or causing harm to the child.
- Failure to remedy conditions that led to the child being removed from the home within 6 months.
- Willfully failing to visit the child for a period of 6 months.
- Willfully failing to support the child for a period of 6 months.
- The father is not the biological father of the child.
- The parent has a diagnosable condition not likely to change within a reasonable time, including alcohol or drug addiction, mental illness, or extreme physical incapacity, and the condition make the parent unable or unlikely to provide minimally acceptable care for the child.
- Abandoning the child.
- Allowing the child to be in foster care for 15 of the most recent 22 months.
- Being convicted of a charge of physical abuse of the child that resulted in the admission of the child to the hospital for in-patient care.
- Murdering the child’s other parent.
- Conceiving the child through criminal sexual conduct.
The most common cases we see are where the parent has willfully failed to visit and/or support the child for a period of six months. As for visitation, the family court may disregard “incidental” visitations. The court may also consider other circumstances such as whether the custodial parent prevented the other parent from visiting by the party having custody or by court order or the distance of the child’s placement from the parent’s home.
Failure to support means that the parent has failed to make a “material contribution” to the child’s care such as food, clothing, shelter, or other necessities for the child. The court may consider other circumstances such as requests for support by the custodian and the parent’s ability to provide support.
Service of the Action for Termination of Parental Rights
After filing the action, the party requesting TPR of a parent must give notice of the action through a process called “service.” Obviously, the action must be served on the parent against whom TPR is being sought. If the child is 14 or older, it must be served on the child. It must be served on the child’s Guardian ad Litem if the child is under 14. It must be served on the Department of Social Services (DSS) if the child is in DSS’s custody.
Legal Representation in Family Court for Termination of Parental Rights
We strongly urge any parent filing a TPR action to contact an attorney at Futeral & Nelson for a consultation before going to court. There are procedural and statutory rules that must be followed, there are evidentiary rules that must be met in the presentation of the case, and there is a large body of case-law relating to these actions. Understanding the rules and the law is important if you want to maximize your chances of having a TPR granted.
Any parent defending a TPR case is entitled to a lawyer. If the person cannot afford legal representation, the judge can appoint a lawyer to represent that person. If you are served with papers for TPR, schedule a consultation with an attorney immediately. It is important that you answer the complaint within 30 days of service and that you appear at the first hearing. If you can’t afford a lawyer, then request one at the first hearing and be prepared to prove to the judge that you can’t afford a lawyer (known in court as being “indigent”).
The child is entitled to a form of representation also. This representative is called a Guardian ad Litem (“GAL”). In some cases, the court will also appoint an attorney for the GAL.
Best Interests of the Child
As with most family court cases involving children, a judge must ultimately decide what is in the best interests of the child or children. Even if a ground for TPR exists, it is still possible that a family court judge denies the request for TPR because the judge doesn’t believe that cutting ties with the parent is in the child’s best interests. The party seeking TPR must prove their case by a higher standard called “clear and convincing.” These decisions are made on a case-by-case basis, and it is best to consult with a family law attorney to determine the strength of your particular case.
Effect of Termination of Parental Rights
If a family court judge terminates someone’s parental rights, it removes all rights and obligations between the parent and the child except for the child’s right of inheritance, which is only removed only by certain adoptions. The parent will have no right to see the child, but the parent also will have no responsibility to pay child support. A family court can terminate the rights of one parent or of both parents.
Adoption After TPR
If one or both parents have their parental rights terminated, then the child may be adopted. In some cases, a grandparent or other family member might adopt the child. If both parents have TPR granted against them, the foster care family might adopt the child. If one parent has a TPR granted against the other, and the parent who keeps custody marries someone else, the new spouse can apply to adopt the child. These are three of the more common adoption scenarios.