Start by calling DFACS in your county, or the Department of Human  Resources at the state level.  The website is www.dhr.state.ga.us.   You can get information to get started and November will become your Month to Remember!  Let us know if you would like more assistance.

The birth facts and Acknowledgment of Paternity

When the child was born in May 2008,  the mother and father were not married, but the father was present at the child’s birth and both parents voluntarily signed a Paternity Acknowledgment form at the hospital.  The father was listed on the birth certificate and the child was given the father’s last name.  The mother did not rescind the Paternity Acknowledgment form she had signed within 60 days, so the acknowledgment resulted in a non-judicial, administrative legitimation of the child under OCGA 19-7-22(g)(2).  Several months later, the parents ended their relationship.

Mom marries stepfather and he files to adopt

In September 2010 the mother married Hann.  In May 2012, Hann filed a petition to adopt the child, and the biological father filed a court petition to legitimate the child.  The trial judge denied the father’s petition to legitimate the child and granted the termination of the father’s rights as part of granting Hann’s adoption petition.

Dad’s appeal succeeds

The biological father appealed.  The Georgia appeals court ruled that the trial court abused its discretion when it denied the biological father’s legitimation petition filed with the Court because the child had been administratively legitimated by the earlier Acknowledgment of Paternity.  Further, the trial court failed to making specific findings explaining why, under the Georgia statute, it was terminating the father’s rights.

When can a stepparent adopt a child?

It is sometimes possible for a stepparent to adopt the stepchild, even if the child is legitimate.  One way is that the child’s parent can surrender his or her rights to the child for the purpose of enabling the stepparent to adopt (essentially a consent by the parent to the stepparent adoption - see OCGA 19-8-6(a)(1)).  Even if the parent does not surrender his or her rights, a Court can terminate the biological parent’s rights and grant the stepparent’s petition to adopt if the Court finds clear and convincing evidence that the parent: (a) abandoned the child; (b) failed to exercise proper parental care or control due to misconduct or inability (the law has specifics on this); or (c) for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed (1) to communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) to provide for the care and support of that child as required by law or judicial decree.  OCGA 19-8-10.

The stepparent must prove that the termination should happen

In the absence of a surrender of parental rights, Georgia courts have found that the stepparent seeking to adopt must prove that the termination of the parent’s rights is warranted – and this includes the stepparent showing the Court that there was not a justifiable cause for the parent’s failure to communicate with or support the child.  (The petitioning stepparent has the “burden of proof” on this issue.)  The logic is that the Due Process Clause of the Constitution gives parents important protections as parents that should not be terminated without clear and convincing evidence.  Once the stepparent has satisfied the Court on this question, the Court must also determine whether the proposed adoption is in the best interest of the child.  OCGA 19-8-10.

Findings of fact and conclusions of law explain the court’s rationale

In the Ray v. Hann case, the Court found that the trial court failed to make specific factual findings and conclusions of law explaining the basis for their terminating Ray’s parental rights and finding that it was in the child’s best interest to approve the adoption.  The reason this is so important is that the statute OCGA 19-8-18 says the Court shall include appropriate (written) findings of fact and conclusions of law in the decree of adoption that explain how 19-8-10 is being applied.

The Court of Appeals did not say that the adoption of Ray’s child by Hann cannot ultimately happen, it just “vacated” the lower court’s termination of parental rights and sent the case back to the trial court for the judge to issue a new decree with specific findings of fact and conclusions of law.  So ultimately, Ray’s parental rights may still be terminated and stepfather Hann permitted to adopt the child.

Other Georgia stepparent adoption cases

Earlier in 2013, another stepparent adoption case was the subject of a Georgia appeals court decision.   With Georgia law providing for termination of parental rights of uninvolved, unsupportive parents, we can expect many more cases interpreting the laws on termination of parental rights in the context of stepparent adoption petitions.  For example, a number of cases already address the question of what constitutes justifiable cause for the failure to pay child support.  These cases are important to the success of the stepparent’s petition to adopt since the petitioner has the burden of proving by clear and convincing evidence that the parent did not have justifiable cause for the failure to support or communicate with the child.

© Karen S. Hindson, Hindson & Melton LLC, August 17, 2013.

Karen S. Hindson

A recent stepparent adoption case before the Georgia Court of Appeals reminds us that adoption laws are to be construed in favor of the natural parents.

The March 1, 2013, decision Hafer v. Lowry involved a stepparent adoption petition filed a month after the stepfather married the child’s monther.  The stepparent adoption was filed under a Georgia law that permits terminating the natural parent’s rights to the child and adoption by the stepparent if the court finds that, for a period of one year or more immediately prior to the filing of the petition for adoption, the parent, without justifiable cause, has significantly failed: (1) to communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) to provide for the care and support of that child as required by law or judicial decree.  O.C.G.A. § 19-8-10(b).

Most often, a stepparent adoption occurs after the biological parent voluntarily surrenders his or her rights to the child to the stepparent for the purpose of enabling the stepparent adoption.   In the Hafer v. Lowry case, however, the natural father did not voluntarily surrender the child, and he filed an objection when the stepfather petitioned to adopt the child.  At the court hearing, the judge cut the case short after hearing some testimony from the biological father, stating he had heard enough and was ready to make a decision.  The biological father’s attorney objected; he said he had additional witnesses and evidence to present for the court’s consideration.  The judge disregarded the objection and ruled in favor of the stepparent adoption, terminating the biological father’s parental rights.

On appeal, the Georgia Court of Appeals overturned the trial judge’s decision.  The Court’s reasoning was that the burden is on the petitioner stepparent to prove, by clear and convincing evidence,  that terminating the biological father’s rights is warranted.  O.C.G.A. § 19-8-10(c) says the biological parent has to be served with a copy of the petition and may appear in court to show why the parent’s rights to the child should not be terminated.  The biological father in Hafer v. Lowry had been served with a copy of the stepparent adoption petition, had filed an objection, and showed up at the court hearing to make his case.   The Court of Appeals decided that when the judge prematurely cut the biological father off in presenting his case, the judge violated the principle that adoption laws must be strictly construed in favor of natural parents.  The trial judge denied the natural father the right to a meaningful opportunity to be heard, and thereby violated the father’s due process rights.  The court of appeals overruled the trial judge and sent the case back to the trial court to conduct a meaningful hearing.

Does this decision mean that the stepfather will not be successful in adopting the child?  Not necessarily.  The Court of Appeals in ruling for the biological father simply required that the trial judge conduct a meaningful hearing and consider the father’s witnesses and evidence in deciding whether or not to terminate the biological father’s parental rights.

Hindson & Melton LLC handles stepparent adoption cases and can help you evaluate whether a Georgia stepparent adoption might be appropriate in your situation.

© Karen Hindson, Hindson & Melton LLC

We will provide updates as they become available.  For the history of the case,including the South Carolina Supreme Court decision, see our July 2012 article on the case.

Karen S. Hindson, Hindson & Melton LLC, January 5, 2013.

Indian Child Welfare Act dictates decision in Baby Veronica case.   

On July 26, 2012, the South Carolina Supreme Court ruled in favor of the biological father in a lengthy 3-2 decision.  The majority opinion written by Chief Justice Toal focuses on the requirements of the Federal Indian Child Welfare Act, 25 U.S.C. § 1901, et seq.  (“ICWA”).  The decision, which has not yet been released in its final form for publication, is known as Adoptive Couple v. Baby Girl, Case No. 27148.  The facts as presented in this article are taken from the Supreme Court opinion.  

Baby Veronica is an “Indian child” within the meaning of the ICWA.   

The bottom line of the Supreme Court’s decision is that for an Indian child, “the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue”.   (majority opinion, Chief Justice Toal)  Since the biological father did not consent to Baby Veronica’s adoption, and the Court cannot say beyond a reasonable doubt that custody with the father would result in serious emotional or physical harm to Baby Veronica, then under the federal law the South Carolina court cannot terminate the father’s parental rights.  The Supreme Court of South Carolina affirmed the family court judge’s order denying the adoption and ordering the transfer of the child to the biological father.

Baby Veronica case made national news.   

The South Carolina adoption case of Baby Veronica has garnered national attention.  Amicus curiae briefs were filed with the South Carolina Supreme Court by the American Academy of Adoption Attorneys, the Catawba Indian Nation, the North American Council on Adoptable Children, the Child Welfare League of America, the National Indian Child Welfare Association, and the Association on American Indian Affairs.

Private adoption agency placed the child with SC adoptive couple. 

The case involves a contest over the private adoption of a baby girl born in Oklahoma to unwed parents.  The James Island, South Carolina, adoptive parents worked through a Christian adoption agency after seven failed in vitro fertilization attempts.  The biological mother already had two children and as a single mother decided, while still pregnant, that she wanted to give this child up for adoption.  The adoptive parents were in the delivery room when Baby Veronica was born, and the adoptive father cut her umbilical cord.  The mother signed surrender papers the next day.  The adoptive parents took baby Veronica home to South Carolina within eight days, after receiving ICPC (Interstate Compact on Placement of Children) approval to remove her from the State of Oklahoma.  Baby Veronica lived in South Carolina as the child of adoptive parents for more than two years – from September 2009 until December 31, 2011.

The adoptive mother has a Master’s Degree and a Ph.D. in developmental psychology and develops therapy programs for families who have children with behavior problems.  The adoptive father is an automotive body technician working for Boeing.  The Supreme Court majority opinion acknowledges that the adoptive couple are “ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl.”

Biological father of Baby Veronica a member of Cherokee Nation. 

The biological father of Baby Veronica is a member of the Cherokee Nation.  He was serving on active duty at Fort Sill, Oklahoma, at the time of the baby’s birth, about four hours away from his parents and the biological mother.  Although there was conflicting testimony from the biological father and mother at trial, the evidence was that mother sent a text message to the father asking if he would rather pay child support or surrender his parental rights.  He replied by text that he would relinquish his rights.   He testified that she never told him she was giving the child up for adoption.  The father did not provide any financial support to the mother during her pregnancy or delivery. 

As part of the adoption process, the adoptive parents hired an attorney to represent the mother’s interests.  The attorney wrote to the Child Welfare Division of the Cherokee Nation inquiring about the father’s status as an enrolled member of the Cherokee Nation.  The letter stated that the father was “1/8 Cherokee, supposedly enrolled”, but misspelled the father’s first name (“Dustin” instead of “Dusten”) and included an incorrect birthdate.  The Cherokee Nation responded that they could not verify Father’s membership in the tribal records, but that “any incorrect or omitted family documentation could invalidate this determination”.  [quotes are from the Supreme Court decision.]  

The adoptive parents filed an adoption petition in Charleston County, South Carolina, three days after the baby was born.   The biological father was not notified or served with the petition until almost four months later, just a few days before he was scheduled to deploy to Iraq.    He signed a consent when he was served by a process server outside a mall near the military base, but he later testified that he thought he was surrendering the child to the mother and he tried to take the papers back once he realized what he had signed.

Within five days, in January 2010, the father contacted a lawyer and requested a stay of the adoption proceedings under the Servicemember’s Civil Relief Act (“SCRA”).   He also filed a petition in Oklahoma to establish paternity, custody, and support of the baby.  He named the mother and adoptive parents as defendants.   His petition incorrectly stated that the child did not have Native American blood, so the Federal Indian Child Welfare Act did not apply.  The Father deployed for Iraq on January 18, 2010 and remained there until December 26, 2010.  His father had a power of attorney in his absence.   The Oklahoma case was dismissed for lack of jurisdiction at the adoptive parents’ request.

Baby Veronica determined to be an Indian child. 

The Cherokee Nation identified the father as a registered member of the tribe in January 2010 and determined that the baby was an “Indian child” as defined under the Federal Indian Child Welfare Act.   The adoptive parents amended their South Carolina adoption petition in March 2010 to acknowledge that the Father was a member in the Cherokee Nation.  The Cherokee Nation filed a notice of intervention in the South Carolina action in April 2010.  In May 2010 the South Carolina family court ordered a paternity test, which confirmed the biological father’s identity.  The Court lifted the automatic stay under the SCRA, and the father filed an answer stating he did not consent to the adoption and seeking custody of Baby Veronica.

The family court in Charleston determined that the ICWA applied to the case.  A guardian ad litem (GAL) represented the interest of the child during the four-day trial in September 2011.  

SC family court decides to return the 2+ year old child to father. 

In December 2011, the South Carolina family court judge denied the adoption and ordered the adoptive parents to turn the child over to her biological father.   The father and his parents left for Oklahoma with the child on New Years Eve 2011.  The child has resided since that time with the biological father and his parents in Oklahoma.

Local support for SC adoptive parents.

Within weeks, the Post and Courier reported that “Save Veronica” supporters of the adoptive parents had delivered a petition with more than 20,000 signatures to both federal lawmakers and to Governor Nikki Haley.   The “Save Veronica Rose” facebook page had more than 7,000 followers.   In January 2012 the adoptive parents appealed to the Supreme Court of South Carolina. 

Supreme Court of South Carolina affirms the family court decision.

The July decision by the Supreme Court of South Carolina is the end of the line for the adoptive parents.  Sadly for them, the decision was a close 3-2 split decision, with 2 justices in favor of terminating the biological father’s rights.

ICWA has special adoption rules for adoption of Indian child. 

What is the significance of this decision?  It underscores the importance of the Federal Indian Child Welfare Act to any adoption involving an Indian child.  The ICWA defines an Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”  25 U.S.C. § 1903(4).

Preference for placement with other Indian families. 

The law goes on to state that for any adoptive placement of an Indian child, preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.  25 U.S.C. § 1915(a).

More difficult to terminate parental rights of parent of Indian child.   

The ICWA also mandates that state courts apply heightened federal requirements before terminating parental rights of the parents of an Indian child.  Termination of parental rights requires evidence beyond a reasonable doubt, including testimony of qualified expert witnesses that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  ICWA § 1912(f).  This “beyond a reasonable doubt” standard is a higher burden of proof than the “clear and convincing evidence” standard usually applicable to terminations.  

The Indian tribe has independent interest in adoptions of Indian child. 

The ICWA also recognizes that the tribe itself has interests in custodial decisions relating to Indian children, not just the parents.  That is why the Cherokee Nation was able to intervene as a party in the Baby Veronica adoption case.  The majority opinion explains the rationale behind the federal statute and the policy reasons for the tribe having rights.

Extended time to withdraw consent to adoption. 

Significantly, the ICWA provides that a parent of an Indian child may withdraw his or her consent to adoption “for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.”  ICWA § 1913(c).

Proper termination of parental rights is always important to a successful adoption.  In the case of a child who may meet the definition of  an Indian child, strict adherance to the requirements of the ICWA in addition to state law is essential to success.  Potential adoptive parents of an Indian child must be prepared for the possibility that the child might be removed from them after placement and returned to the custody of an Indian family member or Indian adoptive family.

Contact the adoption attorneys of Hindson & Melton LLC for more information about Georgia or South Carolina adoptions.
Karen S. Hindson     July 29, 2012