SCDSS v. Boulware

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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 the
Appellants,

and

Darryl Armstrong and Ruth Ann Armstrong are
Respondents.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2015-001571

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

Unpublished Opinion No. 2016-UP-220
Heard April 19, 2016 – Filed May 19, 2016

AFFIRMED

Larry Dale Dove, of Dove & Murphy Law Group, LLC,
of Rock Hill, for Appellants.

Melinda Inman Butler, of The Butler Law Firm, of
Union, for Respondents Darryl Armstrong and Ruth Ann
Armstrong.

David E. Simpson, of South Carolina Department of
Social Services, of Rock Hill, for Respondent South
Carolina Department of Social Services.

Krystal L. Orr, of Krystal L. Orr, Esq., of Rock Hill, for
the Guardian ad Litem.

PER CURIAM: Edward and Tammy Dalsing (collectively, Foster Parents)
appeal the family court's order finding they did not have standing to file an
adoption action and dismissing their action. On appeal, Foster Parents argue the
family court erred in finding (1) they did not have standing when their standing
had been opposed by the Department of Social Services (DSS) and allowed by the
family court at a prior hearing, (2) they did not have statutory standing to file an
adoption action, and (3) section 63-9-60(B) of the South Carolina Code (2010)
requires DSS to approve the placement of a child for adoption by the particular
family before that family has standing to file an adoption action. We affirm.

FACTS/PROCEDURAL HISTORY

In August 2013, when the minor child (Child) was approximately eight months
old, law enforcement discovered an active methamphetamine lab outside of Child's
parents' home. Law enforcement placed Child in emergency protective custody;
that same day, DSS placed Child with Foster Parents. On November 20, 2013, the
family court issued a merits order of removal. The order adopted a placement plan
for Child's parents that required them to attend substance abuse treatment.
On February 19, 2014, the family court held the initial permanency planning
hearing. At that time, Child's parents were not attending substance abuse treatment
and had been arrested for possessing methamphetamine. The family court
determined Child's permanent plan would be termination of parental rights (TPR)
and adoption, concurrent with reunification.

After the initial permanency planning hearing, DSS determined Child's paternal
aunt and uncle (Relatives) could provide a suitable home for Child and notified
Foster Parents it planned to remove Child from their home. DSS also filed a
motion for a second permanency planning hearing. On June 4, 2014, the court held
a second permanency planning hearing. That same day, Foster Parents filed a
motion to intervene in the DSS removal action, a private action to terminate the
parental rights of Child's parents and adopt Child, and an administrative appeal of
DSS's decision to remove Child from their home. Foster Parents also applied with
the adoption unit of DSS to adopt Child.

During the second permanency planning hearing, DSS asked the family court to
grant legal and physical custody of Child to Relatives and allow DSS to close its
case. The Guardian ad Litem agreed with DSS. The family court declined to
consider DSS's proposed permanent plan until after hearing Foster Parents' motion
to intervene. Because Foster Parents did not provide the required ten-days' notice
of their motion, the family court rescheduled the hearing. The family court found
Child's current placement was safe, appropriate, and in her best interest, and it
granted Relatives unsupervised weekend visitation with Child. The parties
subsequently agreed Child would spend Monday through Thursday each week with
Foster Parents and visit Relatives Friday through Sunday each week. The parties
have been operating under that agreement since June 2014.

On July 16, 2014, the family court held a hearing on Foster Parents' motion to
intervene. The family court issued an order on September 22, 2014, granting the
motion and continuing the second permanency planning hearing.

On January 13, 2015, the family court held the second permanency planning
hearing. In its March 11, 2015 order, the family court found Child's parents were
not complying with their treatment plans, custody of Child would remain with
DSS, and the permanent plan for Child would be TPR and adoption. The court
scheduled a TPR hearing and indicated it would determine at that hearing how
DSS's removal action and Foster Parents' adoption action would proceed.
The family court held a TPR hearing in March 2015. During the hearing, a DSS
employee testified she believed Foster Parents and Relatives would provide
suitable homes for Child, Child would adjust to both families, and both families
were willing to adopt. Child's parents, who were both incarcerated, requested
Child be placed with Relatives.

On June 16, 2015, the family court issued a final order terminating the parental
rights of Child's parents. Relying on Michael P. v. Greenville County Department
of Social Services, 385 S.C. 407, 684 S.E.2d 211 (Ct. App. 2011), and Youngblood
v. South Carolina Department of Social Services, 402 S.C. 311, 741 S.E.2d 515,
(2013), the family court found Foster Parents did not have standing to file an action
for adoption and dismissed their adoption action. The family court stated,
"[Relatives] and [Foster Parents] will have every right to present their case for
adoption to [DSS's] adoption committee. However, there is no standing for a
separate adoption action by either of these parties." The family court further found
"[section] 63-9-60(B), when read in context with the full law regarding child
protective services actions, requires that [DSS] 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 court ordered DSS
would have custody of Child "with all rights of guardianship, placement, care and
supervision, including the sole authority to consent to any adoption." This appeal
followed.

STANDARD OF REVIEW

On appeal 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); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).

LAW/ANALYSIS

Foster Parents first argue the issue of standing was before the family court at the
July 16, 2014 hearing, and the family court implicitly affirmed their standing by
allowing them to intervene in DSS's removal action. Thus, they contend "their
[s]tanding to bring their action for adoption was ruled upon and is the law of the
case." This argument is not preserved. See Doe v. Roe, 369 S.C. 351, 375-76, 631
S.E.2d 317, 330 (Ct. App. 2006) ("An issue cannot be raised for the first time on
appeal, but must have been raised to and ruled upon by the trial [court] to be
preserved for appellate review."). Foster Parents did not raise this issue to the
family court at the March 2015 hearing. Thus, this argument is not preserved.

Foster Parents next argue they had standing under section 63-9-60 of the South
Carolina Code (2010 & Supp. 2015). They assert the family court's reliance on
Michael P. and Youngblood in finding they did not have standing was misplaced.
Specifically, Foster Parents contend Michael P. is distinguishable because it dealt
with the rights of former foster parents, and the Michael P. court's statutory
interpretation of section 63-9-60 only applies to situations involving former foster
parents. Likewise, they argue Youngblood is distinguishable because DSS had
"physically placed the child into the home of the selected adoptive family . . . for
purposes of adoption" when the Youngbloods filed their adoption action. Foster
Parents assert section 63-9-60(B) does not apply here because DSS did not place
Child for adoption; thus, they contend they had standing under section 63-9-60(A).
We disagree.

"Standing, a fundamental prerequisite to instituting an action, may exist by statute,
through the principles of constitutional standing, or through the public importance
exception." Youngblood, 402 S.C. at 317, 741 S.E.2d at 518. "Statutory standing
exists, as the name implies, when a statute confers a right to sue on a party, and
determining whether a statute confers standing is an exercise in statutory
interpretation." Id. Section 63-9-60(A)(1) provides that "[a]ny South Carolina
resident may petition the court to adopt a child." Section 63-9-60(B) places the
following limitation on section 63-9-60(A): "This section does not apply to a child
placed by [DSS] or any agency under contract with the department for purposes of
placing that child for adoption."

In Michael P., this court held section 63-9-60 did not give former foster parents
standing to file an adoption action. 385 S.C. at 415, 684 S.E.2d at 215. This court
then analyzed whether the foster parents had constitutional standing to proceed "by
virtue of being [the c]hild's former foster parents" and concluded they did not have
constitutional standing because "[a]ny rights [they] had with regard to [the c]hild
ended after they chose not to administratively challenge the removal of [the c]hild
from their care." Id. at 415-18, 684 S.E.2d at 215-17. This court reasoned, "[A]s
former foster parents who declined to challenge DSS's removal of [the c]hild, [the
former foster parents] do not have standing to initiate a private adoption action
once [the c]hild was placed by DSS into a different pre-adoptive home." Id. at
418, 684 S.E.2d at 217.
Subsequently, our supreme court reversed a family court's attempt to distinguish
Michael P. from a situation in which the foster parents "informed DSS of their
desire to adopt [the c]hild, received DSS's approval to adopt prior to the placement
of [the c]hild, had their foster care contract terminated, and pursued an
administrative challenge to [the c]hild's removal." Youngblood, 402 S.C. at 319,
741 S.E.2d at 519. The court reasoned, "Because [section 63-9-60(B)] does not
permit any exceptions and plainly states that the section 63-9-60(A) grant of
standing does not apply to children placed by DSS, the family court erred in
grounding standing on section 63-9-60." Id. The court then determined foster
parents do not have constitutional standing to challenge DSS's denial of consent to
adopt, reasoning as follows:

While the foster care relationship undoubtedly often
results in emotional attachments between the foster
parent and the foster child, the relationship is only a
temporary, contractual relationship created by the
State. . . . Accordingly, the foster parent relationship,
absent statutory law to the contrary, is insufficient to
create a legally protected interest in a child and therefore,
does not create standing to petition to adopt.

Id. at 321-22, 741 S.E.2d at 520. Finally, the court determined the policy
underlying the Children's Code supported its conclusions: "Permitting any person,
or even just foster parents, to petition to adopt a child placed elsewhere for
adoption by DSS directly contradicts the power and discretion given to DSS and
undermines the goal of rapidity in permanently resolving children's placement
issues." Id. at 322, 741 S.E.2d at 520-21.

Under the analysis set forth by our supreme court in Youngblood, we find the
family court correctly determined section 63-9-60 did not give Foster Parents
standing to file a petition to adopt Child. The plain language of section 63-9-60(B)
states, "This section does not apply to a child placed by [DSS] or any agency under
contract with the department for purposes of placing that child for adoption." This
court has interpreted the language "to clarify that not just 'any South Carolina
resident' can petition to adopt a child when the child has been placed by DSS in
another home for the purposes of adoption," and our supreme court has affirmed
that interpretation. Michael P., 385 S.C. at 415, 684 S.E.2d at 215; Youngblood,
402 S.C. at 318-19, 741 S.E.2d at 519.
We disagree with Foster Parents' attempt to limit Youngblood to situations when
foster parents file adoption actions after DSS has placed the child elsewhere for
adoption. We do not believe the General Assembly intended 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. Such a finding would only encourage foster parents to file
adoption petitions earlier in the process, which would contradict the underlying
policy of the Children's Code and lead to an absurd result. Thus, we hold that—
pursuant to Youngblood—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.1 This
finding is consistent with the overall policy of the Children's Code, as expressed in
Youngblood.

Foster Parents also point to other statutes that they contend support their standing
to file an adoption action. Foster Parents first argue they have standing to file an
adoption action under section 63-3-550 of the South Carolina Code (2010), which
grants certain persons standing to institute proceedings regarding a neglected or
delinquent child. Interpreting the plain language of this statute to grant Foster
Parents standing to file an adoption action would contradict section 63-9-60(B),
which limits who may file an adoption action. We find section 63-3-550, which is
general in nature, is limited by section 63-9-60, which specifically addresses who
may file an adoption action. See Atlas Food Sys. & Servs., Inc. v. Crane Nat'l
Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859
(1995) ("The general rule of statutory construction is that a specific statute prevails
over a more general one."); Mikell v. Cty. of Charleston, 386 S.C. 153, 160, 687
S.E.2d 326, 330 (2009) ("[W]here two provisions deal with the same issue, one in
a general and the other in a more specific and definite manner, the more specific
prevails."). Because the General Assembly carved out an exclusion in section 63-
9-60(B) to the broad grant of standing it conferred in 63-9-60(A), we find it did not
intend section 63-3-550 to confer standing on the persons it excluded in section 63-
9-60(B).

1
This holding is not intended to foreclose foster parents from filing adoption
petitions after DSS has placed a child with foster parents for adoption and
consented to the adoption.
Foster Parents next contend they have standing to file an adoption action under
section 63-11-720(A)(5) of the South Carolina Code (2010), which permits local
foster care review boards "to advise foster parents of their right to petition the
family court for [TPR] and for adoption and to encourage these foster parents to
initiate these proceedings in an appropriate case." Although this statute grants
local foster care review boards the power to discuss rights with foster parents, it
does not in itself create a right. See Youngblood, 402 S.C. at 320, 741 S.E.2d at
519 ("[A] statutory directive to inform persons of their rights does not in itself
create rights."). Thus, this statute does not grant Foster Parents standing.

Foster Parents assert section 63-9-510 of the South Carolina Code (2010), which
grants an adoption petitioner temporary custody of an adoptee, supports finding
they have standing. We find this statute does no more than grant a person who has
filed a petition for adoption temporary custody of the child, require an
investigation of the adoptive placement, and prohibit the child-placing agency from
removing a child that has been placed for adoption without court order. Thus, this
statute does not grant Foster Parents standing to file an adoption action.

Foster Parents argue section 63-7-1700 of the South Carolina Code (Supp. 2015),
which is the permanency planning statute, supports finding they have standing.
Foster Parents do not set forth an argument regarding why this section confers
standing, and we could not find a basis for any. Thus, this argument lacks merit.

Finally, Foster Parents contend Regulations 114-550(J) and 114-140 of the South
Carolina Code of State Regulations (2012) and the foster parent contract support
finding they have standing. Even if the regulations and the foster parent contract
could be construed to confer standing, they could not do so in contravention of
section 63-9-60(B). Further, our supreme court has determined the foster parent
relationship is not sufficient to create constitutional standing. Youngblood, 402
S.C. at 321-22, 741 S.E.2d at 520. Due to our supreme court's determination that
the foster parent relationship does not create a legally protected interest in a child,
we find the regulations and the contract that forms that relationship cannot be
construed as conferring standing.

Based on the foregoing, we find the family court properly determined Foster
Parents did not have standing to file an adoption action. Because this finding is
dispositive, we decline to address whether the family court erred in finding section
63-9-60(B) requires DSS to approve the placement of a child for adoption by the
particular family before that family has standing to file an adoption action. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (declining to address remaining issues when a prior issue was
dispositive); Youngblood, 402 S.C. at 323, 741 S.E.2d at 521 (finding the foster
parents' lack of standing was dispositive and declining to reach the issue of DSS's
consent).

AFFIRMED.

WILLIAMS, LOCKEMY, and MCDONALD, JJ., concur.