Ex Parte: Carter v. Roe

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

Ex Parte: Mickey Ray Carter, Jr. and Nila Collean Carter,
Appellants,

In Re:

John Roe and Mary Roe, Respondents,

v.

L.C. and X.C., minors under the age of seven years,
Defendants.

Appellate Case No. 2015-001006

Appeal From Charleston County
Edgar H. Long, Jr., Family Court Judge

Unpublished Opinion No. 2017-UP-043
Submitted November 11, 2016 – Filed January 13, 2017

AFFIRMED

Mickey Ray Carter, Jr. and Nila Collean Carter, of
Charleston, pro se.
Emily McDaniel Barrett and Thomas P. Lowndes, Jr.,
both of Lowndes & Barrett, LLC, of Charleston, for
Respondents.

PER CURIAM: Nila Collean Carter and Mickey Ray Carter, Jr. appeal the family
court's order denying their Rule 60(b), SCRCP motion to set aside an adoption
decree. On appeal, the Carters argue the family court erred in (1) denying their
Rule 60(b) motion without a hearing, (2) denying their Rule 60(b) motion based on
timing alone, and (3) denying their motion to unseal records and allow them to
intervene in the adoption action. We affirm.

We find the family court did not err in denying the Carters' motion to set aside the
adoption decree without a hearing. Pursuant to the South Carolina Adoptions Act
(the Act), "[t]he entry of the final decree of adoption renders any consent or
relinquishment irrevocable." S.C. Code Ann. § 63-9-350 (2010). Further, non-
parties to an adoption cannot attack a final adoption decree based on procedural or
other defects. See S.C. Code Ann. § 63-9-770(A) (2010) ("No adoption may be
attacked either directly or collaterally because of any procedural or other defect by
anyone who was not a party to the adoption."). However, the Act recognizes "a
court's inherent authority to grant collateral relief from a judgment on the ground
of extrinsic fraud." S.C. Code Ann. § 63-7-770(B) (2010). Thus, although final
adoption decrees are generally not subject to attack, "a final decree of adoption
may be collaterally attacked on the ground of extrinsic fraud." Hagy v. Pruitt, 339
S.C. 425, 430, 529 S.E.2d 714, 717 (2000).

Under the Act, the Carters—as non-parties to the adoption action—could only
attack the final adoption decree by showing extrinsic fraud. We find the Carters'
Rule 60(b) motion did not sufficiently allege extrinsic fraud. The Act defines
extrinsic fraud as "fraud that induces a person not to present a case or deprives a
person of the opportunity to be heard." § 63-9-770(B). In their motion, the Carters
alleged (1) they did not freely and voluntarily sign the consent forms, and the
consent forms were obtained through coercion and duress; (2) the Roes' attorney
fraudulently represented the Carters, breached her fiduciary duty to them, and
misled them; (3) the Carters did not receive copies of the consents when they
signed them, in contradiction of adoption statutes; (4) the Roes' attorney did not
comply with section 63-9-520(A)(1)(c)(i),(ii) of the South Carolina Code (2010);
(5) Charleston County was not the proper venue; (6) the Carters were not provided
proper notice of the final adoption hearing, as required by section 63-9-730(F) of
the South Carolina Code (2010); and (7) the Roes' attorney committed extrinsic
fraud by not allowing the Carters to be heard on their motions to contest consent.
Many of these contentions are allegations of procedural defects, which the Act
prohibits the Carters from raising after the adoption is final. See § 63-9-770(A)
("No adoption may be attacked either directly or collaterally because of any
procedural or other defect by anyone who was not a party to the adoption."). To
the extent the Carters alleged their consent was involuntary, they were prohibited
from challenging their consent once the adoption was final. See § 63-9-350 ("The
entry of the final decree of adoption renders any consent or relinquishment
irrevocable."). Because the Rule 60(b) motion did not sufficiently allege facts to
support extrinsic fraud, the family court did not err in denying it.

We find any issue related to whether the family court erred in denying the Carters'
motion to intervene is not properly before this court. The Carters moved to
intervene in the adoption action and the family court issued an August 7, 2014
order denying that motion. At that time, the Carters could have appealed the order
denying intervention. See Rutledge v. Tunno, 63 S.C. 205, 207-08, 41 S.E. 308,
309 (1902) (providing an order denying a motion to intervene is immediately
appealable). The Carters did not appeal that order when it was issued or when they
filed their May 5, 2015 notice of appeal. Thus, any issue related to whether the
family court erred in denying the motion to intervene is not properly before this
court.1

AFFIRMED.2

WILLIAMS, THOMAS, and GEATHERS, JJ., concur.

1
The family court did not rule on the Carters' motion to unseal records prior to the
time the Carters filed the notice of appeal; thus, any argument pertaining to that
motion is not properly before this court.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.