South Carolina appellate courts finally apply the sibling visitation statute (and of course it’s unpublished)

Posted Thursday, March 15th, 2012 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

I have a long-held intellectual fascination with South Carolina’s sibling visitation statute, S.C. Code § 63-3-530(A)(44), so much so that I wrote a blog with the partial intent of trolling for potential sibling visitation clients.  And now, a decade after this code section was enacted, our appellate courts finally discuss its application…in an unpublished opinion, Youngblood v. SCDSS.

Youngblood stems from the dueling adoption requests of the Youngbloods and the Does.  After DSS removed five biological siblings, the four oldest were placed with Does while the youngest child was eventually placed with the Youngbloods.  After the children were finally eligible for adoption, the Youngbloods sought permission to adopt the youngest child.  However, DSS wanted to keep the siblings together and have all of them adopted by the Does.  DSS removed the youngest child from the Youngbloods and placed her with the Does.  The Youngbloods then filed an action in family court seeking to adopt the youngest child while the Does petitioned to adopt all five children (they eventually adopted the four oldest siblings).  On a temporary basis, the youngest child was placed with the Youngbloods while the court ordered gradually-expanding sibling visitation in both parties’ homes.

At trial the court received testimony from a family counselor and a clinical psychologist both of whom recommended that the Youngbloods be allowed to adopt the child at issue because she was much more closely bonded to them than she was to the Does.  A counselor the Youngbloods hired for Child testified that, after observing the Child routinely, removal from the Youngbloods’ home and adoption by the Does would be a great risk because of Child’s secure primary care attachment with the Youngbloods.  The Does presented two experts who testified about the importance of sibling attachments and minimized the risk of moving the Child’s placement.  Both DSS and the guardian ad litem recommended adoption by the Does.

The family court, placing great weight on the opinion of the family counselor and a clinical psychologist, authorized the Youngbloods to adopt the Child, concluding:

I have carefully considered all evidence presented.  I am cognizant of the legal presumption in favor of keeping siblings together, and I agree with that policy in most cases.  This is not, however, a typical case.  I have weighed the pros and cons of allowing [Child] to grow up in the same home as her brothers and sisters.  I have likewise weighed the benefits of allowing her to remain in her current home with her current parental figures verses the potential harm to her if she is permanently removed from [the Youngbloods’ care].  In the final analysis, I am persuaded that adoption by [the Youngbloods] is in [Child’s] best interest and welfare, both from a near-term and long-term perspective.

The family court also ordered extensive sibling visitation, giving the Does every other weekend, every other spring break, every other Thanksgiving break, and the second half of every Christmas break, dividing Christmas Day.  The court further gave three weeks of sibling summer visitation to the Does and two weeks of sibling summer visitation to the Youngbloods.

The Does appealed the adoption ruling; the Youngbloods appealed the visitation order.  For the reasons noted above, the Court of Appeals sustained the family court determination on the adoption.  However, despite the Youngbloods objecting to the amount of sibling visitation for the first time on appeal, the Court of Appeals addressed that issue because:

This court cannot ignore the best interests of Child.  Our standard of review in appeals from the family court requires a de novo review of the family court’s decision, and appellate courts are consistent in holding that procedural rules are subservient to the court’s duty to zealously guard the rights of minors.

The Court of Appeals then found that sibling visitation was appropriate in this circumstance but remanded the matter for reconsideration of the schedule, noting:

In light of the expert testimony, we find a preponderance of the evidence proves that sibling visitation is in the best interests of Child; however, the evidence supporting the specific schedule is insufficient.  The schedule established in the final order significantly expanded visitation to include entire holiday breaks and multiple summer weeks, but no testimony or proposal showed that schedule was appropriate.  Because we are unable to make an adequate determination of how Child’s best interests are affected by the frequency of visitation, we reverse the family court’s schedule.  We remand the matter for an evidentiary hearing solely to determine the proper scope of sibling visitation.

Youngblood is yet another example of an unpublished decision that should have been published, an issue I have repeatedly complained about.  Not only is this the first opinion to address the sibling visitation code section, it has important discussions on the issues of splitting siblings and a foster parent’s standing to seek adoption.