At long last, Nila Carter is going to have her day in court.
Unanimously finding that Carter, a mother seeking to revoke her consent to the adoption of her two children, timely filed a Rule 60(b) motion and sufficiently alleged extrinsic fraud, the state Supreme Court reversed the Court of Appeals and has sent the matter back to family court.
In doing so, Acting Chief Justice John Kittredge noted that the court made plain its “grave concern” for the way in which the matter was handled by the family court.
According to court documents, Carter and her ex-husband had two children — one in 2009 and one in 2011. By 2014, financial and marital stressors led the couple to the conclusion that private adoption of their children was the right thing to do. Carter reached out to Charleston attorney Emily Barrett, whom she found on the internet and who arranged the adoption on behalf of both couples.
According to court documents, Carter believed Barrett represented both Carter and the adoptive family, the Roes.
Carter told Barrett, the opinion states, that she wanted an open adoption because that was the only way “this won’t destroy me” and because she needed her children to know how much she loved them.
In April 2014, the Carters each signed a consent to adoption. Within four days, the adoption action was filed. But eight days after that, the Carters sought to revoke consent on the basis of emotional duress by executing a notarized withdrawal of parental consent to adoption. Once they challenged the validity of their consents, they reportedly were no longer permitted to visit the children.
The Carters and their new counsel filed a motion to intervene in the adoption action, and affidavits contesting the validity of the consents. They argued that difficult life circumstances caused them to feel pressured to sign the consents.
Suddenly pro se
The Roes’ counsel, Barrett and Thomas Lowndes Jr., also of Charleston, opposed the motion, arguing that because adoption proceedings are private and confidential, the Carters were not “intervenors” and needed to file a separate action challenging the validity of the consents “outside the adoption itself.”
The family court agreed.
No longer able to afford an attorney, the Carters proceeded pro se. They filed the separate action and requested that a hearing be scheduled before the final adoption hearing. Between August 2014 and April 2015, according to the court, the Carters appeared and asked to be heard at seven separate hearings before six different family court judges, each of whom “refused to address the merits of the Carters’ claim based on perceived procedural abnormalities and gave the Carters inconsistent (and at times incorrect) instructions on the proper procedure through which the Carters should have pursued their claim.”
But while the Carters were busy following multiple instructions, the high court found, counsel for the adoptive couple requested a final adoption hearing without giving notice to the Carters.
On Dec. 15, 2014, a final hearing was held and a final order of adoption issued by a judge who, the high court wrote, was unaware of the pending challenge to the consents — A fact of which the Roes’ attorneys were well aware.
Kittredge noted that “stunningly,” the Roes’ counsel replied, “I think we’re good, Your Honor” when asked by the judge if there was anything else that needed to be placed on the record.
“We are confident the family court judge would not have proceeded with the adoption had he been made aware of the separate pending action,” Kittredge wrote.
But the judge did proceed, issuing a final adoption order that the Roes’ attorneys used in filing a motion to dismiss the Carters’ separate action. The order rendered the challenge moot, counsel argued, offering the last sentence of section 63-9-350 which reads: “The entry of the final decree of adoption renders any consent or relinquishment irrevocable.” The family court dismissed the action but told the Carters to file a 60(b) motion alleging that extrinsic fraud prevented them from being heard regarding the validity of their consents.
The couple did just that, alleging that the consents were involuntary because they were the products of “duress, coercion, and extrinsic fraud” in that their attempts to be heard were “systematically thwarted” by the Roes’ attorneys.
A different family court judge denied the motion as untimely, and the Court of Appeals affirmed.
Allegations sufficient, timely
But on review, the Supreme Court found that once a final adoption decree is entered, a “validly” executed consent to adoption is irrevocable. Where there is extrinsic fraud, a court can still grant collateral relief.
In their motion, the Carters stated that they repeatedly tried to withdraw their “illegally obtained” consents and that the Roes’ counsel continuously attempted to block their access to the court. The high court ruled that the motion, contrary to the appeals court ruling, sufficiently alleged extrinsic fraud. Kittredge cited the Roes’ attempt to “push through” the final adoption hearing despite being aware of the Carters’ repeated requests to be heard. “Most troubling,” Kittredge added, is counsel’s failure to be candid with the family court, even after specifically being asked if there was “anything else” that should be placed on the record.
Neither Barrett nor Lowndes returned a message seeking comment.
The court also found that the lower court erred by finding the Carters’ motion untimely. It was filed less than four months after the final adoption hearing, and just six days after the family court instructed the Carters to file.
Despite its “grave concern” for the manner in which the case has been handled, Kittredge noted that the court expresses no opinion regarding the merits of Nila Carter’s claim (her ex-husband is no longer a party) that her consent was not validly obtained. It remanded the case to family court and has ordered that Carter be appointed counsel for upcoming proceedings.
Attorney Jay Anthony of Spartanburg came on as appellate counsel for the Roes. He agreed to speak with Lawyers Weekly about the case, but not while it is “technically still pending.” He said his clients have filed a motion for reconsideration, asking the court to revise its opinion regarding certain findings of fact “beyond the scope of issues before the Court.”
The motion claims, among other things, that Barrett and Lowndes did make the court aware of the Carter action prior to the final adoption hearing and “did not attempt to hide the issue.”
“There is simply no more damning statement that can be made of an attorney,” the motion reads, adding that the attorneys are entitled to a full and fair hearing on the “very serious charge” of failing to be candid with the court.
The motion also contends that the findings of curtailed visitation and whether Carter was aware of the final adoption hearing should be left for determination on remand, when both parties are able to submit evidence.
The nine-page decision is Roe v. L.C. Ex parte Carter (Lawyers Weekly No. 010-034-18). The full text of the opinion is available online at sclawyersweekly.com
Follow Heath Hamacher on Twitter @SCLWHamacher