The Supreme Court of South Carolina
Ex Parte: Mickey Ray Carter, Jr. and Nila Collean Carter,
Movants,
Of Whom Nila Collean Carter is Petitioner.
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. 2017-000806
ORDER
The petition for rehearing is granted. We dispense with further briefing and
argument. The attached opinion is substituted for the previous opinion, which is
withdrawn. Any petition for rehearing regarding the substituted opinion must be
actually received by this Court within five (5) days of the date of this order.
s/ John W. Kittredge A.C.J.
s/ Kaye G. Hearn J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
s/ Doyet A. Early, III A.J.
Columbia, South Carolina
April 11, 2018
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ex Parte: Mickey Ray Carter, Jr. and Nila Collean Carter,
Movants,
Of Whom Nila Collean Carter is Petitioner.
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. 2017-000806
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
Edgar H. Long, Jr., Family Court Judge
Opinion No. 27786
Heard January 31, 2018 – Filed March 21, 2018
Withdrawn, Substituted, and Refiled April 11, 2018
REVERSED AND REMANDED
A. Mattison Bogan, of Nelson Mullins Riley and
Scarborough, LLP, of Columbia, for Petitioner.
K. Jay Anthony, of the Anthony Law Firm, PA, of
Spartanburg, Emily McDaniel Barrett and Thomas P.
Lowndes, Jr., both of Charleston, for Respondents.
PER CURIAM: In this adoption matter, Petitioner Nila Collean Carter sought to
revoke her consent to the adoption of her two biological children. Throughout the
resulting procedural morass, Petitioner was never provided an opportunity to be
heard on the merits of her claim before the adoption was finalized. We issued a
writ of certiorari to review the court of appeals' unpublished decision affirming the
family court's denial of Petitioner's motion to set aside the final adoption decree
pursuant to Rule 60(b), SCRCP. Ex Parte Carter, Op. No. 2017-UP-043 (S.C. Ct.
App. filed Jan. 13, 2017). Because Petitioner's Rule 60(b) motion was timely filed
and sufficiently alleged extrinsic fraud, we reverse and remand this matter to the
family court for further proceedings.
I.
Petitioner and her ex-husband Mickey Ray Carter, Jr.1 are the biological parents
(collectively "the Carters") of two children—a daughter born in 2009 and a son
born in 2011. The Carters were married in May 2010, and by early 2014, the
couple was experiencing financial and marital stressors. Given the difficult
circumstances facing the Carters and the unavailability of extended family support,
the Carters began discussing private adoption as an alternative that they believed
was preferable to the children being placed in foster care.
Petitioner reached out to attorney Emily McDaniel Barrett, who arranged the
adoption on behalf of both couples.2 From the beginning, Petitioner insisted on
1
Although Mr. Carter participated in proceedings below, he did not join the
petition for rehearing to the court of appeals and is not a party on certiorari to this
Court.
2
Petitioner's brief indicates that she located Ms. Barrett through her website in the
taking an active part in the adoption process and explained that she wanted an open
adoption because that was "the only way this won't destroy me. I need them to
know how much I love them."
In April 2014, the Carters each signed a consent to adoption of their two children
by Respondents John and Mary Roe ("Adoptive Couple"). Four days later, the
adoption action was filed. Notably, the documents signed by the Carters included
a provision waiving service and notice of the adoption action.
Eight days after the adoption action was filed, the Carters each executed a
notarized document titled "Withdrawal of Parental Consent to Adoption"
purporting to revoke consent on the basis of emotional duress. Thereafter, the
Carters sought through many avenues to withdraw their consent.3
The South Carolina Adoption Act provides that:
Withdrawal of any consent or relinquishment is not permitted except
by order of the court after notice and opportunity to be heard is given
to all persons concerned, and except when the court finds that the
withdrawal is in the best interests of the child and that the consent or
relinquishment was not given voluntarily or was obtained under
duress or through coercion. Any person attempting to withdraw
consent or relinquishment shall file the reasons for withdrawal with
the family court. The entry of the final decree of adoption renders any
consent or relinquishment irrevocable.
S.C. Code Ann. § 63-9-350 (2010).
The Carters were initially represented by counsel, who filed on their behalf a
motion to intervene in the adoption action, along with supporting affidavits to
contest the validity of the consents.4 At the motion hearing before the family court,
course of an internet search and that Petitioner believed Ms. Barrett represented
both the Carters and the Roes.
3
Once the Carters expressed an intent to challenge the validity of their consents,
they were no longer permitted visitation with the children.
4
It appears the Carters' efforts to intervene were delayed due to confusion over the
county in which the (sealed) adoption proceeding was pending; the Carters were
the Carters' counsel explained that the Carters faced difficult life circumstances and
felt pressured to sign the consents. In support of his argument, counsel cited this
Court's decision in McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008), for the
proposition that the confluence of several emotional stressors can render an
otherwise validly executed consent to adoption involuntary and revocable.
Counsel for the Adoptive Couple opposed the motion, arguing that because
adoption proceedings are private and confidential proceedings, the Carters'
recourse was not as intervenors in the adoption action but through a separate action
challenging the consents "outside the adoption itself." The family court agreed and
denied the Carters' motion to intervene, stating "I don't believe procedurally that's
the way that this should be handled." The family court expressly declined to reach
the merits of whether the consents should be withdrawn. From this point forward,
the Carters proceeded pro se.5
At the direction of the family court, a week later, the Carters filed a separate
action, along with affidavits supporting their challenge to the validity of the
consents, and requested that a hearing be scheduled before the final adoption
hearing. Between August 2014 and April 2015, 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.6 In every instance, the Carters timely followed these
instructions. Nevertheless, the Carters' claim was never evaluated on the merits.
Meanwhile, the Adoptive Couple, through counsel, requested a final adoption
residents of Horry County and the Adoptive Couple resided in Berkeley County,
yet the adoption action was filed in Charleston County.
5
The record reveals the Carters wished to proceed with the assistance of counsel
but could not afford additional legal fees following the initial hearing.
6
Family court judges assigned to hear this matter avoided hearing the Carters' case
for a variety of reasons, including the claim of insufficient docket time requested,
finding fault with the Carters for doing precisely what other family court judges
told them to do, and perhaps the most troubling reason for not hearing the Carters'
case was the hearing "should not have been scheduled on a Friday." Mr. Carter
eventually abandoned his claim; we find it remarkable that Petitioner did not throw
in the towel as well.
hearing. The Adoptive Couple's counsel gave no notice to the Carters. On
December 15, 2014, a final hearing was held in the adoption case and a final order
of adoption was issued on that date by a seventh family court judge who, according
to the record before us, was unaware of the Carters' pending challenge to the
consents. Although counsel for the Adoptive Couple was well aware of the
Carters' separate pending challenge, the final adoption hearing transcript includes
no reference to this. Rather, when the family court judge asked if there was
anything else that needed to be placed on the record before the first witness was
sworn, counsel for the Adoptive Couple never mentioned the Carters' pending
action and stunningly responded "I think we're good, Your Honor." Conversely, it
would be stunning to think a family court judge would have proceeded with the
adoption had the judge been made aware of the separate pending action. However,
allegedly without the benefit of this critical information, the family court entered
an order approving the adoption.
Armed with the final adoption order, counsel for the Adoptive Couple filed a
motion to dismiss the Carters' separate action challenging the validity of their
consents. At the April 1, 2015 motion hearing, counsel for the Adoptive Couple
"ask[ed] for this matter to be dismissed on the grounds that there's been an
adoption granted and everything that has been filed in the [Carters'] Amended
Petition . . . is a moot point right now, and if they have any issues to take up, it
would be based on extrinsic fraud and they have not pled that." The court
responded by reciting the last sentence of section 63-9-350—"The entry of the
final decree of adoption renders any consent or relinquishment irrevocable."
Petitioner, understandably frustrated that the adoption had been finalized before the
separate action had been heard, informed the court that "we had a right to be
notified of that final hearing and they didn't notify us of that final hearing and
allow us to . . . appear in court to explain that."7 The family court understood the
Carters' position—"your argument [is that] you were . . . robbed of your
opportunity to appear and contest the validity of your consent[s]." In this regard,
the court agreed with counsel for the Adoptive Couple that the Carters only
remaining recourse was to file a motion alleging extrinsic fraud. The court further
informed the Carters that their challenge should have been "in connection with the
adoption proceeding." The court then found fault with the Carters' filing of the
7
It appears from Respondents' rehearing petition that the Carters were sent an
email in the morning of December 15, 2014, advising them of the adoption hearing
later that day.
separate action: "You see you don't file a new action trying to undermine or say
that our consents are invalid. You can't do that because the law won't allow it,
okay . . . that would be handled not by a separate action as you've done." As noted
above, the Carters' filing of the separate action was directed by another family
court judge who rejected the Carters' attempt to challenge their consents in
connection with the adoption proceeding.
The Carters wasted no time in filing the motion suggested by the family court
judge. Just six days after the April 1, 2015 hearing, the Carters filed a Rule 60,
SCRCP motion in the adoption action, requesting relief from the final adoption
order, alleging the consents were involuntary and the product of duress, coercion,
and extrinsic fraud in that the Carters' attempts to be heard were systematically
thwarted by the Adoptive Couple's attorneys.8
Three days later, a different family court judge summarily denied the Carters' Rule
60(b) motion on the ground that it was untimely. The Carters appealed, arguing
the family court erred in denying their Rule 60 motion as untimely and that the
validity of the adoption was compromised because the Carters' challenge to their
consents was not resolved before the adoption was finalized.
The court of appeals affirmed the family court's denial of the Carters' Rule 60(b)
motion. Ex Parte Carter, Op. No. 2017-UP-043 (S.C. Ct. App. filed Jan. 13,
2017). Thereafter, this Court issued a writ of certiorari to review the court of
appeals' decision.
II.
Petitioner argues the court of appeals erred in finding her Rule 60(b) motion did
not allege extrinsic fraud and that the family court erred in finding the motion was
not timely filed. We agree.
A.
8
In response, counsel for the Adoptive Couple filed a motion, along with a
supporting memorandum, and affidavits seeking a Rule to Show Cause for why the
Carters should not be held in civil and criminal contempt for "proceed[ing] to file a
series of motions in an attempt to disrupt the adoption."
Once a final adoption decree is entered, a validly executed consent to adoption is
irrevocable. S.C. Code Ann. § 63-9-350 (emphasis added). However, a court
retains its authority to grant collateral relief from an adoption decree on the ground
of extrinsic fraud. S.C. Code Ann. § 63-9-770(B) (2010). Extrinsic fraud "is
'fraud that induces a person not to present a case or deprives a person of the
opportunity to be heard.'" Hagy v. Pruitt, 339 S.C. 425, 431, 529 S.E.2d 714, 718
(2000) (quoting Hilton Head Center of S.C. v. Pub. Serv. Comm'n, 294 S.C. 9, 11,
362 S.E.2d 176, 177 (1987)).
In their Rule 60(b) motion, the Carters alleged, "under 63-9-770 there was extrinsic
fraud committed . . . by not allowing us the right to be heard on filing multiple
motions of intent to contest consents and to attack the merits of the adoption with
this Honorable Court." The motion further stated:
Mickey and Nila Carter have tried repeatedly to withdraw[] consents
which [were] illegally obtained and they informed . . . the Adoptive
Couple[,] . . . in addition to this Honorable Court yet they have never
been heard on this issue[,] and further, [counsel for the Adoptive
Couple] and the Law firm she works for have continuously attempted
to block our access to the Honorable Court so we may be heard on this
matter.
The court of appeals erred in finding the Carters' Rule 60(b) motion did not
sufficiently allege extrinsic fraud. The Carters' motion expressly asserted
"extrinsic fraud" and specifically cited section 63-9-770, which is the statutory
provision addressing the family court's authority to set aside an adoption decree on
that basis. The motion further alleged the Carters were misguided and misled into
signing the consents and waiving the right to notice of the proceedings and that
their subsequent attempts to appear and be heard as to the validity of the consents
were repeatedly thwarted by opposing counsel.
Moreover, at the heart of the extrinsic fraud claim is the Adoptive Couple's effort,
through counsel, to push through the final adoption hearing knowing full well of
the Carters' repeated requests to be heard on their pending separate action. Most
troubling is counsel's alleged failure to be candid with the family court when asked
if there was "anything else." These specific averments manifestly state a claim for
extrinsic fraud. Thus, extrinsic fraud was sufficiently alleged in the Rule 60(b)
motion, and the court of appeals erred in affirming the family court's dismissal on
that basis. See Hagy, 339 S.C. at 431–32, 529 S.E.2d at 718 (holding allegations
that fraudulent actions which induced a mother to sign a consent to adoption
thereby waiving her right to notice and appearance in the adoption proceeding
sufficiently alleged extrinsic fraud); Greer v. McFadden, 295 S.C. 14, 17, 366
S.E.2d 263, 265 (Ct. App. 1988) (holding even if a pro se claim is not framed with
expert precision, where the point is clear, the issue should be addressed); cf. Iowa
Sup. Ct. Att'y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 172–74 (2013)
(finding an attorney's failure to disclose to the family court the existence of
separate pending actions that could potentially impact the family court's division of
marital assets constituted extrinsic fraud). We turn now to the issue of whether the
family court erred in finding the Carters' Rule 60(b) motion was untimely.
B.
Rule 60(b), SCRCP, provides that a party may be relieved from a final judgment
on the basis of "fraud, misrepresentation, or other misconduct of an adverse party."
A motion pursuant to Rule 60(b) "shall be made within a reasonable time, and . . .
not more than one year after the judgment, order, or proceeding was entered or
taken."
The final adoption decree was entered December 15, 2014. At a hearing on April
1, 2015, the family court instructed the Carters to file the Rule 60(b) motion. The
Carters did so on April 7, 2015. Because this period of time is both reasonable and
not more than one year after the entry of the final adoption decree, we find the
family court abused its discretion in finding the Carters' Rule 60(b) motion was
untimely. See Coleman v. Dunlap, 306 S.C. 491, 495, 413 S.E.2d 15, 17 (1992)
(where Rule 60(b) motion is filed shortly after the movant becomes aware of the
basis therefor and there is no evidence of unreasonable delay, the motion is
timely). Because the Rule 60(b) motion was timely filed, Petitioner is entitled to
an opportunity to be heard on the merits of her claim therein.
III.
In reversing, we have made plain our grave concern for the manner in which this
matter was handled in the family court. We, however, emphasize that we express
no opinion on the merits of Petitioner's claim that her consent was not validly
obtained.
We reverse the court of appeals' decision and remand this matter to the family
court9 for a hearing on the merits of the Rule 60(b) motion. We direct the family
court to appoint an attorney to represent Petitioner in the proceedings upon remand
within ten (10) days of the date the remittitur is sent to the lower court. We further
direct this matter to be heard within ninety (90) days of the date the remittitur is
sent and that an order addressing the merits be issued by the family court within
thirty (30) days of the date of the hearing.
REVERSED AND REMANDED.
KITTREDGE, Acting Chief Justice, HEARN, FEW, JAMES, JJ., and Acting
Justice Doyet A. Early, concur.
9
Given judicial department budgetary constraints, we direct the chief
administrative family court judge to assign this matter to any available judge.