Swain v. Bollinger: SC Supreme Court Affirms Grandparent Adoption Rights Over Absent Father

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Swain v. Bollinger: SC Supreme Court Affirms Grandparent Adoption Rights Over Absent Father

Swain v. Bollinger: SC Supreme Court Affirms Grandparent Adoption Rights Over Absent Father
Case Summary and Background
The South Carolina Supreme Court’s January 2022 decision in Swain v. Bollinger, 435 S.C. 280, represents a significant victory for grandparents seeking to provide permanent homes for grandchildren through adoption. This landmark case clarifies when termination of parental rights (TPR) and adoption serve a child’s best interests, even when the child is already in stable custody with relatives.

The Family’s Story
In this case, a grandfather sought to terminate the parental rights of Daniel Bollinger and adopt his granddaughter, who had lived with him since infancy. The child’s mother, Sunny Swain, had struggled with drug addiction alongside the father shortly after the child’s birth in 2011. When the grandfather learned of the parents’ drug use, he contacted DSS, which removed the child and placed her with the grandparents.
The father’s involvement in the child’s life was minimal at best:

He saw the child only four times total, with two visits occurring during infancy
He stopped paying court-ordered child support in 2014
He was incarcerated in 2017 for seven years after pleading guilty to multiple crimes, including criminal solicitation of a minor
By his own admission, the child would not recognize him

The Lower Courts’ Unusual Focus
Family Court’s Concerns
The family court made an unusual decision that would puzzle many family law practitioners. Despite finding clear grounds for terminating parental rights, the court denied the TPR and adoption based primarily on two factors:

1. The birth certificate appearance – The court expressed repeated concern about how “weird” it would look to have the grandfather and mother listed as parents on the birth certificate
2. The existing custody arrangement – Since the grandparents already had legal custody, the court reasoned that adoption wouldn’t provide additional stability

The family court seemed preoccupied with potential “psychological issues” the child might face from having her grandfather listed as her father on official documents, despite testimony from the mother, grandfather, and guardian ad litem that this posed no concern.

Court of Appeals Affirmation
The Court of Appeals affirmed the family court’s decision in an unpublished opinion, suggesting that TPR might be appropriate if this were a DSS foster care adoption, but not in a private adoption where the grandparents already had custody. This created a troubling implication of different standards for private versus agency adoptions.

Supreme Court’s Reversal: Focusing on the Child’s Best Interests
Rejecting Birth Certificate Concerns
Justice Hearn, writing for a unanimous Supreme Court, firmly rejected the lower courts’ fixation on the birth certificate’s appearance. The Court noted that modern families take many forms, citing Troxel v. Granville for the proposition that “the composition of families varies greatly from household to household.”

The Supreme Court found it “perplexing” that the family court focused on this non-issue when neither the mother, grandfather, nor guardian ad litem expressed any reservations. The Court emphasized that the birth certificate should simply reflect “the only family she has ever known.”

Custody vs. Adoption: Understanding the Critical Difference
Perhaps most importantly, the Supreme Court clarified a fundamental distinction that the lower courts had blurred: custody and adoption are not equivalent when considering a child’s best interests.

The Court explained several crucial differences:

1. Permanency – Adoption provides a level of permanency that custody cannot match
2. Protection from disruption – Without adoption, the father could attempt to re-enter the child’s life at any time by seeking visitation or custody
3. Financial benefits – As the grandfather’s legal child, she would qualify for Social Security benefits
4. Legal security – Adoption would provide legal permanence to what had been the child’s living situation since infancy

The “Too Late” Doctrine
The Supreme Court invoked what practitioners often call the “too late” doctrine, citing Doe v. Roe and S.C. Dep’t of Soc. Servs. v. Headden. The Court stated: “Notwithstanding Father’s improvement while incarcerated, his actions came far too late to justify disrupting the Child’s life when all she has ever known is living in her grandparents’ home with her mother.”

This principle recognizes that children cannot wait indefinitely for parents to address their issues. The Court fundamentally disagreed “with the premise that a child’s permanency should be held in abeyance for years until a parent is prepared to resume his or her parental responsibilities.”

Key Takeaways for South Carolina Family Law Practice
1. Uniform Standards Apply
The Supreme Court explicitly rejected any notion that different legal standards apply to private TPR actions versus DSS proceedings. The same statutory requirements and best interests analysis apply regardless of who brings the action.

2. Non-Traditional Family Structures Are Valid
Courts should not deny adoptions based on concerns about non-traditional family structures appearing on official documents. What matters is the child’s actual living situation and emotional bonds, not how relationships appear on paper.

3. Permanency Trumps Temporary Stability
Legal custody, while providing stability, does not offer the same permanency and protection as adoption. Courts must recognize this distinction when evaluating best interests.

4. Parental Improvement May Come Too Late
While rehabilitation efforts are commendable, they cannot override years of absence and neglect. Courts must prioritize the child’s need for permanency over a parent’s delayed attempts at reformation.

5. Consider All Benefits of Adoption
Beyond emotional stability, courts should consider practical benefits like Social Security eligibility, inheritance rights, and protection from future custody disputes.

Practical Implications for Grandparent Adoptions
This decision strengthens the position of grandparents and other relatives seeking to adopt children they’ve raised. When representing such clients, attorneys should:

Emphasize the permanency adoption provides versus custody
Document the child’s bonds with the adoptive family
Highlight practical benefits like Social Security and inheritance rights
Address any concerns about non-traditional family structures head-on
Focus on the child’s perspective rather than abstract concerns

Conclusion
Swain v. Bollinger represents a victory for common sense in South Carolina family law. The Supreme Court’s decision recognizes that children deserve permanent, stable homes with the families who have raised them, regardless of how those families might appear on paper. By reversing the lower courts’ decisions, the Supreme Court reaffirmed that the child’s best interests—not adult concerns about appearances or biological parents’ delayed rehabilitation—must remain paramount in TPR and adoption proceedings.

For the child in this case, who had never known any parents except her grandparents and mother, the Supreme Court’s decision provides the legal permanency to match her lived reality. This case should give hope to grandparents and other relatives across South Carolina who are providing stable, loving homes for children whose biological parents cannot or will not fulfill their parental obligations.

If you’re facing a complex grandparent adoption or termination of parental rights case in South Carolina, contact Klok Law Firm LLC for experienced representation. We understand the unique challenges these cases present and can guide you through the legal process to achieve the best outcome for your family.

By Suzanne Klok|2025-11-12T17:06:43+00:00October 16th, 2023|Adoption, best interest of the child, Family Law|Comments Off on Swain v. Bollinger: SC Supreme Court Affirms Grandparent Adoption Rights Over Absent Father

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Swain v. Bollinger: SC Supreme Court Affirms Grandparent Adoption Rights Over Absent Father
Case Summary and Background
The South Carolina Supreme Court’s January 2022 decision in Swain v. Bollinger, 435 S.C. 280, represents a significant victory for grandparents seeking to provide permanent homes for grandchildren through adoption. This landmark case clarifies when termination of parental rights (TPR) and adoption serve a child’s best interests, even when the child is already in stable custody with relatives.

The Family’s Story
In this case, a grandfather sought to terminate the parental rights of Daniel Bollinger and adopt his granddaughter, who had lived with him since infancy. The child’s mother, Sunny Swain, had struggled with drug addiction alongside the father shortly after the child’s birth in 2011. When the grandfather learned of the parents’ drug use, he contacted DSS, which removed the child and placed her with the grandparents.
The father’s involvement in the child’s life was minimal at best:

He saw the child only four times total, with two visits occurring during infancy
He stopped paying court-ordered child support in 2014
He was incarcerated in 2017 for seven years after pleading guilty to multiple crimes, including criminal solicitation of a minor
By his own admission, the child would not recognize him

The Lower Courts’ Unusual Focus
Family Court’s Concerns
The family court made an unusual decision that would puzzle many family law practitioners. Despite finding clear grounds for terminating parental rights, the court denied the TPR and adoption based primarily on two factors:

1. The birth certificate appearance – The court expressed repeated concern about how “weird” it would look to have the grandfather and mother listed as parents on the birth certificate
2. The existing custody arrangement – Since the grandparents already had legal custody, the court reasoned that adoption wouldn’t provide additional stability

The family court seemed preoccupied with potential “psychological issues” the child might face from having her grandfather listed as her father on official documents, despite testimony from the mother, grandfather, and guardian ad litem that this posed no concern.

Court of Appeals Affirmation
The Court of Appeals affirmed the family court’s decision in an unpublished opinion, suggesting that TPR might be appropriate if this were a DSS foster care adoption, but not in a private adoption where the grandparents already had custody. This created a troubling implication of different standards for private versus agency adoptions.

Supreme Court’s Reversal: Focusing on the Child’s Best Interests
Rejecting Birth Certificate Concerns
Justice Hearn, writing for a unanimous Supreme Court, firmly rejected the lower courts’ fixation on the birth certificate’s appearance. The Court noted that modern families take many forms, citing Troxel v. Granville for the proposition that “the composition of families varies greatly from household to household.”

The Supreme Court found it “perplexing” that the family court focused on this non-issue when neither the mother, grandfather, nor guardian ad litem expressed any reservations. The Court emphasized that the birth certificate should simply reflect “the only family she has ever known.”

Custody vs. Adoption: Understanding the Critical Difference
Perhaps most importantly, the Supreme Court clarified a fundamental distinction that the lower courts had blurred: custody and adoption are not equivalent when considering a child’s best interests.

The Court explained several crucial differences:

1. Permanency – Adoption provides a level of permanency that custody cannot match
2. Protection from disruption – Without adoption, the father could attempt to re-enter the child’s life at any time by seeking visitation or custody
3. Financial benefits – As the grandfather’s legal child, she would qualify for Social Security benefits
4. Legal security – Adoption would provide legal permanence to what had been the child’s living situation since infancy

The “Too Late” Doctrine
The Supreme Court invoked what practitioners often call the “too late” doctrine, citing Doe v. Roe and S.C. Dep’t of Soc. Servs. v. Headden. The Court stated: “Notwithstanding Father’s improvement while incarcerated, his actions came far too late to justify disrupting the Child’s life when all she has ever known is living in her grandparents’ home with her mother.”

This principle recognizes that children cannot wait indefinitely for parents to address their issues. The Court fundamentally disagreed “with the premise that a child’s permanency should be held in abeyance for years until a parent is prepared to resume his or her parental responsibilities.”

Key Takeaways for South Carolina Family Law Practice
1. Uniform Standards Apply
The Supreme Court explicitly rejected any notion that different legal standards apply to private TPR actions versus DSS proceedings. The same statutory requirements and best interests analysis apply regardless of who brings the action.

2. Non-Traditional Family Structures Are Valid
Courts should not deny adoptions based on concerns about non-traditional family structures appearing on official documents. What matters is the child’s actual living situation and emotional bonds, not how relationships appear on paper.

3. Permanency Trumps Temporary Stability
Legal custody, while providing stability, does not offer the same permanency and protection as adoption. Courts must recognize this distinction when evaluating best interests.

4. Parental Improvement May Come Too Late
While rehabilitation efforts are commendable, they cannot override years of absence and neglect. Courts must prioritize the child’s need for permanency over a parent’s delayed attempts at reformation.

5. Consider All Benefits of Adoption
Beyond emotional stability, courts should consider practical benefits like Social Security eligibility, inheritance rights, and protection from future custody disputes.

Practical Implications for Grandparent Adoptions
This decision strengthens the position of grandparents and other relatives seeking to adopt children they’ve raised. When representing such clients, attorneys should:

Emphasize the permanency adoption provides versus custody
Document the child’s bonds with the adoptive family
Highlight practical benefits like Social Security and inheritance rights
Address any concerns about non-traditional family structures head-on
Focus on the child’s perspective rather than abstract concerns

Conclusion
Swain v. Bollinger represents a victory for common sense in South Carolina family law. The Supreme Court’s decision recognizes that children deserve permanent, stable homes with the families who have raised them, regardless of how those families might appear on paper. By reversing the lower courts’ decisions, the Supreme Court reaffirmed that the child’s best interests—not adult concerns about appearances or biological parents’ delayed rehabilitation—must remain paramount in TPR and adoption proceedings.

For the child in this case, who had never known any parents except her grandparents and mother, the Supreme Court’s decision provides the legal permanency to match her lived reality. This case should give hope to grandparents and other relatives across South Carolina who are providing stable, loving homes for children whose biological parents cannot or will not fulfill their parental obligations.

If you’re facing a complex grandparent adoption or termination of parental rights case in South Carolina, contact Klok Law Firm LLC for experienced representation. We understand the unique challenges these cases present and can guide you through the legal process to achieve the best outcome for your family.