Trials

Parents in fight with adopted child’s ex-con dad to keep custody of the 3-year-old girl

The Dalsing's 3-year-old adopted daughter, Braelynn, is pictured in a photo provided by the family.

The Dalsing's 3-year-old adopted daughter, Braelynn, is pictured in a photo provided by the family.

The adoptive parents of a South Carolina girl are fighting to retain custody of the 3-year-old child they've cared for since she was weeks old after a judge remanded the case back to a family court.

Tammy and Edward Dalsing, of Rock Hill, S.C., welcomed Braelynn Puckett into their home in 2013 when she was 3 weeks old, raising the bubbly, brown-eyed girl who loves ballet and swing sets as if she were their own.

Now, the Dalsings said they fear the girl will be placed with her biological father, who was released from jail three months ago.

"Being a father or a mother is not about biology -- it's about love," Edward Dalsing told Fox News Tuesday.

The Dalsings -- registered foster parents who have seven other children -- were declared adoptive parents of the girl, according to a 2015 "Final Order of Adoption Notice" obtained by Fox News. In the ruling, a family court judge "hereby forever terminated" the parental rights of the child's biological parents, Erica Smith and Andrew Jack Myers, who was incarcerated at the time of the order.

"...the Dalsings have demonstrated their ability to provide care, support, stability, and security for Braelynn," the September 2015 court order reads. "They are well-suited to meet her physical, emotional, medical, educational, spiritual and other needs."

But in a move that stunned the family, an appellate court judge ruled to vacate the adoption in December 2016. The girl's fate is now back in the hands of the family court system. Myers is arguing the court never should have terminated his parental rights.

"His rights were terminated because he [Myers] failed to meet the minimum requirements under South Carolina state law," said Dalsing, claiming Myers never called, visited, provided financial support or showed any interest in the child's life.

"Braelynn's entire world is being taken away," Tammy Dalsing said.

Myers' attorney, meanwhile, says her client was not present in court when his rights were terminated, though court documents show he was legally represented.

"He [Myers] was never in court – he was never allowed to come," his lawyer, Melinda Butler, told Fox News. "He was incarcerated in another state and was never transported."

"Mr. Myers has been committed to being a father to his daughter from the womb and he remains absolutely committed and his family supports him 100 percent," Butler said.

The South Carolina Department of Social Services had removed the girl from her biological mother shortly after her birth in May 2013 when a drug test revealed the presence of cocaine and benzoylecgonine in her system. The DSS then placed Braelynn with the Dalsings, who contract with DSS to provide foster care. The York County couple has eight children, five of whom came to the Dalsings as foster children, including Braelynn and her biological sister, McKenna.

At the time Braelynn was placed in the Dalsing's care, Myers was incarcerated in Virginia on two contempt of court charges, two fraud, bank notes or coins charges and one probation violation.  

Following his release in November, Myers appealed the adoption order and an appellate court judge agreed, citing a previous ruling that said incarceration was not enough reason to terminate a parent's rights.

"We vacate the family court's finding that father's consent was not required for the adoption and the family court's order granting foster parents adoption of child," reads the appellate court opinion. "We find the record does not contain clear and convincing evidence showing father willfully failed to visit child."

But Judge Rochelle Conits, who issued the 2015 adoption order, had disagreed.

"Mr. Myers has willfully failed to support the child," she wrote in the final order. "He never paid any support for the child, despite having the ability and discretion to do so from funds in his commissary account."

The Dalsings also say Myers made no attempt to contact them about the daughter he's never met. He sent one card through his attorney shortly before the girl's first birthday, according to the family.

"He’s never tried to call us," Edward Dalsing said. "He lost his right not because he was in prison, but because he didn’t do anything."

In the meantime, the family has requested a re-hearing with the state court of appeals while the girl -- who is three months shy of her fourth birthday -- continues to live with them. No decision over the girl's fate has been made yet. 

Neither Myers nor the girl's biological mother, Erica Smith, could be reached for comment. The Dalsings claim Smith -- whom they are in regular contact with -- had asked them to adopt her daughter and sides with the family in the dispute.

The DSS declined to comment on the matter Tuesday, citing confidentiality laws.

Jim O'Connor, a South Carolina-based family attorney, said the custody battle raises many questions.

"I want to know if the father was given the opportunity to be present at trial when his rights were terminated -- was he afforded the opportunity to be heard in the court?" asked O'Connor, who is not involved in the case.

"We have to remember that Family Court is a court of equity and the result must be as fair as possible to everybody involved," O'Connor told Fox News. "When you place a child at the center of a controversy, then that child's best interest must be paramount, without exception." 

The Dalsings have launched an online petition and created a website to bring awareness to their plight. 

"We’re asking everyone to be a voice for Braelynn because right now the South Carolina judicial system is not her voice," Edward Dalsing said.

Fox News' Terace Garnier contributed to this report. 

Cristina Corbin is a Fox News reporter based in New York. Follow her on Twitter @CristinaCorbin.