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SC mom put kids up for adoption, then changed her mind. She hasn't seen them in 5 years.

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Nila Carter walks with lawyers Ronnie Richter and Scott Mongillo after a hearing in Charleston County Circuit Court. Carter is suing a Charleston law firm for legal malpractice related to the adoption her children in 2014. Andrew J. Whitaker/Staff

On Good Friday, Nila Carter sat down at her kitchen table and signed some paperwork.

With her signature, she held the fate and future happiness of one Charleston couple — a family she'd handpicked herself — in her grasp.

Nila had decided it was time to give her children away.

The 25-year-old high school graduate spent most nights working as a waitress at a busy Myrtle Beach restaurant. And she'd reached a crisis.

There were the technical school classes she’d signed up for to become a skin care consultant. And the day care bills. And the law enforcement officers who needed help prosecuting her uncle for molestation. And her husband who, she said, spent most of his free time holed up inside their single-wide trailer playing video games. He’d been arrested the year before for criminal domestic violence.

And above all, there were two kids who needed food and clothes and care and love. She was worried she was falling short as a mother and wanted to spare them the same exposure to the foster care system that she’d experienced as a child in state custody.

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Nila Carter (center) waits with lawyers Ronnie Richter and Scott Mongillo before her hearing in front of Judge Deadra Jefferson in Charleston County Circuit Court. Carter is suing Lowndes & Barrett LLC for legal malpractice related to the adoption of her biological children in 2014. Andrew J. Whitaker/Staff

Thousands of dollars in legal fees had already changed hands before she sat down at her kitchen table to sign the document for a private adoption. Hundreds of text messages, pictures and emails had been sent between Nila and a lawyer in Charleston; between Nila and the woman who wanted to adopt her 2-year-old son and her 5-year-old daughter.

A certified adoption counselor and a notary were present inside the Carters’ trailer that evening in 2014 to help them sign the binding consent contract. Nila said the paperwork took about 20 minutes to complete.

Then the children’s new parents arrived the next morning to take them to their new home in Charleston.

But as the reality of Nila's decision sank in over the next few days, she realized she’d made the worst mistake of her life.

"We want our children back, and will take all steps necessary," Nila wrote the adoptive parents in an email 12 days after they'd taken the boy and the girl away.

Nila didn’t understand at the time that South Carolina’s adoption law doesn't allow birth parents the prerogative to change their mind.

She had no way of knowing that her case would eventually grip the attention of the state's legal industry, exposing how South Carolina's adoption laws differ from most states. Nor could she have guessed that the fight for her children would become so controversial, her story would be incorporated into law school curriculum.

Most of all, she couldn’t have imagined this: Nila Carter hasn’t seen her children in five years.

Love, then marriage

Nila was in first grade when her biological father was sentenced to prison for rape and attempted kidnapping.

"I remember the cops coming and taking him. We lived in an apartment in Kansas at the time," she said. "They didn’t want us to see him get arrested."

Her biological mother struggled to care for Nila and her five younger siblings. Nila said her mother retreated from her responsibilities, hiding most of the time in a bedroom. They were raised by foster families until their mother eventually relinquished custody of all six children.

Nila was 12 when she moved to Polk County, N.C., to live with her aunt and uncle — the same uncle who would later serve a prison sentence for molesting young girls.

At 18, she graduated from high school and moved to Atlanta, into an apartment complex while she took tech school classes to become a massage therapist. She picked up work as a waitress at Ruby Tuesday.

One evening, Nila struggled to concentrate on her schoolwork because her neighbor one floor up was playing heavy metal music. She asked him to turn it down. They started talking, got to know each other. Before long, Nila and Mickey were dating and had moved in together.

Then, Nila found out she was pregnant with a girl. She was 19.

A few years later, another baby. This time, a boy.

Their marriage wasn't happy. Mickey had a temper, Nila said, and wasn't motivated to find work. But eventually, they moved to Myrtle Beach, where Mickey landed a job installing granite countertops. 

They lived together with the kids in a trailer at Patrick’s Mobile Home Park, a quick 10 minutes from the Grand Strand's brightest stretch of boardwalk. Patrick's is best known as "Myrtle Manor," the subject of an old reality show on TLC that followed the daily drama unfolding around the quirky trailer park. 

In 2013, Mickey was arrested for assaulting Nila. He had accused her of cheating on him, and when she denied it, she told police he picked her up by the neck and pushed her into a mirror with both hands. He punched her in the ribs and on her left temple. The responding officers noted in their report that Mickey "stated that either him or her was going to get custody of the kids." Nila told police he'd assaulted her before.

Mickey admitted in a separate police report that the children had watched the scene unfold and "he stated he never wants them to see that again."

"The kids in the house appeared to be happy and unharmed," the officers wrote.

The Post and Courier could not reach Mickey Carter for this article. His father and Nila Carter confirmed Mickey received a message the newspaper sent him through Facebook. They said he was unwilling to respond. 

By the end of 2013, it became clear to Nila that her life was unraveling.

That December, Nila told Mickey they should consider putting the children up for adoption. The kids needed to be kept safe, she told him. But Mickey brushed her off, chalking the idea up to exhaustion and stress. Nila said he thought she was going through a phase and it would pass.

"And I was thinking long-term," she said, "'Am I ever going to get out of this? Am I ever going to stop struggling?'"

'Cut out of their lives'

In January 2014, Nila Carter called a law firm in Charleston and told an attorney she was considering placing her two children for private adoption.

"She told me she was in school full time, working two jobs. She had no help from family. She had no help from the biological father," attorney Emily Barrett would later recall in court testimony. Barrett estimated her first conversation with Nila lasted 20 or 30 minutes.

Barrett told Nila there were a number of options short of adoption. Vouchers from the Department of Social Services could offset the cost of day care. Barrett told Nila she could apply for food stamps.

But Barrett recalled that Nila had made up her mind and she started the process of finding a family to adopt the children. Barrett asked Nila to fill out a standard questionnaire.

Nila's answers indicated she wanted visitation with her children. She wanted to be able to Skype with them after they were placed with a new family. She requested counseling for herself. Adoptive families typically pay for such services. Above all, she stressed that she wanted an open adoption.

"It was something I was adamant about," Nila later recalled in court testimony. "I didn't want to be cut out of their lives."

Twenty-nine states and the District of Columbia allow birth parents and adoptive parents to sign enforceable "post-adoption contact agreements," according to a 2018 federal report. But South Carolina law explicitly states that open adoption agreements hold no legal weight and cannot be enforced.

Revoking consent in private adoptions

South Carolina is also different than most states when it comes to revocation periods.

Here, adoptions often take months to finalize in Family Court, but once those initial consent documents are signed, they're almost always binding, unless they were obtained under duress or coercion, or if a court deems that a birth parent signed the document involuntarily.

This isn't the case in most states, where birth parents typically have some time, ranging from a few days to a few months, after they've signed the dotted line to change their mind.

But Nila hadn't hired a lawyer — she said she couldn't even afford day care — and didn't know the nuances of the state's adoption laws.

"I didn’t know anything legal when this started," Nila said.

Maintaining a relationship with her son and daughter was “the only way this won’t destroy me,” she'd written Barrett in an email earlier that year. “I need them to know how much I love them.”

She said she picked Barrett's law firm because the website claimed they specialized in open adoptions.

After their first phone call in January, Barrett continued communicating with Nila, both by phone and email, for several weeks. She drove up to meet Nila and Mickey at the trailer in late March. She brought profiles of prospective families for them to review.

By then, Nila said Mickey had shut down emotionally. She said he didn't know how to respond to the crisis unfolding before him.

‘An unfair and impossible situation’

On April 5, 2014, Nila, Mickey and their children met the adoptive parents for the first time. They had picked the couple among several profiles Emily Barrett had presented to them. The husband they chose worked in law enforcement. His wife was a stay-at-home mom.

"I really liked their profile," Nila later recalled in Family Court. "I found that I had a lot in common with (her). She seemed very crafty and bubbly, and I liked that they had the Christianity aspect in their life at that time. I can't remember exactly, but I remember there was a picture of (her) doing like a starfish pose. ... It struck me that she was goofy, that I could see her being somebody that would be similar to my personality."

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Nila Carter appeared in Charleston County Circuit Court in September for a hearing before Judge Deadra Jefferson. Carter is suing a Charleston adoption law firm for legal malpractice. The case is related to the adoption of her biological children in 2014. Carter has not seen her son or her daughter in five years. Andrew Whitaker/Staff

The parents who adopted the Carters' children declined to be interviewed for this article. The Post and Courier chose not to reveal the names of the children or the adoptive family to protect their privacy.

In a report written by the children's court-appointed advocate, the adoptive mother said she was struck by Nila's desire to move the process forward so quickly during their first meeting.

After flying kites and playing in a park, Nila and Mickey started loading their kids into the car. Nila turned to the adoptive mother, the woman recalled, and said, "OK. We want y'all. What do we do next?"

A few days after their first meeting, the Carters' children spent several days in Charleston with the adoptive couple and their older son. The visit was meant to serve as a trial run.

The Carters agreed to sign the adoption consent documents fewer than two weeks after they'd first met the adoptive family.

When the certified adoption counselor arrived at the trailer on the Friday before Easter to complete the paperwork, she asked Mickey if he was prepared to give his consent. He left the living room visibly upset.

He returned and provided his signature. The adoption counselor wrote in her official report that both Nila and Mickey became tearful during the meeting.

Later, the Carters' children came back to the trailer for one more night with their birth parents. The couple who would adopt them spent the night in a nearby hotel. They planned to pick up the children the next morning. Text messages and emails provided to The Post and Courier by Nila show how the gravity of the situation quickly began to settle in. 

"... they're in PJs and we are winding down now," Nila texted the adoptive mom during the kids' last night in the trailer.

The children watched a Disney movie, then went to bed.

"Now that they have been passed out for a while, I think it really started to hit me," Nila texted the woman later, "just remembering how great they were as babies and (in) general and how happy they have made me and how much joy and strength they have brought to my life and how much I know they are going to add to yours."

The next morning, both families finished an art project together — colorful handprints on canvas to mark the special day. A painted passage: "Love and children should grow in the same place."

Nila gave the couple her children's birth certificates and Medicaid cards, some of their clothes and favorite toys.

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Nila Carter attends a hearing in Charleston County Circuit Court before Judge Deadra Jefferson. Carter is suing a local adoption firm, Lowndes & Barrett, for legal malpractice. She gave her children up for adoption in 2014 and wants them back. Andrew J. Whitaker/Staff

And then they were driven to Charleston to start a new life — one that Nila hoped would be marked by safety, financial stability and love.

But this wasn’t meant to be goodbye. Not forever. From the start, Nila insisted she wanted to keep in touch with her children — her “two biggest blessings,” she called them.

Almost immediately, Nila became concerned that she hadn't received a copy of the consent documents they'd signed.

State adoption law requires that the certified adoption counselor provide the birth parents a copy of the paperwork, but when the Carters signed their consent forms, that didn't happen. The counselor forgot to bring one.

Nila didn’t initially press for the paperwork, but by the following Monday, she was anxious to have the document in hand.

She was also struggling to understand early that week why the adoptive family hadn't finalized the open adoption agreement. She started Googling South Carolina's adoption laws.

On Wednesday, the Carters decided they wanted the children back.

The adoptive mother didn't give Nila an answer on the phone that afternoon. She texted Nila later that night.

"I really want to encourage you to get some post adoption counseling," the adoptive mother wrote. "Between you & I, I really feel y'all have put us in an unfair and impossible situation."

In an email two days later, the adoptive couple explained to Nila that they would not return the children to Myrtle Beach.

"Nila, through all the communication I had with you, your reasons for wanting the adoption to occur were financial, to provide stability, and most importantly to protect the children from Mickey and from extended family," the adoptive mother wrote. "You both have entrusted us with (the children), so at this point we must do what is in the best interest of them, to protect them. Most of all you wanted the children to be protected, which we will continue to do."

Nila filed the first legal challenge related to the adoption on April 30, 2014 — 12 days after she'd signed the consent form. She would go on to attempt to revoke her consent in 17 different legal filings.

Mickey Carter is no longer involved in efforts to regain custody of the children. His father, Mickey Carter Sr. of North Carolina, said his son lives in Florida. He did not understand why his grandchildren were put up for adoption.

"We're all still trying to figure out why (Nila) did that," he said. "They felt they didn't have any family to fall back on, and that's not true. By the time we heard anything about it, it was too late."

His son, he said, was bullied into signing the adoption consents.

"He's kind of a timid boy," his father said. "I think they scared him."

Supreme Court's 'grave concern'

Nila has fought for the children for five years — often without a lawyer — all the way to the S.C. Supreme Court.

She left Myrtle Beach about a year after the children were adopted, then moved to Charleston. She now lives in the Upstate, where she works as a paralegal.

"I got intrigued by the law," she said.

In 2014, Nila appeared separately before seven Family Court judges in Charleston, none of whom granted her a hearing on the merits of the case. The adoption of her children was finalized in Family Court eight months after the Carters signed the consent form at their kitchen table. Nila was not notified of the final hearing.

"She was told five different things by seven different judges," said attorney Matt Bogan, who was appointed to represent Nila during her 2018 state Supreme Court hearing.

Bogan explained during that hearing that Nila complied with every Family Court judge's request — "everything they asked, every time they asked it, in a timely manner," he said.

Last year, the state Supreme Court didn't grant Nila custody of the children but decided she did deserve her day in Family Court, at the same time expressing its "grave concern" about the way the adoption of her children had been handled.

"(The order) was very strongly worded," said James Fletcher Thompson, a Spartanburg adoption lawyer who was not involved in this case. "It’s a five-to-nothing opinion."

The S.C. Supreme Court chastised Family Court judges in the Lowcountry for refusing to hear Nila's case, even when the Carters did "precisely what other Family Court judges told them to do."

The justices found one judge's reason for not hearing the case "perhaps most troubling" — "the fact that it was scheduled for a Friday."

They also noted that while Mickey Carter eventually abandoned the case, "we find it remarkable that Petitioner (Nila Carter) did not throw in the towel as well."

The court was equally critical of the attorney hired by the adoptive parents. Emily Barrett did not send the Carters notice of the final adoption hearing and, when asked by a Family Court judge during that hearing if anything else needed to be placed on the record, Barrett "stunningly responded 'I think we're good, Your Honor.'"

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Thomas Pendarvis represents Emily Barrett, left, in a legal malpractice case. Barrett is an adoption lawyer in Charleston and has been sued by a birth mother who attempted to revoke her adoption consent in 2014. Andrew J. Whitaker/Staff

"We are confident," the justices wrote, "the Family Court judge would not have proceeded with the adoption had he been made aware of the separate pending action."

Bill Nixon, a Charleston attorney who was appointed by the state to represent Nila in Family Court, called the state Supreme Court's decision "surprising to everyone."

"I’ve been practicing law 20-something years. It’s basically a slap down," he said. "It’s being taught in law schools now."

The appeal

Last year, with the state Supreme Court's blessing, Nila Carter took the witness stand in Family Court. 

During the week-long trial, she said she thought she was making the best choice for her children, based on what she knew at the time. 

"The price I've paid, you can't put a price tag on it," she told the court. "It's a hole you can't fill. And it's a pain you can't explain. And it's a limbo you can't get out of because you can't grieve the kids that you're fighting to get. ... You can only partially grieve because they're still alive and you're still fighting to know them."

Charleston Judge Daniel Martin ruled the Carters freely and voluntarily signed the consent forms. And even though the certified adoption counselor failed to provide the birth parents a copy of the paperwork that evening in the trailer, the judge noted Nila could have used her own printer to make a copy.

Because the judge ruled the consents had been signed voluntarily, the children's best interests were not discussed during the trial. The adoption was deemed valid and the siblings continue to live with their adoptive parents.

By all accounts, they are happy. Court documents submitted by their advocate suggest the boy and girl are "thriving and well-adjusted and loved. Their needs are being met."

In Family Court last year, the children's adoptive mother testified that Nila had confided to her about violence in the home. 

What's more, the girl "is unquestionably fearful of Nila," a court-appointed advocate for the children wrote.

The adoptive family continued to communicate with Nila through an attorney for several months after the Carters contested the adoption. Their emails included pictures and updates about the children. During the Family Court trial last year, the adoptive family proposed a settlement agreement that would have allowed Nila to have limited contact with the children. After lengthy negotiations, Nila refused the terms of their proposal. The adoptive family has cut off all contact with her, she said. 

Nila has appealed the Family Court's decision. An attorney appointed to represent her before the Court of Appeals filed a document this summer indicating she believes Nila's case has no merit. Nila intends to proceed herself. She has asked the state Supreme Court to hear the case again.

Rock Hill attorney Dale Dove, who represents the adoptive parents, said the appeals case is still pending and court ethics restrict his ability to freely and publicly address matters related to the lawsuit.

"We respect the Court’s decision-making process and look forward to its decision," Dove said.

Meanwhile, Nila has claimed in a separate malpractice lawsuit that Emily Barrett offered her legal counsel for months and failed to fully explain their relationship. Barrett was being paid by the adoptive parents. Nila has argued Barrett should have made that more clear.

The Post and Courier contacted Barrett multiple times before publication. She did not answer questions for this article.

Other attorneys approach their relationship with birth parents differently. James Fletcher Thompson, the Spartanburg attorney, was not involved in the Nila Carter case, but has worked on high profile adoption lawsuits before. 

He said South Carolina's Rules of Professional Conduct prohibit lawyers who are hired by adoptive families from misrepresenting their role and their motives to birth parents. The rules make clear that attorneys must explain they represent an adverse party when dealing with someone who is unrepresented.

"I rarely interface with the birth mother for fear of giving legal advice and blurring legal lines," Thompson said.

His firm employs social workers for this purpose. He also offers birth parents an opportunity to seek advice from a different lawyer, free of charge.

"I don’t work with an adoptive family who won’t agree to those terms — and the adoptive family has to pay for it," he said.

Nila's legal malpractice case is unusual because she has not claimed any financial damages. But state law does not allow attorneys to be sued for emotional damages.

Nila wants to change that.

It would require another trip to the state Supreme Court.

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Reach Lauren Sausser at 843-937-5598.