Note: this decision was later reversed by the South Carolina Supreme Court. See, Supreme Court grants termination of parental rights, finding mother’s failure to support was “willful”
Today’s 2-1 decision in SC Department of Social Services v. M. R. C. L., 390 S.C. 329, 701 S.E.2d 757 (Ct. App. 2010), reversed a family court ruling terminating a mother’s parental rights to a child who had originally been removed due to her cocaine use. The family court had granted DSS’s termination of parental rights (TPR) request, based on findings that Mother had willfully failed to visit or support the child and that TPR was in the child’s best interests.
Both the majority and dissenting opinion were written by appellate judges who had previously been family court judges (and, therefore, they had presumably given much thought to the kind of circumstances that should lead to a parent losing his or her parental rights). Their disagreement was whether Mother’s behavior exhibited a willful failure to support her child.
As for visiting, Mother had seen the child fourteen times over a fifteen month period while the child was in foster care. There was some evidence that Mother was prevented from visiting more often due to court orders or other person’s scheduling issues. The majority opinion held that, under these circumstances, an average of one visit a month did not provide a clear indication of willfulness. The dissent did not challenge this conclusion.
On the support issue, Mother did not work; however she provided toys, food, clothes, diapers, wipes, medication, and lotion during her visits. In anticipation of Child returning home, Mother redecorated the smaller bedroom for Child by painting, installing curtains and carpet, and rearranging furniture. At the time of the TPR trial, she was living with Father, who received disability. That, and Father’s odd jobs, were the family’s sole source of income.
DSS argued that Mother was a “housewife by choice” and therefore her failure to provide more support was willful. The majority disagreed. It noted that in 2004 Mother had held three jobs. A degenerative disk disease prevented her from doing jobs that included lifting heavy objects. Mother had no income of her own but had applied for approximately thirty jobs and diligently followed up on her applications until she received responses. She sought but failed to take full advantage of vocational rehabilitation services from South Carolina Vocational Rehabilitation (SCVR), but the SCVR representative testified that SCVR was not a job placement agency. Although SCVR offered services to assist individuals in becoming more marketable, it did not provide employment. Consequently, even Mother’s full, successful completion of SCVR’s programs would not have guaranteed her income.
On these facts, the Court of Appeals, considering her extremely limited means, held that Mother’s failure to provide more support did not “evince a settled purpose to forego parental duties” and was not a basis to terminate her parental rights.
The dissent would have affirmed the family court decision’s to terminate Mother’s parental right, believing that her level of support was not material and her failure to provide more support was willful. It noted:
Evidence is plentiful that she eschewed not only employment but also any professional assistance that would have improved her ability to find work. Although Mother initially sought assistance from SCVR, she failed for over fifteen months to take advantage of any of the several programs they offered that could have improved her workplace skills and her employability. Not surprisingly, she even refused offers of transportation to get her to these classes. She attended so infrequently that she was dropped from their rolls. Accordingly, it is clear the inability of Mother to find employment was because Mother had neither the desire nor the intention to provide financial support for Child. Most importantly, Mother testified that she and Father agreed she would not work outside the home even though she had a responsibility to support Child.
Any appeal that involves a child’s welfare, especially permanency issues, and contains a dissent from the Court of Appeals has a strong possibility of Supreme Court review (assuming DSS requests certiorari). The Court of Appeals opinion in SC Department of Social Services v. M. R. C. L. may not be the last word on whether Mother’s level of support was sufficient to prevent termination of her parental rights.
In South Carolina, parental rights can be terminated if a parent wilfully fails to visit a child or wilfully fails to provide material support for a child over a six month period, with the court allowed to attach little or no weight to incidental visitations. S.C. Code Ann. § 63-7-2570(3) & (4) (2010)