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Supreme Court reverses termination of parental rights where father not responsible for numerous court delays

The October 3, 2011 Supreme Court opinion in Charleston County DSS v. Marccuci, 396 S.C. 218, 721 S.E.2d 768 (2011), reverses a family court order terminating Sean Taylor’s (Father’s) parental rights.  The reversal is based, in a large part, upon a convoluted procedural history that mitigated the grounds upon which the lower court based the termination of parental rights (TPR).

The procedural history is essential to understanding the outcome.  While living in New Jersey, Father pled guilty to fourth degree child cruelty (regarding a different child than the one at issue here) and for five months his daughter was placed with his parents.  After his daughter was returned to him, Mother left for South Carolina, taking the child with her.  Father followed her to South Carolina, ostensibly to find his daughter.

In January 2008, the police came to the hotel they were staying at in North Charleston, looking for Mother after she failed to show up at her job.  The police did a background check on Father and determined, erroneously, that he had an outstanding warrant for a rape charge in New Jersey.  Arresting Father, and unable to locate Mother–who has not been heard from since–the police took daughter into emergency protective custody.

At the probable cause hearing, Father was pro se and still incarcerated.  Because Father was still thought to face outstanding rape charges, he agreed to a no contact order with his daughter pending further hearing and his parents were added as parties, with the goal of doing a priority placement evaluation of their residence in New Jersey pursuant to an interstate compact with New Jersey.  Father was then taken to New Jersey to serve five months for a probation violation for leaving New Jersey without permission.

For the next eighteen months, due to numerous bureaucratic snafus and roadblocks by DSS, the placement of daughter with grandparents never took place.  Meanwhile the court repeatedly delayed the merits hearing and hearings on placing daughter with grandparents.  At one point during this process the family court mandated a two-week transition period with Grandmother in Charleston where she would “participate in a therapeutic clarification” with her granddaughter.  By this point in time, the minor child had been in seven foster placements, none of which had apparently involved a transition period for “therapeutic clarification.” By the time Grandparents began this clarification, the interstate compact with New Jersey had “run out” and DSS informed them that they would not be allowed to bring the child back to New Jersey.  DSS then began denying them visitation.

The history of this case was aptly described by the Supreme Court as “a procedural morass”:

The action began in a timely manner on January 28, 2008, with the probable cause hearing. The merits hearing was scheduled for February 28, but the court continued it upon the motion of Father’s guardian ad litem once it was clear the case was contested.  At some point, the merits hearing was set for June 4.  However, a pre-trial hearing scheduled for May 13 was continued until June 18 because no judge was available; the June 4 merits hearing accordingly was rescheduled for October 1.  For some reason not apparent in the record, this hearing was continued again.  Frustrated at the lack of progress in this case, the Grandparents moved for an expedited placement hearing, but that too was continued on December 8 for unknown reasons.  On January 22, 2009, the hearing on the expedited motion was again continued. The merits hearing was then scheduled for April 30, nearly fifteen months after the minor child was removed by DSS, to no avail: it was continued for lack of notice.  The hearing was again continued on May 4 for the same reason.  It was not until July 10—far beyond the thirty-day limit provided for by statute—that the merits hearing was held, and the final order was not issued until August 3, over one-and-a-half years after the child was placed in protective custody.  The final order authorized DSS to forego efforts at reunification and pursue TPR.  By the time the removal action was complete, the child had lived in seven different foster homes and no less than seven different family court judges had been involved.

At the subsequent TPR trial, the family court terminated Father’s parental rights on three statutory grounds: failure to support; failure to visit; his daughter being in foster care for fifteen of the previous twenty two months. See S.C. Code § 63-7-2570 (3, 4 & 8). The Supreme Court reversed.  It first found that he did not wilfully fail to visit or support his daughter:

While Taylor cannot be excused for violating his probation by coming to South Carolina in search of Marccuci and the minor child, it appears that DSS’s case against him was initially fueled by the erroneous information supplied by the police that he had an outstanding warrant for rape in New Jersey.   He was then enjoined from visiting with his daughter at the probable cause hearing, which presumably would not have been warranted but for the erroneous information about the pending New Jersey charge.  Thereafter, Taylor was extradited to New Jersey where he served a five month prison sentence for violating his probation, during which it was impossible for him to visit his daughter.  Afterwards, he was subject to the court order preventing any contact between him and his daughter.  The mere fact that Taylor did not seek to have this order rescinded or altered does not demonstrate any willful failure to visit on his part; his lawful obedience of a valid court order, which was based largely on his belief that his daughter was soon going to be returned to his parents’ custody in New Jersey, should not be used to mount a case against him for willful failure to visit.  It is also of no moment that Taylor initially agreed to the order enjoining his contact with the child.  Taylor, who appeared pro se at the probable cause hearing, was facing extradition to and jail time in New Jersey for his probation violation.  Furthermore, Taylor spent the next eighteen months fighting for custody of the minor child, or, alternatively, in support of her placement with the Grandparents.  Therefore, DSS has failed to prove by clear and convincing evidence that Taylor willfully failed to visit the child while she was in protective custody.

Additionally, we disagree that there was clear and convincing evidence that Taylor willfully failed to support the minor child.  Taylor testified that he had no income while incarcerated, had no job for some time when released, and that he tried to support the child once he did have gainful employment but was unaware of the location of the child or even how to pay any support to DSS.  Once a court order was in place for Taylor to pay support for the child, he immediately paid on time and was never in arrears.  This conduct certainly does not evince a settled purpose to forego his obligation to support his child, and we therefore hold the family court erred in terminating Taylor’s rights on this ground.

It next found that, given the procedural history of this case, his parental right should not be terminated merely because his daughter had spent at least fifteen of the previous twenty-two months in foster care:

Here, there is substantial evidence that this little girl languished unduly in foster care not because of any actions, or inactions, by Taylor, but because the delays generated and road blocks erected in the removal action made it impossible for the parties to regain legal custody of her prior to the expiration of the fifteen month period.  Several continuances of the removal action were ordered, only one of which was requested by Taylor through his guardian.  Taylor continued to contest his daughter being in the custody of DSS throughout the entire process, despite not being able to appear himself in many instances because he was incarcerated and subject to his probation.  In fact, DSS initiated the TPR proceedings while the removal action—the very action that would determine whether the child was properly placed into foster care in the first place—was still pending and contested.  Taking our own view of the evidence, we find that Taylor did not sit idly by while his child was in foster care, but rather he was stymied by the system charged with the responsibility of protecting this child and reuniting her with her father if possible.  The various continuances requested by other parties were largely the reason the child had remained in foster care for fifteen months at the time the TPR action was filed, and under these circumstances, we hold that this ground should not serve as the basis for terminating this father’s parental rights. …

[T]his child was neither abused, neglected, nor abandoned by Taylor.  Indeed, it is undisputed that at the time she was taken into protective custody, she was healthy, clean, and neatly dressed.   Moreover, there is no indication in the record that she had any behavioral problems at the time she was removed from her father.  In fact, Dr. Elsey testified that when he saw her on March 7, 2008, “[s]he was a verbal, very pleasant little two year old.” Although he stated she had symptoms of Reactive Attachment Disorder, he also testified that this disorder arises in children who have been separated from their parents.

We also express our concern about the numerous unexplained delays in the removal action, as well as DSS’s apparent reluctance to return this little girl to the Grandparents despite the fact that they previously had served as foster parents.  Moreover, DSS’s insistence on a two-week “therapeutic clarification” period for the Grandparents even after the interstate compact had been complied with seems especially inexplicable, particularly given the child’s placement with seven sets of strangers where no transition period was required.  While removing this little girl from her father’s care and custody in the face of his probation violation may have been warranted, the sole basis for probable cause contained in the caseworker’s affidavit was the outstanding rape warrant, not the probation violation.  Moreover, the continued procedural road blocks which prevented the expeditious return of this child had tragic consequences for this family, especially for this little girl who has been deprived of the opportunity to develop a relationship with her father over the past three and half years.

The Supreme Court directed “DSS to immediately implement a plan for the reunification of Taylor and his daughter or, in the alternative, for placement of the minor child with the Grandparents in New Jersey until that reunification can be achieved, effective immediately upon the filing of this opinion.” Justice Pleicones dissented, finding “clear and convincing evidence supports the family court’s decision.”

The term Kafkaesque is an overused cliche but how else should one describe the inexplicable delays and bureaucratic intransigence that almost caused Father’s parental rights to be terminated?  A system ostensibly designed to protect children often, through sheer inertia, destroys families instead.  Father neither abused nor abandoned his daughter yet without the Supreme Court’s reversal he would have lost all rights to her.  With both our courts and government agencies understaffed and underfunded, Marccuci is only an extreme example of what happens regularly within our family court system.

Kudos to local attorney, Jason Scott Luck, an associate at The Seibels Law Firm, for helping Father right this obvious injustice.  Jason handled this case as a court appointment and doesn’t normally seek family court work, though he handles his firm’s family court appointments and has an appellate practice.  His efforts on Mr. Taylor’s behalf are worthy of our admiration.

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