Court of Appeals reverses permanency plan of termination of parental rights where Mother remedied conditions that led to removal

In the December 16, 2011 opinion in SCDSS v. Mother and Father, 396 S.C. 390, 720 S.E.2d 920 (Ct. App. 2011), the Court of Appeals reversed a family court permanency planning order requiring the Department of Social Services (DSS) to bring a termination of parental rights (TPR) action against Mother and instead ordered the matter remanded for a reunification plan.

This case started when the parents’ children were removed from their care after their fourth child tested positive for cocaine and marijuana at birth.   DSS brought a removal action, that included removing their then four year old twins.  At the merits hearing the parents were ordered into a treatment plan that included substance abuse counseling and random drug screening.  Less then ten months later Mother gave birth to a fifth child, who tested positive for cocaine.  Again DSS brought a removal action and this time the court issued a more extensive treatment plan, giving the parents twelve months to comply.  At the first permanency plan the court found that Mother had complied with most of the treatment plan and the best interests of the twins would be served if Mother had an additional six months to complete the treatment plan.

The subsequent permanency planning hearing lasted four days.  Mother had completed the treatment plan and both the guardian ad litem and the foster father indicated that termination of parental rights were not in the children’s best interests.  As the guardian testified, Mother made a:

[H]erculean effort to overcome her drug problem and to do what she needed to do to get her children back. I believe her children love her. I believe her children are attached to her, and I believe her children would be happy to be with her, so, therefore, as [C]hildren’s advocate, I would recommend reunification.

Father, however, continued to have problems with drug abuse, and the parents had separated.  The DSS caseworker was concerned with returning the children to Mother because Father lived nearby and the caseworker was concerned he would be around the children if they were turned to Mother.  The psychologist who evaluated the children recommended TPR because the foster families were providing stability.  The family court was further concerned that reunification anticipated the stability of a two parent household and without Father in the home:

The anticipated stability in having two parents in the home was lost. . . . The plan never anticipated that the father would not be involved. . . . The mother, along with whatever social services may be available, is left alone. As much as she loves these children and as much as they care for her, her ability to provide for them has been severely reduced by the loss of the anticipated help of the father. . . . Without the help of the father, the mother’s ability to provide is strained.

Accordingly the family court issued a permanency plan of TPR.  In reversing, the Court of Appeals appeared to hold that given the facts of this case, reunification was statutorily mandated:

If the court determines at the permanency planning hearing that [1] the child may be safely maintained in the home in that the parent has remedied the conditions that caused the removal[,] and [2] the return of the child to the child’s parent would not cause an unreasonable risk of harm to the child’s life, physical health, safety, or mental well-being, the court shall order the child returned to the child’s parent. The court may order a specified period of supervision and services not to exceed twelve months.

S.C. Code Ann. § 63-7-1700(D) (2010 & Supp. 2010) (emphasis added by Court of Appeals).

In analyzing whether Mother met the two requirements for mandated return, the Court of Appeals noted:

Our review of the record indicates Mother successfully fulfilled each requirement of her Plan. Most importantly, Mother completed an intensive drug treatment program, tested negative for drugs for twenty consecutive months, and obtained suitable housing for Twins. Moreover, in July 2009, Mother legally separated from Father, who had not become drug-free. Guardian ad litem Dennis Foley, who had worked with Children continuously since June 2008, testified Mother’s residence provided a clean and safe environment for Twins. Foley stated he was not concerned about Mother’s ability to arrange appropriate care for Twins while she worked. Although SCDSS had expressed concern that Mother lacked knowledge of schools available for Twins, Foley testified Mother had “told [him] the name of the school and showed [him] where [Twins] would get on the bus.” Foley added that Mecklenburg County had educational and social services in place that would supervise and reinforce the successful reunification of Mother and Twins.

In our view, returning Twins to Mother’s home is statutorily required because their return “would not cause an unreasonable risk of harm to [Twins’] life, physical health, safety, or mental well-being.” Although concerning, we cannot characterize Mother’s limited financial ability and Father’s proximity as causing an “unreasonable risk of harm” to Twins—of such magnitude that TPR is required. We are influenced by the GAL’s testimony that Mother has remedied the conditions that caused Twins to be removed from her custody. We also note that both the GAL and Twins’ foster father stated TPR was not in Twins’ best interests.

In the past decade, statutory changes to South Carolina’s child abuse and neglect statutes have weakened the linkage between compliance with treatment plans and the return of the child(ren) and made it easier for parents to have their rights terminated.  This case is a welcome corrective to that trend, showing that if a parent has complied with the treatment plan and return of the children will not present a substantial risk to their well-being or safety, reunification is mandated.

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