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Divided Supreme Court reinstates termination of parental rights

In the March 20, 2013 opinion in SCDSS v. Sarah W., 402 S.C. 324, 741 S.E.2d 739 (2013), a divided South Carolina Supreme Court reinstated a termination of parental rights and rejected a challenge to the constitutionality of S.C. Code § 63-7-2570(8), which allows parental rights to be terminated when “[t]he child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months.”

The majority opinion and the dissents each focus on the procedural history helpful to their position.  To understand the issues in the three opinions, it helps to have a timeline of the case.

  • 2007–Mother and Father and the children reside in a home without heat, electricity, or running water.
  • August 2007–Mother arranged for her brother and sister-in-law to take primary responsibility for the children.
  • October 4, 2007–Upon report that brother and sister-in-law abused a sibling of the children, DSS seeks and obtains ex-parte removal.
  • November 15, 2007–Merits hearing continued due to parents’ attorney’s conflict.
  • December 20, 2007–Merits hearing results in finding that parents “failed to provide adequate and safe housing for [the children].” Placement Plan (Plan) requires Mother “to seek and maintain adequate employment and appropriate housing and space for the children.” The Plan also requires the parents “to submit to a mental health evaluation and follow the recommendations of that evaluation.”
  • June 12, 2008–Review hearing.  Because parents had not completed Plan the matter continued to September 18, 2008.
  • July 2008–Parents’ daughter raises concerns that parents may be abusing drugs or alcohol.
  • September 4, 2008–DSS issues a Supplemental Report recommending reunification of parents and the children. The Report noted that Mother had maintained adequate employment and housing. Additionally, parents completed mental evaluations, and no mental health services had been recommended.
  • September 30, 2008–At permanency planning hearing, DSS raises new concerns that Father sexually abused a biological daughter some time prior to January 1994 and that both parents are abusing drugs and alcohol.  DSS seeks additional elements in Plan.  Family Court denies DSS’s request and instead extends Plan for six months and orders thorough investigation of new issues.
  • December 3, 2008–Saluda County DSS transports Mother for an alcohol and drug assessment. Mother tests positive for cocaine and marijuana.  She denies any drug use and refuses to comply with treatment services offered.  Mother passes every other drug test taken since 2007.
  • December 23, 2008–Mother’s substance abuse assessment file closed due to her lack of attendance.
  • January 23, 2009–DSS issues a second Supplemental Report recommending termination of parental rights (TPR) and adoptions based on Mother’s alleged drug use.
  • February 19, 2009–Permanency Planning Hearing.  DSS verifies that Father previously agreed to court finding that he more likely than not molested his daughter. Moreover, although this order was included in the Statewide Central Registry, DSS previously failed to discover the court order due to an existing law which provided for the purging of the registry following a certain period of time.  Based on Mother’s refusal to seek treatment for substance abuse and Father’s molestation of another child, DSS recommends Plan of TPR.  Family Court issues order directing DSS to bring TPR proceedings but sets another review hearing.
  • July 31, 2009–Family Court denies TPR finding Mother has not failed to support children and that TPR was not in children’s best interests. [Mother pays her support timely throughout proceedings]. Family Court orders reunification plan be developed prior to August 27, 2009.
  • August 2009–Family Court approves new reunification plan.  Sets deadline of March 4, 2010 for parents to successfully complete plan.
  • January 12, 2010–Father tested positive for cocaine but denied drug use.
  • April 20, 2010–At Permanency Planning Hearing family court orders Plan of TPR and adoption.
  • May 2010 order from that hearing is vacated and a new order substituted nunc pro tunc in August 2010.
  • April 28, 2010–TPR action filed.
  • August 27, 2010–TPR trial continued due to Father’s medical emergency two days prior.
  • January 27, 2011–Family Court grants TPR based on children living in Foster Care 15 of the past 22 months.  Finds that none of the delays in the case were “attributable to the acts of others, unless the various Family Court Judges that have heard this matter constitute others, a proposition this [c]ourt will not accept.”  Only Mother appeals.
  • November 29, 2011–The court of appeals reversed the TPR against Mother in an unpublished opinion.

In finding that § 63-7-2570(8) was constitutional, the majority read the following conditions into TPR actions brought under that subsection:

The family court must find that severance is in the best interests of the child, and that the delay in reunification of the family unit is attributable not to mistakes by the government, but to the parent’s inability to provide an environment where the child will be nourished and protected.

Responding to Justice Pleicones’ dissent, the majority further appeared to hold that a finding of parental unfitness is required to terminate parental rights under this subsection:

[C]ourts may not terminate a parent’s rights under section 63-7-2570(8) absent a showing that termination is in the best interests of the child, and that the delay in reunification of the family unit is attributable to the parent’s inability to adequately provide for the child. The facts of this case undoubtedly establish that Mother is primarily responsible for the delays in resolution of this case, and she has repeatedly refused to remedy the issues preventing her from taking custody of her children. Thus, Mother’s unfitness is demonstrated not only by her inadequate parenting, but also by her inaction over the course of several years.

The majority’s blaming of this delay on Mother is not a reading of the case history I see the timeline as supporting.  I would further note that many of the elements of the timeline helpful to Mother’s position are absent from the majority’s factual recitation.

Justice Pleicones’ dissent focused his view that DSS failed to prove its TPR case.  He refused to find that any of the delay between October 2007, when the family court awarded DSS emergency protective custody, and March 2010 can be attributed to Mother.  His opinion focused largely on his belief that the delay was not attributable to Mother and that Mother was being deprived of her parental rights due to her socioeconomic condition.  Among the language his dissent used:

Poverty is not a ground for TPR.

I am especially concerned that most of the issues which Justice Beatty would instruct the family court to consider – housing, food, clothing, and medical care – are subject to unconscious bias based upon Mother’s poverty as is demonstrated by the TPR order here.

I am not convinced that the lack of a separate bedroom for each child demonstrates a lack of parental commitment.

Mother testified that the children would have to ride with her when her mother dropped her off at 11:30 pm for work, in my view, this is a reflection of Mother’s socioeconomic reality and not her parental fitness.

Because Justice Pleicones did not believe DSS had met the statutory requirement for TPR, he did not need to reach the constitutional issue.  However he found § 63-7-2570(8) unconstitutional:

I agree with Justice Beatty that the statute is unconstitutional, even as narrowed by our earlier decisions requiring that the delay in returning the children to their parent’s home be attributable to the parent’s conduct. I do not agree, however, that the statute’s constitutionality can be salvaged by engrafting a requirement that the family court also make a specific finding that the parent is unfit. In my opinion, the addition of this requirement, without any specification of relevant considerations, renders the statute as newly construed unconstitutionally vague.

In an additional dissent, Justice Beatty held that:

 [S]ection 63-7-2570(8) is facially unconstitutional to the extent it is used as the sole basis for TPR. … as it impermissibly creates a presumption of parental unfitness due solely to the length of time a child spends in foster care. In order to comport with the guarantees of substantive due process, a determination of parental unfitness is a condition precedent to termination of a parent’s fundamental right to the custody of his or her child.

Justice Beatty would have remanded this matter back to the family court:

Because my decision represents a new construction of section 63-7-2570(8), I recognize the substantive and procedural implications as to the family court and Respondent [Mother] who did not have the benefit of this analysis. Accordingly, I would remand the matter to the family court to make a determination regarding Respondent’s parental fitness and, ultimately, whether her parental rights should be terminated.

His opinion also provide a non-exclusive list of factor he would have had the family court consider in determining whether Mother was fit:

[Mother] performed adequately on her psychological evaluation; procured full-time employment; sought to acquire living arrangements that are separate from Vaughn [Father]; sought the assistance of her mother as a supplemental caregiver to the children; and  maintained a bond with the children as she has not missed an opportunity to visit with her children. Even though Respondent has made positive strides to demonstrate her fitness as a parent, I am gravely concerned that Respondent still cohabitates with Vaughn despite his admitted sexual misconduct toward his minor daughter from a previous relationship and his continued drug use. Furthermore, the children, who are nearly ten and eleven years old, have expressed their desire not to be returned to Respondent’s home.

I share much of Justice Pleicones’ concerns that Mother’s socioeconomic condition was the actual reason her parental rights were terminated.  Note that the factors that led to DSS initially finding her living conditions were unsuitable for children–no heat, no electricity, no running water–were everyone’s conditions two centuries ago and many home’s conditions a century ago. While living in a home without heat, electricity or running water is obviously not ideal, I am unsure how it rises to the level of parental neglect when it was the norm for 99.99% of human existence.  Further, my own children shared a bedroom, as did my father in his childhood.  Failure to live by upper-middle class social norms is not [I hope] evidence of child neglect.

But for the one failed drug test in December 2008 and her inability to adequately provide for the children’s financial needs without the support of Father, it is clear that Mother would have had the children returned to her in December 2008.  Further, given the numerous clean tests before and after that test, one cannot discount Mother’s claim that the result was inaccurate, nor can one establish that Mother had a substance abuse issue.  Most of Mother’s remaining problems were socioeconomic.  She worked continuously, visited continuously and paid child support continuously.  This is not the story of some lazy, drug-addled Mother who make minimal efforts to regain children lost through parental neglect; rather it is a common plight of modern America’s working poor as they struggle for any semblance of stability and upward mobility.

Because the factual histories laid out by the majority and Justice Pleicones have substantial dissimilarities, it’s hard to know whether Sarah W. is a travesty of a decision but it certainly appears that way to me.

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