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Court of Appeals vacates removal and TPR orders due to lack of subject matter jurisdiction

In the October 10, 2016 opinion in SCDSS v. Tran, 418 S.C. 308, 792 S.E.2d 254 (Ct.App. 2016), the South Carolina Court of Appeals vacated the family court’s removal order and termination of parental rights order, finding that DSS had failed to establish subject matter jurisdiction under the UCCJEA. Initially I thought the Court of Appeals was correct–even stating the same to South Carolina Lawyers Weekly. Upon further reflection, and after rereading the opinion, I think the Court of Appeals erred.

The procedural history of the case is somewhat convoluted. This case began as a removal action on May 21, 2012, when Mother—who was traveling through South Carolina—was admitted to the hospital due to an “altered mental status.” DSS received allegations that Mother “was found sitting in the middle of the road and was not very responsive,” Child was with her, and Mother could not identify a family member to pick up Child. Mother was still hospitalized when the family court held a probable cause hearing on May 24, 2012; the family court determined probable cause existed to remove Child and granted DSS custody of Child “[p]ending further orders.”

In a December 3, 2012 merits removal order, the family court found Mother placed Child at a substantial risk of harm of physical neglect and returning Child to Mother’s home would place Child at an unreasonable risk of harm. The family court granted DSS custody of Child and ordered Mother to complete a placement plan. Mother did not initially appeal that order.

On March 6, 2014, the family court held a TPR hearing. Mother was not present, and the family court denied her request for a continuance. The family court found clear and convincing evidence showed Mother failed to remedy the conditions causing removal, Child had been in foster care for fifteen of the most previous twenty-two months, and TPR was in Child’s best interest.

Mother filed a motion for reconsideration alleging she was a survivor of domestic abuse and had a pending case in Philadelphia County, Pennsylvania. The family court held a hearing on Mother’s motion. During the hearing, Mother asserted “there was a case in Philadelphia in 2005 that she believed Child was going to be required to go back to.” It also appeared there may have been prior custody litigation in Georgia. However, the family court, citing Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999), for the proposition that merits orders are final orders which must be timely appealed, determined that the removal order established subject matter jurisdiction in South Carolina. Since subject matter jurisdiction was established in the prior case, it held she could not challenge it in the TPR case. Mother appealed.

The Court of Appeals reversed, vacating both the removal order and the TPR order. It held that once Mother made some showing of prior custody orders from Pennsylvania (and possibly Georgia), DSS needed to establish subject matter jurisdiction before proceeding to the merits of the case. The Court of Appeals kept emergency jurisdiction in South Carolina but ordered (citations omitted):

On remand, the family court shall determine whether the Cobb County, Georgia order was a valid order under the UCCJEA. If so, the family court shall communicate with the court in Cobb County to “resolve the emergency.” If Georgia declines jurisdiction, the family court shall request Georgia issue an order finding it no longer retains exclusive, continuing jurisdiction; if Georgia issues such an order, DSS may proceed to properly establish jurisdiction under the UCCJEA and initiate another removal action.

If the family court determines the Cobb County order was not a valid order under the UCCJEA, it shall then determine whether the Pennsylvania order was a valid order under the UCCJEA. If it was, the family court shall communicate with the Pennsylvania court to “resolve the emergency.” If Pennsylvania declines jurisdiction, the family court shall request Pennsylvania issue an order finding it no longer retains exclusive, continuing jurisdiction Pennsylvania Courts do not have jurisdiction over the matter of custody of this minor child.

Initially, I believe the Court of Appeals decided this matter correctly: subject matter jurisdiction can be raised at any time. Ideally, the family court would have established subject matter jurisdiction in the removal action, Mother’s failure to address that issue in the removal action established subject matter jurisdiction in South Carolina. As the family court noted, the removal order was a final order that Mother did not appeal. A determination from an unappealed order becomes “the law of the case.” E.g., Simpson v. Simpson, 404 S.C. 563, 746 S.E.2d 54 (Ct.App. 2013). When Mother didn’t appeal the removal order, she established “the law of the case,” and that law established subject matter jurisdiction in South Carolina.

While lack of subject matter jurisdiction can be raised any time in a case, the removal case was over. In theory Mother could have collaterally attached the removal order through a Rule 60(b)(4) motion, but she did not do that. Even a poorly reasoned final order becomes binding when the time to appeal has expired. E.g., Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013). I believe that when Mother failed to appeal the removal order, she waived any subsequent challenge to subject matter jurisdiction in South Carolina. She should not have been allowed to collaterally attack the removal order through the TPR appeal and the removal order established the law of the case that South Carolina had subject matter jurisdiction.

Can you collaterally attack a final order’s determination of subject matter jurisdiction on appeal of a subsequent final order? I would think not; the Court of Appeals thinks otherwise.  It will be interesting to see if the South Carolina Supreme Court is asked, and decides, to weigh in.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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  • Roy Stuckey

    Greg,

    I have not studied the case as thoroughly as you have, and I do not have an opinion of whether the Court of Appeals was right or wrong. However, if the family court did not have subject matter jurisdiction, any action it took was void. See Marital Litigation, 4th, at page 2. If its action was void, the action can be challenged anytime, anywhere.

    Do you have a citation for the proposition that “”when Mother failed to appeal the removal order, she waived any subsequent challenge to subject matter jurisdiction”?

    It is clear that the family court had temporary emergency jurisdiction, but it is not clear if the court or DSS followed the procedures set forth in SC Code section 63-15-336. See Marital Litigation at page 444. Shouldn’t someone have asked her if there had been custody litigation in another jurisdiction?

    Thank you for your diligence in reporting on these cases and your willingness to share your analysis. I agree with you 99.9% of the time. You may be right this time, too, but I do not know how you get around the voidness of actions taken without subject matter jurisdiction.

    • Gregory Forman

      I might agree if they were considering a Rule 60(b)(4) motion on the removal order. However that is not the posture the case was brought to them in. There is a final, upappealed, ruling in the removal case that finds subject matter jurisdiction. I believe that remains controlling.

  • Though I haven’t yet read the opinion, I agree with Roy Stuckey above based on research I’ve done for several of my recent cases.

    Failure to establish SMJ (or issuing an order when SMJ is lacking) is a due process problem (this is in the case law analyzing 60(b)(4) as provided in the federal rules) and anything that flows from is it also a due process problem.

    You can’t constitutionally TPR a parent for a child being in foster care for too long, or for not completing a treatment plan that was ordered, based on an order that the court never had the right to treat as final in the first place.

    Yes, Mother should’ve formally raised the issue of litigation in other jurisdictions sooner, but given her lack of participation at trial, I’d imagine the record is pretty bare on facts indicating whether or not she tried to notify DSS less formally.

  • I think that jurisdiction can’t be waived unless specifically done, if so, we wouldn’t have double jeopardy proctections; ex parte Lang and Mena vs. New York; who knows what mental condition this woman was in to competently waive these rights, that isn’t reflected in the case at bar

  • Abigail Duffy

    I had a UCCJEA case several years back and did research on the ability to waive UCCJEA jurisdiction. The Federal law is clear that UCCJEA jurisdiction cannot be waived by a litigant. Only the state having controlling jurisdiction can give clearance for jurisdiction to transfer. I agree with Roy and Megan as to the voiding of the underlying order; and I agree with the Court of Appeals decision.

  • If the removal order had not already “established” subject matter jurisdiction, I would agree with the Court of Appeals. However the removal order was a final, unappealed order.

    Procedurally, the method to collaterally attack a final order when there is a claim of lack of subject matter jurisdiction is through a Rule 60(b)(4) motion. I have done research in the past on whether a court should automatically vacate a final order when there is a valid argument that the court originally lacked subject matter jurisdiction and the law was not uniformly in favor of vacating the final order. This law review article, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality, provides a useful summary of the current law (and the lack of clarity within the law).

    Given that the family court clearly had subject matter jurisdiction for emergency jurisdiction in the initial removal action and given that mother took no steps to invoke other state’s jurisdiction for well over two years, I would not have vacated the South Carolina orders.

    • Greg, I was researching something unrelated the other day and stumbled on the line of cases that hold that a collateral attack on a void order is allowed. Take a look at footnote 2 here: https://scholar.google.com/scholar_case?case=3913494846710127754&hl=en&as_sdt=6,41&as_vis=1 and the case that it cites to in that footnote.

      Collateral attack is generally allowed under 60(b) by its terms (“This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, “or” to set aside a judgment for fraud upon the court.)

      It makes sense to me that a void judgment (for failure to provide due process resulting from the court lacking SMJ) would be subject to collateral attack like a separate action is allowed in the event of extrinsic fraud. That is also in line with the premise that procedural rules have to yield to constitutional requirements (e.g. substance over form).

    • Also, re: exercise of emergency SMJ — the S.C. Code does specifically provide jurisdiction for custody of the child to address emergency situations. Without doing any research on statutory intent, I think the statute is constitutional on the basis that parents have the right to due process (SMJ), but that children also have the right to substantive due process (bodily security and integrity), and that when forced to choose between the two, the child is less able to advocate for himself and must be protected by the state, but not to the extent of completely denying the parent due process; hence what is essentially an expiration of SMJ.

  • I had my rights tpred and i need help. It was in 2012 when they took my children. In 2013 they tpred me they said they couldnt find me but i was in jail for 45 days. There has to be someone that could help me, my youngest son is 17 but what they did is wrong!!!! There is a lot more to my story but i would like to tell someone that could help me!!! Please and thank you.

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