Despite children already being removed, reversible error for family court to order removal in a DSS intervention case

Posted Wednesday, September 1st, 2010 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Today’s Court of Appeals opinion in SCDSS v. Randy S., 390 S.C. 100, 700 S.E.2d 250 (Ct.App. 2010), reverses the family court’s decision to remove children from the Father’s care, where DSS brought the lawsuit against Father as an action for intervention[1] rather than for removal.[2]

Randy S. seems like a strange case for the appellate courts to suddenly be demanding strict compliance with notice requirements in pleadings.  Recent reported cases from both the Supreme Court and the Court of Appeals took a much more loosey-goosey approach to pleadings.  In Randy S., with the parents’ approval, DSS removed the children from the parents’ care and placed them with an aunt.  DSS then filed an action for intervention.  It is unclear why DSS filed this action as one for intervention rather than one for removal.  However, at the time DSS filed the intervention action, the children had already been removed from Father’s custody.

In two merits hearings, one in April 2007 and one in October 2008, the family court ordered removal of the children from Father’s care.  In June 2007, after the first merits trial but before the family court issued its ruling on the merits, Father, for the first time, sought return of the children based on a claim that the DSS pleadings only sought intervention, not removal.  After the October 2008 trial, the family court awarded permanent custody to the aunt and allowed DSS to close its case.  Only then did Father appeal.

The Court of Appeals agreed that since the DSS action was only for intervention the family court could not order removal.  However, the Court of Appeals noted that the children, who were  four years old and three weeks old at the time of their removal, have been in aunt’s care for four years.  Thus the Court of Appeals did not order return of the children to Father but instead remanded the matter back for an expedited permanency planning hearing.

Quite a few oddities in this case.  One is why the unappealed August 20, 2007 order from the first merits hearing (which left the children with aunt) and the November 9, 2007 order from Father’s June 2007 motion for return were not treated as “the law of the case” thereby foreclosing Father’s right to challenge the removal.  Another is why an appellate court would suddenly get so technical on pleadings, as it was obvious DSS was seeking removal given that the children had been removed at the time this action was filed.  Finally, nothing in the opinion indicates why Father couldn’t safely parent his children: the Court of Appeals opinion references Mother’s drug use but is silent on Father’s problems.

One thing is certain: over four years into this “intervention,” the lives of Randy S. and his children appear no more stable than they were than when DSS and the family court first became involved.

[1]An action that seeks court ordered treatment for a child’s caretaker without requesting removal of the child from the caretaker.

[2]An action that seeks removal of a child from its caregiver until that caregiver receives treatment that removes or greatly reduces the risk of abuse or neglect of the child.

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