Court of Appeals reverses termination of parental rights as not in child’s best interests

The May 3, 2013 Court of Appeals opinion in SCDSS v. Cameron N. F. L., 403 S.C. 323, 742 S.E.2d 697 (Ct.App 2013), (dig those initials) reversed the termination of parental rights (TPR) of a nine year old special needs child because it found such termination was not in the child’s best interests.

Both the factual and evidentiary issues in this case were rather unusual.  This case started as an intervention action in 2008 due to the deplorable conditions of Mother’s home, allegations of drug abuse, and domestic disputes. At that time, Mother’s home was excessively cluttered and infested with cockroaches.   DSS didn’t actually remove the child for another eight months and, after a merits hearing ten months after removal, the court authorized DSS to forego reasonable efforts to preserve the family.  Between this merits hearing and the termination of parental rights trial in June 2011 Mother gave birth to another child.  DSS investigated, found Mother’s home was safe for an infant, and made no attempt to intervene.

However DSS pushed forward with the TPR of the older child.  Since being removed from Mother’s care, child had been in five different foster homes, remained extremely closely bonded to Mother, and had developmental problems that would have made it hard to place him for adoption.  Further it appears Mother had remedied the conditions that led to the removal.  Despite this two different guardian ad litems and a DSS caseworker were all allowed to opine that TPR was in the child’s best interests.  One of these guardians had not even observed Mother with child.

In explaining the reversal of the family court’s TPR ruling, the Court of Appeals summarized as follows:

We find a valuable bond exists between Child and Mother. During the TPR hearing, both of Child’s GALs and Child’s therapist testified Child misses Mother and Child has a significant bond with Mother. The DSS caseworker testified Child frequently asked when he would see Mother again. Furthermore, Child’s therapist testified Mother’s contact with Child during visitation was appropriate. During oral argument, DSS admitted Child is bonded with Mother. When viewed from Child’s perspective, it is undisputed a significant bond exists.

Additionally, the evidence suggests Child is not a viable candidate for adoption. See S.C. Code Ann. § 63-7-2510 (2010) (“The purpose of [the TPR statute] is to establish procedures for the reasonable and compassionate termination of parental rights where children are abused, neglected, or abandoned in order to protect the health and welfare of these children and make them eligible for adoption….”). At the TPR hearing, Child’s therapist testified she had not discussed adoption with Child because she was trying to get him stabilized, and she was not sure how he would process it. Likewise, the GAL testified she did not believe Child was ready to be adopted. Child is currently nine years old and has several emotional and behavioral issues, including ADHD, oppositional defiant disorder, physical and verbal aggression, neglect issues, self-destructive behaviors, anxiety, and signs of depression. At the time of the TPR hearing, Child was in a group home, and Mother testified he had lived in five foster homes during the first year he was in foster care. During oral argument, DSS indicated Child is currently in a therapeutic foster home. DSS has not identified a pre-adoptive home for Child, and his age coupled with his emotional and behavioral issues suggest a suitable and willing adoptive home may not exist. Accordingly, it is unclear how TPR will ensure future stability for Child.

Based on undisputed evidence of Child’s bond with Mother, the evidence that suggests he is not a viable candidate for adoption, and the fact that DSS has not identified a pre-adoptive home for Child, we hold the family court erred in finding TPR was in Child’s best interest. Although we are cognizant of policy considerations that seek to prevent a child from languishing in foster care, we feel this case is distinguishable due to Child’s strong bond with Mother and DSS’s failure to identify a pre-adoptive home. We do not believe the existence of a bond alone is significant enough to preserve parental rights. Nor do we believe DSS must identify a pre-adoptive home prior to terminating parental rights. Our determination is based solely on the unique facts presented in this case, and we view this decision from the perspective of Child and not Mother. If Child was currently thriving in a pre-adoptive home, or if the evidence suggested Child did not want to see Mother or was not bonded with Mother, our decision might be different.

Reading this opinion it is unclear why anyone might have thought TPR was in the child’s best interests.  Here Mother seems to have remedied the conditions that led to removal relatively quickly thereafter.  My colleagues often recount tales of removal cases languishing in the family court system with the child never getting returned after the parent(s) remedies the conditions that led to removal.  Sometimes such cases devolve into TPR cases out of sheer inertia.   This may have been one such case.  Kudos to Mother’s attorney, Andrew R. Havran, for reversing this TPR.

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