Supreme Court finds harmless error in denial of counsel for termination of parental rights

Posted Friday, May 10th, 2013 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The May 8, 2013 Supreme Court opinion in Broom v. Jennifer, 403 S.C. 96, 742 S.E.2d 382 (2013), affirmed a termination of parental rights (TPR) despite the appellant Mother having apparently completed the treatment plan from the removal action and being erroneously denied counsel at the beginning of the TPR proceedings.

The Child at issue was initially removed from Mother’s care at age five months, after the Child tested positive for cocaine.  At that time Mother was an admitted drug abuser who was living in crowded, squalid conditions.  A week later Child was placed in foster care with the Brooms.  At the merits hearing Mother was found to have physically abused and neglected the Child and was given a treatment plan.  Mother continued to use cocaine and at the permanency planning hearing admitted that her Child should remain in foster care because her home was not yet safe.

Between the first and second permanency planning hearings Mother was charged with second degree burglary and incarcerated for two months before entering pre-trial intervention.  At this second hearing, twenty months after the initial removal, she acknowledged her Child faced an unreasonable risk of harm from her not having completed the treatment plan.  The next month the Brooms filed to terminate Mother’s parental rights and to adopt Child.

At the first temporary hearing in the TPR case the family court denied Mother court-appointing counsel, finding she was not entitled to such counsel because the action was not brought by DSS.  One week prior to the initial trial date, Mother retained South Carolina Legal Services to represent her.  The court agreed to continue the matter to give her new counsel time to prepare.  There were four additional continuances of the trial date that were not due to Mother which delayed trial another year.

At trial the DSS caseworker assigned to Child testified about the visitation between Mother and Child, stating Child often cried during the visitation and did not identify Mother as her parent. She also presented a visitation log which showed that Mother typically visited Child for one hour once per month. Mother only exercised her minimum, twice per month visitation in two of the fifty months Child had been in foster care. She did not visit Child for eight months from December 21, 2007, to August 30, 2008. She also failed to visit Child in eleven other months. Mother exercised only thirty-four of the minimum one hundred visits she was permitted to make.

The family court ordered termination of parental rights, finding that Mother had willfully failed to visit Child and that the Child had been in foster care for fifteen of twenty-two months.  The family court rejected Mother’s claim that the reason Child languished in foster care was due to court delays that were not within her control, finding that the child had already been in foster care over fifteen months prior to these delays.  It further found that TPR was in Child’s best interest as Child had thrived in the Brooms’ care.

Mother appealed on three issues.  The first was the denial of counsel.  The Supreme Court held that she was improperly denied counsel but that reversal was not required because she was not prejudiced by the denial:

S.C. Code §63-7-2560(A) now provides an absolute statutory  right to counsel for indigent parents subject to TPR proceedings. The statutory language could not be clearer in providing that an indigent parent must be appointed counsel. Furthermore, the absolute nature of the requirement is especially manifest in light of the fact that the current statute replaced a statute requiring counsel only on a case-by-case basis.

Here, Mother was denied counsel because the TPR action was a private action rather than one filed by DSS. However, Section 63-7-2560(A) makes no distinction based on the party seeking the termination of parental rights. Rather, it provides that any indigent parent subject to “a termination of parental rights proceeding” must be provided counsel. S.C. Code § 63-7-2560(A). Thus, the denial of counsel was erroneous.

In considering whether the denial of counsel requires reversal, we are mindful that TPR actions are markedly different from criminal cases, the area in which the denial of counsel commonly arises. While the remedy of reversing and remanding for the appointment of counsel and a new trial where a defendant is denied counsel is appropriate in a criminal case, that is not necessarily true in the TPR context. In a sense, the facts of a criminal trial are frozen in time. However, a family court considering the termination of parental rights must make a decision as to what is best for the child going forward. Thus, the merits of a TPR action can change during the pendency of the action, whereas the merits of a criminal trial do not ordinarily change during its pendency. Additionally, while criminal cases are focused on the rights of the defendant, a TPR action must consider both the right of the parent to raise her child and the child’s best interest.

In short, unlike a criminal case, it may be impossible to truly remedy the denial of counsel in a TPR action. The best interest of a child changes with the passage of time, and thus there is no way to turn back the hands of time and put a parent in the position she would have been in had she not been denied counsel. Furthermore, simply ordering the child to be returned to the parent may be neither a just nor proper remedy because the best interest of the child is paramount and may not be served by that remedy.

For those reasons, we elect to join other courts in holding that where a parent is deprived of counsel for some time prior to the final TPR hearing, but has counsel at the final hearing, the decision will only be reversed where the denial of counsel prejudiced the parent.

In determining Mother was not prejudiced by the denial of counsel the Supreme Court found:

Here, while the lack of counsel likely delayed the resolution of the case, we find that it did not affect the outcome. Even had counsel been present, the statutory grounds for termination would have been satisfied and it would have been in Child’s best interest for Mother’s parental rights to be terminated. Child was placed in foster care on August 24, 2007, and while the exact date is not clear from the record, Mother’s appointed attorney did not cease representing her until after April 2, 2009.  At that point, Child had already been in foster care for nineteen months, and thus the fifteen months in foster care was already satisfied while she was still represented by counsel.

Also, assuming her counsel abandoned her following the hearing on April 2, 2009, Mother was unrepresented for only sixteen months before she obtained representation from S.C. Legal Services in August of 2010. That sixteen months represents only a small portion of the fifty months Child had been in foster care at the time of the final hearing. It is inescapable that a longer period of delay in the resolution of this case—the nineteen months between the removal of Child in August 2007 and the permanency planning hearing in April 2009—was due to Mother’s failure to satisfy her treatment plan. Also, Mother was not even capable of having Child returned for some portion of the sixteen months she was unrepresented as she agreed at the April 2, 2009 permanency planning hearing that she had not yet completed the treatment plan and was not ready to have Child returned to her.

Furthermore, Mother was again represented for fifteen months from August 2010 until the final hearing in November 2011, and she never filed a motion for the return of Child during that time. Additionally, that fifteen month period means that the fifteen of the most recent twenty-two months in foster care ground for TPR was satisfied even excluding the time before she obtained counsel in the TPR action.

Finally, even if the lack of counsel affected the length of time Child remained in foster care, the failure to visit ground for termination was still satisfied. Mother did not argue that the lack of counsel affected her ability to visit Child, nor do we see how it could have. To the contrary, Mother did not provide any explanation beyond her own conduct for the majority of the visits she missed. Therefore, we conclude her denial of counsel was not prejudicial.

Mother’s second challenge was that the Brooms had failed to prove statutory grounds for TPR by clear and convincing evidence.  For reasons noted above the Supreme Court disagreed, finding that Mother’s drug use was the reason Child languished in foster care and that her failure to visit was willful.

Mother’s third ground for appeal was that the court allowed a bonding expert to testify at trial without this witness or his report being disclosed prior to trial.  The Supreme Court found this issue abandoned on appeal:

Issues raised in a brief but not supported by authority may be deemed abandoned and not considered on appeal. Her brief cites no authority, other than Family Court Rule 25 which only encourages the prompt exchange of information, in support of her position. She also presents no argument as to how the family court’s ruling was an abuse of  discretion or prejudiced her.

Citation omitted.

While not having read Mother’s brief, I find the Supreme Court’s analysis of this issue curious.  There’s plenty of case law in which the courts have prevented undisclosed witnesses from testifying.  One would think having limited ability to counter expert testimony that Child was not closely bonded to Mother and was closely bonded to the Brooms would be inherently prejudicial.

While one can certainly understand why the Supreme Court upheld this TPR–Mother’s actions caused an infant to languish in foster care for over four years–it seems likely that with more aggressive counsel she might have gotten Child returned.  At an April 2009 hearing the family court indicated that the Mother would be ready to have the child returned in October 2009 (when she completed the treatment plan).  At some point Mother appears to have completed the treatment plan but no hearing was set to get Child returned.  As Justice Hearn’s opinion notes, “DSS policy apparently—and remarkably—does not require the automatic scheduling of a hearing when a parent completes a treatment plan…” This may be remarkable to Justice Hearn but it’s not remarkable to anyone who represents parents in abuse and neglect cases.

The Supreme Court’s opinion seems to hint that Mother’s court-appointed counsel for the removal case basically abandoned her and, without counsel to push DSS, a hearing to get Child returned was never set.  My own experience is that it is often difficult to get back into court when a parent completes the treatment plan, especially when DSS or the guardian do not support the child’s return.  Numerous removal cases devolve into TPR cases because there is no automatic procedure for a hearing when a parent completes the treatment plan.

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