I think they call this chutzpah

Posted Thursday, March 27th, 2014 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 March 27, 2014 Supreme Court opinion SCDSS v. Michelle G.407 S.C. 499, 757 S.E.2d 388 (2014), addresses a 14th Amendment challenge to South Carolina’s termination of parental rights (TPR) statute, S.C. Code § 63-7-2570(1).  Specifically Mother argued that the term “severity” was unconstitutionally vague in the subsection authorizing TPR when:

The child or another child while residing in the parent’s domicile has been harmed as defined in Section 63-7-20, and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent’s previous abuse or neglect of the child or another child may be considered.

The Mother’s actions in this case towards her two now-adult children include the following:

• On their wedding night, allowing her new husband (Stepfather) to have sex with her daughter in her presence

• Requiring her daughter, at Stepfather’s command, to perform sexual acts for a webcam

• On repeated occasions performing oral sex on her daughter

• Having sex with her son

• Allowing her daughter to be repeatedly raped by Stepfather (the daughter actual bore two children by the Stepfather).

The family court terminated mother’s parental rights to her two younger sons.  The court expressed concern that, “[d]uring the testimony of [Appellant], at no time did she accept responsibility for the abuse…” and that she “had failed to adequately protect her children, who had been abused by Appellant, Biological Father, and Stepfather.”  Finding that Mother’s past behavior and failure to accept responsibility made it “not reasonably likely that the home can be made safe within twelve (12) months,” the court found “termination of Appellant’s parental rights was in the best interests of her minor sons.”

On appeal Mother claimed that “use of the undefined term ‘severity’ in the statute and argue[d] section 63-7-2570(1) ‘permits [TPR] to be wantonly and freakishly meted out to a parent whose conduct is subjectively, arbitrarily and capriciously determined to be ‘Severe[.]’” The Supreme Court rejected this argument, noting “when raising a claim of unconstitutional vagueness, the litigant must demonstrate that the challenged statute is vague as applied to his own conduct, regardless of its potentially vague application to others.”

In rejecting Mother’s vagueness challenge the Supreme Court quoted the family court judge:

And severity, [] having sexual intercourse with your son, I mean, I can’t even believe I’m having to say this, . . . that is definitely severe and I . . . don’t see how anybody could interpret that any differently. And having sexual intercourse with your daughter[;] being present while your husband is raping your child. All of that would definitely fall within the definition of severity and repetition.

In twenty years of family law practice I cannot recall a more disgusting case of child sexual abuse than that described here.  Further, short of child homicide, I cannot recall any more severe case of child abuse.  Yet give Mother and her attorney credit for making this constitutional challenge: to claim Mother was not on notice that her conduct could be considered “severe” is a level of chutzpah at which one can only marvel.

10 thoughts on I think they call this chutzpah

  1. Pity the lawyer who had to argue that in front of the Supreme Court. I assume these people are all in Prison now.

    1. I pity even more the Justices and their law clerks who had to sift through that horrible, horrible record on appeal.

  2. MJ Goodwin says:

    It was the most severe and freakish thing here in a long time. Kathy Hodges did a masterful job.

    1. That’s where the chutzpah comes in. To claim that the statue is vague on those facts is simply audacious.

    2. Thanks for reminding me that Ms. Hodges, the winning attorney, is a fellow Haverford College alumni.

  3. Natalie Bluestein says:

    I think this goes way beyond chutzpah! I hope mom, dad, and stepfather all rot in jail.

  4. I certainly do not want do defend what appears to be outrageous, outlandish, illegal, and abusive conduct; however, many of us have had appellate decisions where we did not recognize the facts as written by the appellate court or where we were stunned by the absence of facts favorable to our clients in appellate opinions.

    All of you are probably right regarding this offensive conduct; however, I am reluctant to accept it as gospel without at least reading the briefs.

    As a United States Supreme Court Justice once said, “We are right because we are last, not last because we are right.”

    Also, I admire lawyers who have the guts to represent unpopular clients and unpopular causes. They are the true heroes of our profession.

    1. Thomas,

      If the Mother’s attorney had disputed the factual allegations on appeal I might agree with you. It appears the facts were undisputed (though Mother attempted to justify her acts) but that Mother’s argument was she wasn’t on notice that these acts were “severe.” That, my friend, is chutzpah.

  5. As a non-attorney mediator and former GAL for DSS abuse and neglect cases, I read Greg’s posts with interest. This post was fascinating in the way that you-can’t-look-away-from-car-wreck kind of fascination. To say that this case reeks of repugnance to a level I seldom see, is an understatement . With our system of jurisprudence, I know we need attorneys to represent the repugnant. To that end, thank you, counselor.

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