Two recent unpublished termination of parental rights opinions that should have been published

Within the past week the South Carolina Court of Appeals has issued two unpublished opinions reversing two family court decisions to terminate a parent’s parental rights on the basis that the Department of Social Services (DSS) failed to meet its burden of proof. Both cases successfully challenged the statutory ground for termination.  In one of these cases the parent did not challenge the finding that termination of parental rights (TPR) was in the minor child’s best interests –a strategy that complexly reverses a strategy I recently advocated in defending TPR cases.

On March 26, 2015, in the case of South Carolina Department of Social Services v. Miller, the Court of Appeals reversed a TPR finding against Mother. In Miller, Mother’s then four-month old daughter was taken in DSS custody after she was treated at the hospital for injuries consistent with blunt force trauma or shaken baby syndrome. Neither Mother nor Father could explain how the child was injured and, at the merits hearing, the family court found that both parents had abused her. The original treatment plan was reunification.

Mother subsequently gave birth to a son. When son was seven weeks old, Father took him to the hospital due to severe injuries. Son died a few days later from these injuries. Father later confessed that he had caused the injuries to both children but denied that Mother was aware he had done so. Shortly after son’s death, DSS filed a TPR action against Mother over the daughter. The family court terminated both parents’ parental rights and Mother appealed.

The sole statutory basis for terminating Mother’s parental rights was that:

[T]he 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 Court of Appeals determined that DSS had failed to meet its “clear and convincing evidence” burden on this statutory ground–specifically that DSS had not proven Mother’s home could not be made safe within twelve months. DSS argued daughter’s injuries were severe enough to show Mother’s home could not be made safe because Mother lacked a protective capacity, but DSS presented no evidence to support that position, and there was no evidence that Mother was aware of Father’s abuse of son. Further, Mother no longer planned to be with Father, and because Father recently pled guilty to criminal charges and faced prison time, the threat of Father was removed from Mother’s home. The Court of Appeals noted that while there was some evidence that Mother was aware Father had abused the children sufficient to meet the “preponderance of the evidence” standard for a merit’s finding, this evidence did not meet the “clear and convincing evidence” standard for TPR. Accordingly it reversed the TPR.

Five days later, in South Carolina Department of Social Services v. Gosnell, the Court of Appeals, in a 2-1 decision, reversed another TPR finding. In Gosnell, Mother’s children were removed in October 2012 because she and one child had tested positive for methamphetamines. Mother was given a treatment plan and she complied with all aspects of that treatment plan. However she failed a June 11, 2013 test with a 599 picograms per milligram (ppm) test result where anything below 500 ppm was considered a negative test. She passed numerous drug tests both before and after the June 11th test. She claimed the positive test may have been the result of “contact exposure” at her Narcotics Anonymous meeting.

The family court terminated Mother’s parental rights on three bases: (1) she failed to remedy the conditions that caused removal; (2) the children were harmed, and because of the severity or repetition of the abuse or neglect, it was not reasonably likely the home could be made safe within twelve months; and (3) she had a diagnosable condition of drug addiction that was unlikely to change within a reasonable time and made her unlikely to provide minimally acceptable care for the children.

The Court of Appeals reversed. It determined that the primary justification for the finding on all three bases to terminate Mother’s parental rights was the failed June 11th drug test and rejected the family court’s findings. It held that “the record shows Mother took meaningful steps to address her drug problem… Specifically, Mother passed multiple drug tests since the June 11 test, attended NA meetings almost daily, and spoke with her sponsor regularly. ” It therefore determined that she had remedied the condition that led to removal.

The court also found that “she had distanced herself from individuals with whom she once used drugs.” Therefore it determined her home could be made safe for the children. Finally it found that the one failed test, which was followed by numerous passed tests, “does not clearly and convincingly show Mother has a diagnosable condition that is unlikely to change within a reasonable time.” Having determined there was no statutory ground for TPR the court did not need to make a “best interests” analysis.

S.C. Code Ann. § 18-9-280 authorizes unpublished opinions in limited circumstances:

[T]he Court may file memorandum opinions in unanimous decisions when the Court determines that a full written opinion would have no precedential value and any one or more of the following circumstances exists and is dispositive of a matter submitted to the Court for decision: (1) that a judgment of the trial court is based on findings of fact which are not clearly erroneous; (2) that the evidence of a jury verdict is not insufficient; (3) that the order of an administrative agency is supported by such quantum of evidence as prescribed by the statute or law under which judicial review is permitted; (4) that no error of law appears.

The Gosnell opinion was not unanimous, neither decision was affirmed by the Court of Appeals, and both deal with novel issues of interpretation of the grounds for TPR. Miller is a rare family court case discussing differing burdens of proof. These opinions should have been published.

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