Court of Appeals reverses termination of parental rights because child not eligible for adoption

The May 12, 2015 Court of Appeals opinion in SCDSS v. Williams, 412 S.C. 458, 772 S.E.2d 279 (Ct.App. 2015), reverses the family court’s decision to terminate Mother’s parental rights to her daughter because Child was not eligible for adoption and therefore the termination was not in Child’s best interests.

In Williams, Child came into emergency protective custody in September 2010 after she was observed to have significant old and fresh bruising. Police and DSS determined Mother had caused the bruising. Upon being forensically interviewed, Child reported sexual abuse from an unknown perpetrator. At the merits hearing, the family court determined Mother and her husband had physically neglected Child and her brother and Child was sexually abused by an unknown perpetrator. The family court ordered Mother to undergo a psychological evaluation and follow all recommendations.

Subsequent paternity testing determined that husband was not Child’s father and identified Father. Father was joined as a party and initially sought placement. Meanwhile a psychologist diagnosed Mother with possible schizophrenia, psycho-affective disorder, or bipolar disorder and believed Child “may have a similar psychiatric disorder [that] would predispose [Mother] to increased anger [and] excessive discipline.”

At the time of the Termination of Parental Rights (TPR) hearing, Child was placed at Three Rivers Residential Facility because she threatened suicide, behaved defiantly, and could not be managed in a therapeutic foster home. She attended an on-site special education school and a “high intensity after class.” Child had lived in nine different placements, including relative placement, foster homes, and another residential facility, and she was in her second residential stay at Three Rivers. Child continued to visit regularly with Mother and Mother’s family and apparently enjoyed these visits, and held out hope of returning to Mother. Mother continued to parent two younger children without the need for DSS intervention.

During the TPR proceedings, DSS agreed to stay the action against Father and provide him a treatment plan. Subsequently DSS and Father entered a court-approved agreement dismissing the TPR action against Father and making Child’s permanent plan an extension of services for the purpose of reunification with Father.

The Court of Appeals found that DSS had proven a statutory ground for termination of parental rights because Child was removed from the Mother’s home “and has been out of the home for a period of six months following the adoption of a placement plan . . . and the parent has not remedied the conditions [that] caused the removal.” S.C. Code § 63-7-2570(2). However the Court of Appeals reversed the TPR as not being in the Child’s best interests, explaining:

[W]e find TPR has no benefit at this time. During oral argument, DSS conceded the current permanent plan was reunification with Father. Terminating Mother’s parental rights while continuing to explore placement with Father does not improve Child’s future. As long as Father retains parental rights, Child is not free for adoption. …If reunification with Father is not ultimately an option and DSS decides to pursue adoption, it will first need to terminate Father’s parental rights. If so, it can revisit whether terminating Mother’s rights is in Child’s best interest at that time. For now, TPR is premature because no viable plan gives Child the family she desperately craves. To deprive her of her own family and give her nothing in return is not in her best interest.

In reversing and remanding for a new permanency plan the Court of Appeals noted that the unique circumstances of this case encouraged potential unorthodox plans, including continued residential facility placement with visitation for Mother and Father and their families.

Williams may be one of those rare appellate decisions in which events subsequent to trial affected the outcome on appeal.  The trial judge ordering TPR could not know that DSS and Father would ultimately reach an agreement to explore placement with Father.  Such a placement plan means there was no benefit to Child in terminating Mother’s parental rights.  Thus, a TPR that may have been beneficial at the time of trial–and may again be beneficial if adoption becomes a realistic option–does not appear to be beneficial as of the date of this opinion.

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