Court of Appeals vacates removal and TPR orders due to lack of subject matter jurisdiction

In the October 10, 2016 opinion in SCDSS v. Tran, 418 S.C. 308, 792 S.E.2d 254 (Ct.App. 2016), the South Carolina Court of Appeals vacated the family court’s removal order and termination of parental rights order, finding that DSS had failed to establish subject matter jurisdiction under the UCCJEA. Initially I thought the Court of Appeals was correct–even stating the same to South Carolina Lawyers Weekly. Upon further reflection, and after rereading the opinion, I think the Court of Appeals erred.

The procedural history of the case is somewhat convoluted. This case began as a removal action on May 21, 2012, when Mother—who was traveling through South Carolina—was admitted to the hospital due to an “altered mental status.” DSS received allegations that Mother “was found sitting in the middle of the road and was not very responsive,” Child was with her, and Mother could not identify a family member to pick up Child. Mother was still hospitalized when the family court held a probable cause hearing on May 24, 2012; the family court determined probable cause existed to remove Child and granted DSS custody of Child “[p]ending further orders.”

In a December 3, 2012 merits removal order, the family court found Mother placed Child at a substantial risk of harm of physical neglect and returning Child to Mother’s home would place Child at an unreasonable risk of harm. The family court granted DSS custody of Child and ordered Mother to complete a placement plan. Mother did not initially appeal that order.

On March 6, 2014, the family court held a TPR hearing. Mother was not present, and the family court denied her request for a continuance. The family court found clear and convincing evidence showed Mother failed to remedy the conditions causing removal, Child had been in foster care for fifteen of the most previous twenty-two months, and TPR was in Child’s best interest.

Mother filed a motion for reconsideration alleging she was a survivor of domestic abuse and had a pending case in Philadelphia County, Pennsylvania. The family court held a hearing on Mother’s motion. During the hearing, Mother asserted “there was a case in Philadelphia in 2005 that she believed Child was going to be required to go back to.” It also appeared there may have been prior custody litigation in Georgia. However, the family court, citing Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999), for the proposition that merits orders are final orders which must be timely appealed, determined that the removal order established subject matter jurisdiction in South Carolina. Since subject matter jurisdiction was established in the prior case, it held she could not challenge it in the TPR case. Mother appealed.

The Court of Appeals reversed, vacating both the removal order and the TPR order. It held that once Mother made some showing of prior custody orders from Pennsylvania (and possibly Georgia), DSS needed to establish subject matter jurisdiction before proceeding to the merits of the case. The Court of Appeals kept emergency jurisdiction in South Carolina but ordered (citations omitted):

On remand, the family court shall determine whether the Cobb County, Georgia order was a valid order under the UCCJEA. If so, the family court shall communicate with the court in Cobb County to “resolve the emergency.” If Georgia declines jurisdiction, the family court shall request Georgia issue an order finding it no longer retains exclusive, continuing jurisdiction; if Georgia issues such an order, DSS may proceed to properly establish jurisdiction under the UCCJEA and initiate another removal action.

If the family court determines the Cobb County order was not a valid order under the UCCJEA, it shall then determine whether the Pennsylvania order was a valid order under the UCCJEA. If it was, the family court shall communicate with the Pennsylvania court to “resolve the emergency.” If Pennsylvania declines jurisdiction, the family court shall request Pennsylvania issue an order finding it no longer retains exclusive, continuing jurisdiction Pennsylvania Courts do not have jurisdiction over the matter of custody of this minor child.

Initially, I believe the Court of Appeals decided this matter correctly: subject matter jurisdiction can be raised at any time. Ideally, the family court would have established subject matter jurisdiction in the removal action, Mother’s failure to address that issue in the removal action established subject matter jurisdiction in South Carolina. As the family court noted, the removal order was a final order that Mother did not appeal. A determination from an unappealed order becomes “the law of the case.” E.g., Simpson v. Simpson, 404 S.C. 563, 746 S.E.2d 54 (Ct.App. 2013). When Mother didn’t appeal the removal order, she established “the law of the case,” and that law established subject matter jurisdiction in South Carolina.

While lack of subject matter jurisdiction can be raised any time in a case, the removal case was over. In theory Mother could have collaterally attached the removal order through a Rule 60(b)(4) motion, but she did not do that. Even a poorly reasoned final order becomes binding when the time to appeal has expired. E.g., Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013). I believe that when Mother failed to appeal the removal order, she waived any subsequent challenge to subject matter jurisdiction in South Carolina. She should not have been allowed to collaterally attack the removal order through the TPR appeal and the removal order established the law of the case that South Carolina had subject matter jurisdiction.

Can you collaterally attack a final order’s determination of subject matter jurisdiction on appeal of a subsequent final order? I would think not; the Court of Appeals thinks otherwise.  It will be interesting to see if the South Carolina Supreme Court is asked, and decides, to weigh in.

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