Substituted, published Court of Appeals opinion clarifies terminating parental rights of incarcerated parents

Posted Tuesday, March 7th, 2017 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

N.B. On May 9, 2018 the Supreme Court reversed this decision.  SeeSupreme Court reinstates termination of father’s parental rights and authorizes foster parent adoption

On March 3, 2017, with no announcement I can locate, the South Carolina Court of Appeals substituted and published its March 1, 2017 opinion in SCDSS v. Smith, 419 S.C. 301, 797 S.E.2d 740 (Ct. App. 2017).  This opinion reverses a termination of an incarcerated Father’s parental rights and the granting of an adoption to the child’s Foster Parents. It remands the matter back to the family court for a permanency planning hearing.

The Court of Appeals initially noted that Foster Parents lacked standing to seek an adoption. It held the Foster Parents had standing to bring a TPR [Termination of Parental Rights] action but not an adoption action. Further, the Foster Parents did not appeal the family court’s finding that they did not have standing.  Thus, this became the law of the case. That Foster Parents have standing to bring a TPR action but not an adoption action is an inexplicable peculiarity of South Carolina family law.

The Court of Appeals next examined the three statutory grounds the family court had found to terminate Father’s parental rights, abandonment, willful failure to visit and willful failure to support. Father had outstanding bench warrants at the time he learned Mother was pregnant with his child. He voluntarily surrendered to the police so he could begin his sentence and be released as soon after Child’s birth as possible and avoid having outstanding warrants hanging over his head after Child’s birth. Father was still incarcerated at the time of trial. The family court found Father’s incarceration demonstrated abandonment and a willful failure to visit. The Court of Appeals disagreed, citing the following facts:

Father (1) voluntarily started his prison term early so he could complete the sentence as soon as possible, (2) sent a letter to the DSS caseworker expressing his desire to visit Child, (3) asked for Foster Parents’ telephone number so he could call Child, (4) asked Grandmother to use $50 per month to support Child instead of sending it to Father in prison, (5) sent a letter to his attorney asking for an update on the case, (6) voluntarily signed an affidavit acknowledging paternity, (7) obtained a DNA test proving paternity even though DSS failed to assist with the test, (8) sent a letter to the GAL seeking to pursue a relationship with Child, (9) completed and returned a questionnaire from the GAL within one week, and (10) sent Child a birthday card expressing his love for Child.

On the issue of whether Father’s incarceration was evidence of a willful failure to visit, the Court of Appeals noted, as relevant, that Father’s lawless behavior predated his knowledge of the child’s conception:

To the extent Father’s incarceration was the result of his own lawless conduct, Father committed his criminal actions prior to Mother becoming pregnant with Child, and he surrendered after learning of the pregnancy so that he could begin his sentence immediately. As a result, Father’s lawless conduct in this case was not highly probative of willfulness. Therefore, after reviewing all of the facts and circumstances in the record, we find the family court erred by determining a statutory ground for TPR existed based on a willful failure to visit.

Citation omitted.

The Court of Appeals further found that there was not clear and convincing evidence of Father’s willful failure to support. In doing so it found that support his mother provide the child from April 2014 forward of approximately $50.00 per month was relevant and sufficient. In approximately April 2014, Father asked Grandmother to stop sending $50.00 per month to his prison account and instead use those funds to provide support for the child. She started doing so. In finding Grandmother’s support defeated a finding of willfulness on Father’s alleged failure to support the Court of Appeals wrote:

We find no case law in this state prohibiting the family court from considering a parent’s support made through a third party as part of all of the facts and circumstances that could provide insight on the issue of willfulness. These actions by Father and Grandmother showed a strong desire by Father to support Child and, at a minimum, refuted any assertion that Father’s conduct evinced a settled purpose to forego his parental duties. This conduct was sufficient to cure any earlier willful failure to support by Father.

The Court of Appeals noted that this ground may have existed from the child’s birth in May 2013 until approximately April 2014. However Father’s action from April 2014 forward were curative:

[A] a party seeking TPR under this statutory ground may not merely point to any six month period in which a parent willfully failed to support. Under our case law, a parent’s earlier failure to support may be cured by the parent’s subsequent repentant conduct. Once conduct constituting a failure to support is shown to have existed, the court must then determine whether the parent’s subsequent conduct was of a sufficient nature to be curative.

There are three notable holdings in Smith as it regards termination of parental rights cases. The first is that lawless behavior predating knowledge of the child’s conception is of minimal relevance on abandonment and willful failure to visit grounds. The second is that support provided by third-parties on a parent’s behalf is attributable to that parent on the willful failure to support ground. The third is that the basis of the statutory ground needs to be relatively contemporaneous with the filing of the case.

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