Smith case reveals judges do more than simply call balls and strikes

Posted Friday, May 11th, 2018 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to General Public


After I posted my blog on the May 9, 2018 South Carolina Supreme Court opinion in SCDSS v. Smith to Facebook, a number of my attorney friends commented with dismay about the court’s consideration of the Grandmother’s limited income as a factor in allowing Foster Parents (and not Grandmother) to adopt the minor child at issue. Much of debate centered on the relative value of being raised by kin versus being raised in the most stable environment possible.

In his opening statement for his confirmation hearings to the United States Supreme Court, Chief Justice John Roberts stated, “Judges are like umpires. Umpires don’t make the rules, they apply them” and “My job is to call balls and strikes….” The Smith case shows the limitations of that approach.

There are statutory factors that allow a family court judge to determine whether grounds exist to terminate parental rights. None of the commentors on Facebook noted a concern about the application of those factors to the Supreme Court’s decision to terminate Father’s parental rights. However, how to balance preserving “kin” relationships with encouraging stability is not something statutory law provides any guidance on.

In theory it could. South Carolina’s legislature could pass a law indicating that as long as a kin relation was fit, kin should always have priority in an adoption. It could pass a law indicting that kinship is irrelevant to adoption. Such laws would be easier to apply (they would makes judges more like umpires) but they would not create more just results. However, in indicating the courts should consider both kin and stability in deciding who should adopt a child, judges are implicitly required to balance these considerations–i.e., to judge.

Most of the folks who commented were typical of my lawyer peer: raised in stable households with at least a middle-class (and generally upper-middle-class) background. However one friend, Dana Adkins, was raised in rather different circumstances. Her comment:

My dad was addicted to drugs my entire life. He rarely had a normal job or a bank account. He grew marijuana, and smuggled hash oil in from Jamaica. Sometimes my brother and I went with him to Jamaica, and I would wake up in the middle of the night during one of the evenings of our trip with a strange Rasta man in our room. That was when the deal was being made. The next day we would go about our normal family vacation. My brother would go on day-long hikes with my dad. They would talk and my dad would teach him what all the different plants and animals were, and share with him stories about our grandfather and his life as a boy. Also along he journey, they would water and fertilize the marijuana. Our house didn’t have heat but instead had a wood stove. The floor in our bathroom wasn’t stable, so my dad put a temporary shower in our dirt-walled basement until he could get around to fixing it. In 8 years he never got around to it.

My dad also never missed a single school function, teacher conference or extracurricular event. Bad grades, missing class, or poor conduct wasn’t tolerated. My brother and I were both exceptional students. We were always dressed well, ate well, and never did without anything we needed or most of what we wanted.

From your perspective we would have been better in another home but I can guarantee you, without a doubt, you would be dead wrong.

My senior year of high school, my dad was arrested. We went to live with my aunt. I stayed until I graduated that spring, and my brother the following year. It could have been argued she “enabled” my dad and “allowed him to expose” us to that “lifestyle” all those years. You may have thought we would have been better in foster care, and again I can promise you that you would have been dead wrong.

If asked to balance kin and stability, Dana would clearly value kin more than most of my more “privileged” peer. However her experience adds value and insight that we wouldn’t have. Diversity is often trivialized as a minor virtue that allegedly undermines “merit.” However having judges with a diversity of experience and backgrounds can help other judges develop empathy for different and valid viewpoints. While I will never have Dana’s “lived-in” experience, I can appreciate that her background leads her to weigh the kin/stability factors differently than I might, that her method of weighing them is equally valid, and as much a part of her experience as my methods are part of my experience.

For most cases we cannot expect judges to be mere umpires but must ask them exercise judgment, which implicitly means using their experience, knowledge, and discernment in reaching their decisions. Having understand and empathy for how others experience the world is a vital part of being a good judge.

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