Court of Appeals finds standing for paternal grandparents to obtain custody when mother is unfit

Given a culture that expects parents to be responsible for raising their children, the law has developed that fit parents should (with the limited exceptions of defacto custodians or psychological parents) defeat the custody challenges of non-parents. Just last month, in Urban v. Kerscher, the Court of Appeals returned custody to a fit mother who had placed her child with family friends when she needed time to get her life in order. However, when a parent is unfit, the court rightly won’t grant that parent custody. The June 6, 2018 Court of Appeals opinion in Jobst v. Martin is yet another example of that.

The child was first placed with Paternal Grandparents as part of a DSS safety plan that made Father the child’s protector after Mother was arrested for driving under the influence (DUI), possession of marijuana, and child endangerment. Due to Father’s work schedule, he and Mother ask his mother, who lived in Texas, to come to South Carolina to care for the child. Within days Paternal Grandparents filed a private custody action. They were initially granted temporary custody, and shortly thereafter given permission to move the child to Texas. DSS was joined as a party to the private custody action, and continued to monitor the parties and the child, but never brought a removal action because there was already a private custody action.

Prior to trial, Mother refused to attend mediation and Paternal Grandparents sought a finding of contempt. During trial, DSS asked to be dismissed from the case. Mother objected, requesting the “hearing be considered a merits hearing and that DSS be ordered to put the court-ordered treatment plan in place and for [the family] court to adopt the treatment plan.” At the close of trial the family court dismissed DSS as a party. It awarded custody to Paternal Grandparents [Father lived with his parents but was not seeking custody]. It found Mother in contempt for failing to attend mediation, and order her to reimburse Paternal Grandparents for mediation-related expenses. Mother appealed.

The evidence of Mother’s unfitness was substantial:

The [family] court found Mother tested positive for amphetamines, opiates, and marijuana; she was arrested for possession of marijuana in March 2015 and pleaded guilty in April 2015; she was arrested again for possession of marijuana in June 2015 and pleaded guilty in February 2016; and she was arrested a third time for possession of marijuana in July 2016 and convicted in her absence. The family court found DSS determined Mother physically neglected Child, DSS referred Mother for drug treatment, Mother did not complete the treatment, and Mother did not cooperate with DSS.

Further the opinion details numerous examples of Mother’s indifference to her parenting responsibilities even when visiting with the child in Paternal Grandparents’ home. Mother did not appear to challenge the finding of unfitness but rather alleged that Paternal Grandparents lacked standing to seek custody. The Court of Appeals looked to the S.C. Code § 63-3-550 to determine Paternal Grandparents had standing:

[A]ny person having knowledge or information of a nature which convinces such person that a child is neglected . . . may institute a proceeding respecting such child.

That code section has not been previously employed (at least in any published opinion) to grant standing to third-parties to seek custody of an abused or neglected child. The opinion also cites, S.C. Code § 63-3-530(A)(20), which grants the family court exclusive jurisdiction “to award the custody of the children, during the term of any order of protection, to either spouse, or to any other proper person or institution.” Prior to this opinion, that was the code section I had relied upon when seeking third-party custody for litigants who were not defacto custodians. It is both broader and more explicit in its grant of standing.

In affirming the dismissal of DSS as a party, the Court of Appeals noted that DSS remained a party until the end of the case and therefore Mother was not prejudiced by the dismissal. Mother’s real argument centered on the fact DSS did not proceed with its own removal action, and therefore she did not receive certain benefits pursuant to the removal statutes—primarily a court-appointed attorney and court-ordered treatment plan. In rejecting this argument, the Court of Appeals noted:

Mother agreed to the DSS safety plan naming Father as Child’s protector. DSS investigated the case as it was required to do and indicated a case against Mother for abuse and neglect. DSS prepared a treatment plan and referred Mother for services as it was required to do. However, DSS never assumed legal custody of Child, and therefore, the removal statutes were not triggered.

Finally the Court of Appeals held Mother was properly held in contempt for not attending mediation. Mother’s argument that DSS cases are exempt from mediation was unavailing because this was not a DSS case.

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