Court of Appeals reverses family court’s finding of child abandonment

Posted Wednesday, February 13th, 2019 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

On February 13, 2019, the Court of Appeals reversed a family court’s finding that adoptive parents abandoned their teenage child in the case of SCDSS v. Wiseman, 426 S.C. 70, 825 S.E.2d 74 (Ct. App. 2019). The case began when the daughter got into a verbal, and then physical, altercation with her parents. Law enforcement intervened and transported the child to a short-term psychiatric unit.

While the child was at this facility, the Wisemans regularly communicated with their daughter and cooperated with the treatment team’s recommendations. However the child remained unstable at the time of discharge and her treatment team recommended she be placed in a residential treatment facility (RTF). No bed was available at any of the recommended residential treatment facilities and the Wisemans were reluctant to have her return home given her unstable condition. DSS asked law enforcement to place the child in emergency protective custody but officers declined to do this because the child did not present a risk of harm. DSS then filed its own emergency protective custody action and obtained an ex-parte order placing the child in a therapeutic foster home. Eventually she was placed in a Residential Treatment Facility where she began receiving intensive trauma therapy and other psychiatric intervention and treatment. The Wisemans regularly visited her and remained in communication with her, all while following the recommendations of her treatment team. Following trial, the family court did not find the Wisemans abused their daughter but did find they abandoned her. They appealed.

The Court of Appeals reversed, finding the Wisemans did not abandon their daughter. Citing Hamby v. Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975), the Court of Appeals noted:

[T]he question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances. The [Hamby] court explained abandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. However, abandonment does not include an act or course of conduct by a parent which is done through force of circumstances or dire necessity.

Internal citations omitted.

Here, because the circumstances rendered it unsafe for the child to be returned to the Wisemans’ home, and because they continued to visit their daughter and follow her treatment teams recommendations, the Court of Appeals found they had not abandoned her. It noted the Wisemans have never expressed that they did not want their daughter to return home following the completion of her treatment. Further the DSS caseworker confirmed that DSS would not have returned the child to the Wisemans after her discharge from the short-term facility. Accordingly, the Court found the Wisemans’ actions were compelled by the force of circumstances and dire necessity rather than any intent to abandon their daughter.

In footnote seven, the Court of Appeals took issue with DSS’s litigation posture:

This court is perplexed with DSS’s seeking of the abandonment finding under the facts of this case and in light of the caseworker’s equivocal testimony, the treatment team’s recommendations, and the caseworker’s admission that DSS would not have returned Minor to the Wisemans immediately upon her release from MUSC-IOP because of the recommendation that minor be placed in a residential treatment facility. We recognize DSS was in a difficult position due to the lack of an available RTF bed and the federal funding requirement that DSS seek a finding of abandonment in situations such as this one. But, the Wisemans should not be penalized for bureaucratic hardships. Nor would this court seek to chill the willingness of prospective adoptive parents prepared to care for children suffering oppositional attachment disorder or other health issues.

The factual circumstances of this case put the Wisemans’ in an untenable position. Their willingness to adopt a child with serious psychological problems should be applauded. However such children sometimes become so oppositional and defiant that they cannot safely remain in the care of someone who lacks specialized therapeutic training. When this occurs, adoptive parents should not find themselves defending claims of abandonment or central registry findings because the state lacks sufficient resources to provide proper care for these children. Kudos to local attorneys Paul E. Tinkler, William P. Tinkler, and Stephen Gordon Dey for their results in this appeal.

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