South Carolina Supreme Court holds family court improperly denied foster parents’ requests to intervene in removal cases

Posted Wednesday, November 6th, 2019 by Gregory Forman
Filed under Adoption/Termination of Parental Rights, Department of Social Services/Child Abuse and Neglect, Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

In the November 6, 2019, case of Cooper v. SCDSS, 428 S.C. 402, 835 S.E.2d 516 (2019), the South Carolina Supreme Court found that the family court had improperly denied Foster Parents’ requests to intervene in DSS removal actions.

The two sets of Foster Parents at issue had placement of Mother and Father’s three children (at the time of trial one set of Foster Parents had the two older children; during the appeal, all three children were placed with the second set of Foster Parents). DSS sought to remove the children from Foster Parents’ care and place them with Mother’s aunt. Foster Parents filed termination of parental rights (TPR) and adoption actions, and subsequently sought to intervene in the removal actions and sought to consolidate the removal and TPR/adoptions actions.

By the time the Foster Parents’ intervention and consolidation requests were heard by the family court, DSS changed its position on removal and sought reunification with Mother. It argued that intervention, consolidation, and granting discovery rights to Foster Parents would unnecessarily complicate the case. DSS argued Foster Parents’ intervention rights were strictly permissive and not mandatory. DSS also argued the volunteer GAL could protect the Children’s interest and that Foster Parents had a right to attend the permanency planning hearing and to proceed with their private TPR and adoption actions. The Volunteer GAL supported intervention but expressed concern about allowing consolidation because different statutes govern the role of a volunteer GAL in a DSS action and the role of a GAL in a private action, and the GAL stated a volunteer GAL should not “be expected to serve in protracted litigation involving contests primarily between private parties.”

Without making any factual findings, the family court denied Foster Parents’ motions to intervene and consolidate. After the family court denied their motions for reconsideration both Foster Parents appealed. The Court of Appeals consolidated their appeals and requested the Supreme Court certify the appeals for direct review. The Supreme Court granted that request. Before oral argument DSS withdrew its opposition to Foster Parents’ requests and joined their requests for relief.

The Supreme Court’s opinion first addressed the family court’s deficient factual finding on Foster Parents’ motions:

We stress that the family court must set forth pertinent findings of fact and conclusions of law when ruling upon motions to intervene and to consolidate, especially when the best interests of children are at stake. The unique facts of each case make it all the more important for the family court to fully set forth its findings when ruling on such motions.

However the Supreme Court did not wish this insufficient fact finding delay resolution of Foster Parents’ motions:

The absence of any factual findings to support the family court’s denial of Foster Parents’ motions makes our review of the family court’s decision difficult. In many instances, a remand to the family court would be appropriate; however, to avoid further delay in establishing permanency for the Children, we have examined the record and will address the merits of each motion.

The opinion next addressed whether Foster Parents’ invention request were as of right or permissive. Interpreting Rule 24, SCRCP, the Supreme Court held their intervention requests were permissive:

Section 63-7-1700(J) provides that a foster parent is a “party in interest” in a DSS removal action. Section 63-7-1700(J) further provides that a “party in interest may move to intervene in the case pursuant to the rules of civil procedure and if the motion is granted, may move for review.” (emphasis added). By using the word “if” in the emphasized portion of the statute, the General Assembly recognized a foster parent’s right to intervene in a removal action is not absolute.

A family court should therefore apply Rule 24(b)(2) when analyzing whether or not to grant a foster parent’s motion to intervene. See Rule 24(b)(2), SCRCP (permitting intervention upon timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common” and upon consideration of “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties”).

Given the facts of this case–the Foster Parents has long and enduring relationship with the children in there are and these children were closely bonded to them–the Supreme Court held the family court erred in not allowing intervention:

First, there is no dispute that Foster Parents timely moved to intervene, as required under Rule 24(b)(2). Further, while foster parent intervention will not be appropriate in every removal action, here, Foster Parents have demonstrated their private TPR and adoption actions and the DSS removal actions have questions of law and fact in common. The best interests of the Children are certainly a consideration the private actions and the DSS actions have in common, especially when considering the length of time the Children have been with Foster Parents. Expert testimony indicates the Children are bonded with Foster Parents and that alternative placement would be severely detrimental to the Children.

Under these circumstances, intervention will allow the family court to receive input from Foster Parents that will aid the family court in reaching a timely decision on the merits of both removal actions. We further conclude intervention will not unduly delay or prejudice the adjudication of the rights of the parties to these actions.

We therefore hold the family court erred in denying the motions to intervene. We stress that our decision in this case should not be interpreted as a signal to the family court bench and bar that intervention should be granted to foster parents in every case. The decision to grant intervention remains in the discretion of the family court following its analysis of the facts and procedural posture of each case.

The Supreme Court next decided to remand the Foster Parents’ requests for consolidation of the removal actions with their TPR and adoption actions back to the family court. It cited Rule 42(a), SCRCP regarding consolidation:

Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the action; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

In deciding to remand the consolidation issue, the Supreme Court noted the Children’s GAL raised legitimate concerns regarding the consolidation of Foster Parents’ private actions with the DSS removal actions. It further held that “DSS’s consent [to consolidation] and its reasons for such consent would certainly be factors the family court should consider.”

Finally the Supreme Court rejected Foster Parents’ argument that DSS should have been joined in the removal action as moot as the court had granted their motions to intervene. It found one Foster Parents’ argument that the family court should have joined DSS as a party to their TPR and adoption case to be without merit as they had already named DSS as a defendant in that case.

Two takeaways from Cooper. First, family court judges who make procedural decisions regarding children’s rights must make detailed factual findings justifying those decisions. Second, Foster Parents who have a substantial relationship with the children they foster should likely be allowed to intervene in proceedings involving those children’s placement.

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