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.

The May 9, 2018 Supreme Court opinion in SCDSS v. Smith, 423 S.C. 60, 814 S.E.2d 148 (2018), reverses a 2017 Court of Appeals opinion, terminates father’s parental rights, and authorizes the foster parents to adopt the minor child at issue.

This case is extremely fact intensive but to summarize: at the time this child was conceived both Mother and Father were living troubled lives, with Mother having substance abuse issues and Father having outstanding criminal charges in Maryland and Virginia. Wanting to address his criminal issues before the child’s birth, Father surrendered to Maryland authorities and Mother eventually went to live with Father’s mother (Grandmother) in Virginia, with the expectation that Grandmother and her husband would help raise the child until Father was released from prison.

After four months, Mother left Grandmother’s and went to live with her own father in South Carolina. There she gave birth to the child at issue. After the child tested positive for cocaine shortly after birth, DSS took custody and placed the child with Foster Parents. Meanwhile Grandmother intervened in the DSS case and sought placement. However, since she lived in Virginia, her request for placement was delayed due the necessity of a home study pursuant to the Interstate Compact on the Placement of Children. Meanwhile, Mother executed a consent relinquishing her parental rights and Father executed a consent relinquishing his parental rights with the specific intent to allow Grandmother to adopt the child. Eventually the Foster Parents filed a termination of parental rights (TPR) and adoption action. That case was consolidated with the DSS case.

At trial, the family court determined that Father had not established parental rights, determined that even if he had, his parental rights should be terminated, and authorized adoption by the Foster Parents. The Court of Appeals reversed, finding that Foster Parents lacked standing to adopt and that Father’s parental rights should not have been terminated. The Supreme Court granted certiorari to review the Court of Appeals opinion.

The Supreme Court found two statutory grounds to terminate Father’s parental rights: abandonment and failure to visit. The Supreme Court found that many of the factors listed by the Court of Appeals in reversing the TPR took place in a one-month period approximately a year after the child’s birth and that many of these factors were “not actually separate and distinct actions.” It further noted in justifying the finding of abandonment by Father that:

We are not inclined to give him credit for voluntarily surrendering his status as a fugitive from justice, as it was incumbent upon him to do so. Even if Father were entitled to some dispensation from this Court for surrendering to Maryland authorities, he did nothing to prepare for and provide the proper care of Mother and Child during his period of incarceration. When Mother was asked where she lived after Father went to prison, Mother replied, “I was just bouncing from here to there, wherever I could.” Mother had a history of drug abuse and instability; nevertheless, Father left pregnant Mother without money or evidence of a plan for her or Child’s well-being.

Citation omitted.

In finding the statutory ground of abandonment, the Supreme Court also noted Father’s failure to provide support for Mother at the time he surrendered to authorities and his failure to use any of the $1,894.98 deposited into his commissary account to support the child. It further noted that his consent to relinquish his parental rights to Grandmother and her husband was evidence of abandonment as “this maneuver clearly and convincingly establishes Father’s settled purpose to forgo his parental duties.”

In determining that it was in the minor child’s best interests to terminate Father’s parental rights, the Supreme Court held:

Viewed from Child’s perspective, we find TPR is in Child’s best interest. Child was placed in foster care shortly after her birth, and at the time the family court issued the order challenged by Father, she had lived with Foster Parents for over two years. She has now lived with Foster Parents for over four years. Father has never met Child, and no bond has formed between them. Father has willfully failed to play a meaningful role in Child’s life, despite his ability to write and place phone calls while in prison. It is important to delineate Grandmother’s efforts from Father’s lack of effort. It was Grandmother who stepped up and provided for Mother during the pregnancy when Mother reached out to her for help—not Father. It was Grandmother who maintained contact with Child and continued to provide support for Child—not Father. Clearly, Grandmother has shown an interest in Child’s well-being; unfortunately, we cannot say the same for Father.

Child has lived with Foster Parents for her entire life, and Grandmother visits with Child regularly. Both Foster Parents and Grandmother want to adopt Child and would provide her with permanency and stability as compared to Father.

Citations omitted.

Since the Supreme Court approved the termination of Father’s parental rights, it finally had to determine who should be allowed to adopt the child: Foster Parents or Grandmother. DSS had no issue with either placement. The Supreme Court addressed the issue of Foster Parents’ standing to seek adoption as the Court of Appeals held that they lacked standing. Based upon the recent decision in South Carolina Department of Social Services v. Boulware, 422 S.C. 1, 809 S.E.2d 223 (2018), which held that, absent circumstances not present in this case, any interested South Carolina resident may petition to adopt a child available for adoption, the Supreme Court concluded the Foster Parents had standing.

In addressing who should be allowed to adopt the child, the Supreme Court noted “the biological relationship between Grandmother and Child is relevant to this Court’s consideration; however, this factor is not determinative.” It noted “concerns regarding her ability to serve as Child’s adoptive parent. Our concerns focus on Grandmother’s prior parenting history, financial situation, and unhealthy relationship with Father.” In allowing the Foster Parents to adopt the Court held:

Importantly, Child has lived with Foster Parents since being removed from Mother’s home on June 6, 2013. Foster Parents are the only parent figures Child has known, and Dr. Fortner-Wood, an expert in child development and attachment, testified Child was “securely attached” to Foster Parents and believed Child’s removal from Foster Parents’ home would be traumatic for her and would have permanent implications. Because Child is strongly bonded with Foster Parents, it is not in her best interest to be removed from their home. Although Grandmother has consistently visited Child, we agree with Dr. Fortner-Wood’s assessment that Child has not spent a sufficient amount of time with Grandmother to develop an “attachment relationship.”

There are numerous factual and legal issues addressed in the Smith opinion and this appeal is so fact specific that, with one exception, it is hard to glean any general guidance from it. What the Smith case makes clear is that the efforts of family members to support and bond with a child cannot be imputed to the biological parent when that parent fights a TPR action.

On April 11, 2018 the Supreme Court issued a slightly modified opinion of its March 21, 2018 decision in Ex-Parte: Carter, 422 S.C. 623, 813 S.E.2d 686  (2018). It appears to have made three minor changes that do not affect the general ruling.

First, it adds a footnote indicating that “the Carters were sent an email in the morning of December 15, 2014, advising them of the adoption hearing later that day.” Second, it expands the discussion of the court proceeding at the Adoptive Parents’ motion to dismiss the Carters’ action to set aside their adoption consents. From this new opinion it appears that the family court judge at that hearing provided the Carters the exact opposite advice that they were provided when the filed an action to intervene in the adoption case. Finally, it adds a footnote allowing any judge to hear the remanded petition.

N.B. the opinion discussed below was subsequently slightly modified. See Supreme Court issues slightly modified opinion in Ex-Parte: Carter.

The phrase Kafkaesque is an overused cliche but sometimes it’s apt. That is the situation described in the March 21, 2018 South Carolina Supreme Court opinion of Ex Parte: Carter. While Ms. Carter may be full of hooey in her claim that her adoption consent was the product of “emotional duress,” the family court’s ability to deny her right to present this claim clearly exasperated the Supreme Court.

In this case, Ms. Carter and her ex-husband signed consents to adoption for their two daughters, anticipating that it would be an open adoption. These consents waived service and notice of the adoption action. Four days after the consents were executed, the attorney for the Adoptive Couple filed for adoption. Eight days after the adoption action was filed, the Carters each executed a notarized document titled “Withdrawal of Parental Consent to Adoption” purporting to revoke their consents on the basis of emotional duress. Thereafter, the Carters sought, through many avenues, to withdraw their consent.

First they filed a motion to intervene in the adoption action. Counsel for the Adoptive Couple opposed the motion, arguing that because adoption proceedings are private and confidential proceedings, the Carters’ recourse was not as intervenors in the adoption action but through a separate action challenging the consents “outside the adoption itself.” The family court agreed and denied the Carters’ motion to intervene, stating “I don’t believe procedurally that’s the way that this should be handled.”

Thereafter the Carters filed a pro se petition at which point things got surreal. Per the Supreme Court:

At the direction of the family court, a week later, the Carters filed a separate action, along with affidavits supporting their challenge to the validity of the consents, and requested that a hearing be scheduled before the final adoption hearing. Between August 2014 and April 2015, the Carters appeared and asked to be heard at seven separate hearings before six different family court judges, each of whom refused to address the merits of the Carters’ claim based on perceived procedural abnormalities and gave the Carters inconsistent (and at times incorrect) instructions on the proper procedure through which the Carters should have pursued their claim. In every instance, the Carters timely followed these instructions. Nevertheless, the Carters’ claim was never evaluated on the merits.

Emphasis in original.

Within that paragraph is a footnote detailing the myriad excuses family court judges provided for not hearing the Carters’ motion:

Family court judges assigned to hear this matter avoided hearing the Carters’ case for a variety of reasons, including the claim of insufficient docket time requested, finding fault with the Carters for doing precisely what other family court judges told them to do, and perhaps the most troubling reason for not hearing the Carters’ case was the hearing “should not have been scheduled on a Friday.” Mr. Carter eventually abandoned his claim; we find it remarkable that Petitioner [Ms. Carter] did not throw in the towel as well.

At the final hearing to approve the adoption, the Adoptive Couples’ attorney failed to notify the court of the Carters’ separate action. The Supreme Court found this failure shocking:

Although counsel for the Adoptive Couple was well aware of the Carters’ separate pending challenge, the final adoption hearing transcript includes no reference to this. Rather, when the family court judge asked if there was anything else that needed to be placed on the record before the first witness was sworn, counsel for the Adoptive Couple never mentioned the Carters’ pending action and stunningly responded “I think we’re good, Your Honor.” We are confident the family court judge would not have proceeded with the adoption had he been made aware of the separate pending action. However, without the benefit of this critical information, the family court entered an order approving the adoption.

The adoptive couples’ attorney, armed with the adoption decree, then proceeded to get the Carters’ action dismissed. Per the Supreme Court:

Armed with the final adoption order, counsel for the Adoptive Couple filed a motion to dismiss the Carters’ separate action challenging the validity of their consents, arguing the final adoption order rendered moot the Carters’ challenge. The Carters appeared at the hearing on this motion on April 1, 2015, understandably incredulous that the adoption was finalized while their separate action to set aside the consents was pending. The Adoptive Couple, through counsel, recited the last sentence of section 63-9-350—“The entry of the final decree of adoption renders any consent or relinquishment irrevocable”—and argued the Carters’ separate action should be dismissed. This family court judge apparently felt constrained to dismiss the Carters’ action; the judge, however, instructed the Carters to file a Rule 60, SCRCP motion in the adoption action alleging extrinsic fraud prevented them from having an opportunity to be heard as to the validity of their consents.

Six days later the Carters filed the Rule 60, SCRCP motion. Three days later, a different family court judge summarily denied the Carters’ Rule 60(b) motion on the ground that it was untimely. The Carters appealed, arguing the family court erred in denying their Rule 60 motion as untimely and that the validity of the adoption was compromised because the Carters’ challenge to their consents was not resolved before the adoption was finalized. The Court of Appeals affirmed and the Supreme Court issued a writ of certiorari to review the Court of Appeals’ decision.

The Supreme Court’s opinion finds that Ms. Carter’s Rule 60(b) motion was both timely and proper. First it found that S.C. Code Ann. § 63-9-770(B) specifically gives a court authority to grant collateral relief from an adoption decree on the ground of extrinsic fraud. Further, it found that the Carters’ petition set forth a claim of extrinsic fraud:

[A]t the heart of the extrinsic fraud claim is the Adoptive Couple’s effort, through counsel, to push through the final adoption hearing knowing full well of the Carters’ repeated requests to be heard on their pending separate action. Most troubling is counsel’s failure to be candid with the family court when asked if there was “anything else.” These specific averments manifestly state a claim for extrinsic fraud.

In finding Ms. Carter’s Rule 60 motion was timely the Supreme Court held:

The final adoption decree was entered December 15, 2014. At a hearing on April 1, 2015, the family court instructed the Carters to file the Rule 60(b) motion. The Carters did so on April 7, 2015. Because this period of time is both reasonable and not more than one year after the entry of the final adoption decree, we find the family court abused its discretion in finding the Carters’ Rule 60(b) motion was untimely.

In concluding to remand the case back to the family court for a hearing on Ms. Carter’s claim that she should be allowed to withdraw her adoption consent, the Supreme Court expressed its “grave concern for the manner in which this matter was handled in the family court.”

Dana Adkins and I occasionally present to pro se litigants on family court procedure. I do this as part of my pro bono work because I believe the family court is ill equipped to handle cases involving pro se litigants and I believe helping such litigants navigate the system serves the public good. The Carter case demonstrates an extreme failure of the family court system to allow a pro se litigant to present his or her claims. The Carters’ perseverance through this process is impressive–I suspect many attorneys might have given up after having their motion continued six times. The Carter decision reflects a massive and systematic failure on the part of the family court system.

Last week I represented a mother and step-father in a contested termination of parental rights(TPR)/step-parent adoption case. I have been a licensed attorney for over twenty-five years–the last twenty of which I have primarily focused on family law. I have successfully defended a couple of TPR cases brought by DSS. I have filed contested TPR cases that settled when the biological parent voluntarily relinquished parental rights prior to trial. I have even tried a custody case in which the other party voluntarily relinquished his parental rights in the midst of trial. Thus, preparing for trial, I was shocked to realize that it would be my first such case prosecuted to verdict.

Meanwhile, in the months leading up to trial, a few of my lawyer colleagues lost TPR trials they were confident they would win. Moreover the appellate courts have recently overturned, in published opinions, a few termination of parental rights granted by the family court. That the Defendant in my TPR trial was incarcerated was small comfort: one of the TPR cases lost by my colleague and one of the TPR cases overturned by the appellate courts also involved incarcerated Defendants. Thus I ruminated over how to maximize my clients’ chances of a successful result. From seeing how other attorneys lost these TPR trials, I learned a few lessons. I learned one more in drafting the orders after the court granted the TPR and adoption. Here’s what I learned:

1) Willfulness is an important element of failure to visit and failure to support grounds

The failure to visit or support for six months grounds for TPR listed at S.C. Code § 63-7-2570 (3 & 4) both contain a requirement of willfulness. Further, TPR actions carry a higher evidentiary burden–clear and convincing evidence–than most family court cases. In this regard TPR actions, especially those involving failure to visit or support grounds, are much like contempt actions–which also require proof of willfulness by clear and convincing evidence. The goal in preparing a TPR prosecution isn’t only to present evidence of a ground, but to present overwhelming evidence of willfulness. Simply providing evidence of failure to support or visit is insufficient.

2) Proving willful failure to support or visit may be even harder when the Defendant is incarcerated

One might think that proving failure to support or visit when the Defendant is incarcerated is easy–but the problem often becomes proving willfulness. While a Defendant’s continued criminal conduct after the Defendant becomes aware the child was conceived is probative of a settled purpose to forgo parental duties, criminal conduct pre-dating knowledge of the child’s conception is not a basis for finding willfulness. To obtain the termination of an incarcerated parent’s parental rights based on failure to visit or support, one should highlight such behavior that pre-dates the incarceration. When possible, one should also try to demonstrate that this parent had some ability to support or maintain contact with the child while incarcerated. If that parent has been supporting and maintaining contact while in prison, it might be best to investigate additional grounds that might support TPR or forgo bringing the case.

3) The best interests element is a custody trial writ large

It is not enough to prove a TPR ground to obtain a TPR. One must also prove–again by clear and convincing evidence–that termination of parental rights are in the minor child’s best interests. This is one reason so few successful TPR actions are brought when there is no one ready to adopt the child. A TPR/adoption trial is a custody trial in which one is trying to prove that the child would be substantially better off being raised by the prospective adopting parent than by the biological parent.

There is a constitutionally protected and jurisprudentially prudent recognition that parental rights should not be terminated simply because someone else might objectively be a better parent–or even more closely bonded to the child. To break the bonds that biology creates between parent and child is not something a court does without excellent reason. One should be prepared to show the court that the child’s life would be substantially better off by severing this biologically-determined bond and allowing the child to create this bond with another. Anything that would be relevant in a custody case is relevant in a TPR/adoption case. Treat the best interests element as a custody case.

4) Do separate orders for the TPR and the adoption

This lesson came to me as I was reviewing the trial judge’s memo ruling. Decrees of adoption are often shown to schools, medical providers, and other public agencies that need to know who the child’s legal parents are. It is something family members might want to see. When the child reaches majority, the child may even want to see it.

Meanwhile, an order terminating parental rights generally doesn’t need to be seen by anyone but the parties, their attorneys, and the clerk of court. However that order needs to contain numerous factual findings that justify the TPR grounds and the best interest finding. Almost by definition, many of those factual findings are unpleasant facts. In contrast, once parental rights have been terminated, the factual findings to justify an adoption are typically few and not unpleasant or unduly revealing.

The trial judge made numerous factual findings about my clients, some of which contained information they might not want the world to know. There were other factual findings about the Defendant that he certainly wouldn’t want being revealed. Draft one order for the TPR and the adoption and the decree of adoption and all these factual findings get revealed to anyone looking at the decree of adoption. Draft separate orders and the decree of adoption can be shown without embarrassment.

The lesson: for any contested TPR/adoption case draft one order for the termination and another order for the adoption.

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.

The December 30, 2016 Court of Appeals opinion in SCDSS v. Nelson, 419 S.C. 142, 795 S.E.2d 871 (Ct. App. 2016), reversed the termination of Mother’s parental rights primarily because the guardian ad litem had conducted an insufficient investigation.

In Nelson, DSS removed Mother’s three children in September 2013 because she was living with her sister in a roach-infested home without running water, lights, or food. After a merit’s hearing a month later, the family court required Mother to complete a placement plan and left the children in DSS custody.

At a July 9, 2015 hearing, DSS sought termination of parental rights (TPR) because Mother apparently had not completed the treatment plan and the children remained in DSS custody. Mother sought a continuance because she was close to completing the treatment plan. The family court denied this request.

At that hearing, the DSS caseworker noted the children remained in a group home but that Mother had subsequently given birth to a fourth child and was raising that child. He noted the children constantly asked about Mother and that Mother visited the children and occasionally brought them items when she visited. He believed a relative was willing to adopt two of the three children. The guardian ad litem did not testify or submit a report into evidence. Her attorney informed the court that the guardian believed TPR was in the children’s best interest.

The trial court found four grounds for TPR: (1) failure to remedy the conditions that caused the removal; (2) the children were harmed, and due to the severity or repetition of the abuse or neglect, it was not reasonably likely Mother’s home could be made safe within twelve months; (3) failure to support; and (4) the children had been in foster care for fifteen of the most recent twenty-two months. It further found TPR to be in the children’s best interests and ordered Mother’s parental rights terminated. Mother appealed.

The Court of Appeals affirmed one ground for TPR: the children being in foster care for fifteen of the most recent twenty-two months. Given that only one ground is necessary to terminate parental rights, the Court of Appeals did not address the remaining TPR grounds.

However the Court of Appeals found that, based on limited record presented to the family court, there was not clear and convincing evidence that TPR was in the children’s best interests. The Court of Appeals was concerned that the DSS case worker did not elaborate on the children’s current condition or their relationship with Mother. It had greater concerns regarding the guardian’s apparent failure to conduct an investigation and issue a report that complied with S.C. Code Ann. § 63-11-510 (2010).  The only guardian report provided the Court of Appeals was dated April 7, 2016 and was produced for a subsequent permanency planning hearing.  Her attorney was unable to provide the Court of Appeals any guardian report submitted at the TPR hearing.

The Court of Appeal concluded,

Without testimony from the GAL or a GAL report, the family court did not have an independent assessment of the children’s needs or their bonding with Mother. The only evidence in the record regarding the children’s bond with Mother was the DSS caseworker’s testimony that the children “constantly ask[ed] whether [Mother] was complying with [DSS], and they [were] aware of the possibility of what may happen if [Mother] did not comply.” The children’s interest in Mother’s progress coupled with the fact they were in a group home and not a preadoptive home suggests TPR may not be in their best interest. Finally, Mother had another child in the home, and evidence did not show she was unable to care for that child. Thus, we find the record before us does not support finding TPR was in children’s best interest.

For the remand, the Court of Appeals required a new permanency planning hearing. It held that, at that hearing, “the family court may change custody, modify visitation, and approve a treatment plan offering additional services to Mother.” It does not appear TPR remains an option, which is curious given that the basis for reversal appears to be an insufficient record at the trial level–as opposed to a finding that reunification was in the children’s best interests.

Nelson indicates that a minimal trial court record and an inadequate guardian investigation may be sufficient to reverse a termination of parental rights.

In the October 10, 2016 opinion in SCDSS v. Tran, 418 S.C. 308, 792 S.E.2d 254 (Ct.App. 2016), the South Carolina Court of Appeals vacated the family court’s removal order and termination of parental rights order, finding that DSS had failed to establish subject matter jurisdiction under the UCCJEA. Initially I thought the Court of Appeals was correct–even stating the same to South Carolina Lawyers Weekly. Upon further reflection, and after rereading the opinion, I think the Court of Appeals erred.

The procedural history of the case is somewhat convoluted. This case began as a removal action on May 21, 2012, when Mother—who was traveling through South Carolina—was admitted to the hospital due to an “altered mental status.” DSS received allegations that Mother “was found sitting in the middle of the road and was not very responsive,” Child was with her, and Mother could not identify a family member to pick up Child. Mother was still hospitalized when the family court held a probable cause hearing on May 24, 2012; the family court determined probable cause existed to remove Child and granted DSS custody of Child “[p]ending further orders.”

In a December 3, 2012 merits removal order, the family court found Mother placed Child at a substantial risk of harm of physical neglect and returning Child to Mother’s home would place Child at an unreasonable risk of harm. The family court granted DSS custody of Child and ordered Mother to complete a placement plan. Mother did not initially appeal that order.

On March 6, 2014, the family court held a TPR hearing. Mother was not present, and the family court denied her request for a continuance. The family court found clear and convincing evidence showed Mother failed to remedy the conditions causing removal, Child had been in foster care for fifteen of the most previous twenty-two months, and TPR was in Child’s best interest.

Mother filed a motion for reconsideration alleging she was a survivor of domestic abuse and had a pending case in Philadelphia County, Pennsylvania. The family court held a hearing on Mother’s motion. During the hearing, Mother asserted “there was a case in Philadelphia in 2005 that she believed Child was going to be required to go back to.” It also appeared there may have been prior custody litigation in Georgia. However, the family court, citing Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999), for the proposition that merits orders are final orders which must be timely appealed, determined that the removal order established subject matter jurisdiction in South Carolina. Since subject matter jurisdiction was established in the prior case, it held she could not challenge it in the TPR case. Mother appealed.

The Court of Appeals reversed, vacating both the removal order and the TPR order. It held that once Mother made some showing of prior custody orders from Pennsylvania (and possibly Georgia), DSS needed to establish subject matter jurisdiction before proceeding to the merits of the case. The Court of Appeals kept emergency jurisdiction in South Carolina but ordered (citations omitted):

On remand, the family court shall determine whether the Cobb County, Georgia order was a valid order under the UCCJEA. If so, the family court shall communicate with the court in Cobb County to “resolve the emergency.” If Georgia declines jurisdiction, the family court shall request Georgia issue an order finding it no longer retains exclusive, continuing jurisdiction; if Georgia issues such an order, DSS may proceed to properly establish jurisdiction under the UCCJEA and initiate another removal action.

If the family court determines the Cobb County order was not a valid order under the UCCJEA, it shall then determine whether the Pennsylvania order was a valid order under the UCCJEA. If it was, the family court shall communicate with the Pennsylvania court to “resolve the emergency.” If Pennsylvania declines jurisdiction, the family court shall request Pennsylvania issue an order finding it no longer retains exclusive, continuing jurisdiction Pennsylvania Courts do not have jurisdiction over the matter of custody of this minor child.

Initially, I believe the Court of Appeals decided this matter correctly: subject matter jurisdiction can be raised at any time. Ideally, the family court would have established subject matter jurisdiction in the removal action, Mother’s failure to address that issue in the removal action established subject matter jurisdiction in South Carolina. As the family court noted, the removal order was a final order that Mother did not appeal. A determination from an unappealed order becomes “the law of the case.” E.g., Simpson v. Simpson, 404 S.C. 563, 746 S.E.2d 54 (Ct.App. 2013). When Mother didn’t appeal the removal order, she established “the law of the case,” and that law established subject matter jurisdiction in South Carolina.

While lack of subject matter jurisdiction can be raised any time in a case, the removal case was over. In theory Mother could have collaterally attached the removal order through a Rule 60(b)(4) motion, but she did not do that. Even a poorly reasoned final order becomes binding when the time to appeal has expired. E.g., Ware v. Ware, 404 S.C. 1, 743 S.E.2d 817 (2013). I believe that when Mother failed to appeal the removal order, she waived any subsequent challenge to subject matter jurisdiction in South Carolina. She should not have been allowed to collaterally attack the removal order through the TPR appeal and the removal order established the law of the case that South Carolina had subject matter jurisdiction.

Can you collaterally attack a final order’s determination of subject matter jurisdiction on appeal of a subsequent final order? I would think not; the Court of Appeals thinks otherwise.  It will be interesting to see if the South Carolina Supreme Court is asked, and decides, to weigh in.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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