S.C. Dep't of Soc. Servs. v. West

• Decision Date: 15 May 2013
• Docket Number: No. 27235.,27235.
• Citation: 741 S.E.2d 739,402 S.C. 324
• Court: South Carolina Supreme Court
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. SARAH W. and Vaughn S., Defendants, Of Whom Sarah W. is the Respondent. In the Interest of two minor children under the age of 18. Appellate Case No. 2012–208546.

402 S.C. 324

741 S.E.2d 739

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Petitioner,

v.SARAH W. and Vaughn S., Defendants,Of Whom Sarah W. is the Respondent.

In the Interest of two minor children under the age of 18.

Appellate Case No. 2012–208546.

No. 27235.

Supreme Court of South Carolina.

Heard July 11, 2012.

Decided March 20, 2013.

Rehearing Denied May 15, 2013

Robin Chandler of Lexington, for Petitioner.

Franklin Grady Shuler, Jr., of Turner Padget Graham & Laney, P.A. of Columbia, for Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Chief Justice TOAL.

In this appeal from the reversal of an order terminating a biological mother's parental rights, we reverse the court of appeals and hold that the family court properly terminated the biological mother's parental rights pursuant to section 63–7–2570(8) of the South Carolina Code.

FACTUAL/PROCEDURAL BACKGROUND

Sarah W. (Mother) is the biological mother of a minor boy and a minor girl (Boy and Girl) (collectively the children). In 2007, Mother and the children's father, Vaughn S. (Father) (collectively Defendants), and the children resided in a home without heat, electricity, or running water. In August of that year, Mother arranged for her brother and sister-in-law, Thomas W. and Brittney W., to take primary responsibility for the children. On October 4, 2007, the South Carolina Department of Social Services (DSS) requested that the family court issue an ex parte order granting DSS emergency protective custody of Boy. DSS alleged it had probable cause to believe that Boy faced imminent and substantial danger to his health or physical safety. The family court agreed, basing its determination on the fact that Defendants were “unable to provided [sic] even marginally suitable housing” for Boy, and finding that Thomas W. and Brittney W. “apparently abused a sibling” of Boy. The family court awarded emergency protective custody to DSS. On October 5, 2007, the family court held a probable cause hearing and found sufficient probable cause to warrant issuance of the ex parte order. At this same hearing, the family court found that Thomas W. and Brittney W. were no longer willing to maintain custody of Girl, and the court ordered DSS to take emergency protective custody of Girl.

The family court ordered a merits hearing for November 15, 2007. However, Defendants requested a continuance due to their attorney's conflict. The family court noted that DSS was prepared to proceed and rescheduled the hearing for December 20, 2007. The hearing commenced as scheduled, and the family court concluded that Defendants “failed to provide adequate and safe housing for [the children],” and DSS should be awarded custody of the children. Additionally, the family court approved a Placement Plan (the Plan), agreed to by all parties, which set out requirements that Defendants would need to satisfy in order to regain custody of the children. Under the terms of the Plan, Mother was required, among other things, to seek and maintain adequate employment and appropriate housing and space for the children. The Plan also required Defendants to submit to a mental health evaluation and follow the recommendations of that evaluation. The family court ordered a review hearing for June 12, 2008. At that review hearing, the parties agreed that Defendants had not completed the requirements of the Plan, but that additional time should be allotted for completion. The family court ordered that the conditions of the Plan should continue until September 18, 2008.

On September 4, 2008, DSS issued a Supplemental Report recommending reunification of Defendants and the children. The Report noted that Mother had maintained adequate employment and housing. Additionally, Defendants completed mental evaluations, and no mental health services had been recommended.

On September 30, 2008, the family court held a Permanency Planning Hearing. At this hearing, DSS informed the family court that its September 2008 Supplemental Report addressing the conditions giving rise to Boy and Girl's removal failed to address issues that arose following the children's placement in state custody. Specifically, DSS discovered a court order from January 18, 1994, from Edgefield County, wherein the court found that Father “more likely than not” sexually abused a biological daughter not party to the present action. Additionally, DSS alleged that Girl made statements during a forensic interview that raised the issue of possible alcohol and drug abuse by Defendants. DSS sought to incorporate a plan as to how to protect Boy and Girl as a result of these findings, and sought additional relief, which would require:

(1) that any and all visitation between Father and children be strictly supervised by an adult;

(2) Mother to submit to random drug tests, and a drug and alcohol assessment;

(3) Mother attend and successfully complete a parenting skills class.

The family court rejected the requested relief and ordered a six-month extension of the Placement Plan for the purpose of reunification, and a completion of a thorough investigation of the unaddressed issues.

On January 23, 2009, DSS issued a second Supplemental Report. The Report recommended termination of Defendants' parental rights and adoption as a permanent plan for the children. Despite the fact that Mother obtained adequate employment and housing, DSS stated that her alleged drug use necessitated continued foster care of the children:

Although [Mother] successfully completed a mental health assessment and no services were needed and obtained adequate employment and housing with space available for 2 children, a Permanency Planning Hearing was held on September 18, 2008 ordering Mother to undergo an alcohol and drug assessment. On December 3, 2008 Saluda County DSS transported [Mother] ... for an alcohol and drug assessment. [Mother] tested positive for cocaine and marijuana, she denies any drug use and refuse [sic] to comply with treatment services offered ..., however, her file was unsuccessfully closed as of December 23, 2008 due to her lack of attendance.

The report also noted Father's inability to meet the demands of the Plan:

[Father] ... has not obtained adequate housing nor has he demonstrated the ability to economically provide for all the needs of the minor children.

On February 19, 2009, the family court held a Permanency Planning Hearing and DSS presented results and findings from its further investigation of the unaddressed issues from the September 30, 2008 hearing. DSS verified that Father agreed to a court finding that he more likely than not molested his daughter. Moreover, although this order was included in the Statewide Central Registry, DSS previously failed to discover the court order due to an existing law which provided for the purging of the registry following a certain period of time. DSS concluded that because of this molestation issue and Father's unemployment and homelessness, termination of his parental rights with regard to Boy and Girl would be in the children's best interest.

DSS also presented the results of Mother's drug and alcohol assessment from the Supplemental Report, and verified her positive test, refusal to attend group sessions and denial of drug use. DSS argued supportable grounds for termination of parental rights (TPR) existed and termination would serve the best interests of the children. The family court agreed, and issued an order on February 19, 2009, directing severance of parental rights:

The children have continuously been in foster care since October 5, 2007, a period of sixteen months. S.C.Code Ann. § 20–7–766(F)(Supp.2007) makes it clear that a reasonable time for reunification is not to exceed eighteen (18) months. Indeed there is no statutory provision for extending the time for reunification based upon issues that may arise after the children are taken into care. In this case, the issue of drug use by [Mother] arose because of her conduct; her unwillingness to address that issue has resulted in an expiration of the time this [c]ourt will afford her to demonstrate that she can provide for these minors. The need for permanency for these children will not abide further delays in obtaining that permanency.

....

DSS shall commence a termination of parental rights proceeding against Defendants within sixty (60) days of the filing of this Order.... The next permanency planning hearing shall be held within one (1) year of the date of this hearing.

Despite this finding, at the termination of parental rights hearing, the family court found that the evidence supported Defendants'claim that DSS failed to provide services to assist them in meeting their goals:

The parental rights of Defendants ... should not be terminated because it is not in the best interest[s] of the children to do so at this time. Defendant's claim that Plaintiff was dilatory and mishandled this case which resulted in the extended time in which the children have been in Plaintiff's custody. It is undeniable that had the Plaintiff uncovered subsequently discovered concerns sooner, [Defendants] would have been afforded more time to adequately address those concerns and more importantly, to consider the consequences of failing to address those concerns.

Additionally, the family court noted that, in September 2008, DSS appeared ready to return the children to the custody of Mother, and “while there were good and justifiable reasons for the [c]ourt's refusal to do so, it does not appear that [DSS] has provided sufficient time and guidance and services in remedying those concerns.” The family court then mandated the continued placement of the children with DSS and ordered the parties to agree on a Placement Plan designed to effectuate the reunification of Defendants and the children. The family court required that the Plan include at least a psychological evaluation and random alcohol and drug tests for Defendants, parenting skills classes, closely...