Chris v. Jennifer J.

• Decision Date: 08 May 2013
• Docket Number: No. 27251.,27251.
• Citation: 742 S.E.2d 382,403 S.C. 96
• Parties: Chris and Frankie BROOM, Respondents, v. JENNIFER J., Derrick H., and South Carolina Department of Social Services, Defendants, Of Whom Jennifer J. is the, Appellant. Appellate Case No. 2012–206546.
• Court: South Carolina Supreme Court

403 S.C. 96

742 S.E.2d 382

Chris and Frankie BROOM, Respondents,

v. JENNIFER J., Derrick H., and South Carolina Department of Social Services, Defendants,Of Whom Jennifer J. is the, Appellant.Appellate Case No. 2012–206546.

No. 27251.

Supreme Court of South Carolina.

Heard April 2, 2013.

Decided May 8, 2013.

Jennifer A. Jeffrey, of Jeffrey Law Firm, LLC, and Thomas L. Bruce, of S.C. Legal Services, both of Greenville, for Appellant.

Philip J. Temple, of Temple and Mann, of Greenville, for Respondents.

Deborah Murdock, of Murdock Law Firm, LLC., of Mauldin, for Amicus Curiae, Greenville County Department of Social Services.

Justice HEARN.

This would be a straightforward appeal in a termination of parental rights action but for the fact that the mother whose rights were terminated was erroneously denied counsel. However, because we hold she was not prejudiced by the error, the grounds for termination were established by clear and convincing evidence, and termination is in the child's best interest, we affirm.

FACTUAL/PROCEDURAL BACKGROUND

In March of 2007, Mother gave birth to Child.¹ Five months later, on August 7, 2007, the Pickens County Department of Social Services received a report of neglect from a sheriff's deputy. Three families—six adults and eleven children—resided in Child's home, the trash was overflowing, moldy dishes and food were strewn about, Mother and Father admitted to using cocaine, and Child had a visibly flat head which Mother explained resulted from her being left in a car seat for extended periods. Mother also admitted that Child had received her immunizations from the health department, but had not seen a doctor since birth. The same day, DSS filed a complaint for removal of Child and her older half-sister (Sister) due to abuse and neglect.² The following day, Child tested positive for cocaine.

On August 17, 2007, Child and Sister were removed from the home and placed in emergency protective custody. A week later, Child was placed with the Brooms for foster care.³ Following a hearing, the family court found probable cause for removal of Child based on the positive drug test and Mother's admission of substance abuse. The court also gave legal custody of Child to DSS and directed the appointment of counsel for Mother. At some point thereafter an attorney was appointed to represent Mother.

Following a merits hearing, the family court issued an order finding physical abuse and neglect and approving treatment plans for the parents. Mother's treatment plan required her to obtain a safe and stable home, undergo psychological and substance abuse assessments, complete parenting classes, obtain and maintain employment for six consecutive months, and undergo random drug testing. Additionally, the court approved a visitation plan which provided that Mother was to visit Child at least twice per month.

In the ensuing months, Mother failed several drug tests, with her last failed test occurring in January of 2008. At a permanency planning hearing that month, she admitted that if she was tested at that time, she would be positive for cocaine. Presumably, she quit using drugs at some point thereafter as she passed all subsequent drug tests. At the permanency planning hearing, she also agreed Child should remain in DSS custody because her home was still not safe. In the resulting initial permanency planning order, the family court declined to return Child to Mother and Father because Mother had tested positive for cocaine and they both admitted to continued use.

In April of 2008, Mother was arrested on burglary and grand larceny charges and spent two months in jail. She was released and completed a pretrial intervention program. One year later, in April of 2009, a second permanency planning hearing was held. Mother and the other parties agreed that Child should not be returned to her at that time because Child faced an unreasonable risk of harm from her not having completed the treatment plan. The court ordered that Child was to remain in DSS custody.

On May 15, 2009, the Brooms filed this action for termination of parental rights and adoption, listing Mother, Father, and DSS as defendants. The complaint sought termination of Mother's parental rights on the grounds of Mother failing to visit Child in excess of six months, Mother failing drug rehabilitation and suffering from the diagnosable condition of drug addiction, Mother surrendering possession of Child withoutmaking adequate arrangements for her care, and Child having been in foster care for fifteen of the most recent twenty-two months.

The Brooms filed a motion for temporary relief which, in part, sought the appointment of counsel for Mother and Father. In an order entered June 30, 2009, the Honorable Kinard Johnson found they were not entitled to court-appointed counsel because the action was not brought by DSS. In a later hearing before the Honorable Alex Kinlaw, Mother objected to proceeding without counsel, and while the court noted that objection in its subsequent order, it did not make any findings or rulings relevant thereto.

In October of 2009, Mother married. In November 2010, she had a third child, fathered by her husband. Mother ceased working outside the home and devoted her time to caring for her third child and Sister.

A final hearing was scheduled for August 11, 2010, but Mother retained South Carolina Legal Services to represent her one week prior to the hearing. Her new counsel moved for a continuance of the hearing in order to prepare, and the motion was granted. While several additional continuances were granted in the case, none were requested by Mother.

On November 1, 2011, a final hearing, at which Mother was represented by counsel, was held on the Brooms' TPR action.⁴ Christy Harris, the DSS caseworker assigned to Child, testified about the visitation between Mother and Child, stating Child often cried during the visitation and did not identify Mother as her parent. She also presented a visitation log which showed that Mother typically visited Child for one hour once per month. Mother only exercised her minimum, twice per month visitation in two of the fifty months Child had been in foster care. She did not visit Child for eight months from December 21, 2007, to August 30, 2008. She also failed to visit Child in eleven other months.⁵ In short, Mother exercised only thirty-four of the minimum one hundred visits she was permitted to make. She explained her failure to visit more often as arising from difficulties scheduling visits with DSS and the Brooms and the cancellation of visits by the Brooms. Harris acknowledged that her log did not reflect when visitation was requested but was unable to be scheduled. She also acknowledged there were times when Mother requested visitation but she or the Brooms were not available.

Harris testified that for two and a half years after the April 2, 2009 permanency planning hearing, DSS did not request another hearing despite the family court stating Mother would be ready for the return of Child by October of 2009. While DSS policy apparently—and remarkably—does not require the automatic scheduling of a hearing when a parent completes a treatment plan, Harris asked a DSS attorney to set a hearing for the case but it was never done. She also testified Mother did not complete her treatment plan in a timely manner because she did not complete it within one year of Child's removal. She noted that the foster care review board, which meets every six months, recommended adoption at its previous five or six meetings. However, she testified that DSS supported the reunification of Mother and Child as being in Child's best interest.

Mrs. Broom testified concerning her family and Child's place in it. Both Mr. and Mrs. Broom hold advanced degrees in their respective fields and are gainfully employed. At the time, in addition to having four-year-old Child, they had three sons, ages seventeen, fifteen, and ten and another foster child, age three, in their home. Their sons are all accomplished as students, athletes, and musicians.

When Child arrived in the Brooms' home she suffered from serious developmental difficulties. At the age of five months, when placed stomach-down on a blanket she was unable to roll-over, move, or even turn her head to breathe. She was also unable to track movement with her eyes or sit up on her own. Since that time, the Broom family engaged in numerous treatments and exercises to address Child's misshapen head and developmental difficulties. The most striking example is that Child had to wear a corrective helmet for six months in order to reshape her head. She is now developmentally advanced for her age and is actively involved in family activities, school, and church.

Over Mother's objection that neither she nor her report had been disclosed prior to the hearing, bonding expert Meredith Loftis testified about the bond between Child and the Brooms. She expressed her opinion that Child should be placed with the Brooms and highlighted the permanency needed in a child's life and the feeling of permanency Child had developed in the Broom family. She testified that Child views the Brooms as her family and if she was removed from them, she would be at risk of suffering from attachment disorder which may cause emotional, behavioral, and substance abuse problems later in life.

Mother testified an attorney was appointed to represent her in the DSS case. However, she last heard from him in 2009, and was unsure why he failed to continue to represent her. He did state to her at one point that he could not represent her in the Brooms' TPR action. It seems he was still representing her at the initial permanency planning hearing on April 2, 2009, because he is listed as appearing as her counsel in the ensuing order.

Mother further testified that her understanding from the April 2009 permanency planning hearing was that she had completed the treatment plan but would have to...