Hooper v. Rockwell

Decision Date22 February 1999
Docket NumberNo. 24907.,24907.
Citation513 S.E.2d 358,334 S.C. 281
PartiesKim D. HOOPER and Beverly G. Hooper, Plaintiffs, v. Amy ROCKWELL, Tony Suttles, South Carolina Department of Social Services, Candice Lynn Suttles, Shannon Donna Suttles, and Anthony Robert Edward Suttles, of whom Candice Lynn Suttles, Shannon Donna Suttles, and Anthony Robert Edward Suttles are minors under the age of eighteen years, by their guardian ad litem, Edward Galloway, Defendants. South Carolina Department of Social Services, Plaintiff, v. Amy Suttles Rockwell and Tom Rockwell, Defendants. In the Matter of Anthony Suttles, Shannon Suttles, Candice Shuttles, and Christopher Perry, minors under the age of eighteen years, Of whom Amy Rockwell, a/k/a Amy Suttles Rockwell, is Appellant, and Kim D. Hooper, Beverly G. Hooper, and South Carolina Department of Social Services, are Respondents.
CourtSouth Carolina Supreme Court

John C. Bruton, Jr., and James L. Ward, Jr., both of Sinkler & Boyd, P.A., Columbia, for appellant Amy Suttles Rockwell.

Kellum W. Allen and C. Vance Stricklin, Jr., both of Kirkland, Wilson, Moore, Allen, Taylor & O'Day, P.A., West Columbia, for respondents Kim D. Hooper and Beverly G. Hooper.

Aphrodite K. Konduros of the Office of General Counsel, Columbia, for respondent South Carolina Department of Social Services.

Elisabeth C. Gallant of Columbia for the guardian ad litem, Edward Galloway.

WALLER, Justice:

Amy Suttles Rockwell (appellant) appeals the decision of the family court to terminate her parental rights in three of her children and allow Kim D. Hooper and Beverly G. Hooper (the Hoopers) to adopt the children. We affirm the judgment of the family court.

FACTS

Law enforcement officers, acting under S.C.Code Ann. § 20-7-610 (Supp.1997), took Anthony Suttles, age seven, into emergency protective custody in April 1991. The officers, responding to a call from Anthony's grandmother, found, Anthony frightened and dripping wet with bruises about his face and neck. Anthony told the officers his mother had choked and repeatedly dunked him in icy bath water after accusing him of stealing tapes.

After further investigation by the Fairfield County Department of Social Services (DSS), a family court judge in May 1991 granted an ex parte request by DSS to take Candice Suttles and her twin sister Shannon Suttles, both age six, and Christopher Perry, age nine, into emergency protective custody. The children had injuries that were inconsistent with the explanations offered by appellant or her boyfriend at the time, Tom Rockwell (Rockwell), DSS told the family court.1 Appellant also was emotionally unstable and refused to allow DSS into her home or undergo a court-ordered psychological evaluation. The children were placed in foster homes.

In July 1991, appellant and Rockwell entered into a consent order with DSS. They agreed to a finding of a threat of harm to the children, that DSS would retain custody of the children, and that visitation with the children would be suspended until independent psychologists reported their progress and determined the children would not be harmed by visitation. Appellant promised to seek prompt psychological treatment and mental health counseling. Rockwell agreed to undergo a psychological evaluation and mental health counseling. Both agreed to sign the necessary forms for release of psychological reports to DSS.

In October 1991, the family court found appellant and Rockwell in contempt for refusing to comply with the consent order. The court sentenced each to ninety days in jail, suspended upon the completion of psychological evaluations and compliance with other terms of the consent order. In February 1992, the family court again found appellant and Rockwell in contempt for failing to comply with previous orders and again ordered them to undergo the necessary evaluations and seek mental health counseling. The court sentenced each to twenty-four hours in jail.

In May 1992, the family court, after reviewing the case and hearing testimony by psychologists who had interviewed appellant and the children, ordered that DSS retain custody of the children. Both psychologists diagnosed appellant as suffering from histrionic personality disorder.2 The court ordered, among other things, that appellant and Rockwell participate in counseling, that appellant pay child support, that DSS have the children evaluated again to ensure the foster parents were not manipulating them, that the children continue with counseling, and that appellant and Rockwell have supervised visitation with the children.

The case was transferred to Richland County in September 1992 after appellant and Rockwell, the foster parents, and the children moved to Richland and Lexington counties. The family court temporarily suspended appellant and Rockwell's visitation rights in January 1993 on the motion of DSS after a particularly disruptive visit. Appellant and Rockwell did not appear at the hearing. In May 1994, the family court again ordered that appellant undergo a psychiatric evaluation, as she previously had been ordered to do in 1991.

ISSUES
1. Must a party challenge emergency removal orders in a timely appeal filed after the issuance of such orders, or are those orders interlocutory in nature, so that a party may challenge them when appealing a subsequent judgment in a termination of parental rights proceeding involving the same children?
2. Does S.C.Code Ann. § 20-7-610(A) (Supp.1997) violate the state or federal constitutions?
3. Did the family court err in terminating appellant's parental rights and signing the adoption decree?
1. EMERGENCY REMOVAL ORDERS

Appellant raises several issues relating to orders issued as a result of ex parte, merit, and contempt proceedings in 1991 and 1992. Appellant argues the issues are properly before this Court because all orders issued before the August 1996 order terminating her parental rights were interlocutory in nature and not immediately appealable. We disagree.

A law enforcement officer may take a child into emergency protective custody in appropriate circumstances. S.C.Code Ann. § 20-7-610(A) (Supp.1997). In addition, the family court may issue an ex parte order allowing DSS to take a child into emergency protective custody in appropriate circumstances. S.C.Code Ann. § 20-7-610(P) (Supp.1997). DSS must begin a preliminary investigation within twenty-four hours after a child is taken into emergency protective custody to determine whether grounds for assuming legal custody of the child exist. S.C.Code Ann. § 20-7-610(D) (Supp.1997). The family court must hold a probable cause hearing within seventy-two hours of the time the child was taken into custody. S.C.Code Ann. § 20-7-610(M) (Supp.1997).

Upon assuming legal custody of the child, DSS must begin a child protective investigation. On or before the next working day after beginning the investigation, DSS must initiate a removal proceeding in family court. The family court must hold a merit hearing within thirty-five days of receipt of the removal petition to determine whether removal is necessary. S.C.Code Ann. §§ 20-7-610(K) and 20-7-736(E) (Supp.1997). Prosecutors, DSS, and the family court must strictly comply with this schedule of hearings. The family court should order custody be returned to the child's parent or legal guardian if the hearings are not held within ten days after the statutory time limits. Doe v. State, 294 S.C. 125, 363 S.E.2d 106 (1987). The family court must review treatment, placement, and permanent plans involving children. S.C.Code Ann. §§ 20-7-762 to -766 (Supp.1997). While the Legislature has amended Section 20-7-610 three times since 1991, the basic process of judicial review—a possible ex parte order, a probable cause hearing, and a merit hearing—has remained the same.3

In Doe v. State, supra, we concluded a mother who consented to the removal of her children at a merit hearing was barred from later raising statutory and constitutional challenges in the Court of Common Pleas. We indicated the mother could have appealed the order if she had not consented to it.

Appellant's case presents similar facts. She consented to the removal of her children in an order dated July 31, 1991, which was issued after a merit hearing. Appellant agreed, among other things, to undergo a psychological evaluation and seek mental health counseling in order to rectify the problems and reunite her family. We hold that appellant may not appeal that consent order because such orders are not appealable. See Doe v. State, supra; Wilson v. All, 86 S.C. 586, 68 S.E. 824 (1910) (court will not entertain appeal from an order issued with parties' consent); Smith v. Lowery, 56 S.C. 493, 35 S.E. 129 (1900) (same); Parsons v. Gibbes, 59 S.C. 215, 37 S.E. 753 (1901) (same); Calcutt v. Calcutt, 282 S.C. 565, 320 S.E.2d 55 (Ct.App.1984) (same).

We further hold that an ex parte emergency removal order issued by the family court is interlocutory in nature and not immediately appealable. See Mid-State Distributors, Inc. v. Century Importers, Inc. 310 S.C. 330, 335, 426 S.E.2d 777, 780 (1993) (teaching that an order is interlocutory "[i]f there is some further act which must be done by the court prior to a determination of the rights of the parties ... or [i]f a judgment determines the applicable law while leaving open questions of fact"); In the Interest of Lorenzo B., 307 S.C. 439, 415 S.E.2d 795 (1992) (order adjudicating a juvenile to be delinquent is not immediately appealable; instead appeal may be taken after imposition of final judgment at dispositional hearing); State v. Dingle, 279 S.C. 278, 306 S.E.2d 223 (1983) (ex parte order issued by trial judge in homicide case to have defendant undergo mental examination is not immediately appealable), abrogated on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); 4 C.J.S. Appeal...

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