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

• Decision Date: 10 October 2016
• Docket Number: Opinion No. 5445,Appellate Case No. 2014–001134
• Citation: 418 S.C. 308,792 S.E.2d 254
• Parties: South Carolina Department of Social Services, Respondent, v. Ngoc Tran and Thomas Nguyen, Defendants, Of Whom Ngoc Tran is the Appellant. In the interest of a minor child under the age of eighteen.
• Court: South Carolina Court of Appeals

418 S.C. 308

792 S.E.2d 254

South Carolina Department of Social Services, Respondent,

v. Ngoc Tran and Thomas Nguyen, Defendants,Of Whom Ngoc Tran is the Appellant.In the interest of a minor child under the age of eighteen.

Appellate Case No. 2014–001134

Opinion No. 5445

Court of Appeals of South Carolina.

Heard September 8, 2016

Filed October 10, 2016

Kimberly Yancey Brooks, of Kimberly Y. Brooks, Attorney at Law, of Greenville, for Appellant.

Kathleen J. Hodges, of South Carolina Department of Social Services, of Anderson, for Respondent.

Brittany Dreher Senerius, of Senerius & Tye, Attorneys at Law, of Anderson, for the Guardian ad Litem.

PER CURIAM:

Ngoc Tran (Mother), a Georgia resident, appeals the family court's order terminating her parental rights to her minor daughter (Child). On appeal, Mother argues the family court (1) lacked subject matter jurisdiction under the Uniform Child–Custody Jurisdiction and Enforcement Act (UCCJEA) and (2) erred in finding clear and convincing evidence supported two statutory grounds for termination of parental rights (TPR). Because we find the Department of Social Services (DSS) failed to establish subject matter jurisdiction, we vacate the underlying removal order and TPR order and remand for additional findings.

FACTS/PROCEDURAL HISTORY

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."

According to a placement plan prepared by DSS, Mother previously had an "altered mental episode" in Georgia and left Child unattended; Mother had an "extensive history" with the Department of Families and Children in Georgia; Child had been placed in foster care in Georgia; and there were "allegations of criminal domestic violence in Harrisburg, Pennsylvania with [Mother's] husband." 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.

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. At the hearing, a DSS foster care worker testified Mother was a resident of Cobb County, Georgia; Father's last-known address was in Philadelphia, Pennsylvania; and Child was born in Pennsylvania. Following testimony, 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." The family court asked DSS whether it had investigated the allegations of domestic violence in Pennsylvania. Counsel for DSS replied,

[B]ased on 2005 we did not do an independent investigation early on in the case in terms of the Philadelphia situation. I can tell the [c]ourt that we have subsequently checked with Philadelphia to find out what the status of that case was. They can find nothing on their records. They're going back and checking. It's, I guess, nine years since that case would have happened.

So at this point we don't have any, either verification or proof, you know, or disposition of that case.

Counsel for DSS stated records from Georgia's Department of Families and Children noted allegations of domestic abuse, but she believed that "referred back to the Philadelphia records." The family court acknowledged Mother sent letters to the court indicating she had a case in Philadelphia "scheduled for a hearing in July of this year"; it asked Mother's counsel whether she had anything to support that. Mother's counsel replied, "I don't, Your Honor. I mean, I was in this case to represent her in this case. I don't really know anything about the Philadelphia case nor did I investigate it." The family court then asked Mother whether she had any documents to support her allegation that she had an upcoming hearing scheduled in Pennsylvania; Mother submitted a document to the court. After reviewing the document, the family court replied, "Do you have something else? This looks like something she instituted through the Pennsylvania court system. I'm not sure. Do you have any further information?" Mother's counsel stated she did not.

Mother asserted she moved from Philadelphia to Georgia to escape domestic violence. She stated she had lived in Georgia for three years, and she and Child had not had any contact with Father since leaving Pennsylvania ten years prior.

The record on appeal contains two documents from a Pennsylvania court. The first document is a June 16, 2005 order from the Philadelphia County Family Court Division suspending Father's visitation with Child and scheduling a "protection from abuse hearing." The second document is a January 17, 2014 order from the Philadelphia County Family Court Division setting a custody hearing for July 16, 2014; Mother was the petitioner and Father was the Respondent.¹

In its order denying Mother's motion for reconsideration, the family court found,

[Mother] claims that a court case is pending in Philadelphia, Pennsylvania that involves the issue of custody of the child. It appears from the evidence presented that [Mother] instituted an action seeking an Order of Custody against the child's father, who may be [Mother's] current or ex-husband. The pending court case in Philadelphia, Pennsylvania is not relevant to the issue of [TPR] in the instant case. Furthermore[,] it appears that the Pennsylvania Courts do not have jurisdiction over the matter of custody of this minor child. A merits hearing was held on the removal on October 25, 2012[,] pursuant to [section] 63–7–1660 [of the South Carolina Code]. [M]other was properly served but did not appear. An Order for Removal arising from the merits hearing was filed on December 3, 2012. This was a final order, Hooper v. Rockwell , 334 S.C. 281, 513 S.E.2d 358 (1999), holding merits orders are final orders which must be timely appealed. [Mother] did not appeal the Removal order and therefore jurisdiction regarding the custody of [Child] vested in the State of South Carolina in 2012[,] and the Pennsylvania Courts are without jurisdiction to act regarding the custody of the minor child.

This appeal followed.

LAW/ANALYSIS

Mother argues the family court lacked subject matter jurisdiction under the UCCJEA. She contends South Carolina was not Child's home state when this removal action began, and South Carolina only had emergency jurisdiction under section 63–15–336 of the South Carolina Code (2010). We agree.

In appeals from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons , 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011).

"Subject matter jurisdiction is ‘the power to hear and determine cases of the general class to which the proceedings in question belong.’ " Dove v. Gold Kist, Inc. , 314 S.C. 235, 237–38, 442 S.E.2d 598, 600 (1994) (quoting Bank of Babylon v. Quirk , 192 Conn. 447, 472 A.2d 21, 22 (1984) ). A court without subject matter jurisdiction does not have authority to act. Id. at 238, 442 S.E.2d at 600. "A judgment of a court without subject-matter jurisdiction is void." Coon v. Coon , 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005).

"Lack of subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court." Badeaux v. Davis , 337 S.C. 195, 205, 522 S.E.2d 835, 840 (Ct. App. 1999) (quoting Lake v. Reeder Constr. Co. , 330 S.C. 242, 248, 498 S.E.2d 650, 653 (Ct. App. 1998) ). "Lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this [c]ourt." Id. "[I]t is the duty of this court to take notice and determine if the [f]amily [c]ourt had proper jurisdiction for its actions." Id.

"The [Parental Kidnapping Prevention Act (PKPA)² ] and the UCCJEA govern subject matter jurisdiction in interstate custody disputes." Anthony H. v. Matthew G. , 397 S.C. 447, 451, 725 S.E.2d 132, 134 (Ct. App. 2012). "The PKPA is primarily concerned with when full faith and credit should be given to another [s]tate's custody determination." Id . (alteration by court) (quoting Doe v. Baby Girl , 376 S.C. 267, 278, 657 S.E.2d 455, 461 (2008) ). "The UCCJEA's primary purpose is to provide uniformity of the law with respect to child custody decrees between courts in different states." Id ."[B]oth the PKPA and UCCJEA apply to TPR actions." Id.

The UCCJEA, which has been adopted by South Carolina,³ Georgia,⁴ and Pennsylvania,⁵ provides three basic ways a state can establish jurisdiction over a case involving child: a state can have jurisdiction to make an initial child custody determination, a state can have jurisdiction to modify a child custody determination made by another state, or a state can have temporary emergency jurisdiction. See S.C. Code Ann. § 63–15–330 (2010) (initial determination jurisdiction); S.C. Code Ann. § 63–15–334 (2010) (modification jurisdiction); S.C. Code Ann. § 63–15–336 (2010) (temporary emergency...