The April 30, 2014 South Carolina Supreme Court opinion in the case of In the Interest of Jane Doe, 407 S.C. 623, 757 S.E.2d 711 (2014), provides a rare interpretation of South Carolina’s adult protective services statute and may have implications for South Carolina’s child abuse and neglect statutes.
Because the probate court handles the appointment of legal guardians and financial conservators for incapacitated adults, the family court’s authority to order protective services for “vulnerable adults” is rarely invoked and few if any family law attorneys handle cases falling within the Omnibus Adult Protection Act, S.C. Code Ann. §§ 43-35-5 to -595. The Doe case arose when the Richland County Sheriff’s Office found an eighty-six year old woman, alone without family support and suffering from a heart condition, living in a dilapidated home. The sheriffs took her into emergency protective custody and transported her to the hospital. DSS then filed a petition seeking to designate Doe a “vulnerable adult” in need of protective services.
At the merits hearing DSS presented the testimony of a licensed counseling psychologist, Dr. Marc Harari, who:
concluded that Doe appeared to have “the minimum levels of competency to function independently” as there was no evidence of dementia, severe emotional issues, or obvious physical limitations. Despite this conclusion, Dr. Harari noted his concerns regarding Doe’s self-admitted lack of finances needed to repair her home, her limited social support system other than members of her church and a neighbor, and her need for continued medical monitoring due to her medical conditions and advanced age. If the court determined that Doe could return home, Dr. Harari recommended that DSS maintain an open treatment case to ensure Doe’s home was repaired and that Doe interacted with peers to alleviate Doe’s feelings of isolation.
Counsel for DSS acknowledged Dr. Harari’s conclusion regarding Doe’s competency, he emphasized Doe’s advanced age, medical issues, and the condition of Doe’s home. Specifically, counsel noted that Doe had a minor heart condition and hypertension, but conceded there is “nothing in [the record] to indicate that chronic medical needs are not being addressed.” Counsel also admitted there was “very little evidence to establish the threshold [determination] that she’s a vulnerable adult.” Due to this “scintilla of evidence,” counsel stated he had debated whether to ask the court to dismiss the petition filed by DSS.
In response, Doe’s counsel disputed the claim that Doe qualifies as a vulnerable adult due solely to her advanced age because Doe had been deemed competent by Dr. Harari. Counsel also described Doe as a “fiercely independent” woman who wanted to return to the home that she had lived in since 1967 and did not want any of the services provided by DSS.
The GAL’s counsel indicated that the GAL was reticent to make a recommendation as to whether Doe met the statutory definition of a vulnerable adult given the lack of supporting evidence and limited case law interpreting the Act. However, counsel acknowledged that, pursuant to the Act, Doe would have to be deemed a vulnerable adult in danger of neglect in order for DSS to provide Doe with the necessary services to address her unfavorable living conditions.
The family court found Doe met the statutory definition of a vulnerable adult because “due to the infirmities of aging, she cannot fully and completely provide for her own safety.” The court noted that the condition of Doe’s home “played a major role in her being taken into emergency protective custody.” Although the court acknowledged Doe has the “minimum levels of competency to function independently,” it relied on Dr. Harari’s finding that Doe requires medical monitoring given Doe’s medical conditions and advanced age. Additionally, the court concluded Doe was in need of protective services based on Dr. Harari’s suggestion of an open treatment case to ensure that the essential repairs were made to Doe’s home.
As a result of these findings, the court ordered DSS to provide Doe with the necessary services to make Doe’s home habitable. Specifically, the court ordered for: (1) the water supply to be reconnected; (2) the house to be “subjectively clean,” which meant “clean within a reasonable degree” not necessarily “perfectly clean”; (3) electrical power to be supplied, if not already, to the house; (4) the heating system to be operational; (5) an air conditioning system, if in place, to be operational; and (6) the house to have adequate food and cleaning supplies. The court instructed that Doe should remain in the custody of DSS until each item had been completed. Upon completion, Doe could return home but DSS was ordered to “monitor the home in compliance with its policy.” Finally, the court scheduled a hearing on June 20, 2013, at which time the court would review the progress of the home repairs and determine whether Doe was financially capable of paying for the ordered services.
Doe appealed and the Supreme Court accepted direct review of the appeal. Because of her appeal, the June 20, 2013 review hearing did not go forward.
The Supreme Court reversed the family court in a 3-2 decision. Although the statute does not indicate the burden of proof for determining whether someone is a “vulnerable adult,” all five justices agreed that a heightened, “clear and convincing evidence,” standard was required. The court reached this conclusion because of the constitutionally protected liberty interests threatened by application of this act and because the involuntary commitment code, S.C. Code Ann. § 44-17-580(A), requires a similar burden of proof. The majority determined that DSS had failed to meet this burden of proof and reversed.
The dissent believed that “protective services were necessary to protect Doe from the substantial risk of neglect” and that the judge’s order “acknowledged Doe’s mental abilities and sought a prompt return of Doe to her home upon the completion of necessary repairs to make her home livable.” Under these facts it would have affirmed.
The Doe decision is interesting because it provides a rare interpretation of a statute that few family court practitioners encounter. Further, the finding that a clear and convincing evidence standard is needed to overcome the liberty interests incorporated into our State and Federal constitutions lends some support for my belief that the burden of proof in abuse and neglect cases is unconstitutionally low.
