The September 3, 2014 Court of Appeals decision in SCDSS v. Hogan, 410 S.C. 120, 763 S.E.2d 219 (Ct. App. 2014), is highly critical of the method our county uses to handle abuse and neglect proceedings. It reversed the family court’s determinations that it no longer had jurisdiction to order return of the parents’ children or over their Son.
In Hogan the parents’ two children were removed by DSS. At the merits hearing, in January 2011, the parties agreed that their Daughter would remain in DSS custody and their Son would be placed with a relative. Findings of abuse or neglect were reserved. The next month Mother gave birth and DSS brought a removal action for that child. Due to various delays, the merits hearing in that case wasn’t held until December 2011, and was combined with a permanency planning hearing on the initial case. Again a merits finding was reserved, Daughter and baby remained with DSS, and Son remained with a relative.
In February 2013, a permanency planning hearing was scheduled involving all three children. At that hearing DSS argued reunification could not be a goal because section 63-7-1700(F) of the South Carolina Code prohibits an extension for reunification after a child has been in foster care for eighteen months. Father and Mother asserted they had a right to a merits hearing before proceeding with the permanency planning hearing because the family court never made a finding of abuse and neglect. DSS and the guardian also argued that Son should be dismissed from the case pursuant to section 63-7-1670(C)(2) of the South Carolina Code. The guardian ad litem noted Son was placed in relative custody more than eighteen months before and argued the clear language of the statute indicated jurisdiction with respect to Son had terminated.
The family court agreed, dismissing Son from the case and ordering a permanency plan of termination of parental rights (TPR) and adoption concurrent with relative custody. Mother appealed.
The Court of Appeals reversed, finding that the family court still had jurisdiction over Son and that the court should have held a merits hearing on the abuse and neglect allegations before issuing a permanency plan that did not return the children to the parents. On the issue of the parents’ right to a merits hearing, the Court of Appeals held:
We hold the family court had the authority to order a merits hearing, and it should have done so at the parents’ request. Section 63-7-1660(E) is plain and unambiguous, and it mandates a finding of abuse or neglect before a child can be retained in foster care. Here, the family court was presented with the conundrum of holding a permanency planning hearing for children who had been in foster care for more than two years without any affirmative finding they were abused or neglected. Had the family court previously made a finding of abuse or neglect, it would have been correct in finding it could not order an extension for reunification. See S.C. Code Ann. § 63-7-1700(F) (Supp. 2013) (“[T]he court may order an extension of the [placement] plan . . . but in no case may the extension for reunification continue beyond eighteen months after the child was placed in foster care.”). However, because the family court never made an affirmative finding of abuse or neglect and the parents never had an opportunity to present evidence to contest such a finding, the family court had more options at the permanency planning hearing, and it should have scheduled a merits hearing at the request of the parents. …
We acknowledge the family court here did not prohibit Mother from presenting testimony at the permanency planning hearing. However, its finding it lacked jurisdiction to order reunification rendered any consideration of evidence moot. Based on the plain language of section 63-7-1700(D) of the South Carolina Code (Supp. 2013), the family court had the jurisdiction and the authority to return the children to Mother if it determined the children could “be safely maintained in the home [because Mother] remedied the conditions that caused the removal and the return of the child[ren] . . . would not cause an unreasonable risk of harm.” § 63-7-1700(D). We hold the family court also had the jurisdiction and authority to order a merits hearing at Mother’s request. …
Because Mother is entitled to a hearing on the merits, we reverse and remand this case for a merits hearing. At the hearing, the family court must determine whether Mother abused or neglected the children.
The Court of Appeals expressed particular concern regarding the practice of Charleston County DSS of reserving a finding of abuse and neglect as part of the merits hearing:
We take this opportunity to address a practice in Charleston County removal actions we find troubling. During oral argument, DSS stated it commonly allows parties to “reserve” findings of abuse and neglect and then proceeds with the removal action by agreement. DSS indicated it does not intend to pursue a finding of abuse or neglect when the parties agree to hold the finding in abeyance, and it asserted such a practice is permissible under South Carolina Department of Social Services v. Smith, 343 S.C. 129, 538 S.E.2d 285 (Ct. App. 2000). …
We are troubled by Charleston County DSS’s interpretation of Smith to support its position that it does not need to seek a finding of abuse or neglect in a removal action. Such an interpretation clearly contradicts section 63-7-1660(E). When this court decided Smith, it did not intend for Smith to be construed so broadly. We find this practice is in clear contravention of the removal statutes and could violate the fundamental right parents have to raise their children.
The Court of Appeals also found that the family court still had jurisdiction over Son as the order placing him with a relative was not intended to be final:
Although the order purports to be a final order, the actions of the parties show the transfer of custody was a relative placement pending completion of the placement plan rather than an order awarding Hogan permanent custody. The family court addressed Son’s custody at a May 25, 2011 judicial review hearing when the parties agreed custody of Son should remain with Hogan. The family court addressed Son’s custody again at a December 16, 2011 permanency planning hearing when the parties agreed custody of Son should remain with Hogan. Had the parties intended for the January 25, 2011 order to grant Hogan permanent custody of Son, the parties would not have continued to address Son’s custody at later hearings. Although DSS asserted the January 25, 2011 order awarded Hogan permanent custody of Son, it qualified that statement by asserting permanent custody was transferred “pending completion of the treatment plan.” This qualification shows DSS did not intend the transfer of custody to be permanent. Thus, we find the order granting Hogan custody of Son was a relative placement pending the completion of the treatment plan rather than a final order transferring permanent custody to Hogan.
The Court of Appeals further found that the family court erred in applying S.C. Code § 63-7-1670(C)(2) to find it no longer had jurisdiction over Son, as that code section applied to intervention actions and not removal actions.
As part of its analysis, the Court of Appeals explained the distinction between a “treatment plan” and a “placement plan.” These terms are generally used interchangeably in the family court system. Per the Hogan court, a “treatment plan” orders required treatment for a child’s care givers when the child remains in their home as part of an intervention case. A “placement plan” is a plan regarding the child’s placement when the child is removed from his or her parents, along with treatment that may be offered to the child’s parents to obtain the child’s return.
Finally, in a footnote, the Court of Appeals pointed out that DSS abuse and neglect cases are not subject to mandatory mediation. Another footnote was critical of the numerous delays in the merits hearing on the second removal case:
The family court must make appropriate findings in order to exceed the statutory timeframe. S.C. Code Ann. § 63-7-710(E). The remedy for the failure to timely complete the merits hearings is to “petition for the return of [the] children or move to vacate the order granting custody to DSS.” S.C. Dep’t of Soc. Servs. v. Meek, 352 S.C. 523, 532, 575 S.E.2d 846, 850-51 (Ct. App. 2002).
Kudos to Moore and Van Allen for taking on the appeal. My guess is that these lawyers were Court-appointed. They did the right thing to protect their clients’ interests and correct a serious misinterpretation of the Smith case. We are the wiser for it.