Court of Appeals requires DSS to offer mother more treatment

Posted Monday, August 3rd, 2015 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The August 3, 2015 Court of Appeals opinion in SCDSS v. Briggs 413 S.C. 377, 776 S.E.2d 115 (Ct. App. 2015), reverses a family court determination that the South Carolina Department of Social Services (DSS) did not have to offer Mother further services and creating a permanency plan of termination of parental rights (TPR) or relative placement.

In Briggs, on August 2, 2013, Briggs’s older three children were placed in emergency protective custody. After a contested merits hearing, the family court determined Briggs physically abused the children and adopted a placement plan which required Briggs to complete a psychological evaluation, attend various forms of counseling, obtain and maintain stable housing and income, and complete a drug and alcohol assessment. The placement plan also set forth specific goals for behavioral changes and parenting skills. The placement plan stated DSS would “arrange or provide” the counseling and evaluation services. The family court ordered—in addition to the placement plan—a psychologist evaluate Briggs’s oldest child, a counselor observe Briggs interact with the children, and a psychologist evaluate whether Briggs could parent the children considering their special needs.

By the time of the initial permanency planning hearing on February 6, 2014, Briggs had obtained stable employment and housing, completed parenting classes, and completed a psychological evaluation. She had been assessed by a counselor at a drug and alcohol treatment center, who wrote in a report that Briggs was “receptive to feedback” and “a pleasure to work with.” Briggs had also begun individual counseling. Despite Briggs’s substantial compliance with the placement plan, the family court amended the plan to add several additional requirements, including that “Briggs successfully complete family counseling at the Nurturing Center or a similar type facility.” The court determined the permanent plan for the children would be reunification and ordered a reevaluation in three to six months.

While Briggs was compliant in all her other treatment, she was discharged from the Nurturing Center in May 2014 for being difficult to deal with. She gave birth to a fourth child in July 2014 and that child was immediately removed by DSS. The merits hearing on the newborn and a second permanency planning hearing took place later that month. Because Briggs never completed counseling at the Nurturing Center, the court found she had not remedied the conditions that caused the removal and changed the permanency plan for the children to relative custody concurrent with TPR and adoption. Additionally, the court found it would be in the children’s best interests for DSS to forego reasonable efforts at reunification. Finally the court found returning her youngest child to the home would place her at an unreasonable risk of harm or neglect and ordered the same permanency plan for her. Briggs appealed.

The Court of Appeals determined that the family correctly removed the youngest child from Briggs’s home, finding that the abuse she had previously inflicted on the older children, coupled with her failure to completely remedy the conditions that led to removal, qualified the youngest child as an abused child.

However the Court of Appeals reversed and remanded the permanency plan and the determination that DSS should not be required to offer Briggs further services. In remanding the order allowing DSS to forgo further efforts at reunification, the Court noted:

As to the three older children, the family court stated, “Briggs has not remedied the conditions that caused the removal,” and “[i]t is in the minors’ best interests to terminate reasonable efforts to reunite the minors” with Briggs. However, the court did not make the findings required by section 63-7-1640. In particular, the court made no finding regarding the conditions listed in subsection 63-7-1640(C) or as to “why continuation of reasonable efforts [was] not in the best interest of the child[ren].” § 63-7-1640(F). The family court determined only, “DSS is no longer obligated to provide or arrange treatment services to . . . Briggs. The permanent plan for the minors at this time is no longer reunification . . . .” The family court did find subsection 63-7-1640(C)(8) applied to Briggs’s youngest child’s case, but it did not make any specific findings to support the conclusion. Subsection 63-7-1640(C)(8) requires the family court to find “other circumstances exist” that make continuation of reasonable efforts at reunification inconsistent with the child’s permanent plan. However, the family court did not make any finding as to what the “other circumstances” were.

Accordingly, we reverse and remand for a new permanency planning hearing and for the family court to make specific written findings to support its decision as required by subsection 63-7-1640(F). On remand, the family court should also consider the continuation of treatment services for Briggs.

In remanding the permanency plan issue, the Court of Appeals noted:

[T]he evidence presented regarding Briggs’s discharge from the Nurturing Center does not constitute sufficient proof that Briggs was not making the required behavior changes. Additionally, we are impressed by the positive reports Briggs submitted from other service providers, including the Department of Mental Health, where Briggs attended ongoing family therapy with her oldest child. According to the letter from the Department of Mental Health—which was written after Briggs’s discharge from the Nurturing Center and entered into the record without objection—Briggs showed insight into her oldest child’s behavior and “expressed a desire to continue therapy.” In the letter, the counselor recommended continued family therapy and stated Briggs’s oldest child could be “successfully returned home” if Briggs obtained “external support, continued family therapy, and continued practic[ing] parenting techniques learned in therapy.” Although Briggs successfully completed several aspects of her treatment plan and was continuing family counseling through the Department of Mental Health, the order does not indicate the family court considered this and other positive reports or Briggs’s ongoing therapy when determining the permanent plan. Because the children had been in foster care for less than one year at the time of the permanency planning hearing and Briggs was regularly attending counseling designed to help her remedy the conditions causing removal, an extension for reunification would have been a viable option for the permanent plan. Accordingly, on remand, the family court shall consider whether the permanent plan should be an extension for reunification, as set forth in subsection 63-7-1700(F).

The May 2010 changes to permanency plan provisions has made it harder for parents to get their children returned from DSS custody after they have been found to have abused or neglected those children. No longer is completion of a treatment plan sufficient for return and, as happened in the Briggs case, DSS and the courts sometimes add to the plan’s requirements after a parent has substantially completed the initial plan. Ms. Briggs seemed to be doing well in the treatment until she could not get along with one treatment provider. The remedy of permanent removal due to that inability seems pretty harsh. The Court of Appeals opinion gives her another chance.