The December 30, 2016 Court of Appeals opinion in SCDSS v. Nelson, 419 S.C. 142, 795 S.E.2d 871 (Ct. App. 2016), reversed the termination of Mother’s parental rights primarily because the guardian ad litem had conducted an insufficient investigation.
In Nelson, DSS removed Mother’s three children in September 2013 because she was living with her sister in a roach-infested home without running water, lights, or food. After a merit’s hearing a month later, the family court required Mother to complete a placement plan and left the children in DSS custody.
At a July 9, 2015 hearing, DSS sought termination of parental rights (TPR) because Mother apparently had not completed the treatment plan and the children remained in DSS custody. Mother sought a continuance because she was close to completing the treatment plan. The family court denied this request.
At that hearing, the DSS caseworker noted the children remained in a group home but that Mother had subsequently given birth to a fourth child and was raising that child. He noted the children constantly asked about Mother and that Mother visited the children and occasionally brought them items when she visited. He believed a relative was willing to adopt two of the three children. The guardian ad litem did not testify or submit a report into evidence. Her attorney informed the court that the guardian believed TPR was in the children’s best interest.
The trial court found four grounds for TPR: (1) failure to remedy the conditions that caused the removal; (2) the children were harmed, and due to the severity or repetition of the abuse or neglect, it was not reasonably likely Mother’s home could be made safe within twelve months; (3) failure to support; and (4) the children had been in foster care for fifteen of the most recent twenty-two months. It further found TPR to be in the children’s best interests and ordered Mother’s parental rights terminated. Mother appealed.
The Court of Appeals affirmed one ground for TPR: the children being in foster care for fifteen of the most recent twenty-two months. Given that only one ground is necessary to terminate parental rights, the Court of Appeals did not address the remaining TPR grounds.
However the Court of Appeals found that, based on limited record presented to the family court, there was not clear and convincing evidence that TPR was in the children’s best interests. The Court of Appeals was concerned that the DSS case worker did not elaborate on the children’s current condition or their relationship with Mother. It had greater concerns regarding the guardian’s apparent failure to conduct an investigation and issue a report that complied with S.C. Code Ann. § 63-11-510 (2010). The only guardian report provided the Court of Appeals was dated April 7, 2016 and was produced for a subsequent permanency planning hearing. Her attorney was unable to provide the Court of Appeals any guardian report submitted at the TPR hearing.
The Court of Appeal concluded,
Without testimony from the GAL or a GAL report, the family court did not have an independent assessment of the children’s needs or their bonding with Mother. The only evidence in the record regarding the children’s bond with Mother was the DSS caseworker’s testimony that the children “constantly ask[ed] whether [Mother] was complying with [DSS], and they [were] aware of the possibility of what may happen if [Mother] did not comply.” The children’s interest in Mother’s progress coupled with the fact they were in a group home and not a preadoptive home suggests TPR may not be in their best interest. Finally, Mother had another child in the home, and evidence did not show she was unable to care for that child. Thus, we find the record before us does not support finding TPR was in children’s best interest.
For the remand, the Court of Appeals required a new permanency planning hearing. It held that, at that hearing, “the family court may change custody, modify visitation, and approve a treatment plan offering additional services to Mother.” It does not appear TPR remains an option, which is curious given that the basis for reversal appears to be an insufficient record at the trial level–as opposed to a finding that reunification was in the children’s best interests.
Nelson indicates that a minimal trial court record and an inadequate guardian investigation may be sufficient to reverse a termination of parental rights.
Interesting footnote. Record too sparse for a judicial determination but the “blame” seems to be with the GAL.
It seems to me too that TPR is off the table.