Chapter Nine Termination of Parental Rights

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Nine TERMINATION OF PARENTAL RIGHTS

A. In General

This chapter focuses on the grounds for terminating a parent's rights that would most frequently be used in private termination proceedings involving divorced or unmarried parents: failure to support and failure to visit. It also discusses some of the special TPR issues that might arise in private adoption actions. This chapter does not address termination of parental rights in actions initiated by DSS in abuse and neglect cases. Those actions are beyond the scope of this book.

1. Termination Statutes Are to Be Liberally Construed

Termination of parental rights statutes are to be "liberally construed in order to ensure prompt judicial procedures for freeing minor children from the custody and control of their parents by terminating the parent-child relationship. The interests of the child shall prevail if the child's interest and the parental rights conflict." S.C. Code Ann. § 63-7-2600 (2009).

The South Carolina Supreme Court addressed the construction rule in § 63-7-2600 for the first time in Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000),¹ and it held that the enactment of the legislation invalidated the prior rule that statutes providing for the termination of parental rights are to be strictly construed in favor of the parent and the preservation of the relationship of parent and child. As a result, the Supreme Court specifically overruled a series of Court of Appeals cases that continued calling for strict construction of the termination of parental rights statutes after 1984.² The Supreme Court reversed the Court of Appeals and reinstated the family court's order terminating the mother's parental rights.

The Court of Appeals acknowledged that the termination of parental rights statute should be liberally construed consistent with the purpose of facilitating prompt adoption and the best interests of the child in Arscott v. Bacon, 351 S.C. 44, 567 S.E.2d 898 (Ct. App. 2002) (reversing the family court's determination that an unwed father's consent was necessary for adoption upon finding that the father was on notice of sufficient facts to pursue his legal rights and that taking the child out of the home he has known from birth until two years old would result in significant long-term trauma and possibly severe attachment issues).

2. Standard of Proof

Termination of parental rights requires a showing of clear and convincing evidence. See Hopkins v. S.C. Dep't of Soc. Servs., 313 S.C. 322, 437 S.E.2d 542 (1993); S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992); S.C. Dep't of Soc. Servs. v. Brown, 317 S.C. 332, 454 S.E.2d 335 (Ct. App. 1995) (all citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

Clear and convincing evidence is that degree of proof which will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established. Such measure of proof is intermediate, more than a mere preponderance but less than is required for proof beyond a reasonable doubt; it does not mean clear and unequivocal.

Loe v. Mother, 382 S.C. 457, 465, 675 S.E.2d 807, 811 (Ct. App. 2009), citing Anonymous (M-156-90) v. State Bd. of Med. Examiners, 329 S.C. 371, 375, 496 S.E.2d 17, 18 (1998).

The U.S. Supreme Court in Santosky held that, in actions to terminate parental rights, a standard any lower than clear and convincing violates the parent's right to due process under the Fifth and Fourteenth Amendments. The New York statute that was challenged in Santosky provided that the decision to terminate parental rights was to be based on a "fair preponderance" of the evidence presented. The U.S. Supreme Court held that the statute was invalid. "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." Santosky at 747-748, 102 S. Ct. at 1392, 71 L. Ed. 2d at 603. It also declared that each state may determine its own standard of proof, which may be greater than clear and convincing. Prior to Santosky, there was some authority that the standard in South Carolina was a preponderance of the evidence. See Hamby v. Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975) (upholding the family court's finding that a father's consent was not needed in the child's adoption because he had not visited his child for several years, had never paid support, and had willfully engaged in conduct resulting in his arrest and imprisonment, thus abandoning the child).

3. Standing

An action to terminate parental rights may be brought by a child protective services agency (typically DSS) or by "any interested party." S.C. Code Ann. § 63-7-2530(A) (2009). In private practice, the "interested party" is frequently a stepparent.

"Any interested party" includes foster care review boards. In re Lide, 284 S.C. 419, 327 S.E.2d 70 (1985).

Interested parties also include foster parents. Loe v. Mother, 382 S.C. 457, 675 S.E.2d 807 (Ct. App. 2009); Greenville County Dep't of Soc. Servs. v. Bowes, 313 S.C. 188, 192, 437 S.E.2d 107, 109 (1993); Hopkins v. S.C. Dep't of Soc. Servs., 313 S.C. 322, 437 S.E.2d 542 (1993); S.C. Dep't of Soc. Servs. v. Pritchett, 296 S.C. 517, 374 S.E.2d 500 (Ct. App. 1988); Boyer v. Boyer, 291 S.C. 183, 352 S.E.2d 514 (Ct. App. 1987).

Foster parents and other interested parties have standing under S.C. Code Ann. § 63-9-60 (Supp.) to initiate TPR and adoption proceedings in the family court once the local foster care review board determines that it would not be in a child's best interests to be returned to its parents. S.C. Dep't of Soc. Servs. v. Boulware, 422 S.C. 1, 809 S.E.2d 223 (2018). Foster parents do not have standing to petition to adopt a child after DSS has selected another family for adoption, even when the child has not been physically in the adoptive home. Youngblood v. S.C. Dep't of Soc. Servs, 402 S.C. 311, 741 S.E.2d 515 (2013).

4. No Jurisdiction Exists to TPR if Another State Has Jurisdiction Over Custody

The family courts of South Carolina do not have jurisdiction to terminate a parent's rights and grant a stepfather's adoption petition if another state has continuing, exclusive jurisdiction over custody. In Anthony H. v. Matthew G., 397 S.C. 447, 725 S.E.2d 132 (Ct. App. 2012), the Court of Appeals reversed the termination of a father's parental rights because Georgia still had exclusive, continuing jurisdiction over child custody under the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The PKPA and the UCCJEA are discussed in Chapter 10.

B. Appointment and Payment of Lawyers and Guardians Ad Litem (GAL)

Family courts are required to appoint legal counsel for any person subject to a termination of parental rights proceeding who cannot afford legal representation, unless the defendant is in default. This includes parents, guardians, or any other persons whose parental rights are subject to termination. S.C. Code Ann. § 63-7-2560(A) (1976).³

The Supreme Court has recognized that there is "an absolute statutory right to counsel for indigent parents subject to TPR proceedings." Broom v. Jennifer J., 403 S.C. 96, 108, 742 S.E.2d 382, 388 (2013). In Broom, the family court denied the parent's request for appointed counsel because the plaintiffs were private citizens, not DSS. The Supreme Court said this was an error, but it upheld the termination of the mother's parental rights because she was represented by legal services and was not prejudiced by the denial of appointed counsel.

The family court is also required to appoint a guardian ad litem for any child who is the subject of termination proceedings. S.C. Code Ann. § 63-7-2560(B) (1997).⁴

If a termination proceeding is contested, an attorney must be appointed for the child's guardian ad litem if the guardian ad litem is not a lawyer. If the GAL is a lawyer, the judge must determine on a case-by-case basis whether counsel is required for the GAL. S.C. Code Ann. § 63-7-2560(B) (1976).⁵

The family court may not order a party in a termination of parental rights proceeding to pay the attorneys' fees for an attorney who represents the guardian ad litem.

In S.C. Dep't of Soc. Servs. v. Mary C., 396 S.C. 15, 720 S.E.2d 503 (Ct. App. 2011),⁶ the lawyer who was assigned to represent the GAL in an abuse and neglect case had a scheduling conflict, so he asked a non-contract lawyer to take over for him. At the end of the proceeding the family court judge ordered the mother to pay a portion of the attorney's fees. The Court of Appeals reversed, holding that the GAL program is responsible for providing and paying attorneys for GALs.

The family court relied on Rule 41(a), SCRFC as authority to assess fees greater than $100 based on "extraordinary circumstances." The Court of Appeals pointed out that Rule 41(a) only pertains to fees for attorneys appointed to represent a child, not to fees for lawyers who are asked to represent GALs. It also suggested that there were no extraordinary circumstances presented by having a scheduling conflict that could have been resolved by requesting a continuance.

It further held that the General Assembly did not intend for parties in abuse and neglect proceedings to pay fees for attorneys who represent volunteer GALs. Funds to pay lawyers for representing GALs are provided by the General Assembly.

In any case, an attorney must be appointed for a nonlawyer guardian ad litem if the guardian ad litem requests one after finding that appointment of counsel is necessary to protect the rights and interests of the child. S.C. Code Ann. § 63-7-2560(B) (Supp.).

The statute appears to give a nonlawyer guardian ad litem, not the family court judge, the power to decide if an attorney must be appointed. That is, it appears that a family court judge does not have any discretion to deny a nonlawyer guardian ad...