Greenville County Department of Social Services v. Bowes ( 1993 )

Moore, Justice;

This appeal involves the termination of appellant’s (Mother’s) parental rights in her seven-year-old daughter, Cricket, and Cricket’s adoption by her foster parents, respondents Shirley and Rodger Hall.¹ We reverse the termination of parental rights and remand for a determination of custody.

FACTS

Mother was pregnant with Cricket in February 1985 when she was hospitalized in Virginia for treatment of a schizophrenic disorder. In July 1985, her condition was evaluated as improved with minimal impairment and she was considered capable of self-support. Upon her discharge from the hospital she moved to South Carolina to live with Cricket’s father, James Kent Godwin.

On September 2, 1985, Mother gave birth to Cricket in Greenville Memorial Hospital. At that time, Godwin informed Mother she could no longer live with him and offered to take her to a local shelter after her discharge from the hospital. The shelter was not equipped to house babies nor did Mother have the appropriate supplies to care for an infant. A city juvenile officer came to the hospital and took Cricket into emergency protective custody on September 4. Respondent Greenville County Department of Social Services (DSS) then petitioned for emergency protective custody. Mother did not consent.

After a removal merits hearing, the family court issued an order on October 18,1985, finding that DSS acted with probable cause in removing the child and awarding DSS custody. No finding of abuse or neglect was made. A treatment plan was ordered including psychiatric care for Mother. Cricket was placed in foster care with the Halls.

Soon thereafter, Mother purchased a mobile home for herself with disability income from social security. She began attending regular therapy sessions at the Greenville Mental Health Commission.

During this period, Mother’s discussions with her therapist indicate she experienced repeated frustration in her dealings with DSS. Mother found her limited access to her child very unsatisfactory. She responded to the situation with apathy although she continuously expressed in therapy her desire to be reunited with Cricket. The therapist noted Mother’s passivity and inability to communicate. He also noted the depth of Mother’s feeling for Cricket: “Guilt, anger, feelings of betrayal and not being with Cricket and that period not with her can never be made up — not breastfed nor being loved now.”

In 1987, Mother gave birth to another daughter, Victoria. Mother told her therapist she constantly worried DSS would take Victoria from her. She was also very discouraged about the prospects of regaining custody of Cricket. DSS was not satisfied with Mother’s progress under the treatment plan and her visitation was further restricted in 1989. Mother then brought an action to gain custody of Cricket. This action was unsuccessful.

In September 1989, DSS commenced an action to terminate Mother’s parental rights in Cricket based on an alleged failure to visit with the child. By order dated November 9, 1989, Judge Board found DSS failed to prove the alleged ground for termination. He noted Mother had successfully cared for her other daughter, Victoria, since her birth and he specifically commented on DSS’s evidence that there was a lack of bonding between Mother and Cricket: “This is natural since [Mother] and Cricket have had limited contact since the child was two days old. The court is convinced that [DSS] contributed to this lack of bonding by its failure to reunite [Mother] with Cricket.” He ordered DSS to begin an earnest effort to reunite the family.

A third child, Phillip Aaron, was born in the spring of 1990. By July 1990, Mother had resumed physical custody of Cricket and on March 1,1991, she was awarded legal custody.

On March 11, 1991, DSS filed a petition for protective custody based on reports Cricket came to school with “a very red area on the right side of her face,” an “abrasion” on her left cheek, and “several bruises” on her shoulders and abdomen. After a removal merits hearing, Judge Mobley issued an order finding Mother had physically abused Cricket and granting DSS custody. He ordered a treatment plan including mental health counseling and visitation. Cricket was returned to foster care with the Halls.

Meanwhile, on May 10, 1991, Judge Mobley granted the Halls’ motion to intervene in the removal action. They filed a pleading seeking permanent custody of Cricket or, in the alternative, termination of Mother’s parental rights and an award of adoption to them. DSS joined in their request.

A termination hearing was held in September 1991 while DSS was still working with Mother on the treatment plan ordered by Judge Mobley. Judge Johnson found Mother’s parental rights should be terminated pursuant to S.C. Code Ann. § 20-7-1572(1) and (6) (1985). He awarded adoption to the Halls.

ISSUES

1. Whether intervention by the Halls was proper.

2. Whether the statutory ground for termination was proved by clear and convincing evidence.

DISCUSSION

Mother contends the family court abused its discretion in allowing the Halls to intervene to seek termination of her parental rights.

An action to terminate parental rights need not be initiated by DSS but may be brought by any interested party. In re Lyle, 284 S.C. 419, 327 S.E. (2d) 70 (1985); S.C. Code Ann. § 20-7-1564 (1985). Foster parents have standing to bring such an action. Department of Social Services v. Pritchett, 296 S.C. 517, 374 S.E. (2d) 500 (Ct. App. 1988); see also S.C. Code Ann. § 20-7-2376(E) (Supp. 1991) (foster care review board to advise foster parents of their right to petition the family court for termination of parental rights and adoption). A petition for removal may include a petition for termination of parental rights. S.C. Code Ann. § 20-7-736(F) (1985).

A decision allowing permissive intervention under Rule 24(b), SCRCP² will be reversed only for an abuse of discretion. In re Milliken & Co., 295 S.C. 257, 368 S.E. (2d) 72 (Ct. App. 1988). Since foster parents have standing to seek termination and the statutory scheme allows removal and termination to be considered together, we find the family court did not abuse its discretion in allowing the Halls’ intervention.

Mother next contends the evidence was insufficient to support a termination of her parental rights. Mother’s parental rights were terminated pursuant to S.C. Code Ann. § 20-7-1572(1) (1985) which provides for termination when:

(1) The child or another child in the home has been harmed as defined in § 20-7-490(C), and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent’s previous abuse or neglect of the child or another child in the home may be considered. (Emphasis added.)

A ground for termination of parental rights must be proved by clear and convincing evidence. South Carolina Dept. of Social Services v. Martell, 279 S.C. 289, 307 S.E. (2d) 601 (1983). We conclude DSS and the Halls failed to prove by clear and convincing evidence that the severity or repetition of abuse or neglect makes it reasonably unlikely the home can be made safe within twelve months.

DSS and the Halls introduced no independent evidence the bruising in February 1991 was the result of abuse but submitted only the removal order which found physical abuse based on this incident.³ No other abuse was alleged as a basis for termination. In a removal action, as opposed to a termination proceeding, abuse need only be shown by a preponderance of the evidence. Aiken County Department of Social Services v. Wilcox, 304 S.C. 90, 403 S.E. (2d) 142 (Ct. App. 1991). The finding of abuse in the removal order was therefore an insufficient finding of harm to support termination under a clear and convincing standard.

Moreover, in simply relying on Judge Mobley’s finding of physical abuse in the prior removal order to terminate Mother’s parental rights, Judge Johnson failed to make any determination the abuse was severe or repetitive as proved by clear and convincing evidence. Evidence the child came to school one day with the minor injuries described does not demonstrate severe abuse to justify termination of Mother’s parental rights based on this single incident. While such physical abuse may constitute ground for removal of the child, it does not rise to the level of abuse required for termination.

Further, contrary to the dissent’s assertion, there are no findings of abuse or neglect upon which to base a conclusion there was repetitive abuse or neglect to support termination. Cricket was removed from Mother at birth based on Mother’s imminent inability to provide for her. Significantly, there never was any finding of abuse or neglect upon Cricket’s removal at birth. Cf S.C. Code Ann. § 20-7-610 (1985) (providing for emergency protective custody upon a finding of abuse or neglect).

Finally, DSS and the Halls failed to prove by clear and convincing evidence that “it is not reasonably likely that the home can be made safe within twelve months” as required for termination under § 20-7-1572(1). Mother was, at the time of the termination hearing, still in compliance with the DSS treatment plan ordered five months earlier. The DSS worker testified Mother had done everything requested of her throughout her dealings with DSS. Moreover, it is uncontro-verted Mother has provided a good home for her other two children. Under the statute, this evidence is persuasive on the issue whether the home can be made safe. Mother also testified she wants Cricket back in her home.

The dissent would have us respond to the staggering statistics of child abuse and neglect by lowering the objective standards which must govern the termination of parental rights. This Court cannot sanction the precipitous termination of parental rights based on emotionally charged complaints not proved to the level of this objective standard. Further, we must recognize that Cricket too will suffer a tremendous deprivation if family ties are erroneously severed.

In 1982, the United States Supreme Court held for the first time that a parent’s unfitness must be proved by at least clear and convincing evidence before his or her parental rights can be terminated. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. (2d) 599 (1982).⁴ The Court’s analysis in reaching that conclusion is instructive here. It commenced by noting:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familiar bonds, it must provide the parents with fundamentally fair procedures.

455 U.S. at 753, 102 S.Ct. at 1394-95.

The Court also emphasized that a termination hearing pits the natural parent, not against the child but against the State. “[T]he State cannot presume that a child and his parents are adversaries.... until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” 455 U.S. at 760, 102 S.Ct. at 1398.

Further, the State marshals an array of public resources⁵ and has the power to shape the historical events that form the basis for termination.⁶ For instance, in this case, Mother has struggled through years of litigation fighting what must seem an overwhelming foe. DSS has had custody of Cricket for the child’s entire lifetime and has contributed to the lack of bonding between Mother and her child.

Despite this disparity of power, the dissent would refuse Mother the constitutional protection set forth in Santosky. The dissent looks to other “complaints” of abuse never proved at all, much less proved by clear and convincing evidence, to establish repetitive abuse or neglect. Even more incredibly, the dissent wishes to support the termination of Mother’s parental rights under subsection (2) of § 20-7-1572, a ground never pleaded or raised to the family court. In applying the due process clause to a termination case, Santosky clearly prohibits termination on a ground without notice. Even respondents concede the family court erroneously terminated Mother’s rights under subsection (6) of § 20-7-1572 since no notice was given of that ground.

In sum, the evidence to support the statutory ground for termination does not rise to the level of proof by clear and convincing evidence. The main thrust of the evidence is in fact to demonstrate that the Halls are loving and responsible foster parents. While this Court’s paramount concern is to ensure the child’s welfare, we must in the process afford Mother the constitutional protection to which she is entitled. Moreover, we recognize the child’s shared interest in preventing an erroneous termination of her familial bond with her natural parent. Accordingly, we reverse the termination of Mother’s parental rights under § 20-7-1572(1) for failure to prove this statutory ground by clear and convincing evidence.

Further, we reverse the termination of Mother’s rights under § 20-7-1572(6) since, as conceded, she had no notice of this ground for termination. Our disposition in this matter does not affect the issue of custody which is hereby remanded to the family court for consideration.

Reversed and remanded.

Chandler and Finney, JJ., concur. Toal, J., and Harwell, CJ., dissenting in separate opinion.

1 The child’s father’s parental rights were terminated with his consent and no issue is presented on appeal regarding the father.

2 Applicable to family court under Rule 2, SCRFC.

3 Mother testified she was horseplaying with the child and accidentally bruised her.

4 Following Santosky, this Coui't adopted a clear and convincing standard in termination eases. Richberg v. Dawson, 278 S.C. 356, 296 S.E. (2d) 338 (1982).

5 455 U.S. at 759, 102 S.Ct. at 1398.

6 455 U.S. at 763, 102 S.Ct. at 1400.