Hopkins v. South Carolina Department of Social Services

Finney, Justice: We granted rehearing to reconsider our original opinion which reversed the family court’s refusal to terminate respondent’s (Meyers’) parental rights to his son Michael. We now affirm. This is a tragic case. Meyers, a Missouri resident, lived with Michael’s mother (Clark) for two months in the fall of 1983 in [324] that state. Clark has lived a nomadic lifestyle and has a history of short-term serial relationships with men. In May 1984, six months after leaving Meyers, Clark called him and told him she had given birth to a child, but stated Meyers was not the father. In fact, Michael was not born until July 1984. Over the next several years Clark would briefly reappear in Meyers’ life, at times telling him Michael was his and at other times denying this. Meyers married his current wife in December 1984; the day after the marriage Clark appeared, announced Michael was Meyers’ child, and begged Meyers to accept both her and the child. Although Meyers “felt in his heart” that Michael was his child, he refused Clark’s invitation to leave his new wife. Within weeks, Clark again disappeared taking Michael with her. In the summer of 1985, Clark called Meyers’ mother saying she was in another state and in trouble. Meyers’ mother, along with Clark’s family, went and picked up Clark and her two children, Michael and Amanda, and brought them back to Missouri. Meyers arranged for a blood test to determine Michael’s paternity once and for all. Two days after she returned to Missouri, and before the scheduled blood test, Clark took the children and again disappeared. Later that summer, Meyers’ mother received a letter from Clark. Meyers did not hear from Clark and the two children again until early 1988. During this two and a half year interlude, even Clark’s family did not know her whereabouts. The record clearly shows Meyers was unaware of Michael’s parentage and of the children’s whereabouts and the deplorable conditions under which they were living during this period. In November 1987 the children were taken into emergency protective custody in South Carolina. The South Carolina Department of Social Services (DSS) did not notify Meyers that it had Michael in its custody because Clark did not identify Meyers as Michael’s father. Although DSS knew the children were not presently adoptable, it nonetheless placed the children with the appellants (the Floyds) whom it knew to be seeking to adopt children. DSS did not tell the Floyds the children were not eligible for adoption. As the family court found, “The evidence is overwhelming that [DSS] usurped its authority in placing the children for the known purpose of adop-tion_” DSS has not appealed this finding. [325] In February 1988 Amanda’s natural father contacted Meyers and told him Michael was in the custody of DSS. Even though he was not sure he was Michael’s father, Meyers immediately contacted DSS. Although DSS would not permit Meyers visitation with Michael since Meyers could not establish his paternity, Meyers nonetheless responded to a subpoena and appeared at a July 1988 hearing in South Carolina. Meyers, a man of modest means, drove 1,000 miles to attend this hearing. As a result of time missed to attend the hearing, Meyers lost his job. At the July hearing Meyers testified he believed he was Michael’s father and informed the family court he wanted custody of the child. The court ordered paternity tests, but declined to allow visitation since no familial relationship had yet been established. Meyers returned to Missouri but attempted to establish a relationship with both children.1 DSS would only permit phone contact during working hours with staff monitoring the calls. Any correspondence from Meyers was read and reviewed by DSS prior to delivery to the children. The family court found, and no party excepts to the finding, these procedures chilled Meyers’ attempts to bond with the children. Although the blood samples were taken in July 1988, no results were obtained that year. Meyers protested the delay; although DSS obtained the results by march 17,1989, it refused to reveal the results to Meyers until he paid DSS an amount it determined to represent his share of the test’s cost. Although no court had ordered Meyers to pay anything for the test, DSS’s March letter stated it had discussed the matter ex parte with a family court judge. The letter also noted a hearing was scheduled for April 1989 and stated failure to attend this hearing would be construed as a consent to termination of Meyers’ (yet unestablished) parental rights. The scheduled hearing was not held and finally, in May 1989, DSS revealed to Meyers the results of the blood test showing Meyers to be Michael’s father. [326] In May 1989, DSS also informed Meyers he was to pay $150/month child support, and would be allowed limited visitation. Meyers and his family came to South Carolina twice for in-person visitation, and he had some phone contact with Michael. In the final order, the family court found Meyers could not pay the $150/month support, especially in light of the expenses incurred in attempting to gain custody of the children. No party has excepted to this finding of fact or contested its validity. In February 1989 the children’s Guardian ad Litem (GaL) brought an action to terminate Meyers’ parental rights on the ground of failure to visit within six months. Meyers answered, asserted his attempts to visit, and sought custody of both Michael and Amanda. In July 1989 the Floyds filed a third-party complaint seeking termination of Meyers’ rights for failure to visit. Meyers answered and again sought custody of the children. The family court refused to terminate Meyers’ parental rights, finding Meyers had done everything within his means not to abandon Michael but rather to establish a parent-child bond. The family court ordered that DSS establish a treatment plan and, if successful, that Michael be placed with Meyers permanently. The Floyds appeal, contending the court should have terminated Meyers’ rights since he abandoned Michael. Parental rights may be terminated only upon clear and convincing evidence. Abercrombie v. LaBoon, 290 S.C. 35, 348 S.E. (2d) 170 (1986). The family court found no evidence that Meyers had abandoned Michael by willfully failing to visit for six months. See S.C. Code Ann. § 20-7-1572(3) (1985). In fact, the record shows Meyers was not even permitted visitation until May 1989, three months after the GaL first sought termination and only two months before the Floyds filed their action. The evidence is clear and convincing that no statutory basis exists for the termination of Meyers’ parental rights, and the family court’s finding is affirmed. South Carolina Department of Social Services v. Harper, 284 S.C. 212, 325 S.E. (2d) 71 (Ct. App. 1985). The next issue is where custody should lie in order to meet Michael’s best interests. The public policy of this State is to reunite parents and children. See S.C. Code [327] Ann. § 20-7-20(D) and (3) (1985). In Moore v. Moore, 300 S.C. 75, 386 S.E. (2d) 456 (1989) we held there is a rebuttable presumption that a fit natural parent should have custody as against a third party. Meyers is a fit parent and is entitled to this presumption. Moore also prescribes certain other factors to be considered when the third party has physical custody. First, we must look to the circumstances under which Michael came to be in DSS’ custody. Certainly, Meyers is not responsible for the circumstances which necessitated the exercise of DSS’ emergency protective powers. Second, we must consider the amount of contact Meyers has had with Michael while the child has been in DSS’s custody. The family court found, and the record supports, that Meyers’ efforts to maintain contact, despite the unreasonable conditions imposed by DSS, were admirable. The third factor is the extent of Michael’s attachment to his foster parents. This is clearly the sticking point, for the Floyds took Michael in believing he could become their child. This cruel deception was perpetuated by DSS, and should not be held against Meyers. On the other hand, it is only fair to recognize the strong bond which has been established between the Floyds and Michael. In our view, the family court struck a proper balance by allowing Michael to continue to reside with the Floyds pending the development of a close relationship with his father. Accordingly, we affirm the family court’s order refusing to terminate Meyers’ parental rights and ordering the establishment of a plan for reunion of father and son. If the plan is successful, Michael shall be placed with Meyers permanently. Affirmed. Mooke, J., concurs. Chandler, Acting C.J., concurring in separate opinion. Toal, J., and Littlejohn, Acting Associate Justice, dissenting in separate opinion. Footnotes [1] Meyers’ desire to act in Michael’s best interest is evidenced by his recognition of the strong bond between Michael and his half-sister Amanda. In fact, Meyers sought custody of Amanda as well as Michael in an attempt to keep the children together.