Joiner ex rel. Rivas v. Rivas

HEARN, Judge: Delores Rivas, the mother, appeals from a family court order terminating her parental rights to her son, Robert Alex Rivas, based on findings that: (1) the child was removed from the mother’s home pursuant to South Carolina Code section 20-7-736 (Supp.1998), and remained outside the home for more than six months, and the mother failed to remedy the conditions which caused the removal; and (2) the mother suffers from a diagnosable condition unlikely to change within a reasonable period of time. We vacate and remand. FACTUAL/PROCEDURAL BACKGROUND The facts of this case are largely undisputed. The mother has a history of mental illness that is controllable by medication. In 1993, the year Alex was born, the Department of Social Services (DSS) initiated a case against the mother. Prior to that time and continuing thereafter, the Lexington County Department of Mental Health was providing the mother with mental health services and medication. [650] On December 29, 1994, DSS received a report from law enforcement that the mother’s home was in disarray. A DSS caseworker visited the home on January 6, 1995, found that it was in poor condition, and requested that it be cleaned. A follow-up visit on January 19, 1995, found no change. At that point, DSS assumed custody of Alex and the mother’s other children based on a determination that the children were in danger of physical harm. That same day, the family court awarded emergency protective custody of Alex to DSS. Shortly thereafter, on January 23, 1995, the court appointed Karen Joiner, a volunteer with the South Carolina Guardian ad Litem program, as Alex’s guardian ad litem. After a merits hearing, the family court found Alex was physically neglected and continued DSS’s custody of him. DSS implemented a treatment plan for the mother based on her mental health problems. On August 23, 1995, during the course of her treatment plan, the mother tested positive for cocaine and marijuana. DSS then implemented a new treatment plan that focused on the mother’s drug abuse as well as her mental health problems. At a judicial review in December of 1995, the court found that Alex continued to be threatened with physical harm unless the mother successfully completed the treatment plan. The court ordered the mother to receive drug counseling and to refrain from drug use. On January 8, 1996, DSS referred the mother to the Lancaster Recovery Center for out-patient evaluation. There, the mother reported a ten year history of drug and alcohol use, and revealed she had used crack cocaine daily during 1995 and had last used the drug on January 8,1996. Based on their assessment, Lancaster Recovery recommended the mother enter Springs Memorial Hospital for three weeks of treatment. The mother complied, and upon her release, Lancaster Recovery referred her to the LexingtonRichland Alcohol and Drug Abuse Council (LRADAC) for continuing out-patient treatment. The mother began attending the LRADAC program in March of 1996. Shortly thereafter, DSS allowed her unsupervised visitation with Alex. Once the unsupervised visits began, the mother stopped regularly attending LRADAC. On April 9, 1996, the mother called her DSS caseworker to report [651] she had relapsed and used cocaine on April 8, 1996. Sixteen days later, on April 24, 1996, DSS returned Alex to the mother.1 On June 10, 1996, after the mother had failed to pick up Alex from his grandmother’s and again had tested positive for cocaine, DSS filed a complaint seeking an ex parte removal order. The family court again determined Alex was in imminent danger of harm and awarded emergency protective custody to DSS. The court again appointed Karen Joiner as the child’s guardian ad litem. The next day, the mother entered a new program known as the Dual Diagnosis Day Treatment Program. This program was designed to assist those diagnosed with both mental illness and chemical dependency. On June 28, 1996, Karen Joiner, in her capacity as guardian ad litem, commenced the instant action seeking termination of the mother’s parental rights to Alex. The mother answered and counterclaimed, alleging: (1) she was pursuing a regular course of treatment for both her mental illness and her drug addiction, (2) she had adhered to DSS’s treatment plan, (3) she had remained drug free since Alex was removed from her custody on June 10, and (4) she expected her mental health and drug addiction to improve significantly in the near future such that she would, within a reasonable time, be able to resume custody of Alex and provide him with adequate food, clothing, shelter, education, health, and protection. After a merits hearing on September 24, 1996, the family court issued its order terminating the mother’s parental rights. The court found that Alex had been removed from the mother’s home pursuant to South Carolina Code section 20-7-736, Alex had been out of the home for a period exceeding six months, and despite reasonable and meaningful efforts by DSS to offer appropriate rehabilitative services, the mother had not remedied the conditions that caused Alex’s removal.2 [652] Thus, the court found termination was proper under South Carolina Code section 20-7-1572(2) (Supp.1998). The family court further found that the mother suffered from the diagnosable conditions of mental illness and drug addiction, and although her mental condition appeared to be under control, her expected recovery from this double problem was “far from guaranteed.” In view of the mother’s past failed rehabilitative efforts, the court found the mother’s condition was unlikely to change within a reasonable time. Accordingly, the court found termination also proper under Code section 20-7-1572(6). Finally, the court held — given the age of the child, the length of time the child was separated from the mother, the mother’s lack of response to earlier treatment, and the uncertainty of success of future treatment — the best interests of Alex would be served by terminating the mother’s parental rights. The mother’s Rule 59(e), SCRCP, motion seeking reconsideration of the order was denied. This appeal followed. LAW/ANALYSIS On appeal, the mother asserts the family court erred in failing to appoint an independent guardian ad litem for Alex in the termination proceedings. We agree. Actions for termination of parental rights are creatures of statute. Statutes providing for termination of parental rights must be strictly construed in favor of preserving the relationship of parent and child. Leone v. Dilullo, 294 S.C. 410, 413, 365 S.E.2d 39, 40 (Ct.App.1988) (citing Goff v. Benedict, 252 S.C. 83, 86-87, 165 S.E.2d 269, 271 (1969)); Wilson v. Higgins, 294 S.C. 300, 304, 363 S.E.2d 911, 913-14 (Ct.App.1987). South Carolina’s statutory scheme for termination of parental rights requires the appointment of a guardian ad litem for a child. S.C.Code § 20-7-1570(B) (Supp.1998) (“A child subject to any judicial proceeding under this subarti [653] cle must be appointed a guardian ad litem by the family court.”). Although Ms. Joiner was appointed as guardian ad litem for Alex in the initial DSS abuse and neglect action, her role as a guardian was transformed when she filed this action to terminate the mother’s parental rights.3 As the plaintiff who had a stake in the outcome of the termination action, Ms. Joiner could not simultaneously serve as a guardian for Alex. Although we have no doubt that Ms. Joiner pursued this action because she believed it to be in Alex’s best interest, she could not function as both an advocate for the termination of the mother’s parental rights and as a guardian ad litem for Alex. The family court and this court on appeal have a duty to guard zealously the rights of parties under legal disability. See, e.g., Jean Hoefer Toal et al., Appellate Practice in South Carolina 69 (1999). Appellate courts have consistently exercised that duty, even where the issue was procedurally barred or not even raised. See Ex parte Roper, 254 S.C. 558, 563, 176 S.E.2d 175, 177 (1970) (“[W]here the rights and best interests of a minor child are concerned, the court may appropriately raise, ex mero motu, issues not raised by the parties.” (emphasis added)); Galloway v. Galloway, 249 S.C. 157, 160, 153 S.E.2d 326, 327 (1967) (“The duty to protect the rights of minors has precedence over procedural rules otherwise limiting the scope of review and matters affecting the rights of minors can be considered by this court Ex mero motu.” (emphasis added)); Caughman v. Caughman, 247 S.C. 104, 109, 146 S.E.2d 93, 95 (1965) (“[T]he duty to protect the rights of incompetents has precedence over procedural rules otherwise limiting the scope of review.”); see also Prather v. Tupper, 267 S.C. 636, 639-40, 230 S.E.2d 712, 713 (1976) (setting aside a determination of illegitimacy where no guardian ad litem was appointed to represent the infant). [654] An action to sever permanently the parent-child relationship is one of the most serious actions entertained by the family court or by this court on appeal. See Greenville County Dep’t of Social Servs. v. Bowes, 313 S.C. 188, 194, 437 S.E.2d 107, 110 (1993) (“This Court cannot sanction the precipitous termination of parental rights based on emotionally charged complaints not proved to the level of this objective standard.”); see also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“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.”). South Carolina Code section 20-7-1570(B) mandates the appointment of a guardian ad litem for a child subject to a termination action; failure to do so divests the court of jurisdiction to render a judgment. South Carolina Dep’t of Social Servs. v. McDow, 276 S.C. 509, 511, 280 S.E.2d 208, 209 (1981). Consequently, the order terminating the parental rights of the mother must be vacated, and the case must be remanded for the appointment of a guardian ad litem for Alex and a new termination hearing. See South Carolina Dep’t of Social Servs. v. Vanderhorst, 287 S.C. 554, 558, 340 S.E.2d 149, 151-52 (1986) (Where the record did not show the family court complied with the requirement to appoint counsel for an indigent parent in a termination of parental rights action, the case was remanded to the family court.); McDow, 276 S.C. at 511, 280 S.E.2d at 209 (“As no guardian ad litem was appointed to represent [the father], we must vacate the order terminating his parental rights and remand the case for the appointment of a guardian ad litem and a new termination hearing.”). CONCLUSION Although the issue of appointment of a guardian ad litem was not raised to the trial judge, we nevertheless hold that preservation of error rules should be relaxed because the rights of a minor are involved. The failure to appoint a guardian ad litem in a termination of parental rights action is [655] such a fundamental error that a new trial is required.4 Accordingly, the decision of the family court is VACATED AND REMANDED. CONNOR, J., concurs. HUFF, J., dissents in a separate opinion. Footnotes [1] It is undisputed that proper procedure was not followed in this case and that Alex was returned to the mother against DSS policy. [2] While noting the mother’s illegal drug use had not been the original cause for Alex’s removal, the court found Alex was not returned to the home after the mother’s mental condition stabilized because of the ensuing drug use. Accordingly, the court found, for purposes of section 20-7-1572(2), Alex was “removed” because of the mother’s use of [652] drugs, and her continuing use of drugs despite treatment efforts was sufficient to terminate her parental rights. [3] Ms. Joiner’s standing to pursue an action to terminate parental rights has not been challenged. See In re Lyde, 284 S.C. 419, 421-22, 327 S.E.2d 70, 71 (1985) (An action to terminate parental rights need not be' initiated by DSS but may be brought by any interested party.); Department of Social Servs. v. Pritchett, 296 S.C. 517, 520, 374 S.E.2d 500, 501-02 (Ct.App.1988) (Foster parents have standing to bring a termination action.). [4] We agree with the dissent’s resolution of the other exceptions raised by Appellant. However, based on our disposition of this issue, we have not reached the merits of those arguments.