South Carolina State Court of Appeals No. 4294, 2007 WL 2769591 September 18, 2007 Keywords:
ADA Title II, parental rights, reasonable modification, state & local government, termination
Facts of the Case
In July 2001, the Department of Social Services (DSS) removed the newborn Daughter from the Mother’s custody, in part, due to past abuse involving her Son. The family court agreed to emergency DSS custody and informed Mother she could apply for a court appointed lawyer. The Mother was evaluated by a psychologist and determined “functionally illiterate and borderline intellectually deficient.” The psychologist recommended an intervention program to prevent future abuse.
Later in July, the family court issued an order finding probable cause to keep Daughter in DSS’s custody until the merits hearing, and again informed Mother of her right to counsel. In August 2001, when the Mother was asked if she had counsel, she responded that she did not but wanted to be represented by counsel. Mother asked for a continuance (i.e., to delay the merits hearing until she could obtain counsel), but the family court denied her request because she had failed to apply for counsel. The family court granted custody of Daughter to DSS and visitation rights to Mother.
At an August 2002 review hearing, the family court explained that Mother’s visitation was sporadic and her apartment was not suitable for a child. DSS initiated an action for Termination of Parental Rights (TPR). The family court declined to terminate Mother’s parental rights, and ordered her to receive specialized services in accord with her disabilities and need for housing that is suitable for a child. DSS referred Mother to a Housing Authority, vocational rehabilitation, the Department of Disabilities and Special Needs, and a Healthy Minds program. In April 2006, the family court appointed the Mother counsel, conducted a final hearing, and terminated Mother’s parental rights on the basis of: 1) finding harm to Daughter; 2) neglect; 3) “failure to remedy conditions leading to Daughter’s removal”; 4) Mother’s diagnosable condition; and 5) DSS’s custody of Daughter’s for 15 of the last 22 months. Mother appealed.
Issues of the Case
- Whether DSS denied Mother due process when terminating her parental rights.
- Whether Title II of the ADA requires DSS to make reasonable accommodations and provide specialized services “consistent with the parent’s disability and need for housing.”
Arguments & Analysis
1. Mother argued that DSS denied her due process by removing Daughter from the home when Mother had borderline intellectual skills and was not provided counsel.
DSS indicated the family court instructed Mother to apply for assistance of counsel and failed to do so.
2. Next, Mother argued that DSS knew of her disabilities and failed to offer her specialized services as ordered by the family court and in accord with Title II of the ADA.
DSS noted it referred Mother to a housing authority and various rehabilitation services. DSS responded that Mother failed to utilize available resources and counseling. Finally, Mother argued DSS did not follow the family court’s recommended course of action and, thus, DSS’s reasons for TPR were “disingenuous.”
3. Relying on South Carolina’s Supreme Court decision in South Carolina Department of Social Services v. Seegars, the State Court of Appeals (“State Court”) declined to address claims of alleged violations of due process when a family court terminates parental rights in the best interest of the child.
Additionally, South Carolina law requires the appointment of counsel for parents in termination proceedings who cannot afford representation, and the family court had informed Mother she should apply for the appointment of counsel, which she failed to do.
Because Mother was represented by counsel at the Termination of Parental Rights (TPR) hearing, the State Court found DSS did not violate her due process rights. It further concluded that DSS’s referrals complied with the family court’s orders, DSS’s actions were consistent with expert advice, and Mother failed to seek help despite the availability of services. The State Court explained “the purpose of [Title II] was to insure that benefits are not denied based upon a handicap, rather than to provide parental training for mentally deficient parents.” Rather, it found that DSS made reasonable efforts to rehabilitate Mother and provide accessible services.
Persuaded by a decision from the Court of Appeals of North Carolina, the State Court held that termination proceedings are not “services, programs or activities” under Title II. Additionally, Title II is not a defense to TPR if a parent has a “diagnosable condition that prevents the parent from providing minimally acceptable care for the child.” Finally, Title II does not prevent TPR when it is in the best interest of the child and the state authority has made reasonable efforts to accommodate the disabilities that prompted removal.
Policy & Practice
In South Carolina, the state is required to make reasonable efforts to correct a situation that prompts removal of the child from a parent with a disability, such as counseling, rehabilitation services, and parental training.
Termination of Parental Rights
The U.S. Supreme Court in Santosky v. Kramer
(1982) held that due process allows parental rights to be terminated only upon clear and convincing evidence of unfitness. The State Court declined to address alleged due process violations and permitted TPR on the basis of a family court determination made in the best interests of the child. Whether the family court’s decision to permit TPR met the Santosky
standard was not at issue in this case.
Reasonable Modification of Services
Arguably, DSS or the family court (Title II entities) could provide assistance in applying for a court appointed attorney to individuals with disabilities, as a reasonable modification of services and programs, so as to insure the benefits of those entities are not denied based upon a disability.
Disclaimer These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation.
These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.