Broom v. Jennifer J.
742 S.E.2d 382, 2013 S.C. LEXIS 92, 403 S.C. 96 (2013)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An indigent parent has an absolute statutory right to appointed counsel in a termination of parental rights (TPR) action, but the erroneous denial of counsel is not reversible error unless the parent demonstrates that the lack of representation prejudiced the outcome of the case.
Facts:
- In March 2007, Mother gave birth to Child.
- Five months later, in August 2007, authorities found the infant in a home with overflowing trash and moldy food, where Mother admitted to using cocaine. Child had a visibly flat head from being left in a car seat for extended periods.
- The same day, Child tested positive for cocaine.
- Mother's treatment plan required her to obtain stable housing, employment, and undergo drug testing, but she failed several drug tests through January 2008.
- In April 2008, Mother was arrested on burglary and grand larceny charges and was incarcerated for two months.
- Over the 50 months Child was in foster care, Mother failed to visit for an eight-month consecutive period and missed visits in eleven other months, exercising only 34 of the minimum 100 visits she was permitted.
- During this time, Child's foster parents, the Brooms, provided extensive care for Child's developmental issues, including having her wear a corrective helmet for six months to reshape her head.
- In October 2009, Mother married and in November 2010, she had another child and became a stay-at-home parent.
Procedural Posture:
- The Department of Social Services (DSS) filed a complaint for removal of Child in family court due to abuse and neglect.
- Following a hearing, the family court granted legal custody of Child to DSS and directed the appointment of counsel for Mother.
- Subsequently, the Brooms, Child's foster parents, filed a separate action in family court against Mother, Father, and DSS, seeking to terminate parental rights (TPR) and adopt Child.
- In the Brooms' action, the family court denied a motion to appoint counsel for Mother, ruling she was not entitled to court-appointed counsel because the lawsuit was not brought by DSS.
- At a final hearing where Mother was represented by counsel she had retained, the family court entered an order terminating Mother's parental rights.
- Mother filed a motion for reconsideration arguing, in part, that she was erroneously denied counsel. The family court denied the motion.
- Mother appealed the family court's order to the Supreme Court of South Carolina.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the erroneous denial of appointed counsel to an indigent parent in a termination of parental rights proceeding require reversal, even if the parent cannot demonstrate prejudice from the lack of counsel?
Opinions:
Majority - Justice Hearn
No. The erroneous denial of appointed counsel to an indigent parent in a termination of parental rights proceeding does not automatically require reversal. Reversal is warranted only if the parent demonstrates prejudice from the lack of counsel. Although South Carolina statute § 63-7-2560(A) provides an absolute statutory right to counsel for indigent parents in all TPR actions, regardless of who brings the suit, the remedy for a violation of this right differs from the criminal context. Unlike a criminal case, a TPR action focuses on the child's best interest, which changes with the passage of time. Therefore, the court adopts a prejudice analysis, holding that reversal is only appropriate if the denial of counsel affected the outcome. Here, Mother was not prejudiced because the statutory grounds for termination—the child being in foster care for fifteen of the last twenty-two months and the mother’s failure to visit—were already satisfied while she was represented by counsel in a related DSS matter. Her own actions, not the lack of counsel, caused the delays and failure to visit that justified the termination.
Analysis:
This case establishes a significant precedent in South Carolina by adopting a prejudice standard for the erroneous denial of statutory counsel in termination of parental rights cases. It distinguishes the remedy for this procedural error from the automatic reversal (structural error) standard often applied in criminal cases for denial of counsel. The decision prioritizes the child's need for permanency and stability over a parent's procedural rights when the error did not affect the substantive outcome. This holding will make it more difficult for parents to overturn TPR orders on procedural grounds alone, requiring them to show a tangible link between the legal error and the adverse result.
