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25186 - Joiner, etc. v. Rivas et al.
Joiner, etc. v. Rivas et al.,


Shearouse Adv. Sh. No.
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court



Karen Joiner as

Guardian ad Litem for

Robert Alex Rivas, Petitioner,



v.



Delores Rivas and South

Carolina Department of

Social Services, Defendants,



Of whom Delores Rivas

is Respondent.



In the Interest of Robert Alex Rivas DOB: 11/26/93,

Minor under the age of eighteen (18) years.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS



Appeal From Lexington County

Richard W. Chewning, III, Family Court Judge



Opinion No. 25186

Heard June 7, 2000 - Filed August 15, 2000



REVERSED



Simpson Z. Fant, of Nelson Mullins Riley &



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Joiner, etc. v. Rivas, et al.





Scarborough, of Columbia, for petitioner.



David S. Hipp, of Dooley, Spence, Parker & Hipp,

and Patrick J. Frawley, of Nicholson, Davis, Frawley,

Anderson & Ayer, both of Lexington, for respondent.







JUSTICE BURNETT: Petitioner appeals a ruling of the Court

of Appeals requiring the appointment of an additional guardian ad litem

whenever a termination of parental rights (TPR) action is brought by a

child's guardian ad litem in an abuse and neglect case. We reverse.







FACTS



Robert Alex Rivas (Alex), was removed from his home by the Lexington

County Department of Social Services (DSS) in January of 1995 when he

was approximately fourteen months old. DSS was awarded temporary

custody of Alex based on a finding of physical neglect. With the exception of

a brief period in 1996, 1 Alex has lived continuously in foster care since that

time. Petitioner, Alex's court-appointed guardian ad litem in the abuse and

neglect action, brought this action to terminate the parental rights of Delores

Rivas, Alex's natural mother (respondent).







Respondent has a history of mental illness and substance abuse

impairing her ability to properly care for her children. The family court

found respondent had failed to remedy the conditions which caused Alex's

removal 2 despite reasonable and meaningful efforts by DSS to offer mental




1 It is undisputed Alex's return to his mother in 1996 was in violation of

DSS policies, as it took place just two weeks after she tested positive for

cocaine.







2 While noting Alex was originally removed from respondent's home due

to her mental illness, the family court found Alex was not returned to the

home because of respondent's substance abuse. The court therefore ruled

Alex was "removed" for purposes of S.C. Code Ann. § 20-7-1572(2) (Supp.

1999) because of respondent's drug use, and her failure to cease using illegal

drugs after treatment was sufficient reason to terminate her parental rights.





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Joiner, etc. v. Rivas, et al.





health and substance abuse services. See S.C. Code Ann. § 20-7-1572(2)

(Supp. 1999). 3 Based upon respondent's failure to respond to previous drug

rehabilitative efforts and testimony concerning the expected recovery rate for

a person with dual mental health and substance abuse problems, the family

court determined respondent's condition was unlikely to change within a

reasonable time such that she would be able to provide Alex with minimally

acceptable care. See S.C. Code Ann. § 20-7-1572(6) (Supp. 1999). The family

court further determined Alex's best interests would be served by

terminating respondent's parental rights and freeing Alex for adoption. 4







The Court of Appeals vacated the family court's order terminating

respondent's parental rights. Joiner ex rel. Rivas v . Rivas, 335 S.C. 648, 518

S.E.2d 51(Ct. App. 1999). Although all three judges agreed respondent's

substantive arguments were without merit, 5 the majority held the family

court erred in failing to appoint an independent guardian ad litem for Alex in

the termination proceedings and that such a fundamental error required

reversal.









ISSUES



I. Did the Court of Appeals err in reaching an issue neither

raised to nor ruled upon by the family court?







II. Did the Court of Appeals err in holding a new guardian ad




3 This subsection has since been amended to delete the language

"despite a reasonable and meaningful effort by the agency to offer

appropriate rehabilitative services." See 1996 Act No. 450, §14, eff. Jan. 1,

1997.







4 A separate finding that termination is in the best interest of the child,

in addition to finding an, enumerated statutory basis for termination, was not

required at the time of this action. See 1996 Act No. 450, §14, eff. Jan. 1,

1997.







5 Judge Huff, dissenting, addressed each of respondent's substantive

arguments. The majority did not reach the merits of those arguments

because of its disposition of the case, but agreed with Judge Huff's resolution

of the arguments. Joiner, 335 S.C. at 655, n.4, 518 S.E.2d at 54, n.4.



p.512


Joiner, etc. v. Rivas, et al.





litem must be appointed in a proceeding to terminate parental

rights brought by a child's guardian ad litem?







DISCUSSION



I. Did the Court of Appeals err in reaching an issue

neither raised to nor ruled upon by the family court?







Petitioner first argues the Court of Appeals erred in addressing an

issue neither raised to nor ruled on by the family court. We disagree. The

Court of Appeals properly concluded procedural rules are subservient to the

court's duty to zealously guard the rights of minors. See Ex parte Roper, 254

S.C. 558, 563, 176 S.E.2d 175, 177 (1970) ("Where 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."), 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. "). The Court of Appeals therefore did not err in

addressing this issue for the first time on appeal.







II. Did the Court of Appeals err in holding a new guardian ad litem

must be appointed in a proceeding to terminate parental

rights brought by a child's guardian ad litem?







South Carolina Code Ann. § 20-7-1564 (Supp. 1999) provides that any

interested party may file a petition seeking termination of parental rights.

Petitioner filed this action in her capacity as Alex's court-appointed guardian

ad litem. Petitioner's standing as an "interested party" is not challenged.







South Carolina Code Ann. § 20-7-1570(B) (Supp. 1999) 6 requires the

appointment of a guardian ad litem for a child subject to a TPR proceeding.

The Court of Appeals held "although petitioner 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




6 The 1996 amendment to this subsection has no effect on the

disposition of this case.



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Joiner, etc. v. Rivas, et al.





mother's parental rights." We disagree.







The cardinal rule of statutory construction is to ascertain and

effectuate the legislative intent whenever possible. Strother v. Lexington

County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d 117 (1998). "All rules of

statutory construction are subservient to the one that the legislative intent

must prevail if it can be reasonably discovered in the language used, and

that language must be construed in the light of the intended purpose of the

statute." Kiriakides v. United Artists Communications, Inc., 312 S.C. 271,

275, 440 S.E.2d 364, 366 (1994). The purpose of the termination of parental

rights statute is



to establish procedures for the reasonable and compassionate

termination of parental rights where children are abused,

neglected, or abandoned in order to protect the health and

welfare of these children and make them eligible for adoption by

persons who will provide a suitable home environment and the

love and care necessary for a happy, healthful, and productive

life.



S.C. Code Ann. § 20-7-1560 (Supp. 1998).







TPR statutes "must be liberally construed in order to ensure prompt

judicial procedures for freeing minor children from the custody and control of

their parents by terminating the parent child relationship." S.C. Code Ann.

§ 20-7-1578 (Supp. 1999). The Court of Appeals erroneously held that

"[s]tatutes providing for termination of parental rights must be strictly

construed in favor of preserving the relationship of parent and child."

Joiner, 335 S.C. at 652, 518 S.E.2d at 52. In support of this proposition, the

Court of Appeals cited its earlier opinions in Leone v. Dilullo, 294 S.C. 410,

413, 365 S.E.2d 39, 40 (Ct. App. 1988) and Wilson v. Higgins, 294 S.C. 300,

304, 363 S.E.2d 911, 913-14 (Ct. App. 1987). Leone relied on this Court's

opinion in Goff v. Benedict, 252 S.C. 83, 165 S.E.2d 269 (1969). Goff was

decided in 1969, prior to the enactment of the TPR statutes, and was

premised on the general rule that statutes in derogation of common law are

to be strictly construed.







A majority of this Court has never addressed the construction rule in §

20-7-1578, although Chief Justice Toal cited it in dissent in Hopkins v. South



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Joiner, etc. v. Rivas, et al.





Carolina Dept. of Social Services, 313 S.C. 322, 334, 437 S.E.2d 542, 548

(1993). 7 The Court of Appeals, however, has continued to hold in the face of

§ 20-7-1578 that strict construction is required for TPR statutes. See Roy T.

Stuckey and F. Glenn Smith, Marital Litigation in South Carolina 397 (2d

ed. 1997) (noting conflict between statute and case law). We overrule those

cases calling for strict construction of the TPR statutes. 8







Appointment of an additional guardian ad litem when a child's

guardian brings a TPR action would be superfluous and not in keeping with

a liberal construction designed to promptly effectuate the purposes of the

TPR statutes. It is well settled that statutes dealing with the same subject

matter are in pari materia and must be construed together, if possible, to

produce a single, harmonious result. See Home Health Servs.. Inc. v. South

Carolina Dept. of Health and Environmental Control, 298 S.C.- 258, 379

S.E.2d 734 (Ct. App. 1989). The code section requiring appointment of a

guardian ad litem in TPR actions and the section authorizing a guardian ad

litem to petition the court for relief on behalf of the child can be read

together with a harmonious result. In pursuing termination of respondent's

parental rights, petitioner acted solely in her role as guardian ad litem. See

S.C. Code Ann. § 20-7-124(B)(6) (Supp. 1999) (guardian ad litem is

authorized to petition the court for relief on behalf of the child). She was not,

as the Court of Appeals phrased it, "a plaintiff who had a stake in the

outcome of the termination action." Joiner, 335 S.C. at 653, 518 S.E.2d at




7 In Hopkins, as in the instant case, the guardian ad litem initiated the

TPR action. The question of appointing a second guardian was not raised in

Hopkins.







8 In addition to the above cited cases, this includes Alley v. Boyd, 337

S.C. 60, 522 S.E.2d 146 (Ct. App. 1999), South Carolina Dept of Social

Services v. Lail , 335 S.C. 284, 516 S.E.2d 463 (Ct. App..1999), South

Carolina Dep't of Social Services v Brown, 317 S.C. 332, 454 S.E.2d 335 (Ct.

App. 1995), Horton v. Vaughn, 309 S.C. 383, 423 S.E.2d 543 (Ct. App. 1992),

and South Carolina Dep't of Social Services v. Harper, 284 S.C. 212, 325

S.E.2d 71 (Ct. App. 1985). Furthermore, this Court's opinion in Bevis v.

Bevis, 254 S.C. 345, 175 S.E.2d 398 (1970) was overruled in relevant part by

the enactment of § 20-7-1578.



p.515


Joiner, etc. v. Rivas, et al.





53. Petitioner's only "stake" was the best interest of Alex. 9









We emphasize that a natural parent subject to a TPR action brought

by the child's guardian ad litem can always move for appointment of a new

guardian ad litem in the TPR action. We merely hold the statute does not

require it.







CONCLUSION



The Court of Appeals erred in construing S.C. Code Ann. § 20-7

1570(B) (Supp. 1999) strictly to require the appointment of a new guardian

ad litem when a child's guardian ad litem brings a petition to terminate the

natural parent's parental rights. We REVERSE, overrule the Court of

Appeals cases requiring strict construction of TPR statutes, and reinstate the

family court order terminating respondent's parental rights.







TOAL, C.J., MOORE and WALLER, JJ., concur. PLEICONES, J.,

concurring in a separate opinion.




9 Clearly, a guardian ad litem who did have a personal stake in the

outcome of the TPR action, such as a desire to adopt the child herself, would

be disqualified, as would any guardian with a conflict of interest. Here,

respondent conceded at oral argument the guardian had no conflict of

interest.





p.516


Joiner v. Rivas





JUSTICE PLEICONES: I agree with the majority that this termination of

parental rights (TPR) action was properly brought by the petitioner, and that

under the circumstances of this case, it was not necessary to appoint a second

guardian ad 'item. I write separately, however, because of my belief that the

majority opinion may be read to construe S.C. Code Ann. § 20-7-1578 (Supp.

1999) in a constitutionally impermissible manner.







Section 20-7-1578 requires a liberal construction of the TPR statutes "to

ensure prompt judicial procedures . . . ." This language is, in my opinion, an

instruction to construe the procedural TPR statutes in a manner which will

ensure prompt judicial action. It is not a direction to interpret the

substantive TPR statutes so as to expedite terminations. The rule that we

should construe TPR statutes strictly to prevent the erroneous termination of

the parent-child relationship derives not just from the general rule that

statutes in derogation of the common law should be strictly construed, 1 but

also from the constitutional rights implicated by a termination proceeding. 2 I

believe we err when we dilute the moving party's burden in a termination

proceeding.









For these reasons, I concur separately in the result reached by the

majority.




1 Bevis v. Bevis, 254 S.C. 345, 175 S.E.2d 398 (1970); Goff v. Benedict,

252 S.C. 83, 165 S.E.2d 269 (1969).







2 Natural parents have a "fundamental liberty interest . . .in the care,

custody, and management of their children . . . . [and] the child and his

parents share a vital interest in preventing erroneous termination of their

natural relationship." Santosky v. Kramer, 455 U.S. 745, 753, 760, 102 S.Ct.

1388, 1394, 1398 71 L.Ed. 599, 606, 611(1982); see also Greenville County

Dept of Soc. Services v. Bowes, 313 S.C. 188, 437 S.E.2d 107 (1993).







p.517