THE STATE OF SOUTH CAROLINA
In The Supreme Court
Karen Joiner as
Guardian ad Litem for
Robert Alex Rivas, Petitioner,
Delores Rivas and South
Carolina Department of
Social Services, Defendants,
Of whom Delores Rivas
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
Appeal From Lexington County
Richard W. Chewning, III, Family Court Judge
Opinion No. 25186
Heard June 7, 2000 - Filed August 15, 2000
Simpson Z. Fant, of Nelson Mullins Riley &
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.
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
DSS policies, as it took place just two weeks after she tested positive for
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.
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
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
"despite a reasonable and meaningful effort by the agency to offer
appropriate rehabilitative services." See 1996 Act No. 450, §14, eff. Jan. 1,
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,
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.
litem must be appointed in a proceeding to terminate parental
rights brought by a child's guardian ad litem?
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
disposition of this case.
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
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
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
TPR action. The question of appointing a second guardian was not raised in
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.
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
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.
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
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
For these reasons, I concur separately in the result reached by the
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).