South Carolina Department of Social Services v. Sarah W.

Justice BEATTY..

I respectfully dissent as I believe section 63-7-2570(8)17 is facially unconstitutional to the extent it is used as the sole basis for TPR. In my view, section 63-7-2570(8) is unconstitutional as it impermissibly creates a presumption of parental unfitness due solely to the length of ’time a child spends in foster care. In order to comport with the guarantees of substantive due process, a determination of parental unfitness is a condition precedent to termination of a parent’s fundamental right to the custody of his or her child. As will be discussed, I agree with the decision of the Court of Appeals to the extent it reversed the termination of Respondent’s parental rights; however, I would remand the matter to the family court for a determination of Respondent’s parental fitness and, ultimately, whether her parental rights should be terminated.

I.

Although our decision in Marccuci addressed the implications of section 63-7-2570(8), constitutionality was not an issue in that case. Charleston County Dep’t of Soc. Servs. v. Marccuci, 396 S.C. 218, 721 S.E.2d 768 (2011). In Marccuci, we merely held that strict adherence to’ section 63-7-2570(8) is not warranted in every case. Id. at 226, 721. S.E.2d at 773. Specifically, we found that where there is substantial evidence that much of the delay is attributable to the acts of others, a parent’s rights should not be terminated based solely on the fact that the child has spent greater than fifteen months in foster care. Id. at 227, 721 S.E.2d at 773. Essentially, we considered an “as-applied” challenge in Marccuci. In contrast, the Respondent in the instant case explicitly challenged section 63-7-2570(8) as facially unconstitutional. Thus, it is incumbent upon this Court to now definitively analyze this constitutional question. See S.C. Dep’t of Soc. Servs. v. Cochran, 356 S.C. 413, 420, 589 S.E.2d 753, 756 (2003) (“We leave *352for another day the analysis of whether section [63-7-2570(8) ] ... is unconstitutional.”).

Pursuant to section 63-7-2570(8) the family court may order the termination of parental rights upon a finding that “[t]he child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months” and a finding that “termination is in the best interest of the child.” § 63-7-2570(8). In evaluating the text of this statute, I adhere to the well-established rule of statutory construction that “it is the duty of the court to ascertain the intent of the Legislature and to give it effect so far as possible within constitutional limitations.” Brown v. County of Horry, 308 S.C. 180, 183, 417 S.E.2d 565, 567 (1992).

Our state and federal Due Process Clauses provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1; S.C. Const, art. I, § 3. It has been “long recognized that the [Fourteenth] Amendment’s Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ ” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). “The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ ” Id. (quoting Glucksberg, 521 U.S. at 720, 117 S.Ct. 2302).

Without dispute, a parent’s interest in the custody of his or her child is a fundamental right that must be recognized in TPR proceedings. See Troxel, 530 U.S. at 66, 120 S.Ct. 2054 (“[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”). As the United States Supreme Court (USSC) has explained:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of *353their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that before the State may terminate parental rights, due process requires that the State support its allegations by at least clear and convincing evidence). Therefore, any deprivation of this fundamental right is subject to strict scrutiny. See Troxel, 530 U.S. at 80, 120 S.Ct. 2054 (recognizing that state action, which limits the fundamental right of parents to make decisions concerning the care, custody and control of their children, is subject to strict scrutiny (Thomas, J., concurring)); see also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (noting that state actions affecting fundamental rights are given the most exacting scrutiny). As a result, section 63-7-2570(8) must be “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).

As the majority recognizes, the State has a compelling interest in preventing children from languishing for years in foster care.18 However, section 63-7-2570(8), one avenue by which the State may pursue this goal, creates a presumption of unfitness based solely on the length of time a child has spent in foster care. The length of time a child spends in foster care is not inversely proportional to the level of parental fitness. Without a specific determination of parental fitness, I find that section 63-7-2570(8) is not narrowly tailored to achieve the State’s interest as this statutory ground deems irrelevant a consideration of whether a parent is able to care *354for his or her child. See In re H.G., 197 Ill.2d 317,259 Ill.Dec. 1, 757 N.E.2d 864, 872-74 (2001) (concluding that TPR based solely on the ground that the child has been in foster care for fifteen months violated substantive due process as the presumption of parental unfitness contained in the subsection was “not a narrowly tailored means of identifying parents who pose a danger to their children’s health or safety” as there may be “cases in which children remain in foster care for the statutory period even when their parents can properly care for them”); In re Kendra M., 283 Neb. 1014, 814 N.W.2d 747, 760-61 (2012) (“[P]arental rights cannot be terminated solely based on the duration of the out-of-home placement, because it must also be shown that the parent is unfit and that termination is in the best interests of the child.... The fact that a child has been placed outside the home for 15 or more months of the most recent 22 months does not demonstrate parental unfitness.”).

As the USSC has noted, the “Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’ ” Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (quoting Smith v. Org. of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977)). “[S]o long.-as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private ’ realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68, 120 S.Ct. 2054.

Thus, for a TPR action based only on section 63-7-2570(8) to withstand constitutional muster, the family court must make an explicit finding of parental unfitness before considering the best interests of the child. This point is where I depart from the majority as its analysis makes no such determination. Instead, the majority deems section 63-7-2570(8) constitutional because a parent’s fundamental rights in a TPR proceeding are preserved via an assessment of the fault for the length of time a child has been in foster care and a determination of the best interests of the child. Although I *355agree these are correct considerations, they are made within the context of an “as-applied” challenge such as in Marccuci. Here, however, we are called upon to analyze a strictly facial challenge to section 63-7-2570(8).

Because subsection 8, unlike the other enumerated TPR grounds,19 does not involve some type of parental conduct or inaction that demonstrates unfitness, it impermissibly creates a presumption of parental unfitness due solely to the length of time a child spends in foster care. In order to comport with the guarantees of substantive due process, a determination of parental unfitness is a condition precedent to termination of a parent’s fundamental right to the custody of his or her child.

I believe this analytical framework is constitutionally mandated as TPR involves the involuntary and irrevocable termination of parental rights, which is fundamentally distinguishable from a child custody dispute in a divorce proceeding or a proceeding where a parent has voluntarily relinquished custody and seeks to regain custody. . In those contexts, a consideration of parental fitness is implicit in the determination of the best interests of the child. See Charleston County Dep’t of Soc. Servs. v. King, 369 S.C. 96, 103, 631 S.E.2d 239, 243 (2006) (holding that best interest factors set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) were inapplicable to a TPR situation as that situation is governed by statute); Patel v. Patel, 347 S.C. 281, 285, 565 S.E.2d 386, 388 (2001) (recognizing, in a child custody case, that “family court considers several factors in determining the best interest of the child, including: who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including GAL, expert witnesses, and the children); and the age, health, and sex of the children”); Moore, 300 S.C. at 78-79, 386 S.E.2d at 458 (holding that family court should consider the following criteria in making custody determination when a natural parent, who has voluntarily relinquished custody of his child, seeks to reclaim custody: (1) the parent must prove that he or she is a fit parent, able to properly care for the child ánd provide a good home; (2) the *356amount of contact, in the form of visits, financial support or both, which the parent had with the child while the child was in the care of a third party; (3) the circumstances under which temporary relinquishment occurred; and (4) the degree of attachment between the child and the temporary custodian).

Furthermore, I believe that my interpretation is consistent with the intended purpose of subsection 8. In 1998, in an effort to receive federal funding, our General Assembly enacted subsection 8 in direct response to the federal Adoption and Safe Families Act (“ASFA”) of 1997.20 Act No. 391, 1998 S.C. Acts 2340. The ASFA was passed by Congress “to promote the adoption of children who have been placed in foster care, to ensure their health and safety, and to encourage permanent living arrangements for such children as early as possible.” Kurtis A. Kemper, Annotation, Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State Statutes, 10 A.L.R.6th 173 (2006 & Supp.2012). “In order to receive federal funds, states are required under ASFA to implement plans which, among other things, limit the obligation to provide reasonable efforts to reunify parents with children in foster care, require permanency hearings within 12 months after a child enters foster care, and require the state to file or join a petition to terminate parental rights, subject to certain exceptions, when a child has been in foster care for 15 of the most recent 22 months or when a parent has committed certain serious crimes.” Id.

Although our General Assembly complied with the ASFA by adding subsection 8 to the pre-existing TPR statute, Congress did not intend for the fifteen-month requirement to constitute an independent ground or basis for actually terminating the rights of a parent. Elizabeth O’Connor Tomlinson, Termination of Parental Rights Under Adoption and Safe Families Act (ASFA), 115 Am.Jur. Trials 465, § 9 (2010 & Supp.2012). Instead, “the 15/22 provision triggers only the filing of a petition to terminate parental rights.” Emily K. Nicholson, Comment, Racing Against the ASFA Clock: How Incarcerat*357ed Parents Lose More Than Freedom, 45 Duq. L.Rev. 83, 85 n. 16 (2006).

Thus, by approving subsection 8 as an independent basis for TPR, the majority goes against the clear legislative intent of the ASFA. See In re M.D.R., 124 S.W.3d 469, 476 (Mo.2004) (interpreting 15/22 provision of state TPR statute, which tracks the language of the ASFA, and stating, “By considering the history and the circumstances of the enactment of subsection 2 and harmonizing the provisions of the termination statute in its entirety, it is clear the legislature did not intend section 211.447.2(1) [of the Missouri Revised Statutes] as a ground for termination, but rather solely as a trigger for filing a termination petition”). As a result, the majority creates an unconstitutional presumption of parental unfitness due solely to the length of time a child has been in foster care.

II.

Because my decision represents a new construction of section 63-7-2570(8), I recognize the substantive and procedural implications as to the family court and Respondent who did not have the benefit of this analysis. Accordingly, I would remand the matter to the family court to make a determination regarding Respondent’s parental fitness and, ultimately, whether her parental rights should be terminated. In assessing whether Respondent is a fit parent, I would instruct the family court to determine whether Respondent can adequately provide for the basic daily needs of the minor children such as housing, personal safety, food, clothing, and medical care. Due to this inherently case-specific determination, I decline to enumerate factors for which the family court should consider as it would be impossible and myopic to identify an all-inclusive list.

However, in reaching its decision, I would urge the family court to weigh certain facts that have been established during this protracted proceeding. In terms of Respondent’s ability to care for the minor children, I note that Respondent: performed adequately on her psychological evaluation; procured full-time employment; sought to acquire living arrangements that are separate from Vaughn; sought the assistance of her mother as a supplemental caregiver to the children; *358and maintained a bond with the children as she has not missed an opportunity to visit with her children. Even though Respondent has made positive strides to demonstrate her fitness as a. parent, I am gravely concerned that Respondent still cohabitates with Vaughn despite his admitted sexual misconduct toward his minor daughter from a previous relationship and his continued drug use. Furthermore, the children, who are nearly ten and eleven years old, have expressed their desire not to be returned to Respondent’s home. However, the record is unclear as to the children’s reasons for not desiring to return to Respondent’s home. By all accounts, the children were happy when Respondent visited with them and were sad when the scheduled visitation period ended.

. S.C.Code Ann. § 63-7-2570(8) (2010).

. Indeed, the General Assembly has proclaimed:

The purpose of this article 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. § 63-7-2510 (2010).

. Cf. S.C.Code Ann. § 63-7-2570(l)-(4) (identifying grounds for TPR as including a parent’s abuse or neglect of the child, failure to remedy the conditions that caused the removal of the child from the home, willful failure to visit the child, and willful failure to support the child).

. Pub.L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C. §§ 670-678 (1998)).