After a woman with a troubled past was found sitting in the middle of the road with her child, a South Carolina family court judge terminated her parental rights. But the Court of Appeals has reversed the order based on a lack of subject matter jurisdiction.
The unanimous court determined Oct. 10 that Anderson County Family Court Judge Edgar Long should not have exercised jurisdiction over the mother, Ngoc Tran, who lived in Georgia, was traveling through South Carolina and was involved with a pending domestic court case in Philadelphia, where her child was born.
The child had been in foster care for more than a year before Long found that Tran had not remedied the condition that resulted in her losing custody of her child and terminated her parental rights. She was hospitalized after being found in the road and did not attend the hearing.
In her motion for reconsideration, Tran asserted that she had a pending family court case in Philadelphia. She gave the court a 2005 order from a Pennsylvania judge suspending the father’s visitation rights and another order from 2014 scheduling a custody hearing.
An attorney for the South Carolina Department of Social Services also discussed records from Georgia that mentioned allegations of domestic abuse, but she believed that the notes referenced the Philadelphia records.
Long denied Tran’s motion for reconsideration, ruling that the pending case in Philadelphia was irrelevant to the matter in his court. He also determined that the Pennsylvania courts did not appear to have jurisdiction over custody matters involving the child.
But the Court of Appeals held that while DSS and Long apparently were in the dark about the Philadelphia orders when Tran’s parental rights were first terminated, both of them “should have been aware of the potential jurisdictional issues at the time of the removal hearing.”
“Because mother has submitted evidence of an existing out-of-state order, DSS has the burden of proving South Carolina has jurisdiction to proceed with this action,” the court added in its per curiam decision.
Attempts to speak with Tran’s appellate attorney, Kimberly Brooks of Greenville, and DSS attorney Kathleen Hodges of Anderson were unsuccessful.
Gregory Forman, a family law attorney in Charleston who reviewed the Tran decision at SC Lawyers Weekly’s request, said he likely would have reached the same erroneous conclusion as Long, “given the limited paperwork that this woman had and the last minute presentation of it.”
“But lack of subject matter jurisdiction will hurt you every time,” he added.
On remand, the family court, which still retains temporary emergency jurisdiction over the case, must determine whether Georgia or Pennsylvania have issued valid orders under the Uniform Child Custody Jurisdiction and Enforcement Act. If either state has a valid order, the next question will be whether its court wants to retain or decline jurisdiction over the matter.
Under the Court of Appeals’ order, DSS will have the burden of tracking down the files in both states to resolve the jurisdictional issue.
While Forman said some judges “jealously guard jurisdiction,” he predicted that “ultimately South Carolina is going to end up with jurisdiction and they’re going to terminate this woman’s parental rights,”
Follow Phillip Bantz on Twitter @SCLWBantz
