792 S.E.2d 254
S.C. Ct. App.2016Background
- Mother (Georgia resident) was traveling through South Carolina with her minor daughter when Mother was hospitalized on May 21, 2012; DSS removed Child and obtained temporary custody after a probable cause hearing.
- DSS’s placement plan reported prior involvement with Georgia authorities and prior foster placement in Georgia; allegations also referenced Pennsylvania.
- Family court entered a December 3, 2012 removal/merits order granting DSS custody and ordered Mother to follow a placement plan.
- Mother was absent at the March 6, 2014 TPR hearing; the family court found by clear and convincing evidence Mother failed to remedy conditions, Child had been in foster care long enough, and TPR was in Child’s best interest.
- Mother later produced Pennsylvania and (allegedly) Georgia court documents suggesting preexisting out-of-state custody/visitation orders; she argued South Carolina lacked subject-matter jurisdiction under the UCCJEA.
- The appellate court held DSS failed to prove South Carolina had jurisdiction under the UCCJEA, vacated the removal and TPR orders, retained temporary emergency jurisdiction for a limited period, and remanded for jurisdictional proceedings with instructions to communicate with Georgia and Pennsylvania courts as appropriate.
Issues
| Issue | Mother’s Argument | DSS/State’s Argument | Held |
|---|---|---|---|
| Whether South Carolina had subject-matter jurisdiction under the UCCJEA | South Carolina was not Child’s home state; only emergency jurisdiction could apply and prior out-of-state orders (PA and GA) prevented final South Carolina orders | South Carolina proceeded after emergency removal and treated the removal order as final jurisdictional basis; family court summarily found jurisdiction | Vacated removal and TPR orders; SC had only temporary emergency jurisdiction and DSS failed to prove SC had authority to make a final custody determination |
| Whether the removal order became a final UCCJEA custody determination | Prior PA (and possibly GA) custody/visitation orders existed, so SC could not issue a final order absent the other states declining/exercising jurisdiction | Removal order was final and not timely appealed (family court relied on finality precedent) | Because DSS did not prove no prior enforceable out-of-state determination, the removal order could not be upheld as final under the UCCJEA |
| Burden of proof on jurisdiction after defendant shows out-of-state order | Mother introduced evidence of out‑of‑state orders; thus DSS must establish SC’s jurisdiction under UCCJEA | DSS contended it had emergency basis and proceeded; family court did not investigate further | Court confirmed that once a defendant shows an out‑of‑state order, the plaintiff (DSS) bears the burden to prove the new state has jurisdiction |
| Remedy and procedure on remand when emergency jurisdiction is asserted | Mother sought vacatur and remand for jurisdictional resolution | DSS had not shown communication with or declination by the other states; family court retained emergency authority | Court vacated orders, retained temporary emergency jurisdiction for 60 days or until another state acts, and remanded with instructions to determine validity of GA/PA orders and to communicate with those courts per UCCJEA procedures |
Key Cases Cited
- Simmons v. Simmons, 392 S.C. 412 (review standard: de novo review of family court factual and legal issues)
- Dove v. Gold Kist, Inc., 314 S.C. 235 (a court without subject-matter jurisdiction cannot act)
- Coon v. Coon, 364 S.C. 563 (a judgment entered by a court lacking subject-matter jurisdiction is void)
- Badeaux v. Davis, 337 S.C. 195 (lack of subject-matter jurisdiction may be raised at any time and cannot be waived)
- Anthony H. v. Matthew G., 397 S.C. 447 (PKPA and UCCJEA govern interstate custody; apply to TPR actions)
- Russell v. Cox, 383 S.C. 215 (South Carolina defers to the state that initially issued custody determinations under the UCCJEA)
- Hooper v. Rockwell, 334 S.C. 281 (merits removal orders may be final and appealable)
- Widdicombe v. Tucker-Cales, 366 S.C. 75 (doctrine on deference to issuing state under the UCCJEA)
- Gorup v. Brady, 46 N.E.3d 832 (Illinois App. Ct. — vacatur for lack of UCCJEA jurisdiction while retaining temporary emergency jurisdiction pending inter-state resolution)