South Carolina Department of Social Services v. Jennifer M.

744 S.E.2d 591, 404 S.C. 269, 2013 WL 3199989, 2013 S.C. App. LEXIS 171
CourtCourt of Appeals of South Carolina
DecidedJune 26, 2013
DocketAppellate Case No. 2011-205406; No. 5147
StatusPublished
Cited by8 cases

This text of 744 S.E.2d 591 (South Carolina Department of Social Services v. Jennifer M.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Carolina Department of Social Services v. Jennifer M., 744 S.E.2d 591, 404 S.C. 269, 2013 WL 3199989, 2013 S.C. App. LEXIS 171 (S.C. Ct. App. 2013).

Opinion

HUFF, J.

Appellant, Jennifer M. (Mother), appeals an order of the family court finding Mother abused and/or neglected her child and ordering Mother’s name entered into the Central Registry of Child Abuse and Neglect (Central Registry). Mother contends the family court erred in (1) finding she abused and neglected her unborn child based upon conduct that occurred when she did not know she was pregnant and ordering her name placed upon the Central Registry, and (2) improperly admitting and considering alleged results of drug tests for which there was no foundation and which violated the rule against hearsay. We reverse.

FACTUAL/PROCEDURAL HISTORY

On June 10, 2011, the South Carolina Department of Social Services (DSS) filed a complaint for intervention against Mother. DSS filed an amended complaint for removal on July 1, 2011, after Mother and her minor child (Child) allegedly tested positive for drugs in June 2011. A probable cause hearing was held on July 7, 2011, resulting in an order filed by the family court on July 25, 2011, finding that probable cause existed for Child to have been placed in emergency protective custody and that Child was to remain in the custody of DSS. In its complaint for removal, DSS sought a finding Child was abused and/or neglected by Mother based upon Mother’s alleged use of cocaine and marijuana in the presence of Child, resulting in Child testing positive for the drugs as indicated by Child’s June 27, 2011 drug test and Mother’s June 28, 2011 drug test. DSS also alleged abuse and neglect of Child by Mother based upon Mother’s failure to obtain prenatal care and her use of drugs during her third trimester of pregnancy with Child, as indicated by Child’s and Mother’s positive drug tests at birth. DSS further sought placement of Mother’s name on the Central Registry.

A hearing was held on DSS’s complaint on July 28, 2011, at which time the following was presented: This matter came to the attention of DSS when it received an allegation Mother tested positive for certain drugs when she gave birth to Child on December 10, 2010. An investigation by DSS revealed Mother received no prenatal care before Child was born. [272]*272Over Mother’s objection, a DSS caseworker testified that Mother tested positive for “benzo, marijuana, [and] opiates and she had a positive methadone level” at the time of birth. Upon investigation of the matter, DSS indicated the case on January 18, 2011, for physical neglect and abuse, and a treatment plan was implemented for Mother, to include substance abuse treatment with random drug testing along with parenting classes. Though home visits revealed no problems as far as Child’s care, DSS had concerns based on Mother’s failure to consistently comply with her treatment plan.1 Over Mother’s objection, the DSS caseworker testified Mother and Child were given hair strand tests during Mother’s treatment, and both Mother and Child “were positive.” Also over Mother’s objection, a DSS investigator testified Mother and Child had a random drug test of their hair, and both tests returned positive.2 On June 30, 2011, Child was placed into emergency protective custody and the family court found probable cause to remove Child from Mother’s care.

The DSS investigator acknowledged that when she originally met with Mother at the hospital following Child’s birth and questioned her concerning her pregnancy and prenatal care, while Mother admitted to drug use prior to birth of Child, Mother informed the investigator she was not aware she was pregnant until she went to the hospital with stomach pains and delivered Child. The investigator agreed that during the time she worked with her, Mother was consistent in her statement that she did not know she was pregnant. At the time of the hearing, Mother had completed her drug treatment program at Fairfield Behavioral Health Services (Fairfield Behavioral). The Clinical Counselor at Fairfield Behavioral testified Mother submitted to random drug tests on June 6 and June 16, and these tests were negative for everything except “benzo.” However, Mother had provided them with a documented prescription for the drug.3 The counselor acknowledged Fair-[273]*273field Behavioral administered urine drug tests, which would show if a person is “actively” using drugs.4 After speaking with both the DSS caseworker and investigator, Fairfield Behavioral recommended Mother attend parenting skills and rehabilitative psychological services programs. At the time of the hearing, Mother had two more sessions with parenting skills to be completed and had not yet attended to the psychological services program.

DSS rested its case, and Mother moved for a directed verdict on the complaint seeking a finding of abuse and neglect. Mother argued, although there had been allusions to drug tests, DSS failed to introduce any drug tests to show any substance in Child’s system. Mother noted that no drug tests had been admitted into evidence because DSS had no witnesses at the hearing to substantiate that any tests were taken, that there was a proper chain of custody, that a chemist was qualified, or that there was not a mix up in the samples in delivery to the testing site. Accordingly, Mother argued, since there was no evidence concerning the drug reports, the only allegation of Mother’s neglect was her failure to get prenatal care. However, the DSS caseworker acknowledged Mother did not know she was pregnant at the time. Thus, Mother contended she could not have been neglectful in failing to obtain prenatal care if she did not know she was pregnant. The family court noted, though Mother stated she did not know she was pregnant, the fact that she was pregnant indicated she was having sexual intercourse and the natural outcome of sexual intercourse is pregnancy. Because Mother admitted having used drugs and knew she was having sexual intercourse, the court denied the motion.

Mother then took the stand and testified that she did not know she was pregnant with Child. She stated that she had two previous pregnancies and knew what it felt like to be pregnant, but her “body did not have any indications of being pregnant.” Mother noted that three days before she deliv[274]*274ered Child, she pushed a van that had run out of gas, something a pregnant woman would not attempt. She also testified, because she did not know she was pregnant, she did not prepare for a baby and did not have the things needed for a baby, and her family had to get the items together while she was in the hospital. Mother admitted that, before Child was born and without knowledge of her pregnancy, she engaged in occasional, social drug use during the time she was pregnant. On cross-examination by the Guardian ad Litem (GAL), Mother denied using any drugs since Child came into DSS’s custody, other than what had been prescribed to her by a doctor.

At the close of Mother’s case, the GAL recalled DSS’s caseworker to the stand and sought to question her about documents previously marked as Plaintiffs Exhibit 1, but not admitted into evidence. The documents were drug tests performed on June 23 and June 27, 2011. When asked what the test results revealed, Mother objected, arguing there was no foundation laid for admission of those results into evidence, and asserting there was no testimony to establish the qualification of the tests or chain of custody.

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Bluebook (online)
744 S.E.2d 591, 404 S.C. 269, 2013 WL 3199989, 2013 S.C. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-carolina-department-of-social-services-v-jennifer-m-scctapp-2013.