Opinion
Appellate Case No. 2020-000272
05-22-2020
SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Andrea BENJAMIN and Ricky Pittman, Defendants, Of whom Andrea Benjamin is the Petitioner. In the interest of a minor under the age of eighteen.
ORDER
In this termination of parental rights (TPR) action, the court of appeals affirmed the family court's order terminating Petitioner's parental rights after a review pursuant to Ex Parte Cauthen , 291 S.C. 465, 354 S.E.2d 381 (1987). S.C. Dep't of Soc. Servs. v. Benjamin , Op. No. 2019-UP-381 (S.C. Ct. App. filed Dec. 6, 2019). Petitioner has now filed a pro se petition for a writ of certiorari to review the decision of the court of appeals, a motion to proceed in forma pauperis , a motion to appoint counsel, and a motion for an extension of time in which to serve and file the Appendix.
This Court has held it will grant certiorari to the court of appeals only where special reasons justify the exercise of that discretion. Haggins v. State , 377 S.C. 135, 136, 659 S.E.2d 170, 170 (2008) ; In re Exhaustion of State Remedies in Criminal Post-Conviction Relief Cases , 321 S.C. 563, 564, 471 S.E.2d 454, 454 (1990). Further, Rule 242(b), SCACR, emphasizes the discretionary authority of the Court to review decisions of the court of appeals, stating a writ of certiorari will be granted only when there are special and important reasons, such as when there are novel questions of law; a dissent in the decision of the court of appeals; the decision of the court of appeals is in conflict with a prior decision of this Court; substantial constitutional issues are directly involved; or a federal question is included, and the decision of the court of appeals conflicts with a decision of the United States Supreme Court.
A Cauthen review, which is a procedure similar to that set forth in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), is conducted when an attorney representing an indigent defendant on TPR determines the appeal is without merit. The attorney files the transcript of the family court hearing and an affidavit, as an officer of the court, stating the attorney's belief that the appeal lacks merit. Ex Parte Cauthen , 291 S.C. at 467, 354 S.E.2d at 383. In Cauthen cases, the role of the appellate court is to review the transcript in its entirety and any responses submitted by the appellant or the respondent to determine whether the appeal contains any meritorious issues. Id. If an issue is found which warrants briefing, the appellate court will direct the parties to file briefs on the issue, and the case will proceed under the normal appellate process. Id. On the other hand, if the appellate court finds no meritorious issues, the appeal will be dismissed. Id.
This Court has held it is unnecessary to file a petition for writ of certiorari after a Cauthen appeal has been decided by the court of appeals because the court of appeals has reviewed the trial transcript for any possible issues of arguable merit. See S.C. Dep't of Soc. Servs. v. Ihnatiuk , 396 S.C. 207, 209, 721 S.E.2d 766, 767 (2003) ; S.C. Dep't of Soc. Servs. v. Hickson , 350 S.C. 213, 214, 565 S.E.2d 763, 764 (2002).
A decision issued by the court of appeals after a Cauthen review does not meet the "special and important" standard established by Rule 242(b) and this Court's decisions concerning petitions for writs of certiorari to the court of appeals. As a matter of policy, this Court will no longer entertain petitions for writs of certiorari when the court of appeals has dismissed an appeal after conducting a Cauthen review. Accordingly, we dismiss the petition for a writ of certiorari in this matter, and deny Petitioner's motions to proceed in forma pauperis , to appoint counsel, and for an extension as moot.
s/Donald W. Beatty, C.J.
s/John W. Kittredge, J.
s/Kaye G. Hearn, J.
s/John Cannon Few, J.
s/George C. James, Jr., J.
See Ellison v. State , 382 S.C. 189, 191, 676 S.E.2d 671, 672 (2009) (holding petitions for writs of certiorari to the court of appeals will not be entertained when the court of appeals issued an order denying a writ of certiorari in a post-conviction relief (PCR) matter or initially issued an order granting a writ of certiorari but later issues an opinion dismissing the writ as improvidently granted without further discussion of the case); State v. Lyles , 381 S.C. 442, 445, 673 S.E.2d 811, 813 (2009) (deciding, as a matter of policy, not to entertain petitions for writs of certiorari when the court of appeals dismissed the appeal after conducting a review pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ); Haggins v. State , supra (refusing to entertain petitions for writs of certiorari to the court of appeals when the court of appeals issued a letter of denial in a PCR case); Missouri v. State , 378 S.C. 594, 595, 663 S.E.2d 480, 481 (2008) (holding the Supreme Court will not entertain petitions for writs of certiorari to the court of appeals when the court of appeals denied a petition for a writ of certiorari filed pursuant to Johnson v. State , 294 S.C. 310, 364 S.E.2d 201 (1988), in a PCR matter).