Tuesday, September 13, 2016
Mom spends years out of state fighting over daughter's guardianship
Brenda Bryant’s legal battle over guardianship took place for years in Greenville County courts because her daughter lived then in a group home there.
Since the Supreme Court ruling in 2006 that found the state Department of Disabilities and Special Needs owed a duty of care to such vulnerable adults, even if they are being cared for by a private provider that contracts with DDSN, the provider and the agency have paid $300,000 to settle the case.
But the litigation since has taken a series of bizarre turns, including allegations of misappropriation of some of the settlement money, contempt of court findings and assertions that Bryant has not visited her daughter since 2011 and cannot be found in South Carolina.
Yet on Wednesday, her attorney filed an appeal in the State Court of Appeals over the appointment this summer of a permanent guardian and an order that a criminal probe be reopened into allegations that some of the settlement money was misappropriated.
Orin Briggs, Bryant's lawyer, told The Greenville News that Bryant has been out of state for years. He denied she had misappropriated funds.
"I do not know where she is," he said. "All she does is call me."
Bryant, reached by The News, said there has been no misappropriation of funds and that she has been out of state the past four years because of a bench warrant tied to a contempt citation for not paying the legal fees of a guardian. She said the notation on the warrant indicates that she could spend an indefinite time behind bars.
She said she refused to pay the fees because her daughter was assaulted multiple times in a Greenville group home and alleged the guardian refused to move her. She said she paid the fees for her guardian but not the guardian's legal fees.
"After four years and the fact that (her daughter) was beaten, I do not believe as a mother that I would have to pay a guardian's $10,000 in legal fees," she said,
She declined to say exactly where she was living or what state.
Briggs argued in the notice of appeal that Bryant had not been properly served with legal papers in the case and that court rules require proof that she cannot be served in the state. He wrote that could have been accomplished by hand-delivering a copy to her husband at their home in Lexington.
The Supreme Court in 2006 took up the appeal of a ruling by a circuit judge dismissing claims by Bryant of negligence against the Babcock Center, a Columbia facility that houses intellectually disabled people, and the state Department of Disabilities and Special Needs related to sexual incidents involving her daughter.
Her daughter, then 32, lived in a Babcock facility and had the emotional and intellectual maturity of a 7-year-old to 10-year-old child, according to the court.
"She can read, write, and understand math at the level of a first- or second-grade child," then Acting Justice Derham Cole wrote in the ruling. "Appellant alleges her mental disability means she is not able to live or work independently. She cannot, for example, cook, wash clothes, run bath water, use a toaster oven, put on her own makeup, or perform personal hygiene tasks without adult supervision."
In 1995, the daughter left her group home after everyone inside was asleep and got into a car with two other males and a female who was later dropped off, according to the ruling. One or both of the men later had sex with her. According to the ruling, she initially said she had been raped but later testified she had been talked into the sex.
She contracted herpes at some point related to her sexual encounters while at the home, according to the ruling.
Bryant, appointed guardian in 1997, alleged that she had made repeated warnings to staff about her daughter's sexual contact and that they failed to properly supervise her.
A judge sided with the Babcock Center and DDSN in the lawsuit, finding they “had no legal duty to maintain a constant watch over the plaintiff so as to prevent her surreptitious elopement.” The judge also ruled that the proximate cause of any damages suffered by the daughter, as a matter of law, was her “own voluntary and intentional acts.”
The Supreme Court disagreed.
"We reverse the circuit court and hold that Babcock Center and its employee have a common law duty to exercise reasonable care in supervising and providing care and treatment to Appellant," Cole wrote in a unanimous decision. "Department also owes a common law duty to Appellant."
Babcock Center eventually settled the case for $250,000, according to court records. DDSN paid $50,000 in the case.
In 2008, Associate Probate Judge Edward Sauvain in Greenville ordered Bryant be replaced as guardian after a series of complaints by a guardian ad litem alleging Bryant was uncooperative and had interfered in her daughter's medical care.
"While I have substantial concerns about some of the actions of the (Greenville County DSN) Board and DDSN, I find that those agencies were not the motivators for filing this action to remove Mrs. Bryant," he wrote. "Even if they had been the motivators, I would reach the same result."
He noted that Bryant had received $40,000 from the litigation without any written authorization from the court.
While records show Bryant's daughter had asked that her mother be replaced as guardian, she changed her mind and Bryant was reinstated as guardian in 2009. Bryant also was made trustee of her daughter's special needs trust.
According to court records, while Bryant placed her daughter in a Florence County group home in 2009, she stopped visiting in 2011.
It was in September of 2011 that Sauvain found Bryant in contempt of court and ordered her to jail for six months if she did not pay $10,338 to a former guardian that Bryant had refused to pay on principle, Sauvain ruled. According to court records, Bryant was jailed on the contempt charge and then paid the fees.
In September 2010, Bryant sued multiple people and agencies as well as a former guardian over her daughter's care. A judge dismissed the guardian from the suit, who sought a sanction against Bryant because she alleged the suit was frivolous since a previous probate action had released her from all claims. Circuit Court Judge Edward Miller agreed and ordered Bryant to pay $5,062 to the guardian for her legal fees. By April 2012, Miller ruled that no payment nor payment arrangements had been made and added another $3,983 for the guardian's attorney's fees. He then issued a bench warrant that Bryant be jailed for contempt but said she could be released once the bill was paid.
Bryant said the warrant remains active.
In 2013, Bryant was terminated as guardian and conservator and replaced temporarily with Jay Elliott. According to court records, an official with the group home where her daughter now stays testified this summer that Bryant is "unable" to come into the state.
Florence County Probate Judge J. Munford Scott ruled in July that Bryant's daughter wanted Elliott to serve as her guardian and conservator so he was appointing him as such.
Elliott, according to the order, has alleged that Bryant had "misappropriated" her daughter's funds and that none of the $250,000 was left and that $46,000 of the $50,000 settlement remained.
Bryant said of the $250,000, only $87,000 was left after attorneys fees and court costs were paid. Of that amount, she said, most was spent on more legal costs, on a vehicle to enable family to visit and transport her daughter in Florence, on spending money and items for her daughter's room and on vacation costs with her daughter. She said the question is more of documentation than of misappropriation and being out of state has hindered her ability to gather all the receipts and records, though she is trying.
"Why would a probate judge in Greenville give me back the guardianship and conservatorship in 2010 had I misappropriated her funds?" she asked. "Never. There is not enough money to pay for all the legal proceedings we have been in. The money can be accounted for."
Elliott told The News that he had not seen the appeal but thinks the argument of Bryant not being properly served "is an interesting assertion from a fugitive."
"I certainly think the probate judge acted with great rectitude in what he did," he said.
In his order, Scott asked that the Richland County Solicitor's Office "reopen the prior investigation" into Elliott's allegations, though Bryant and her husband live in Lexington County.
"If I were a mother who had done wrong by my child, I can assure you I would not have been fighting as hard as I fought for her and now for others," Bryant said.
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Mom spends years out of state fighting over daughter's guardianship