Hackett v. Hurdle

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Suzanne Hackett and Kevin Hackett, Appellants,

v.

Alejandra Hurdle Harless, Respondent.

In Re: L.D.H., a minor.

Appellate Case No. 2015-002188

Appeal From Lexington County
Tarita A. Dunbar, Family Court Judge

Unpublished Opinion No. 2017-UP-117
Submitted January 30, 2017 – Filed March 2, 2017

AFFIRMED

James Fletcher Thompson, of James Fletcher Thompson,
LLC, of Spartanburg, for Appellants.

William Y. Rast, Jr., of William Y. Rast, Jr. Esq., of
West Columbia, for Respondent.

PER CURIAM: Suzanne Hackett and Kevin Hackett (collectively, the Hacketts)
appeal the family court's order denying their request for the termination of
Alejandra Harless's (Mother) parental rights to her minor child (Child). On appeal,
the Hacketts argue the family court erred because (1) Mother wilfully failed to
support Child, (2) Mother had a diagnosable condition unlikely to change within a
reasonable time, (3) termination of parental rights (TPR) was in Child's best
interest, and (4) an award of attorney's fees and costs to Mother was improper. We
affirm.1

"In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011).
Although this court reviews the family court's findings de novo, we are not
required to ignore the fact that the family court, who saw and heard the witnesses,
was in a better position to evaluate their credibility. Lewis v. Lewis, 392 S.C. 381,
384-85, 709 S.E.2d 650, 651-52 (2011).

The family court may order TPR upon finding one or more of twelve statutory
grounds is satisfied and TPR is in the best interest of the child. S.C. Code Ann.
§ 63-7-2570 (Supp. 2016). The grounds for TPR must be proven by clear and
convincing evidence. S.C. Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519
S.E.2d 351, 354 (Ct. App. 1999).

We find the Hacketts did not present clear and convincing evidence showing
Mother wilfully failed to support Child. See § 63-7-2570(4) (providing a statutory
ground for TPR is met when "[t]he child has lived outside the home of either
parent for a period of six months, and during that time the parent has wilfully
failed to support the child"); Parker, 336 S.C. at 254, 519 S.E.2d at 354 ("A
ground for termination of parental rights must be proved by clear and convincing
evidence."). Based upon the evidence in the record, Mother made $8.04 per hour
in 2015 and netted a loss of $372 per month in 2014. During the times Child was
out of Mother's care for six or more months, Mother contributed shoes, clothes,
sheets, food stamps, and money to Child.2 See § 63-7-2570(4) ("A material
contribution consists of either financial contributions according to the parent's
means or contributions of food, clothing, shelter, or other necessities for the care of
the child according to the parent's means." (emphases added)). Additionally,
Mother testified the Hacketts turned down her requests to support Child and never
asked for support; the family court found this testimony credible. See Stinecipher

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
2
We disagree with the Hacketts' argument Mother's food stamp contribution did
not constitute material support. See § 63-7-2570(4) ("A material contribution
consists of either financial contributions according to the parent's means or
contributions of food . . . .").
v. Ballington, 366 S.C. 92, 100, 620 S.E.2d 93, 97 (Ct. App. 2005) ("[T]he lack of
a request [for support can] be considered along with all other relevant
circumstances."); Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52 ("[T]he appellate
court is not required to disregard the findings of the [family court, which] was in a
superior position to make credibility determinations."). Based upon Mother's
means and her contributions to Child while Child was in the Hacketts' care, we find
clear and convincing evidence does not show Mother wilfully failed to support
Child. See § 63-7-2570(4) ("The court may consider all relevant circumstances in
determining whether or not the parent has wilfully failed to support the child,
including requests for support by the custodian and the ability of the parent to
provide support."); Parker, 336 S.C. at 256, 519 S.E.2d at 355 ("The [family court]
is given wide discretion in making this determination. However, the element of
wilfulness must be established by clear and convincing evidence." (citation
omitted)).

Additionally, we find the record does not contain clear and convincing evidence
showing Mother had a diagnosable condition unlikely to change within a
reasonable time that made her unlikely to provide minimally acceptable care of
Child. See § 63-7-2570(6) (providing a statutory ground for TPR is met when
"[t]he parent has a diagnosable condition unlikely to change within a reasonable
time . . . , and the condition makes the parent unlikely to provide minimally
acceptable care of the child"). Reviewing the entire record—including a summary
of Mother's medical records (the Summary)—we find clear and convincing
evidence does not support a conclusion Mother had a diagnosable condition that
made her unlikely to provide minimally acceptable care for Child.3 Although the

3
We find the family court erred in refusing to admit the Summary into evidence
because Mother's medical records were admissible, the 671 pages of medical
records were "quite comprehensive," and the Hacketts provided the Summary to
Mother and the guardian ad litem (GAL). See Rule 7(c), SCRFC (explaining "[t]he
written statement by a physician showing that a patient was treated at certain times
and the type of ailment" is "admissible in evidence without requiring that the
persons or institution issuing the documents or statements be present in court");
Rule 803(4), SCRE (providing "[s]tatements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment"
are not excluded by the hearsay rule); Rule 1006, SCRE ("The contents of
voluminous writings . . . [that] cannot conveniently be examined in court may be
presented in the form of a . . . summary, . . . provided the underlying data are
expert witness testified Mother had a diagnosable condition of depression, the
expert relied upon medical records that were over three years old, and the expert
did not personally evaluate Mother. Instead, the expert concluded Mother "more
likely than not" would later experience an occurrence of depression. Alternatively,
the GAL testified Mother stabilized her life and she observed no mental issues with
Mother. Moreover, Mother testified she learned to cope with her depression using
various support systems. Further, Mother had a second child who lived with her,
and no evidence showed Mother was unfit to care for that child. Based upon this
testimony, and because the expert's conclusion was based solely upon Mother's
mental state over three years prior to the TPR hearing, we find clear and
convincing evidence does not exist to support TPR on this ground. See S.C. Dep't
of Soc. Servs. v. Roe, 371 S.C. 450, 456, 639 S.E.2d 165, 168-69 (Ct. App. 2006)
("When the diagnosable condition alleged is mental deficiency, there must be clear
and convincing evidence . . . this deficiency makes it unlikely that the parent will
be able to provide minimally acceptable care of the child.").

Because we find no statutory TPR ground is satisfied, we need not determine
whether TPR is in Child's best interest. See § 63-7-2570 ("The family court may
order [TPR] upon a finding of one or more of the [statutory] grounds and a finding
that termination is in the best interest of the child . . . ."); Stinecipher, 366 S.C. at
101 n.7, 620 S.E.2d at 98 n.7 (Ct. App. 2005) ("[A] family court need not reach
best interest when no ground for termination exists.").

Finally, we find no error in the family court's award of attorney's fees to Mother.
See Michael Scott B. v. Melissa M., 378 S.C. 452, 456, 663 S.E.2d 58, 60 (2008)
("The decision to award attorney's fees is a matter within the sound discretion of
the [family court], and the award will not be reversed on appeal absent an abuse of
discretion."). This court considers the following factors when determining whether
an attorney's fee should be awarded in a family court matter: "(1) the party's ability
to pay his/her own attorney's fee; (2) [the] beneficial results obtained by the
attorney; (3) the parties' respective financial conditions; [and] (4) [the] effect of the
attorney's fee on each party's standard of living." E.D.M. v. T.A.M., 307 S.C. 471,
476-77, 415 S.E.2d 812, 816 (1992). Initially, this court does not need to address

admissible into evidence. The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at reasonable time and place.").
the Glasscock4 factors because the Hacketts do not contest the reasonableness of
the attorney's fees. See Way v. Way, 398 S.C. 1, 7 n.7, 726 S.E.2d 215, 219 n.7
(Ct. App. 2012) (noting this court need not address matters conceded on appeal).
Next, because we affirm the family court's denial of TPR, the E.D.M. "beneficial
results" factor is met. Finally, we find the remaining three E.D.M. factors support
awarding attorney's fees. The Hacketts' monthly income was $6,391. Further, the
Hacketts admittedly accepted around $1,200 in donations to pay some of their
attorney's fees in the underlying matter, and Child's paternal grandparents paid
over $22,500 towards the Hacketts' attorney's fees. In contrast, Mother made $8.04
per hour working at a childcare facility, and her monthly expenses exceed her
monthly income. See Marquez v. Caudill, 376 S.C. 229, 246, 656 S.E.2d 737, 746
(2008) (upholding an award of attorney's fees to a prevailing party in a TPR action
when that party did "not have the ability to pay all of the attorney's fees he ha[d]
incurred" and his "financial statement showed that almost all of his paycheck [wa]s
used to pay bills"). Therefore, the evidence supported the family court's award of
attorney's fees to Mother.

AFFIRMED.

WILLIAMS, THOMAS, and GEATHERS, JJ., concur.

4
Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) (setting
forth six factors the court should consider when determining the reasonableness of
attorney's fees).