SCDSS v. Whitley

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

South Carolina Department of Social Services,
Respondent,

v.

Jessica Norton and Ronald Whitley, Defendants,

Of whom Ronald Whitley is the Appellant.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2017-001857

Appeal From York County
James F. Fraley, Jr., Family Court Judge

Unpublished Opinion No. 2018-UP-229
Submitted May 4, 2018 – Filed June 1, 2018

REVERSED

Melinda Inman Butler, of The Butler Law Firm, of
Union, for Appellant.

R. Chadwick Smith, of South Carolina Department of
Social Services, of Rock Hill, for Respondent.
Donae Alecia Minor, of Minor Law Offices LLC, of Fort
Mill, for the Guardian ad Litem.

PER CURIAM: Ronald Whitley (Father) appeals an order removing his minor
daughter (Child) from his custody. On appeal, Father argues the family court erred
in finding he neglected Child. We reverse the finding of neglect against Father.

Jessica Norton (Mother) tested positive for benzodiazepines at Child's birth. At
that time, the Department of Social Services (DSS) had another case with Mother
and Father (collectively, Parents) involving their two other children. DSS opened
that case against Mother in February 2016 after Mother tested positive for drugs at
the birth of another child. The other children remained in Parents' home, and
Father's mother lived with them and acted as the children's protector. Tiffany
Upchurch, an investigator with DSS, stated DSS offered Mother a treatment plan,
but Mother had not changed her behavior, and she did not know what progress
Parents had made.

Child was transferred to the neonatal intensive care unit at Palmetto Richland
Hospital at birth due to medical conditions, and she remained hospitalized for an
extended time. Child's medical conditions required her to use a gastrointestinal
(GI) tube and wear a sleep apnea machine. Upchurch stated the hospital required
all parents of medically fragile children to attend training. The hospital scheduled
three dates—April 8, 9, and 11, 2017—for Parents to attend CPR training and learn
how to use the GI tube and the sleep apnea machine. Parents did not attend the
training, and DSS filed this removal action two days later. According to
Upchurch, Mother said she could not attend the training because she was arrested
on April 91 for possession of a controlled substance, and Father said he could not
attend "due to his work and with all that had happened with [Mother]."

On cross-examination, Upchurch acknowledged DSS was not seeking a finding
against Father for anything related to Mother's pregnancy or Child's birth; she
maintained Father neglected Child by not attending the training. Upchurch
admitted Father said he could not attend due to work and Mother being in jail, and
Father was "very active in helping care for [their other] children."

Angelica Evans, a DSS foster care worker, also testified DSS's allegations of
neglect as to Father related to his failure to attend the classes. She averred Father

1
Mother claimed she was arrested on April 8th rather than April 9th.
could have arranged for someone to watch his other children while he travelled
from his home in York County to Columbia to take the classes.

Father testified he was self-employed in the heating and air industry and the sole
provider for his family. He stated he attended bi-weekly visitation with Child.
Father testified the hospital's training classes were scheduled for a weekend, and he
learned about them the Tuesday or Wednesday before. He stated he did not attend
because Mother was incarcerated and he had to stay home with his other children.
Father explained he could not leave the children with his mother because she was
seventy-eight years old, had injured her back, and could not lift them. He testified
he called the hospital's social worker "and explained the situation." Father stated
he was "[a]bsolutely" willing to take the classes and would have taken them the
following week, but DSS filed the removal action and Upchurch told him not to
contact the hospital. Father acknowledged he could not care for Child without
attending the classes but explained, "All I need is for those three training classes to
be rescheduled and give me an opportunity to attend those."

The family court found Child was harmed by Mother testing positive for drugs at
Child's birth; Child tested positive for buprenorphine, opiates, barbiturates, and
benzodiazepines. The family court further found returning Child to Parents' home
would place her at an unreasonable risk of harm, Mother physically neglected and
physically abused Child, and Father physically neglected Child. Father appealed
only the finding that he physically neglected Child.

On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court
reviews the family court's findings de novo, we are not required to ignore the fact
that the family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 385, 709 S.E.2d at 651-52.

Father argues his failure to attend the classes did not constitute neglect. We agree.
DSS did not seek a finding against Father for anything related to Mother's
pregnancy or Child's birth; rather, DSS believed Father neglected Child by not
attending the hospital's training classes.

In finding Father neglected Child, the family court did not state which statutory
provision supported its finding of neglect. See S.C. Code Ann. § 63-7-20(6)
(Supp. 2017) (defining harm or abuse or neglect for purposes of the removal
statute). Further, we have reviewed section 63-7-20(6) and find Father's failure to
attend the training classes does not constitute neglect. Father's failure to attend the
classes did not cause physical or mental injury to Child or create a substantial risk
of physical or mental injury to Child because Child was being cared for by the
hospital staff at the time. See § 63-7-20(6)(a) (providing harm or abuse or neglect
occurs when the parent "inflicts or allows to be inflicted upon the child physical or
mental injury or engages in acts or omissions which present a substantial risk of
physical or mental injury to the child"). No evidence showed Child did not have
adequate food, clothing, shelter, education, or health care. See § 63-7-20(6)(c)
(providing harm or abuse or neglect occurs when the parent fails to provide
adequate food, clothing, shelter, education, or health care). Although there may be
circumstances when a parent's failure to attend necessary classes to remove a child
from the hospital could constitute abandonment, we find the facts here do not show
Father abandoned Child. See § 63-7-20(6)(d) (providing harm or abuse or neglect
occurs when the parent abandons the child). Father stated he learned about the
classes less than a week before they were scheduled, and he was unable to attend
because Mother was incarcerated and he had to care for his other children. DSS
filed the removal action two days after Father did not attend the classes. Father
expressed a willingness to attend the classes, but he testified DSS told him not to
contact the hospital. Under these facts, we find Father's failure to attend the
classes did not constitute abandonment that would support a finding of neglect.
Finally, the record does not contain sufficient evidence showing Father abused or
neglected his other children. See 63-7-20(f) (providing harm or abuse or neglect
occurs when the parent "has committed abuse or neglect as described in
subsections (a) through (e) such that a child who subsequently becomes part of the
person's household is at substantial risk of one of those forms of abuse or
neglect").2 Upchurch stated DSS became involved based on Mother's drug use,
and the record does not contain testimony showing Father harmed the other
children. Based on the foregoing, the family court erred in finding Father
neglected Child.

REVERSED.3

HUFF, GEATHERS, and MCDONALD, JJ., concur.

2
The remaining subsections of the statute are inapplicable. See § 63-7-20(6)(b)
(providing harm or abuse or neglect occurs when a parent "commits or allows to be
committed against the child a sexual offense"); § 63-7-20(6)(e) (providing harm or
abuse or neglect occurs when the parent encourages the child's delinquency).
3
We decide this case without oral argument pursuant to Rule 215, SCACR.