SCDSS v. Kenyon

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,
Appellant,

v.

Kerri Kenyon, Marques Kennedy, and LeVaughn
Blanding, Jr., Respondents.

In the interest of minors under the age of eighteen.

Appellate Case No. 2020-000939

Appeal From Clarendon County
James A. Spruill, Family Court Judge

Unpublished Opinion No. 2021-UP-123
Submitted April 9, 2021 – Filed April 16, 2021

REVERSED AND REMANDED

William Evan Reynolds, of Kingstree, for Appellant.

Eleazer R. Carter, of The Carter Law Firm, of Manning,
for Respondent Marques Kennedy.

Kimberly Yancey Brooks, of Kimberly Y. Brooks,
Attorney at Law, of Greenville, for Respondent Kerri
Kenyon.
William T. Geddings, Jr., of Geddings Law Firm, PA, of
Manning, for the Guardian ad Litem.

PER CURIAM: South Carolina Department of Social Services (DSS) appeals the
family court's order denying termination of parental rights (TPR) for Kerri Kenyon
(Mother), Marques Kennedy, and LeVaughn Blanding (collectively, Parents).1 On
appeal, DSS argues it proved by clear and convincing evidence Parents (1) failed
to remedy the conditions causing removal, (2) had diagnosable conditions unlikely
to change within a reasonable time, (3) harmed the children, and due to the severity
or repetition of the harm, it was not reasonably likely Mother's home could be
made safe, and (4) willfully failed to support the children. Additionally, DSS
contends TPR is in Children's best interest. Because the family court decided this
case on an improper basis, we reverse and remand.

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).

The family court may order TPR upon finding a statutory ground for TPR is met
and TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2020).
"The interests of the child shall prevail if the child's interest and the parental rights
conflict." S.C. Code Ann. § 63-7-2620 (2010). "In a [TPR] case, the best interests
of the children are the paramount consideration." S.C. Dep't of Soc. Servs. v.
Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000). "Appellate courts
must consider the child's perspective, and not the parent's, as the primary concern
when determining whether TPR is appropriate." S.C. Dep't of Soc. Servs. v. Sarah
W., 402 S.C. 324, 343, 741 S.E.2d 739, 749-50 (2013).

During the TPR hearing, DSS's case focused primarily on evidence of Mother's
prior drug use. DSS argued Mother relapsed at least four times between 2017 and
the TPR hearing. According to DSS, Mother's relapses indicated she could not
maintain sobriety long-term. On the other hand, Mother asserted she attended drug
treatment at Clarendon Behavioral Health Center and averred she could provide a
drug-free home for the children. Although Mother acknowledged her addiction,
she nonetheless maintained she could achieve sobriety on a long-term basis.

1
This action concerned four children. Kennedy is the father of two of the children,
and Blanding is the father of the other two.
In its final order, the family court denied TPR because it believed Mother was
capable of achieving and maintaining sobriety. The family court acknowledged
Mother tested positive for methamphetamine in January 2020, just two months
before the TPR hearing. However, the court found DSS failed to meet its burden
of proof on any of the grounds, noting Mother's counselor testified "relapse was
normal and an expected part of recovery from an addiction to methamphetamine,"
and Mother's "treatment was going well." The court acknowledged Mother "badly
needs in-patient alcohol and drug abuse treatment," Mother was detained on a
bench warrant for failing to submit to a drug test requested by drug court, and "the
reason for keeping [Mother] in jail is because she needs this in-patient treatment."
The court "conclude[d] that if DSS and the Drug Court think [Mother] needs
in-patient treatment, then that must mean that they think that she can overcome her
methamphetamine addiction." In finding TPR was not in the children's best
interest, the family court found Mother testified she loved her children. Notably,
the court stated, "The Court is reluctant to terminate [Mother's] parental rights
because her minor children are her incentive to keep striving for sobriety. If her
incentive is taken away, then [Mother] may never overcome her methamphetamine
addiction." As to Kennedy and Blanding, the family court ruled "if there [was] no
[TPR] of [Mother] then it [was] unnecessary to terminate the parental rights of the
fathers."

We find the family court erred in not adequately analyzing the statutory grounds.
Although the family court generally found DSS failed to meet its burden of proof,
it did not cite to section 63-7-2570 or analyze these facts using the statutory
framework. Nothing in the order indicates the family court considered whether
Mother willfully failed to support her children. Additionally, nothing in the order
indicates the family court considered any of the statutory grounds as to Kennedy or
Blanding.

We also find the family court improperly focused on Mother's best interest as its
paramount concern in denying TPR. As this court explained in Smith, "the best
interests of the children are the paramount consideration" in a TPR action. 343
S.C. at 133, 538 S.E.2d at 287; see also § 63-7-2620 ("The interests of the child
shall prevail if the child's interest and the parental rights conflict."). Here, the
family court focused on its belief that reunification would help Mother maintain
sobriety, which was error. Instead, the family court must view the best interest of
Children as the paramount consideration in determining whether TPR is
appropriate. Thus, we reverse the family court's order denying TPR and remand to
the family court for a new TPR hearing.2

At the hearing, the parties and the guardian ad litem may update the family court
on what has occurred since the TPR hearing. The family court shall then review
the evidence using the statutory framework of section 63-7-2570 to determine if a
statutory ground is met. Thereafter, the family court shall consider—from the
perspective of the children—whether TPR is in their best interest.

REVERSED AND REMANDED.3

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

2
Although this court can make its own findings of fact under a de novo review, the
circumstances surrounding the children's best interest may have changed while this
appeal was pending. We make no finding as to whether DSS proved a statutory
ground by clear and convincing evidence.
3
We decide this case without oral argument pursuant to Rule 215, SCACR.