SC DEpartment of Social Services v. McFarland

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Social Services,       
Respondent,

v.

Michael McFarland, Sr. and John Doe, and Child:  Sarah McFarland (05/05/1995)
Child:  Michael McFarland, Jr., (12/04/1996),       
Defendants,

of whom Michael McFarland, Sr. is       
Appellant.

Appeal From Cherokee County

Wesley L. Brown, Family Court Judge

Unpublished Opinion No. 2004-UP-316

Submitted March 19, 2004 – Filed May 13, 2004

AFFIRMED

Michael Dean Hamrick, of Gaffney, for Appellant.

Meredith Brooks Moss, of Gaffney, for Respondents.  

Usha Jefferies Bridges, of Gaffney, for Guardian Ad
Litem.

PER CURIAM:  Michael McFarland appeals a family court’s order terminating
his parental rights. We affirm.

FACTS

Michael (Appellant) and Christine McFarland are
the biological parents of Michael McFarland, Jr.  The other member of the family
is Sara McFarland. [1] While
the family was living in Cherokee County, the children, then age 3 and 4, were
found “walking down a busy highway,” unsupervised and improperly clothed. This
occurred in March of 2000. The children had wandered away from their home while
Mrs. McFarland was sleeping and Appellant was at work. When confronted by the
authorities, both Appellant and Mrs. McFarland admitted drug use. The family
court ordered the children’s removal from the home because of a lack of supervision
and because of the drug use. However, the family court granted supervised visitations
to Mrs. McFarland and Appellant at the discretion of the DSS. The family court
also adopted a treatment plan and ordered the McFarlands to pay child support
in the amount of $32.00 per week.

On April 17, 2000, Appellant was arrested on burglary
charges. [2] He tested positive for marijuana and cocaine
on that day as well. While Appellant was in prison, the family court held a
first Permanency Hearing in May 2001, which meeting the McFarlands attended.
The family court decided to extend the plan of reunification by six months.
In December of the same year, another hearing was held, where Appellant formally
requested visitation with the children. The family court denied the request
and ordered a plan of termination of parental rights.

By an order dated March 7, 2003, the family court
terminated Appellant’s parental rights regarding both children.
[3] It found that:

(a) the children have lived outside of the home
of the parent for a period of six (6) months and the parent has failed to visit
pursuant to S.C.Code Ann. § 20-7-1572(3); (b) the children have lived outside
of the home of the parent for a period of six (6) months and the parent has
willfully failed to support pursuant to S.C.Code Ann. § 20-7-1572(4); and (c)
the children have been in foster care under the responsibility of the State
for fifteen (15) of the last twenty-two (22) months pursuant to S.C.Code Ann.
§ 20-7-1572(8).

The family court ruled that the lack of support
was willful, since Appellant was gainfully employed when the children were removed.
[4] The family court also noted that Appellant had committed three serious
felonies shortly after the children left, “voluntarily pursu[ing] course of
lawlessness [leading to] his imprisonment and inability to pay child support.”
The family court ruled that the termination was in the best interest of the
children.

ISSUES

-
Did the family court err in terminating Appellant’s parental rights
for failure to support his children while he was
in prison?

-
Did the family court err in terminating Appellant’s parental rights
for failure to visit his children while he was
in prison?

LAW/ANALYSIS

“The termination of parental rights is
governed by statute.” Dep’t. of Soc. Servs. v. Wilson, 344 S.C. 322,
335, 543 S.E.2d 580, 582 (Ct. App. 2001) (citing S.C.Code Ann. § 20-7-1772 (Supp.
2000)). Under § 20-7-1572, one of three conditions must be met: the child must
have lived outside the home of the parent for at least six months; the court
must determine that the parent has willfully failed to support the child; or
the parent has willfully failed to visit the child. Id. An order terminating
parental rights must be supported by clear and convincing evidence. South
Carolina Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992).
An appellate court is free to make its own findings as to the existence of facts,
but is not required to ignore the findings from the trial court.  Dorchester
County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.
App. 1996).  Where the trial court’s findings are adequately supported, an appellate
court should give proper deference to those findings since the trial court was
able to personally observe the parties and weigh their credibility.  South
Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 547 S.E.2d 506
(Ct. App. 2001).

The family court terminated Appellant’s parental
rights on three statutory grounds and because it found that termination was
in the best interest of the children. On appeal, Appellant addresses only two
of those grounds. However, “[a] family court may order the termination of parental
rights upon a finding of one or more of the following grounds and a finding
that termination is in the best interest of the child . . . .” § 20-7-1572 (emphasis
added). Additionally, “[an] appellate court may affirm any ruling, order, or
judgment upon any ground(s) in the Record on Appeal.”  Rule 220 (c), SCACR.
Therefore, we affirm the family court using only statutory ground since we agree
that the termination of Appellant’s parental rights serves the best interest
of the children.

The facts before us clearly satisfy the requirement
under § 20-7-1572(8) that the children live outside the parent’s home for fifteen
of the twenty-two months preceding an order for termination. Here, the children
were removed from the home on April 9, 2000 and have lived in the continuous
care of DSS. The family court held the termination hearing in October 2002 and
did not issue the termination order until March 2003. Therefore, the children
had lived outside the home for at least thirty- six months, more than twice
the required time.

As for the best interest of the children, the family
court found that Appellant had a “history of domestic violence, drug use and
neglect, lack of compliance with the treatment plan.” The record indicates that
the authorities had already removed the children from the McFarland home on
a prior occasion in 1998. Additionally, the family court noted that one of the
children suffered from an illness that required expensive medication that Appellant
would probably have difficulty providing. The family court also placed much
emphasis on the strong bond between the children, a bond that would be at risk
if the children were separated and placed in different homes. That scenario,
according to DSS, was more likely to happen without the termination of Appellant’s
parental rights. Given all of that evidence, plus Appellant’s long-term incarceration,
we agree with the family court that the termination of Appellant’s parental
rights serves the best interest of the children.

CONCLUSION

Based on the foregoing, the family court’s ruling is

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.

[1] Mrs. McFarland is Sara’s biological mother, but Sara’s biological
father is unknown. Mrs. McFarland has waived her parental rights to both children.

[2] Appellant was convicted on burglary charges in June 2000, and sentenced
to twenty years in prison. He has been incarcerated since his arrest.

[3] By the same order, the court also terminated the rights of Mrs. McFarland
and of John Doe, the biological father of Sara McFarland. 

[4] Appellant subsequently quit his job but offers no justification for
that decision.