SCDSS v. Bright

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.

Janet Bright and Randy Bright, Appellants.

In the interest of minors under the age of eighteen.

Appellate Case No. 2016-000574

Appeal From Saluda County
Kelly Pope-Black, Family Court Judge

Unpublished Opinion No. 2017-UP-293
Submitted June 28, 2017 – Filed July 10, 2017

AFFIRMED

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

Robert C. Rhoden, III, of the South Carolina Department
of Social Services, of Spartanburg, for Respondent.

Wendy Nicole Griffith, of Talley Law Firm, P.A., of
Spartanburg, for the Guardian ad Litem.
PER CURIAM: Janet Bright (Mother) and Randy Bright (Father) appeal the
family court's order terminating their parental rights to their minor children
(Children). The family court found clear and convincing evidence supported
termination of parental rights (TPR) on the following grounds: (1) Children were
harmed, and due to the severity or repetition of the abuse or neglect, it was not
reasonably likely the home could be made safe within the next twelve months; (2)
Mother and Father failed to remedy the conditions that caused the removal; and (3)
Mother and Father had diagnosable conditions that were unlikely to change within
a reasonable time and made it unlikely they could provide minimally acceptable
care for Children. Additionally, the family court found TPR was in Children's best
interest. On appeal, Mother and Father argue the family court erred by (1) granting
TPR and (2) finding the permanent plan of TPR and adoption rather than relative
placement was in Children's best interest. We affirm.

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. The burden is upon the appellant to
convince this court that the family court erred in its findings. Id. at 385, 709
S.E.2d at 652.

The family court may order TPR upon finding one or more of twelve statutory
grounds is satisfied and also finding 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. Dep't of Soc. Servs. v. Mrs. H, 346 S.C. 329, 333,
550 S.E.2d 898, 901 (Ct. App. 2001); S.C. Dep't of Soc. Servs. v. Parker, 336 S.C.
248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999). The TPR statute "must be liberally
construed in order to ensure prompt judicial procedures for freeing minor children
from the custody and control of their parents by terminating the parent-child
relationship." S.C. Code Ann. § 63-7-2620 (2010).

We find clear and convincing evidence shows Mother and Father harmed Children
and due to the severity or repetition of abuse or neglect, it was not reasonably
likely the home could be made safe within the next twelve months. See S.C. Code
Ann. § 63-7-2570(1) (Supp. 2016) (providing a statutory ground for TPR is met
when "[t]he child or another child while residing in the parent's domicile has been
harmed . . . and because of the severity or repetition of the abuse or neglect, it is
not reasonably likely that the home can be made safe within twelve months").
First, clear and convincing evidence shows Children were harmed in the home.
See S.C. Code Ann. § 63-7-20(6)(a) (Supp. 2016) ("'[H]arm' occurs when the
parent . . . engages in acts or omissions which present a substantial risk of physical
or mental injury to the child . . . ."). Ashton Gardner, a Department of Social
Services (DSS) caseworker, testified Children were removed because of deplorable
conditions in the home due to a bug infestation and a hole in the floor of the home.
According to the report, Children indicated bugs crawled on them at night and
Child Three had blisters on her head from being bitten by bugs. Furthermore,
Gardner stated DSS was involved with Children in a treatment case from 2009 to
2010 because Mother was mixing Child Two's formula incorrectly and he was
failing to thrive. Although there was no court intervention in the case, Mother and
Father agreed to a finding of medical neglect.

Based on the severity and repetition of the harm, we find clear and convincing
evidence shows it was not reasonably likely the home could be made safe for
Children within twelve months. Cassandra Norris, an employee at Hopes Center
for Children, testified she administered fifteen in-home parenting classes to Mother
and Father, and she did not believe they retained the information from the classes.
During Father's testimony, he had trouble remembering what he learned during
parenting classes. Dr. William Haxton, a forensic psychologist, evaluated Mother
and Father. He testified Mother could not care for Children without constant
supervision, and he believed Father was unable to care for Children because he
could not identify problems when they occurred. Despite Mother being unable to
care for Children, Father testified he intended for Mother to be the primary
caretaker of Children while he was working. Therefore, we find the history of
habitual neglect of Children and the testimony Mother and Father could not
provide adequate care of Children supports this statutory ground for TPR.

We also find clear and convincing evidence shows Mother and Father failed to
remedy the conditions that caused the removal. See S.C. Code Ann. § 63-7-
2570(2) (Supp. 2016) (stating a statutory ground for TPR is met when "[t]he child
has been removed from the parent . . . and has been out of the home for a period of
six months following the adoption of a placement plan by court order or by
agreement between [DSS] and the parent and the parent has not remedied the
conditions which caused the removal"). Although Mother and Father repaired the
conditions of the home, they have been unable to make the behavioral changes
necessary to care for Children. Norris indicated Mother and Father completed five
extra parenting classes because they were not retaining the information from the
classes. She testified they received completion certificates because she was
required to give one to anyone who completed ten classes. However, she did not
believe they retained the information from the classes. Gardner also testified she
did not believe Mother and Father made any behavioral changes. See S.C. Dep't of
Soc. Servs. v. Broome, 307 S.C. 48, 54, 413 S.E.2d 835, 839 (1992) ("[A]n attempt
to remedy alone is [not] adequate to preserve [parental] rights. The attempt must
have, in fact remedied the conditions." (quoting Dep't. of Soc. Servs. v.
Pritchett, 296 S.C. 517, 520, 374 S.E.2d 500, 501 (Ct. App. 1988))). Furthermore,
Mother did not complete her placement plan because she did not follow through
with recommendations from Dr. Haxton to take medication for depression and
complete vocational rehabilitation. Therefore, because of Mother's and Father's
failure to make behavioral changes, we find clear and convincing evidence
supports this statutory ground for TPR.

Additionally, we find clear and convincing evidence shows Mother and Father
have diagnosable conditions that make it unlikely they will be able to provide
minimally acceptable care of Children. See S.C. Code Ann. § 63-7-2570(6) (Supp.
2016) (stating a ground for TPR is met when a "parent has a diagnosable condition
unlikely to change within a reasonable time including, but not limited
to, . . . mental deficiency, mental illness, or extreme physical incapacity, and the
condition makes the parent unlikely to provide minimally acceptable care of the
child"). Dr. Haxton indicated Mother functioned in the mild range of intellectual
disability and diagnosed her with major depressive disorder and an unspecified
anxiety disorder. Dr. Haxton testified Mother's mental deficiency required her to
have constant supervision in maintaining the household and looking after Children.
Furthermore, Dr. Haxton indicated Father functioned within the borderline range
of intellectual functioning. He testified he was concerned with Father's ability to
recognize serious problems and indicated Father had trouble in the past telling
Mother when something was wrong with Children, such as when Mother was
mixing Child Two's formula incorrectly. Dr. Haxton did not believe Mother and
Father would be able to care for Children unless someone supervised their daily
activities. Therefore, because Mother and Father are unable to care for Children
without supervision, we find clear and convincing evidence supports this ground
for TPR. See S.C. Dep't of Soc. Servs. v. Janice C., 383 S.C. 221, 229-30, 678
S.E.2d 463, 468 (finding a diagnosable condition existed that made it unlikely a
mother could provide minimally adequate care for her children when a
psychologist opined "a person with [her] characteristics could not adequately
parent five children without some type of live-in help").
We also find TPR is in Children's best interest. In a TPR case, the best interest of
the child is 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). "The interests of the child
shall prevail if the child's interest and the parental rights conflict." § 63-7-2620.
"The purpose of [the TPR statute] is to establish procedures for the reasonable and
compassionate [TPR] whe[n] children are abused, neglected, or abandoned in order
to protect the health and welfare of these children and make them eligible for
adoption . . . ." S.C. Code Ann. § 63-7-2510 (2010). "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).

Viewed from Children's perspective, we find TPR is in their best interest. Children
have been in foster care since August 2013, approximately four years. Children
were removed because of the deplorable conditions in the home, which were so
bad that Child Three had blisters on her head from being bitten by bugs. The
guardian ad litem (GAL) testified Children were very dirty when they were
removed and had to be slowly introduced to taking baths. Although Mother and
Father visited Children regularly, Norris and the GAL testified Mother only paid
attention to Child Three and Father only recently began interacting with Children
at visits. Conversely, the GAL testified Children were doing very well in foster
care. The GAL explained Child One and Child Two required special education
classes when they first entered foster care, but they were no longer in special
education classes at the time of the TPR hearing. Similarly, the GAL noted Child
Three required speech therapy, occupation therapy, and physical therapy when she
first entered foster care, and recent testing determined continued therapies were no
longer needed. Children's foster parents expressed a desire to adopt them.
Although Child One and Child Two were in a different foster home than Child
Three, Children still had a relationship with one another because the foster families
interacted together. Therefore, in the interest of permanency, safety, and future
stability, we find TPR is in Children's best interest. See S.C. Dep't of Soc. Servs. v.
Cameron N.F.L., 403 S.C. 323, 329, 742 S.E.2d 697, 700 (Ct. App. 2013) ("[T]his
court has considered future stability when determining whether TPR is in a child's
best interest."); S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d
642, 645 (2005) ("Parents have a fundamental interest in the care, custody, and
management of their children. . . . However, a child has a fundamental interest in
terminating parental rights if the parent-child relationship inhibits establishing
secure, stable, and continuous relationships found in a home with proper parental
care.").
Finally, we find the issue of Children's permanent plan is not properly before this
court. The permanent plan of TPR and adoption was set forth in the January 15,
2015 permanency planning order, which was a final order. See Hooper v.
Rockwell, 334 S.C. 281, 291, 513 S.E.2d 358, 364 (1999) ("[A]ny order issued as a
result of a merit hearing, as well as any later order issued with regard to a
treatment, placement, or permanent plan, is a final order that a party must timely
appeal."). Mother and Father did not serve a notice of appeal from that order
within thirty days; thus, this court lacks jurisdiction to consider this issue. See
Rule 203(b)(1), (3), SCACR (providing a notice of appeal from a family court
order "shall be served on all respondents within thirty (30) days after receipt of
written notice of entry of the order or judgment"); Elam v. S.C. Dep't of
Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004) ("The requirement of
service of the notice of appeal is jurisdictional, i.e., if a party misses the deadline,
the appellate court lacks jurisdiction to consider the appeal and has no authority or
discretion to 'rescue' the delinquent party by extending or ignoring the deadline for
service of the notice.").

Based on the foregoing, the decision of the family court is

AFFIRMED. 1

SHORT, WILLIAMS, and KONDUROS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.