SCDSS v. Elizabeth Sibrian-Pineda

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.

Elizabeth Sibrian-Pineda and Marcos Sibrian-Pineda,
Defendants,

Of whom Elizabeth Sibrian-Pineda is the Appellant.

In the interest of minors under the age of eighteen.

Appellate Case No. 2018-000226

Appeal From Spartanburg County
Phillip K. Sinclair, Family Court Judge

Unpublished Opinion No. 2019-UP-130
Heard February 27, 2019 – Filed April 4, 2019

AFFIRMED

William Cory Hughes, of Law Office of W. Cory
Hughes, LLC, of Greenville, for Appellant.

Robert C. Rhoden, III, of South Carolina Department of
Social Services, of Spartanburg, for Respondent.
Jamia Diann Foster, of Law Office of Jamia D. Foster
LLC, of Spartanburg, for the Guardian ad Litem.

PER CURIAM: Elizabeth Sibrian-Pineda (Mother) appeals a family court order
terminating her parental rights to her minor children (Son and Daughter,
collectively Twins). On appeal, she argues the family court erred in (1) finding she
willfully failed to support Twins, (2) finding she failed to remedy the conditions
causing removal, (3) allowing the Department of Social Services (DSS) to amend
its pleadings to add the statutory ground that Twins were in foster care for fifteen
of the most recent twenty-two months, and (4) finding termination of parental
rights (TPR) was in Twins' 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 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. 2018).
The grounds for TPR must be proved 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 clear and convincing evidence shows Mother failed to remedy the
condition causing Twins' removal. See § 63-7-2570(2) (providing 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"). Twins
were removed from Mother and Marcos Sibrian-Pineda (Father) in August 2015
after Mother, Father, and Twins tested positive for methamphetamine. Following
the October 22, 2015 removal hearing, the family court issued an order finding
Mother abused and/or neglected Twins and ordering her to complete a placement
plan. As part of the placement plan, Mother was required to refrain from alcohol
or illegal drug use, successfully complete a substance abuse assessment and any
recommendations, and obtain stable and appropriate housing. However, in January
2016 Mother failed a drug test; the failed drug test violated Mother's probation
conditions, and she was incarcerated in February 2016.

On May 26, 2016, the family court held a permanency planning hearing. The court
found Mother had not completed services; however, because Father "demonstrated
due diligence and a commitment to remedying the conditions which led to the
removal," the court ordered a three-month extension, with the goal of reunification
with Father. The family court held additional permanency planning hearings on
October 27, 2016, and March 24, 2017; following each of those hearings, the court
found neither Mother nor Father had completed treatment.

Mother was released on parole on September 20, 2017, and the TPR hearing was
held on November 8, 2017. At that time, Mother had obtained a job, was living in
transitional housing, and was in the process of finding more stable housing.
During the hearing, Mother testified about her successful completion of the
Addiction Treatment Unit while incarcerated. We commend Mother for taking
steps to better herself, and we acknowledge the evidence suggested she had
remedied her drug addiction by the time of the TPR hearing. However, we remain
concerned about the length of time it took Mother to complete drug treatment.
Twins entered foster care in August 2015; at the March 24, 2017 permanency
planning hearing, Mother still had not completed treatment and thus had not
remedied the conditions causing Twins' removal. Therefore, clear and convincing
evidence shows she failed to remedy the conditions causing removal.

In addition to Mother's failure to complete treatment in a timely manner, Mother
did not obtain stable and suitable housing during the twenty-six months Twins
were in foster care. Mother was in a transitional home at the time of the TPR
hearing that seemed to be a good fit for her, but it was not a stable home. Thus,
Mother did not remedy that condition of her placement plan—a necessary
component before Twins could be returned to her care. Based on the foregoing,
we find clear and convincing evidence shows Mother failed to remedy the
conditions causing removal.1

1
Because clear and convincing evidence supports this ground, we decline to
address whether clear and convincing evidence showed Mother willfully failed to
support Twins or whether the family court erred in allowing DSS to amend its
pleadings at the end of the TPR hearing. See S.C. Dep't of Soc. Servs. v. Robin
Headden, 354 S.C. 602, 613, 582 S.E.2d 419, 425 (2003) (declining to address a
statutory ground for TPR when clear and convincing evidence supported another
ground).
Finally, viewed from Twins' perspective, we find TPR is in their best interest. S.C.
Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App.
2000) ("In a [TPR] case, the best interests of the children are the paramount
consideration."); S.C. Dep't of Soc. Servs. v. Sarah W., 402 S.C. 324, 343, 741
S.E.2d 739, 749-50 (2013) ("Appellate courts must consider the child's perspective,
and not the parent's, as the primary concern when determining whether TPR is
appropriate."). Although Mother made progress and had completed drug treatment
at the time of the TPR hearing, she had only been out of prison for six weeks and
had not obtained stable housing. Thus, it was not clear when Twins could be
safely returned to her care. Further, Twins were removed from Mother at a very
young age, and Mother only visited five times during the twenty-six months they
were in foster care. Finally, Twins had been in foster care twenty-six months—
most of their lives. Twins' foster family expressed an interest in adopting them, so
it appears they will achieve stability through adoption if TPR is affirmed. Based
on Twins' need for permanency and stability, concerns about when Mother can
provide a suitable home, and the likelihood Twins will be adopted if TPR is
affirmed, we find TPR is in their best interest.

AFFIRMED.

LOCKEMY, C.J., and THOMAS and GEATHERS, JJ., concur.