Bragg v. Mintz

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

Michael Bragg, Respondent,

v.

Lindsey Kate Bracket, n/k/a Lindsey Kate Mintz,
Appellant.

Appellate Case No. 2018-002192

Appeal From Spartanburg County
Usha J. Bridges, Family Court Judge

Unpublished Opinion No. 2020-UP-329
Submitted November 6, 2020 – Filed December 3, 2020

AFFIRMED

N. Douglas Brannon and Kenneth Philip Shabel, both of
Kennedy & Brannon, P.A., of Spartanburg, for
Appellant.

Michael Bragg, of Roebuck, pro se.

Angela Johnson Moss, of Spartanburg, as Guardian ad
Litem.
PER CURIAM: Lindsey Kate Mintz (Mother) appeals the family court's order
declining to terminate Michael Bragg's (Father's) parental rights to their minor son
(Child). On appeal, Mother argues the family court (1) abused its discretion by
excluding her expert witness when the probative value of the expert witness's
testimony substantially outweighed any danger of unfair prejudice and (2) erred in
denying termination of parental rights (TPR). 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. However, appellate courts review the
family court's evidentiary rulings for an abuse of discretion. Stoney v. Stoney, 422
S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018).

The family court properly determined clear and convincing evidence did not show
Father willfully failed to support Child. See S.C. Code Ann. § 63-7-2570 (Supp.
2019) (stating 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. Dep't of Soc. Servs. v.
Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999) (holding the
grounds for TPR must be proved by clear and convincing evidence); S.C. Code
Ann. § 63-7-2570(4) (providing a statutory ground for TPR is met when "[t]he
child has lived outside the home of either parent for a period of six months, and
during that time the parent has wilfully failed to support the child."). Although
Father did not provide material support for a period of greater than six months,
clear and convincing evidence did not show his failure to support was willful.
Father attempted to send support to Mother twice by certified check, but Mother
refused to cash the checks. Based on Mother's refusal to cash the certified checks,
we find it was reasonable for Father to not send subsequent payments. Overall,
these facts do not show conduct that evinced a settled purpose to forego parental
duties because Father attempted to support Child, but Mother refused to accept his
support. See S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 137, 538 S.E.2d 285,
289 (Ct. App. 2000) ("Parental conduct 'which evinces a settled purpose to forego
parental duties may fairly be characterized as willful because it manifests a
conscious indifference to the rights of the child to receive support and consortium
from the parent.'" (citing S.C. Dept. of Soc. Servs. v. Broome, 307 S.C. 48, 53, 413
S.E.2d 835, 839 (1992))).
Additionally, the family court properly determined TPR is not in Child's best
interests. See Smith, 343 S.C. at 133, 538 S.E.2d at 287 ("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."). Mother's primary
argument against visitation centers on her concerns about Father's alleged
misconduct with her older child (Sibling). We acknowledge Father stipulated
without admission that he placed Sibling at risk of sexual abuse as part of a
Department of Social Services removal action.1 However, Father submitted to a
psychosexual evaluation as part of that removal action. According to the report
from that evaluation, Father did not indicate a high risk for dangerous behavior or
have a high potential for reoffending. The report recommended a "slow and
supervised unification process" to allow Father and Child to emotionally acclimate
to the new parent-child relationship. Pursuant to a family court order following the
court's review of the psychosexual evaluation, Father's visitations with Child were
supervised by a licensed therapist, who testified the visits went well, believed
Father's behavior did not raise any red flags, and had no concerns about Child
being reunified with Father. Based on the psychosexual evaluation and the
testimony of the licensed therapist who observed visits between Father and Child,
we find TPR is not warranted and it is in Child's best interest to have a relationship
with Father.

Finally, this court does not have a sufficient record to determine whether Mother
was prejudiced by the family court's exclusion of her expert witness because
Mother did not proffer that testimony. See Lucas v. Sara Lee Corp., 307 S.C. 495,
498, 415 S.E.2d 837, 839 (Ct. App. 1992) ("For an appellate court to reverse the
trial court for erroneously excluding evidence[,] the appellant must show both the
error of the ruling and prejudice resulting therefrom."); Rule 103(a)(2), SCRE
("Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and . . . [i]n case the ruling is one
excluding evidence, the substance of the evidence and the specific evidentiary
basis supporting admission were made known to the court by offer or were
apparent from the context."); Terwilliger v. Terwilliger, 298 S.C. 144, 150, 378
S.E.2d 609, 613 (Ct. App. 1989) ("Without a proffer we can glean no error from
the exclusion of the evidence."); Vaughn v. City of Anderson, 300 S.C. 55, 59-60,

1
Father agreed to this finding pursuant to North Carolina v. Alford, 400 U.S. 25
(1970).
386 S.E.2d 297, 300 (Ct. App. 1989) ("There was no proffer of the testimony.
Without the proffer of the testimony there is nothing for this court to review.").

However, we are cognizant of this court's ability—and duty—to overlook
procedural issues when the rights of minors are involved. See S.C. Dep't of Soc.
Servs. v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172 (Ct. App. 2006) ("The duty
to protect the rights of minors and incompetents has precedence over procedural
rules otherwise limiting the scope of review . . . ."). Mother called Kim
Roseborough, Sibling's counselor, presumably to testify about Father's abuse of
Sibling. Roseborough treated Child briefly after Child's first visits with Father,
which occurred before the family court ordered visitations be supervised by a
licensed therapist. Thereafter, Child started seeing Alicia Hart for therapy, and
Hart supervised Child's visits with Father. Hart testified the visits went well, she
believed Father's behavior did not raise any red flags, and she had no concerns
about Child being reunified with Father. In addition, Father submitted to a
psychosexual evaluation that determined he did not pose a high risk for dangerous
behavior or have a high potential for reoffending. The report recommended a
"slow and supervised unification process" to allow Father and Child to emotionally
acclimate to the new parent-child relationship. The psychosexual evaluation,
coupled with Hart's testimony, compel us to conclude a remand is unnecessary
under these facts. See Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654
(2006) (acknowledging procedural rules are subservient to this court's duty to
protect minors but declining to exercise its discretion to overlook the procedural
bar).

AFFIRMED.2

THOMAS, HILL, and HEWITT, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.