Burch v. Morrical

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

Megan Burch and Donald Burch, Respondents,

v.

Christopher Morrical, Appellant.

Appellate Case No. 2020-000760

Appeal From Charleston County
Thomas Henry White, IV, Family Court Judge

Unpublished Opinion No. 2021-UP-127
Submitted April 19, 2021 – Filed April 22, 2021

AFFIRMED

Christopher David Lizzi, of Lizzi Law Firm, PC, of
North Charleston, for Appellant.

Grover Cleveland Seaton, IV, of Grover "Beau" Seaton
Law Firm, LLC, of Moncks Corner; and Megan
Catherine Hunt Dell and Mikaila Paige Matt, both of Dell
Family Law, P.C., of Charleston, all for Respondents.

Monica Rojas Waldron, of The Waldron Law Firm, LLC,
of Summerville, as the Guardian ad Litem.
PER CURIAM: Christopher Morrical (Father) appeals the family court's order
terminating his parental rights to Child. On appeal, Father argues the family court
erred in finding (1) Father was not prevented from visiting Child by court order,
(2) clear and convincing evidence supported termination of parental rights (TPR),
and (3) TPR was in the best interest of Child. Father also argues the family court
erred in (1) finding it had statutory authority to conduct a TPR hearing when
Megan Burch (Mother) and Donald Burch (Stepfather) failed to request a TPR
hearing within 120 days as required by statute and failed to plead the correct
statutory basis for TPR, (2) not considering Father's drug addiction and struggle
with substance abuse in determining his failure to visit was willful, and (3) finding
the parties testified they were satisfied with the services of the guardian ad litem
(the GAL). 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. 2020).
The grounds 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).

First, we find clear and convincing evidence supports the family court's
determination that Father willfully failed to visit Child.1 See § 63-7-2570(3)

1
Father's argument that the family court lacked the authority to hold a TPR hearing
based on Respondents' failure to request a hearing within 120 days and properly
plead the correct statutory basis is not preserved for appellate review because
Father failed to raise this issue to the family court. See Doe v. Roe, 369 S.C. 351,
375-76, 631 S.E.2d 317, 330 (Ct. App. 2006) ("An issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the [family
court] to be preserved for appellate review."). Although this court can overlook
procedural rules when the interest of a minor child is concerned, we decline to do
so here because strictly construing this statute does not further Child's best interest.
See Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 653-54 (2006)
(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 visit the child"). Here, Father admitted he had not
visited Child since July 2017. Therefore, Father had failed to visit Child for more
than three years at the time of the TPR hearing. Further, clear and convincing
evidence shows Father's failure to visit was willful. Mother and Stepfather both
testified they did not prevent Father from having a relationship with Child. Father,
Mother, and Stepfather all testified Father did not reach out to Mother or
Stepfather asking to see Child or set up visitation after July 2017. Although Father
contends an October 13, 2017 temporary order2 prevented him from visiting Child,
the order did not prohibit visitation; it merely required visitation to be supervised,
which was reasonable based on Father's drug addiction. Father refused to attend
supervised visitation with any of the people Mother suggested to supervise;
instead, he wanted visitation to be supervised by his girlfriend, around whom
Father had used drugs in Child's presence and with whom he had been involved in
criminal domestic violence disputes. Thus, we find the order did not prohibit
visitation; rather, Father's actions in refusing supervisors resulted in him not having
visitation.

We further find the May 3, 2019 order did not prevent Father from visiting Child
after May 2019 because it provided him with a mechanism through which he could
visit Child. See In re M., 312 S.C. 248, 250, 439 S.E.2d 857, 858-89 (Ct. App.
1993) (holding a court order requiring psychotherapy did not prevent the father
from visiting the child, but rather, outlined a mechanism through which visitation
could resume); id. (holding a father's defiant refusal to meet the reasonable
conditions placed on his visitation was tantamount to an election not to visit child
unless he could do so on his own terms). The May 3, 2019 order required Father to
take a 10-panel hair follicle and urine drug test within 48 hours, after which the
GAL would set up therapeutic visitation; however, Father failed to take such a
drug test at any point between the May 3, 2019 order's issuance and the March 2 to
3, 2020 TPR hearing. Father agreed he did "nothing" in order to see Child after
July 2017. Therefore, we find Father's failure to do anything to see Child,
including failing to take the 10-panel hair follicle and urine drug test at any point

(acknowledging appellate courts can overlook procedural rules when the rights of
minors are concerned but declining to exercise its discretion to do so).
2
The October 13, 2017 order was part of a prior action, which was dismissed
pursuant to the 365-day rule on or shortly after August 30, 2018. However, the
family court ordered the same relief in a temporary order issued in this action on
January 23, 2019.
during the ten months between the May 3, 2019 order and the March 2 to 3, 2020
TPR hearing, constituted willful failure to visit.

Second, viewed from Child's perspective, we find TPR is in his best interest. See
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."). Mother testified Father's visitation with Child was sporadic prior to
July 2017, and Father had not seen Child since July 2017. Mother and Stepfather
testified Child did not ask about Father, and the GAL stated Child looked to
Stepfather as his dad. Father had shown little interest in rekindling his relationship
with Child because he failed to contact Child, failed to ask for visitation after July
2017, and failed to respond to or participate in the GAL's investigation. Due to the
stability Child currently experiences with Mother and Stepfather and Father's
failure to make efforts to visit over the last four years, we question whether it
would be in Child's best interest to reintroduce him to Father. Although Father
averred that the evidence presented of his failure to contact Child, his failure to
consistently pay child support, and his struggle with drug addiction did not provide
an accurate picture of the parent he wanted to be, Father did not take sufficient
efforts to re-establish a relationship with Child based on his failure to act in
accordance with his promises and court orders. Therefore, we find TPR is in
Child's best interest.

Finally, we acknowledge the record does not support the family court's finding that
both parties testified they were satisfied with the GAL's services. To the extent
Father complains about the GAL's investigation, we note Father never filed a
motion to relieve the GAL or otherwise raised this issue to the family court. We
note the GAL indicated Father did not contact her after the April 16, 2019
temporary hearing, participate in her investigation, take a drug test, respond to her
numerous attempts to contact him, or ask her to speak with Child's teachers,
Father's girlfriend, or Mother and Stepfather's neighbors. Based on our review of
the record, we find the GAL conducted an independent investigation based on the
information available to her. See S.C. Code Ann. § 63-11-510(3) (2010) ("The
responsibilities and duties of a guardian ad litem are to . . . conduct an independent
assessment of the facts, the needs of the child, and the available resources within
the family and community to meet those needs . . . ."). Finally—and critically—
the GAL's recommendation was not dispositive to the issue of Child's best interest
but was simply one of many factors for the family court and this court to consider.
Based on our review of the record as a whole, we find TPR was in Child's best
interest.

AFFIRMED.3

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.