Jones v. Walters

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

Barbara Jones, as Guardian ad Litem, and South Carolina
Department of Social Services, Plaintiffs,

v.

Jessie Walters and Lucius Blake Walters, Defendants,

Of which South Carolina Department of Social Services
and Jessie Walters are Respondents, Barbara Jones is
Appellant-Respondent, and Lucius Blake Walters is
Respondent-Appellant.

In the interests of minor children under the age of
eighteen.

Appellate Case No. 2023-000287

Appeal From Greenville County
Jessica Ann Salvini, Family Court Judge

Unpublished Opinion No. 2024-UP-212
Heard June 12, 2024 – Filed June 14, 2024

AFFIRMED

Jennifer Lynn Mook, of Law Office of Jennifer Mook,
LLC, of Aiken, for Appellant-Respondent.
Bruce A. Byrholdt, of Byrholdt Drawdy, LLC, of
Anderson, for Respondent-Appellant.

Robert Mills Ariail, Jr., of Law Office of R. Mills Ariail,
Jr., of Greenville, for Respondent Jessie Walters.

Dustin Christian Davis, of Dustin C. Davis Attorney at
Law, LLC, of Greenville, as Guardian ad Litem for
Respondent Jessie Walters.

Amanda Stiles, of South Carolina Department of Social
Services, of Greenville, for Respondent South Carolina
Department of Social Services.

PER CURIAM: Lucius Blake Walters (Father) and Barbara Jones, in her capacity
as guardian ad litem (GAL), cross appeal a family court order terminating Father's
parental rights to his two minor children (Children). Father argues the family court
erred in finding clear and convincing evidence showed (1) Children were harmed,
and due to the severity or repetition of the abuse or neglect, it was unlikely Father's
home could be made safe within twelve months; (2) Father willfully failed to
support Children; (3) Children were in foster care for fifteen of the previous
twenty-two months; and (4) TPR was in Children's best interests. The GAL argues
the family court erred in finding clear and convincing evidence did not show
Father failed to remedy the conditions that caused Children's removal. We affirm.

"On appeal from the family court, the appellate court reviews factual and legal
issues de novo." Klein v. Barrett, 427 S.C. 74, 79, 828 S.E.2d 773, 776 (Ct. App.
2019). Under the de novo standard of review, this court may make its own
findings of fact; however, we continue to recognize the superior position of the
family court to assess witness credibility. Stoney v. Stoney, 422 S.C. 593, 595, 813
S.E.2d 486, 487 (2018). Moreover, de novo review does not relieve the appellant
of the burden of showing that the preponderance of the evidence is against the
family court's findings. Id.

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. 2023).
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).
"Clear and convincing evidence is that degree of proof which will produce in the
mind of the trier of facts a firm belief as to the allegations sought to be
established." Loe v. Mother, Father, & Berkeley Cnty. Dep't of Soc. Servs., 382
S.C. 457, 465, 675 S.E.2d 807, 811 (Ct. App. 2009) (quoting Anonymous (M–156–
90) v. State Bd. of Med. Exam'rs, 329 S.C. 371, 374 n.2, 496 S.E.2d 17, 18 n.2
(1998)).

We hold Children were harmed, and the severity of the abuse or neglect made it
unlikely Father's home could be made safe within twelve months. See
§ 63-7-2570(1) (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"); S.C. Code Ann.
§ 63-7-20(6)(a)(i) (Supp. 2023) (explaining that "'harm' occurs when the
parent . . . allows to be inflicted upon the child physical or mental injury or
engages in acts or omissions which present a substantial risk of physical or mental
injury to the child"). The testimony clearly and convincingly established that
Children were severely harmed. Uncontroverted testimony, including that of Erin
Peden, the Department of Social Services (DSS) foster care supervisor, and several
experts who treated Children, showed Children entered into foster care with
significant mental health needs resulting from the abuse and neglect they suffered
in the care of their biological parents. The experts testified Children suffered
neglect in Father's home, Child 1 was diagnosed with post-traumatic stress
disorder, and Children disclosed numerous instances of abuse and neglect by
Father and re-enacted trauma during therapy sessions.

Moreover, clear and convincing evidence showed that due to the severity of the
abuse or neglect, it was unlikely Father's home could be made safe within twelve
months. Peden confirmed the "crux" of the case was Children's mental health "and
the abuse they suffered at the hands of their parents." At the time of the hearing,
Father had two years to comply with the family court's November 2020 directive—
which the court reiterated pursuant to the August 2021 hearing—to communicate
with Children's healthcare providers, and he had three years to comply with the
placement plan's requirement that he demonstrate he understood and could provide
for Children's emotional, physical, and developmental needs. Despite this time
frame, during which Children remained in foster care, Peden admitted Father had
not fulfilled these requirements because he contacted only one of Children's
individual therapists. Father was also unable to identify Child 1's mental health
diagnoses, equivocated regarding whether his actions had caused Children
psychological damage, and admitted to no wrongdoing outside engaging in an
extramarital affair. Accordingly, we hold the severity of the abuse and neglect
Children suffered and Father's failure to comprehend Children's mental health
needs three years after their removal made it unlikely his home could be made safe
within twelve months.

Additionally, we hold clear and convincing evidence showed Children had been in
foster care for fifteen of the previous twenty-two months. See § 63-7-2570(8)
(providing a statutory ground for TPR is met when a "child has been in foster
care . . . for fifteen of the most recent twenty-two months"). Undisputed testimony
established that Children had been in foster care since October 10, 2019—three
years before the October 2022 TPR hearing. Further, we find Father caused the
delay in reunification. See S.C. Dep't of Soc. Servs. v. Sarah W., 402 S.C. 324,
336, 741 S.E.2d 739, 746 (2013) ("[S]ection 63-7-2570(8) may not be used to
sever parental rights based solely on the fact that the child has spent fifteen of the
past twenty-two months in foster care. The family court must find . . . the delay in
reunification of the family unit is attributable not to mistakes by the government,
but to the parent's inability to provide an environment where the child will be
nourished and protected."). At the November 3, 2020 permanency planning
hearing—one year after Children were removed—the family court found Children
should not be returned to Father's care because he had not remedied the conditions
that caused the removal. At the August 31, 2021 permanency planning hearing—
almost two years after Children were removed—the family court again found
Father had not remedied the conditions that caused Children's removal. At the
TPR hearing, Peden conceded that despite DSS's position that Father had
completed his placement plan, Father had not "remedied th[e] particular issue of
understanding the children's needs in therapy." She admitted Father's failure to
make behavioral changes until Children had been in foster care for almost two
years had caused them additional harm and extended their placement in foster care.
Rachel Curtis, Children's DSS case manager, agreed with the characterization that
Father "finally show[ed] up after two years" in order to "play nice and impress
DSS." Although this case was subject to several procedural delays—most notably,
a prior family court judge's recusal following the first TPR hearing in October
2021 due to ex parte communication by an individual associated with Children's
foster parents (Foster Parents)—the evidence showed the delay in reunification up
to October 2021 was due to Father's refusal to cooperate with DSS and his failure
to complete his placement plan. Moreover, because the testimony showed that
Father began to cooperate with DSS following the disrupted October 2021 TPR
hearing, leading DSS to ultimately change its recommendation from TPR to
reunification, any delay after October 2021 only benefitted Father. Accordingly,
we hold clear and convincing evidence showed Children had been in foster care for
fifteen of the previous twenty-two months, and Father, rather than DSS or any
other forces outside of his control, caused the delay in reunification. See Sarah W.,
402 S.C. at 343, 741 S.E.2d at 749 ("[T]he purpose of the statutory ground
allowing for TPR once a child has been in foster care for fifteen of the last
twenty-two months is to ensure that children do not languish in foster care when
TPR is in their best interests.").1

We hold clear and convincing evidence showed TPR was in Children's best
interests. See S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d
642, 645 (2005) (explaining that although "[p]arents have a fundamental interest in
the care, custody, and management of their children" and "[p]arental rights warrant
vigilant protection under the law," children have "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"); S.C. Code Ann. § 63-7-2620 (2010) ("The interests of the child shall prevail
if the child's interest and the parental rights conflict."); Sarah W., 402 S.C. at 343,
741 S.E.2d at 749-50 ("Appellate courts must consider the child's perspective, and
not the parent's, as the primary concern when determining whether TPR is
appropriate."). We are concerned by suggestions in the record that Foster Parents
alienated Children from Father, particularly the foster mother's rejection of
suggestions made by one of Children's therapists to soothe Children's anxieties
leading up to the TPR hearing. However, Children's therapists did not believe
Foster Parents had intentionally increased Children's anxieties, and the testimony
showed that DSS did not have concerns regarding Foster Parents until October
2021, when Child 1 had lived with Foster Parents for two years and Child 2 had
been placed with them for sixteen months. Moreover, DSS had been preparing to
file a motion to halt Father's visitation shortly before DSS employees began
holding the conversations that precipitated the agency's reversal in
recommendation from TPR to reunification—without consulting Children's
therapists or considering the status of Children's mental health needs. Although an
attachment assessment did not reveal that Children had formed a secure attachment
to Foster Parents, the expert who performed the assessment opined Children were

1
Because we hold clear and convincing evidence supports TPR on two statutory
grounds, we decline to address Father's remaining issue and the GAL's issue on
appeal, both of which relate to additional statutory grounds. See S.C. Dep't of Soc.
Servs. v. Headden, 354 S.C. 602, 613, 582 S.E.2d 419, 425 (2003) (declining to
address a statutory ground for TPR after concluding clear and convincing evidence
supported another ground); Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not
address remaining issues when disposition of a prior issue is dispositive).
beginning to form such an attachment to Foster Parents, and removing the
"back-and-forth" with Father would expedite the formation of the bond.
Additionally, several experts opined that returning Children to Father's care would
be harmful and destabilizing. Accordingly, we hold clear and convincing evidence
showed TPR was in Children's best interests.2

AFFIRMED.

THOMAS, MCDONALD, and VERDIN, JJ., concur.

2
To the extent Father asserts a violation of his constitutional right to due process,
this argument is not preserved for appellate review because Father did not raise it
to the family court at the hearing or in a post-trial motion. See Payne v. Payne,
382 S.C. 62, 70, 674 S.E.2d 515, 519 (Ct. App. 2009) ("Issues not raised and ruled
upon in the [family] court will not be considered on appeal."); Charleston Cnty.
Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 105, 627 S.E.2d 765, 775 (Ct. App.
2006) (holding a parent's due process argument was not preserved for appellate
review when the issue was not raised to or ruled upon by the family court).