SCDSS v. Lisa H.

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.

South Carolina
Department of Social Services, Respondent,

v.

Lisa H. and
David R., Defendants,

 

Of
whom Lisa H. is the Appellant.                 

In
the Interest of:

N.R.,
a minor child under

the
age of 18 years.

Appeal From Aiken County

 Peter R. Nuessle, III, Family Court Judge

Unpublished Opinion No. 2010-UP-217

Submitted March 1, 2010 – Filed March 16,
2010

AFFIRMED

A. Shane Massey, of Aiken, for Appellant.

Dennis M. Gmerek, of Aiken, for Respondent.

Patrick A. McWilliams, of Aiken, for Guardian ad Litem.

PER CURIAM:  Lisa H. (Mother) appeals the family court's decision
to terminate her parental rights to her minor child, N.R. (Child).  See S.C. Code Ann. § 63-7-2570 (2008).  Mother argues the family court erred
in considering six unfounded reports of child abuse and neglect and in
considering Mother's arrest history when it made the decision to terminate
Mother's rights.  We affirm. 

FACTS

Child entered
foster care for the first time in September of 2004, after Mother admitted in a
police report she used illicit drugs and left Child unattended.  Mother
eventually complied with her court ordered treatment plan, and Child was
returned to her custody in November of 2005.  Child entered foster care for the
second time after Mother was arrested for burglary and no one was available to
care for Child.  Mother again complied with her treatment plan, and Child was
returned to her custody in July of 2008.  Child entered foster care for the
third time in August of 2008, due to Mother's arrest on driving under the
influence (DUI) charges.  No adult was available to take care of Child.  The
family court approved the South Carolina Department of Social Services' (the
Department) recommendation for termination of parental rights (TPR) and
adoption after Child entered foster care for the third time. 

During
the TPR hearing, a case worker for the Department testified regarding six
unfounded reports of abuse or neglect regarding Mother and Child.  The
unfounded reports at issue in this case included: three reports stating Mother
was using illegal drugs around Child; one report stating Mother left Child
alone in a car; one report stating Child was being physically abused; and one
report stating Mother left Child in the care of a man being treated for
depression and alcohol addiction.  Mother objected, arguing the admission of
these unfounded reports was more prejudicial than probative, and moreover, the
reports were irrelevant.  The family court overruled Mother's objection and
allowed the Department's case worker to testify regarding all six unfounded
reports of abuse or neglect. 

Mother
testified during the TPR hearing and admitted she had been arrested four or
five times since Child's birth.  The Department asked Mother about two
1985 convictions, one for DUI and the other for a property crime.  Mother
immediately objected, arguing these crimes were inadmissible because they were
both over ten years old and did not carry a term over one year's imprisonment. 
The family court first sustained Mother's objection, but later changed its
stance and overruled the objection.  The family court also allowed the
Department to ask Mother about a 1995 arrest for an open container in her car.  Mother explained her 2008 DUI arrest charge was reduced to reckless
driving.  The Department entered a copy of Mother's arrest history into
evidence over Mother's objection.  The arrest history included a 2007 arrest
for first-degree burglary, two separate 2005 arrests for disorderly conduct,
and a 2002 arrest for providing false information to a police officer. 

The guardian
ad litem's (GAL) report noted Child told troubling stories about living with
Mother, including the following:

Child
tells stories of things that happened when he lived with mom, e.g., mom
attacked the pool with a knife, mom sleeps with him without her shirt on, a man
sleeps with him and had a heart attack, cats scratching him, dogs biting him,
somebody shooting out of the back window of mom's car, dad chasing mom down the
street and beating her up, being held underwater in the bathtub so he couldn't
breathe.

The GAL also noted Child was
overly affectionate with women, used profanity and profane gestures, and had
recurring nightmares when he entered foster care for the second time in July of
2007.  Finally, the GAL report stated Child is "much better adjusted since
entering foster care.  He plays well with other children and enjoys his current
home.  He listens to and obeys authoritative figures.  He has even gone off his
medication at the request of his doctor."  The GAL recommended
termination of Mother's parental rights because of her instability and
inability to care for Child.

The
family court's final TPR order found Mother's rights should be terminated on
the following statutory grounds: (1) physical neglect or substantial risk of
physical neglect and because of the severity or repetition of the abuse or
neglect, it was not reasonably likely that the home could be made safe within
twelve months and (2) Child
was in foster care under the responsibility of the state for fifteen of the
most recent twenty-two months.  See S.C. Code Ann. § 63-7-2570(1), (8) (2008).  The
family court noted the Department received nine reports involving Child and
Mother, and while six of the reports were unfounded, at least three were
indicated and resulted in Child being placed in foster care.  The family
court described the conduct that resulted in Child entering foster care,
including Mother's use of illegal drugs, Mother's criminal activity, and
Mother's misuse of alcohol.  The order did not explicitly mention any of
Mother's remote convictions or arrests.  The family court also found TPR was in
Child's best interest.  Finally, the order noted adoption
services accepted Child for placement, and the Department identified a number
of potential resources for Child.  This appeal followed.  

LAW/ANALYSIS

After reviewing the record on appeal, and we find the
statutory grounds for TPR were supported by clear and convincing evidence.  Charleston
County Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 95, 627 S.E.2d 765,
770 (Ct. App. 2006) (noting in an appeal from a TPR, an appellate court
may review the record and make its own determination of whether the grounds for
termination are supported by clear and convincing evidence).  Specifically,
Child was in foster care under the responsibility of the state for fifteen of
the most recent twenty-two months.  S.C. Code Ann. § 63-7-2570(8) (2008).  In
addition, the Department entered three indicated reports of abuse and neglect,
which resulted in Child entering foster care on three separate occasions.  We
believe this evidence was sufficient to demonstrate a repetitive history of
abuse and neglect such that it was not reasonably likely the home could be made
safe within twelve months.  S.C. Code Ann. § 63-7-2570(1) (2008).  Finally, the
GAL's report recommended termination would be in Child's best interest due to
Mother's instability and inability to care for Child.  § 63-7-2570; 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 child are the
paramount consideration.").

Mother
argues the family court erred in admitting six unfounded reports of abuse and
neglect and in considering Mother's arrest history.  However, we do not believe
Mother can demonstrate any prejudice from the admission of this arguably
irrelevant evidence.  See Brown v. Allstate Ins. Co., 344 S.C.
21, 27, 542 S.E.2d 723, 726 (2001) ("A trial judge's role in a bench trial
is to admit all evidence and then evaluate it in a non-jury setting."); Green
v. Green, 228 S.C. 364, 369, 90 S.E.2d 253, 255 (1955) (noting "where
a trial is had before the court without a jury, the admission of incompetent
evidence does not necessarily require reversal, particularly where there is no
reasonable probability that such evidence had any effect on the result"). 
The family court did not appear to rely on the unfounded reports in its final
termination order, nor did it mention Mother's criminal history aside from the
three indicated reports of abuse.  In addition, we find the statutory grounds
for termination and best interest of Child were supported by clear and
convincing evidence.  Therefore, we believe the family court's error, if any,
in admission of this incompetent evidence was harmless.  S.C. Dep't of
Social Servs. v. Janice C., 383 S.C. 221, 226, 678 S.E.2d 463, 466 (Ct.
App. 2009) (finding any error by the family court was harmless because the
appellate court determines its own findings from the record as to whether clear
and convincing evidence supports the termination of parental rights).

AFFIRMED.[1]

HUFF,
THOMAS, and KONDUROS, JJ., concur.

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