Charleston County DSS v. Latrina R.

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

Ex Parte:

C. Tyson
Nettles, as Guardian ad Litem, Appellant,

In Re:

Charleston
County Department of Social Services, Respondent,

v.

Latrina R.,
Harry B., Harold B., and John Doe, representing the unknown biological father
of minor children, Defendants,

Of Whom Latrina
R. is the Appellant.

In the Interest
of: A.F. and J.F., both minor children under the age of eighteen.

Appeal From Charleston County

Jan B. Holmes, Family Court Judge

Unpublished Opinion No. 2009-UP-570

Submitted December 1, 2009 – Filed
December 3, 2009

AFFIRMED

C. Tyson Nettles, of Charleston, for
Appellant Guardian ad Litem.

David K. Haller, of Charleston, for Appellant
Latrina R.

Bonnie T. Brisbane, of North Charleston,
for Respondent.

PER CURIAM: Latrina R. (Mother) appeals from the
family court's order terminating her parental rights (TPR) to A.F. and J.F.
(Children).  Mother argues the Charleston
County Department of Social Services (DSS) did not prove by clear and
convincing evidence the multiple grounds upon which the family court terminated
her parental rights.  Mother further argues the application of section
63-7-1710(B) of the South Carolina Code (2008) was unconstitutional because DSS
decided the Children would be adopted before Mother had a full opportunity to
be heard.   Lastly, Mother argues the family court erred in finding TPR was in
the Children's best interest despite the guardian ad litem's (GAL) contrary
recommendation.  Further, the GAL appeals, arguing (1) the TPR action was time
barred because the permanency planning order of the family court required DSS
to initiate the TPR action within sixty days and (2) the family court
essentially overruled the prior order of another family court judge in allowing
the action to proceed when the prior order was the law of the case.  We affirm.[1]

DSS took the Children into custody
in May of 2005.  A permanency planning hearing was held March 10, 2006,
and the family court ordered DSS to initiate the TPR action within sixty
days.   However, DSS did not file the TPR action until February of 2007.  The
family court held the TPR hearing from June 16 to 18, 2008.  At the time of the
hearing, Mother, a recovering drug addict, was living in a residential
treatment facility where children were not allowed, and she had not used drugs
since July of 2007.  

1. As to the GAL's
argument the TPR action was time barred, section
63-7-1700(E) of the South Carolina Code (2008) provides if the court determines
at the permanency planning hearing the child should not be returned to the
parent at the time, the court's order must require DSS to file a TPR petition
no later than sixty days after receipt of the order.  However, an appellant
must demonstrate prejudice to be afforded relief on appeal.  Sanders v.
Wal-Mart Stores, Inc., 379 S.C. 554, 562, 666 S.E.2d 297, 301 (Ct. App.
2008). 

The GAL does not specifically
articulate a prejudice argument on behalf of the Children; rather, he generally
states that the timely determination of custody and adherence to procedure
provides a just result.  While we agree with the GAL's observation, the
prejudice to the Children is unclear.  The testimony shows A.F. worked through
her grief and found peace in her pre-adoptive home, and J.F. did not remember
Mother or have any concept of the proceedings.  Mother also does not
specifically argue prejudice.  Mother did argue the delay effectively caused
the Children to be in foster care for fifteen of the last twenty-two months. 
However, Mother was still using drugs and had not provided support within sixty
days of the permanency planning hearing.  Therefore, any prejudice the delay
caused her is unclear. 

2. Concerning the GAL's argument that
the family court overruled a previous family court order that was the law of
the case, this argument was not raised, and thus, it is not preserved for
review.  See Staubes v. City of Folly Beach, 339 S.C. 406, 412,
529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be
raised for the first time on appeal, but must have been raised to and ruled
upon by the trial court to be preserved for appellate review.").

3. We affirm the family court's
finding TPR was proper under section 63-7-2570(4) of the South Carolina Code
(2008) because under the circumstances, Mother's support payments totaling $215
and Christmas gifts were not material contributions to the Children's support.  S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 53, 413 S.E.2d 835, 839 (1992)
("Conduct of the parent 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.");  S.C. Dep't of Soc. Servs. v. Cummings, 345
S.C. 288, 296, 547 S.E.2d 506, 511 (Ct. App. 2001) (finding
judicially-motivated repentance, standing alone, rarely warrants a finding of
curative conduct, and it must be considered together with all the relevant
facts and circumstances).[2] 

4. Concerning Mother's argument that
the application of section 63-7-1710(B) of the South Carolina Code (2008) was
unconstitutional because DSS decided the Children would be adopted before
Mother had a full opportunity to be heard, section 63-7-1710(B) mandates: 
"Concurrently with filing of the petition [for TPR], [DSS] shall seek to
identify, recruit, process, and approve a qualified family for adoption of the
child if an adoptive family has not yet been selected and approved." 
Furthermore, Mother had notice and a full opportunity to be heard.

5. Despite Mother's
arguments to the contrary, our review of
the record indicates TPR is in the Children’s best interests.  In a termination
of parental rights case, the best interests of the child are the paramount
consideration.  S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133,
538 S.E.2d 285, 287 (Ct. App. 2000).  If the parent's and child's interests
conflict, the child's interest prevails.  See S.C. Code Ann. § 63-7-2620
(2008).  The court considered the GAL's recommendation to return the Children
to Mother but found it benefited Mother rather than recognizing the Children's
interests prevailed.  Mother did not have a home for the Children, and she has
a history of drug abuse with periods of sobriety and relapse.  Mother admitted
neglecting the Children when using drugs, and she had not completed a treatment
plan.  Additionally, the record contained evidence the Children were settled in
with a stable pre-adoptive family and were doing well socially and
academically.  Accordingly, the court did not err in finding the termination of
Mother's parental rights was proper. 

The family court order terminating
the parental rights of Mother is  

AFFIRMED.

HEARN, C.J.,
WILLIAMS, and KONDUROS, JJ., concur.

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

[2]   Once one statutory ground is met, this court need
not address whether any other ground for TPR has not been proved.  Stinecipher
v. Ballington, 366 S.C. 92, 100 n.6, 620 S.E.2d 93, 98 n.6 (Ct. App.
2005).