SCDSS v. Sheila 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

South Carolina Department of Social Services,
Respondent,

v.

Sheila R., Michael D., and Betty D., Defendants,

Of whom Michael D. is the Appellant,

In the interest of two minor children under the age of 18.

Appellate Case No. 2012-209849

Appeal From Anderson County
Tommy B. Edwards, Family Court Judge

Unpublished Opinion No. 2013-UP-038
Submitted December 11, 2012 – Filed January 15, 2013

AFFIRMED

David J. Brousseau, of McIntosh, Sherard, Sullivan &
Brousseau, of Anderson, for Appellant.

M.J. Goodwin, of the South Carolina Department of
Social Services, of Anderson, for Respondent.
Brittany D. Tye, of Senerius & Tye, of Anderson, for
Guardian ad Litem.

PER CURIAM: Michael D. (Father) appeals the family court's termination of his
parental rights (TPR) to his two minor children (Children). Father argues the
family court erred in terminating his parental rights on numerous grounds. We
affirm.

The grounds for TPR must be proven 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).
On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 415, 709 S.E.2d 666, 667 (2011).
Although this court reviews the family court's findings de novo, we are not
required to ignore the fact that the trial court, who saw and heard the witnesses,
was in a better position to evaluate their credibility and assign comparative weight
to their testimony. Lewis v. Lewis, 392 S.C. 381, 387, 709 S.E.2d 650, 653 (2011).
The burden is upon the appellant to convince this court that the family court erred
in its findings. Id. at 391, 709 S.E.2d at 655.

"In appeals from the family court, the appellate court has the authority to find the
facts in accordance with its view of the preponderance of the evidence." Ex parte
Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). "This broad scope of review
does not, however, require the appellate court to disregard the findings of the
family court." Id. "This degree of deference is especially true in cases involving
the welfare and best interests of a minor child." Id. at 62, 624 S.E.2d at 652.

1. Father argues the family court violated his due process rights when it denied his
motion to continue the TPR trial until his underlying criminal charges were
resolved, so he could testify without invoking his right to remain silent. We
disagree.

"If good and sufficient cause for continuance is shown, the continuance may be
granted by the court." Rule 40(i)(1), SCRCP. "The grant or denial of a
continuance is within the sound discretion of the family court and its ruling will
not be reversed on appeal absent an abuse of discretion." Dep't of Soc. Servs. v.
Laura D., 386 S.C. 382, 385, 688 S.E.2d 130, 132 (Ct. App. 2009).
We hold the family court did not abuse its discretion in denying Father's motion to
continue. First, the family court did not violate Father's due process rights in
denying Father's motion to continue. See S.C. Dep't of Soc. Servs. v. Walter, 369
S.C. 384, 386-88, 631 S.E.2d 913, 914 (Ct. App. 2006) (holding no due process
violation where individual faced difficult tactical decision of whether to remain
silent or testify in family court removal action arising from individual's sexual
abuse of a minor child while facing pending criminal charges arising from the
same incident (citing case law from other jurisdictions indicating parallel criminal
and civil proceedings do not result in a constitutional violation)). Second, we find
the family court afforded Father additional protections in the TPR proceeding
because of his intellectual disabilities when it appointed a guardian ad litem (GAL)
to protect his interests. See Fleming v. Asbill, 326 S.C. 49, 53, 483 S.E.2d 751,
754 (1997) ("The guardian ad litem functions as a representative of the court [that]
appointed her to assist the court in properly protecting the interests of an
incompetent person."). Father's GAL testified he did not believe it was in Father's
best interest to testify at the TPR trial. Thus, although Father may have been
unable to make the tactical decision whether to testify, Father's court-appointed
GAL acted to protect Father's interests.

2. Father argues the family court violated his due process rights when it denied his
motion in limine and allowed evidence concerning Father's sexual abuse of the
children because it required Father to choose between testifying and remaining
silent. We disagree.

"The admissibility of evidence lies within the sound discretion of the trial court
whose decision will not be overturned on appeal absent a clear abuse of that
discretion." Watson ex rel. Watson v. Chapman, 343 S.C. 471, 478, 540 S.E.2d
484, 487 (Ct. App. 2000). "An abuse of discretion occurs when the ruling is based
on an error of law or a factual conclusion without evidentiary support." Vaught v.
A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005). "To
warrant reversal based on the admission or exclusion of evidence, the appellant
must prove both the error of the ruling and the resulting prejudice, i.e., there is a
reasonable probability the [fact finder's decision] was influenced by the wrongly
admitted or excluded evidence." Id.

We hold the family court did not violate Father's due process rights when it
allowed evidence concerning Father's sexual abuse of the children. See Walter,
369 S.C. at 387, 631 S.E.2d at 914. Moreover, we hold clear and convincing
evidence supports the family court's finding of TPR based on the ground that
Father harmed Children and, because of the severity or repetition of abuse, it is not
reasonably likely the home can be made safe within twelve months. See S.C. Code
Ann. § 63-7-2570(1) (Supp. 2011).

3. Father argues the family court erred by finding he suffers from a diagnosable
condition unlikely to change within a reasonable time that makes him unable or
unlikely to provide minimally acceptable care of the children. We decline to
address this issue because it is not necessary for the disposition of this case. See
Stinecipher v. Ballington, 366 S.C. 92, 100 n.6, 620 S.E.2d 93, 98 n.6 (Ct. App.
2005) (stating once one statutory ground is met, this court need not address
whether any other ground for TPR has been proven).

4. Father argues the family court erred in finding TPR was in the children's best
interest because the family court impermissibly found the grounds for TPR. We
disagree.

The family court may order TPR upon finding one or more of eleven statutory
grounds is met and also finding TPR is in the child's best interest. S.C. Code Ann.
§ 63-7-2570 (2010 & Supp. 2011). The TPR statutes "must be liberally construed
in order to ensure prompt judicial procedures for freeing minor children from the
custody and control of their parents by terminating the parent-child relationship."
S.C. Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 455, 639 S.E.2d 165, 168 (Ct. App.
2006). "In a TPR 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). "[A] child has 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.
Dept. of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d 642, 645 (2005).
"The interests of the child shall prevail if the child's interest and the parental rights
conflict." S.C. Code Ann. § 63-7-2620 (2010).

We hold the family court correctly found TPR was in Children's best interest.
Children suffered significant trauma as a result of being sexually abused by Father
and at the time of the TPR trial, over one year after they had been in DSS custody,
the children still experienced paralyzing fear of Father. Children are now residing
in a therapeutic foster home where they are making substantial improvements.
Accordingly, we hold TPR is in Children's best interest.
AFFIRMED.1

HUFF, THOMAS, and GEATHERS, JJ., concur.

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