SCDSS v. Tanya C.

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.

Tanya C., Appellant,

In the interest of a minor under the age of eighteen.

Appellate Case No. 2011-201686

Appeal From Anderson County
Edgar H. Long, Jr., Family Court Judge

Unpublished Opinion No. 2013-UP-114
Submitted March 4, 2013 – Filed March 13, 2013

AFFIRMED

Thomas W. Dunaway, III, of Dunaway & Associates, of
Anderson, for Appellant.

Amy C. Sutherland, of Greenville, and Dottie C. Ingram,
of Anderson, both of South Carolina Department of
Social Services, for Respondent.
Brittany Dreher Tye, of Senerius & Tye, and Susan
Inskeep Johnson, of Susan Inskeep Johnson, LLC, both
of Anderson, for Guardian ad Litem.

PER CURIAM: Tanya C. (Mother) appeals the family court order terminating
her parental rights to her minor child (Child). Mother argues the family court erred
in finding the statutory grounds for termination of parental rights (TPR) existed
and TPR is in Child's best interest.

The family court may order TPR upon finding one or more of eleven statutory
grounds is satisfied and also finding that TPR is in the best interest of the child.
S.C. Code Ann. § 63-7-2570 (2010 & Supp. 2012). 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, 414, 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. Lewis v. Lewis, 392 S.C. 381, 385, 709 S.E.2d 650, 652 (2011). "[T]he
best interests of the children 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). "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 find clear and convincing evidence shows Mother failed to remedy the
conditions which caused the removal of Child. See S.C. Code Ann. § 63-7-
2570(2) (2010). An attempt to remedy alone is inadequate to preserve
parental rights. S.C. Dep't of Soc. Servs. v. Pritchett, 296 S.C. 517, 520, 374
S.E.2d 500, 501 (Ct. App. 1988). In Hooper v. Rockwell, the supreme court found
the family court properly terminated a mother's parental rights because the
Department of Social Services (DSS) presented the mother with multiple
opportunities to obtain mental health counseling and comply with treatment plans
but Mother refused to address her personality disorder. 334 S.C. 281, 299-300,
513 S.E.2d 358, 368 (1999). Here, the condition that threatened Child with harm
was Mother's refusal to address her bipolar disorder to become an emotionally
stable parent for Child. Mother's treatment plan provided that she must complete a
psychological evaluation and follow all recommendations, including seeing a
medical provider and taking mental health medications as prescribed. Dr. Raul
Paez, a psychiatrist who treated Mother for bipolar disorder, testified she refused to
take medication as he prescribed, and she was difficult to treat because she did not
believe she had a mental illness. Testimony from the hearing confirms Mother
suffers from delusional thoughts and becomes aggressive and angry. Moreover,
Mother's bipolar disorder has impaired her ability to meaningfully fulfill the other
requirements of her treatment plan. Accordingly, we believe Mother has failed to
remedy the conditions which caused the removal of Child. S.C. Code Ann. § 63-7-
2570(2).

We find clear and convincing evidence shows Mother neglected Child, and "it is
not reasonably likely that the home can be made safe within twelve months." S.C.
Code Ann. § 63-7-2570(1) (2010). The family court may consider the parent's
previous neglect of the child when determining the likelihood the parent can make
the home safe within twelve months. Id. Section 63-7-20(4)(a) of the South
Carolina Code (2010) defines "child abuse or neglect" as inflicting 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 . . . ." We believe it is not
reasonably likely Mother's home can be made safe within twelve months because
she previously neglected Child and three other children. In 1999, Mother lost
custody of two children because she could not control her anger around their
father, filed a false police report against the children's father, and made the children
upset when they were in her custody. In 2004, Mother lost custody of a third child
after DSS indicated a case against Mother for substantial risk of neglect due to
drug use. Additionally, Mother has presented a history of neglect with Child. In
2007, Mother lost custody of Child after police responded to a domestic violence
dispute between Mother and her boyfriend. Child remained in foster care and her
maternal grandmother's care for twenty-five months. During the four month period
Mother regained custody of Child, DSS received two reports of Mother acting
unlawfully while Child was in her care. DSS then restricted Mother to supervised
visits with Child, but shortly thereafter, police arrested Mother for repeatedly
backing her car into another vehicle while Child was standing in Mother's car.
Thus, based on the repetition of Mother's neglect of Child and three other children,
we believe it is not reasonably likely that her home will be made safe within twelve
months. See S.C. Code Ann. § 63-7-2570(1) (providing the court may consider the
parent's previous neglect of the children when determining the likelihood the
parent can make the home safe within twelve months).
We further find clear and convincing evidence shows Mother has a diagnosable
condition, which is unlikely to change in a reasonable time, and this condition
makes Mother unlikely to provide minimally acceptable care for the child. S.C.
Code Ann. § 63-7-2570(6) (Supp. 2012). "When the diagnosable condition
alleged is mental deficiency, there must be clear and convincing evidence that: (1)
the parent has a diagnosed mental deficiency, and (2) this deficiency makes it
unlikely that the parent will be able to provide minimally acceptable care of the
child." S.C. Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 456, 639 S.E.2d 165, 168-69
(Ct. App. 2006). This court has found that the testimony of a clinical psychologist
can provide clear and convincing evidence that a parent has a diagnosable
condition of mental deficiency, unlikely to change within reasonable time to allow
the parent to provide minimally acceptable care. S.C. Dep't of Soc. Servs. v.
Humphreys, 297 S.C. 118, 119-21, 374 S.E.2d 922, 924 (Ct. App. 1988). Dr. Paez
opined Mother suffered from bipolar disorder, which she refused to acknowledge
or treat. Dr. Paez observed that Mother's bipolar disorder often causes her to have
delusional thoughts and become "agitated, loud, almost nonstop talking, very
angry, [and] blaming everybody for her problems." Mother's testimony also
presented several delusional stories and accusations, including accusations that a
DSS caseworker slapped and ran her over with a car; several co-workers attempted
to kill her by pouring paint thinner down her throat; her former husband kidnapped
her children; and a second DSS caseworker kidnapped and beat her. Moreover,
testimony shows Mother becomes easily angry and agitated. Dr. Paez further
testified Mother could possibly care for Child but only if she accepted treatment
and DSS strictly supervised Mother for a year or two. However, we do not believe
Mother will be able to provide minimally acceptable care for Child because
evidence in the record reflects Mother has struggled with bipolar disorder without
accepting treatment. Mother's mother stated Mother was previously admitted to
psychiatric facilities on three separate occasions. Mother also lost custody of her
first two children because she could not control her anger and filed false police
reports. Accordingly, we find clear and convincing evidence shows Mother has a
diagnosable condition, which is unlikely to change in a reasonable time, and this
condition makes Mother unlikely to provide minimally acceptable care for the
child. S.C. Code Ann. § 63-7-2570(6) (Supp. 2012).

Finally, we conclude TPR and adoption is in Child's best interest. Mother argues
TPR is premature because she is making progress with the treatment plan. In
South Carolina Department of Social Services v. Janice C., 383 S.C. 221, 230, 678
S.E.2d 463, 468 (Ct. App. 2009), we found the family court erred in finding TPR
was in the children's best interest because the mother was making progress on her
treatment plan, and the guardian ad litem (GAL) and mother's psychologist never
observed the mother interacting with her children. This case is factually
distinguishable from Janice C. because Child's GAL, Child's counselor, and the
DSS caseworker observed Mother's visits with Child caused Child to suffer such
extreme anxiety that she tore off a fingernail from biting it and continuously
scratched behind her ear until she created a yeast infection. Child's counselor
observed that she became despondent, sad, quiet, and lethargic during visits with
Mother. Child's counselor further stated TPR and adoption is in Child's best
interest because Mother "is an extremely angry and potentially always aggressive
person," which frightens Child and causes her to "shut . . . down." Unlike Janice
C., Child's foster parents are considering adopting her if TPR is granted, and her
paternal grandparents have also expressed an interest in adopting her. See id. at
230-31, 678 S.E.2d at 468 (finding TPR was premature given the fact that the
record was devoid of any evidence that suitable adoptive parents had been
identified or that the GAL observed the mother's visits with her children).
Accordingly, we affirm the family court's order terminating Mother's parental
rights.

AFFIRMED.1

FEW, C.J., and GEATHERS and LOCKEMY, JJ., concur.

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