Aikey v. Dehart

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

Robert and Cynthia Aikey, Appellants,

v.

Britteny D. Dehart and John Kenneth Goehrig,
Respondents.

Appellate Case No. 2015-000663

Appeal From York County
Thomas Henry White, IV, Family Court Judge

Unpublished Opinion No. 2015-UP-570
Submitted December 15, 2015 – Filed December 23, 2015

AFFIRMED

April Dawn Porter, of the Law Office of April D. Porter,
P.C., of Chester, for Appellants.

Kirby Rakes Mitchell, of South Carolina Legal Services,
of Greenville; and Chisa Johnson Putman, of South
Carolina Legal Services, of Rock Hill, for Respondent
Brittney D. Dehart.

Nathan James Sheldon, of the Law Office of Nathan J.
Sheldon, LLC, of Rock Hill, for Respondent John
Kenneth Goehrig.
N. Beth Ramsey Faulkner, of the Brice Law Firm, LLC,
of York, for the Guardian ad Litem.

PER CURIAM: Robert and Cynthia Aiken (Grandparents) appeal a family court
order denying their request for termination of Britteny D. Dehart's (Mother's) and
John Kenneth Goehrig's (Father's) parental rights as to Mother's and Father's two
minor children (Children). Grandparents argue the family court erred in
determining Mother and Father did not wilfully fail to visit Children, Mother and
Father did not wilfully fail to support Children, and termination of Mother's and
Father's parental rights (TPR) was not in Children's best interest. We affirm.

"In appeals from the family court, this [c]ourt reviews factual and legal issues de
novo." Crossland v. Crossland, 408 S.C. 443, 451, 759 S.E.2d 419, 423 (2014).
However, this "review neither relieves an appellant of demonstrating error nor
requires [this court] to ignore the findings of the family court[,]" who was in a
better position to evaluate the witnesses' credibility and assign comparative weight
to their testimony. Lewis v. Lewis, 392 S.C. 381, 388-92, 709 S.E.2d 650, 654-55
(2011). "The family court may order [TPR] upon a finding of one or more of the
[statutory] grounds and a finding that termination is in the best interest of the
child[.]" S.C. Code Ann. § 63-7-2570 (Supp. 2014). TPR grounds 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). "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 Cty. 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)).

First, we find Grandparents failed to prove by clear and convincing evidence that
Mother and Father wilfully failed to visit Children. See S.C. Code Ann.
§ 63-7-2570(3) (Supp. 2014) ("The family court may order [TPR] upon a
finding . . . [t]he child has lived outside the home of either parent for a period of
six months, and during that time the parent has wilfully failed to visit the child.");
S.C. Dep't of Soc. Servs. v. Seegars, 367 S.C. 623, 630, 627 S.E.2d 718, 721-22
(2006) ("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."). Evidence presented at the hearing of Mother's and Father's distance from
Children, their lack of transportation at times, and Grandparents' hindrance of
Mother's and Father's communication with Children, indicate Mother's and Father's
failure to visit was not willful. Accordingly, although there was a period of time
during which Mother and Father failed to visit Children, we find Grandparents
failed to prove this conduct was willful. See § 63-7-2570(3) ("[I]t must be shown
that the parent was not prevented from visiting by the party having custody or by
court order."); id. ("The distance of the child's placement from the parent's home
must be taken into consideration when determining the ability to visit.").

Second, we find Grandparents failed to prove by clear and convincing evidence
that Mother and Father wilfully failed to support Children. See S.C. Code Ann.
§ 63-7-2570(4) (Supp. 2014) ("The family court may order [TPR] upon a
finding . . . [t]he child has lived outside the home of either parent for a period of
six months, and during that time the parent has wilfully failed to support the
child."); id. ("Failure to support means that the parent has failed to make a material
contribution to the child's care . . . ."). Although parents have an obligation to
support their children, this court "may consider all relevant circumstances in
determining whether . . . the parent has wilfully failed to support the child,
including . . . the ability of the parent to provide support." § 63-7-2570(4); see also
Sauls v. Sauls, 287 S.C. 297, 301, 337 S.E.2d 893, 896 (Ct. App. 1985) ("[P]arents
have an obligation to contribute to the support of their children."). Evidence at the
hearing showed Father's monthly disability stipend did not cover Mother's and
Father's living expenses and automobile payment. Additionally, the Guardian ad
Litem (GAL) testified Mother attempted to gain employment during the time
Grandparents retained custody of Children, and shortly after Mother gained dutiful
employment, child support was deducted from her paychecks. Further, evidence at
trial showed Mother and Father sent toys, food, diapers, clothes, and birthday
presents to Children. Therefore, we find this evidence suggests Mother's and
Father's financial circumstances initially impeded their ability to support Children,
but when their financial situation improved, Mother and Father contributed
material support to Children. See § 63-7-2570(4) ("Th[is] court may consider all
relevant circumstances in determining whether or not the parent has wilfully failed
to support the child, including . . . the ability of the parent to provide support.");
Charleston Cty. Dep't of Soc. Servs. v. Marccuci, 396 S.C. 218, 226-27, 721 S.E.2d
768, 773 (2011) (holding that a parent's failure to financially support his child was
not willful when the parent was initially unable to find employment, and once
employed, the parent regularly paid child support). Accordingly, we find
Grandparents failed to prove Mother's and Father's failure to support Children was
willful. See Seegars, 367 S.C. at 630, 627 S.E.2d at 721-22 ("Conduct of the
parent which evinces a settled purpose to forego parental duties may fairly be
characterized as 'willful' . . . .").
Third, we find Grandparents failed to prove by clear and convincing evidence that
termination of Mother's and Father's parental rights was in Children's best interest.
See § 63-7-2570 ("The family court may order [TPR] upon a finding of one or
more of the [statutory] grounds and a finding that termination is in the best interest
of the child[.]"). "In a [TPR] case, the 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). At the hearing, multiple witnesses testified
Mother and Father were good parents and loved Children. Moreover, the GAL
testified Children were bonded with Mother and Father, and the older child talked
fondly of them. Additionally, evidence showed Mother and Father passed random
drug screens; were evaluated for mental health issues and determined not to need
psychological services; and had prepared their home for Children, including
stocking cabinets with food, purchasing two children's beds, purchasing toys and
clothes, and preparing a bedroom for Children. Further, the GAL testified and
stated in her report that terminating Mother's and Father's parental rights was not in
Children's best interest. Accordingly, we find it is not in Children's best interest
for Mother's or Father's parental rights to be terminated.

AFFIRMED.1

HUFF, WILLIAMS, and THOMAS, JJ., concur.

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