SCDSS v. Miller

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.

Tyeisha Miller and Channing Gill, Sr., Defendants,

Of whom Tyeisha Miller is the Appellant.

In the interest of minors under the age of eighteen.

Appellate Case No. 2015-000975

Appeal From Sumter County
Angela R. Taylor, Family Court Judge

Unpublished Opinion No. 2016-UP-265
Submitted May 20, 2016 – Filed June 2, 2016

AFFIRMED

Erik Tison Norton, Tara C Sullivan, and David Lee Miles
Brown, all of Nelson Mullins Riley & Scarborough, LLP,
of Columbia, for Appellant.

Scarlet Bell Moore, of Greenville, for Respondent.
Edgard R. Donnald, Jr., of Sumter, and Brenda L. Gorski,
of the South Carolina Guardian Ad Litem Program, of
Columbia, for the Guardian ad Litem.

PER CURIAM: Tyeisha Miller (Mother) appeals the family court's order
terminating her parental rights to her minor children SG, CG, and KM. On appeal,
Mother argues clear and convincing evidence does not support the statutory
grounds for termination of parental rights (TPR) or show TPR is in the children's
best interest. We affirm.

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); see
also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this
court reviews the family court's findings de novo, we are not required to ignore the
fact that the family court, which saw and heard the witnesses, was in a better
position to evaluate their credibility and assign comparative weight to their
testimony. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52. The burden is upon the
appellant to convince this court that the family court erred in its findings. Id.

"Because terminating the legal relationship between natural parents and a child is
one of the most difficult issues an appellate court has to decide, great caution must
be exercised in reviewing termination proceedings and termination is proper only
when the evidence clearly and convincingly mandates such a result." S.C. Dep't of
Soc. Servs. v. Roe, 371 S.C. 450, 455, 639 S.E.2d 165, 168 (Ct. App. 2006). The
family court may order TPR upon finding a statutory ground for TPR is satisfied
and also finding TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570
(Supp. 2015). The grounds for TPR must be proved 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).

We find clear and convincing evidence showed SG was harmed, and due to the
severity or repetition of the abuse or neglect, it was not reasonably likely Mother's
home could be made safe within twelve months. See S.C. Code Ann. § 63-7-
2570(1) (Supp. 2015) (providing a statutory ground for TPR is met when "[t]he
child or another child while residing in the parent's domicile has been harmed as
defined in Section 63-7-20 [of the South Carolina Code (2010)], and because of the
severity or repetition of the abuse or neglect, it is not reasonably likely that the
home can be made safe within twelve months. In determining the likelihood that
the home can be made safe, the parent's previous abuse or neglect of the child or
another child may be considered."). Mother's argument that DSS did not show she
harmed SG is misplaced. The plain language of the statute did not require DSS to
prove Mother inflicted the harm. Rather, the plain language of the statute required
DSS to prove (1) a child was harmed and (2) due to the severity and repetition of
the harm, Mother's home could not be made safe within a year. DSS presented
overwhelming evidence through the testimony of Dr. Matthew Marcus and Dr.
Olga Rosa that SG was severely harmed by another person and the injuries were
not accidental. Thus, the record clearly and convincingly established SG was
severely harmed.

DSS also presented clear and convincing evidence showing it was not reasonably
likely Mother's home could be made safe within twelve months. DSS clearly and
convincingly established—through Mother's statements to law enforcement and the
medical testimony of Dr. Marcus and Dr. Rosa—that the harm was inflicted while
SG was in Mother and Channing Gill, Sr.'s (Father's) care. Dr. Marcus opined the
skull fractures depicted in the June 30 CT scan occurred "[w]ithin the last several
days" before the CT scan, the rib fractures looked new at the time of the July 1,
2012 x-ray, and the brain injury and rib fractures occurred concurrently. Dr. Rosa
opined SG's seizures began concurrently with the injury. Finally, Mother told
Sergeant Irene Culick that when she and Father picked up SG from the aunt's
house the prior day, her "ribs were not making that movement. And she wasn't
seizing, at the time." Mother initially told Sergeant Culick she was home with
Father and SG the entire morning and nothing occurred; Mother later changed her
story and stated she was not at home that morning. Regardless of whether Mother
was home when SG was abused, the evidence does not point to anyone other than
Mother or Father who could have inflicted the abuse.

Additionally, the record established SG's injuries were noticeable. Detective Ricky
Morse, who observed SG's injuries, testified SG was seizing and looked like she
was being tazed, "her hands were drawn in, and gripped and shaky," and she had
"some bruising about her head." Dr. Rosa testified that even if someone other than
Mother or Father injured SG, Mother and Father would have seen an indication
that SG was injured or in distress when she was returned to them. However, Dr.
Rosa testified SG's clinical history indicated the seizures began around 9:00 a.m.,
and Mother and Father waited until 2:30 p.m. to take SG to the hospital. Due to
the severity of SG's injuries, we find it was unreasonable to wait five hours to seek
medical treatment.
Once SG was taken to the hospital, neither Mother nor Father offered any type of
explanation for SG's severe injuries—injuries so severe SG had to be placed in a
medically-induced coma due to constant seizures. Although Mother argues on
appeal that Father inflicted the injuries, Mother did not offer any type of
explanation to law enforcement or medical personnel when SG was admitted into
the hospital. Based on the severity of SG's injuries, we find Mother's lack of an
explanation was not credible, and the only inference to be drawn from it was that
Mother was protecting herself or Father.

Further, DSS and the GAL presented evidence showing Mother continued a
relationship with Father after SG was injured. Mother gave birth to Father's child
in August 2014—twenty-five months after SG was injured. The GAL reported
seeing Mother flirt with Father during a DSS meeting and a therapy session for SG.
Although Father is currently incarcerated, his projected release date is October 16,
2018; thus, he will be released from prison while the children are still young. The
Guardian ad Litem reported that Mother said "she would not want to keep her
children from their father, because they are his children too." Assuming—as
Mother now contends—that Father inflicted the harm, we find Mother's continued
relationship with him showed it was unlikely her home could be made safe for the
children. Thus, clear and convincing evidence supports this statutory ground.

Additionally, we find SG and CG were in foster care for fifteen of the most recent
twenty-two months. See S.C. Code Ann. § 63-7-2570(8) (Supp. 2015) (providing a
statutory ground for TPR is met when a "child has been in foster care under the
responsibility of the State for fifteen of the most recent twenty-two months"). SG
and CG entered foster care on July 1, 2012, and remained in foster care at the time
of the February 15, 2015 TPR hearing. Thus, they were in foster care for more
than two years. We disagree with Mother's contention that this statutory ground
should not apply to the facts of this case. See S.C. Dep't of Soc. Servs. v. Sarah W.,
402 S.C. 324, 336, 741 S.E.2d 739, 746 (2013) (providing a court applying this
statutory ground "must find that severance is in the best interests of the child, and
that the delay in reunification of the family unit is attributable not to mistakes by
the government, but to the parent's inability to provide an environment where the
child will be nourished and protected"). Following the November 1, 2012 merits
hearing, the family court held permanency planning hearings on April 11, 2013,
October 10, 2013, and June 19, 2014; thus, this case was regularly reviewed by the
family court. Additionally, Mother's assertion that she completed her treatment
services within fifteen months is inaccurate. Although the April 2013 permanency
planning order indicated Mother was complying with her treatment plan, the
October 2013 permanency planning order stated Mother continued to struggle with
moderate major depression and had not received sufficient services to address her
problems. Thus, we find this case does not present a situation where reunification
was delayed due to DSS's mistakes.

Finally, we find TPR is in the children's best interest. See S.C. Dep't of Soc. Servs.
v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000) (providing the
best interest of the child is the paramount consideration in a TPR case); S.C. Code
Ann. § 63-7-2620 (2010) ("The interest[] of the child shall prevail if the child's
interest and the parental rights conflict."). SG has special needs due to harm
inflicted by a third party. Two experts testified the injuries were caused by a third
party; Mother and Father were the only two parties who were allegedly home with
SG the morning before she was taken to the hospital, and neither of them has been
able or willing to offer an explanation for what happened. We find Mother's
unwillingness or inability to offer investigators and medical personnel insight into
SG's injuries shows she is not capable of adequately protecting the children.
Because we find Mother's home cannot be made safe, and because it appears the
children will achieve permanency through adoption if TPR is affirmed, we find
TPR is in the children's best interest.

AFFIRMED.1

SHORT and THOMAS, JJ., and CURETON, A.J., concur.

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