SCDSS v. Briley

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.

Shelby Briley and Danny Thomas (Trey) Argo,
Defendants,

Of whom Shelby Briley is the Appellant.

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

Appellate Case No. 2016-002127

Appeal From Greenwood County
John M. Rucker, Family Court Judge

Unpublished Opinion No. 2017-UP-235
Submitted May 19, 2017 – Filed May 31, 2017

AFFIRMED

Melinda Inman Butler, of The Butler Law Firm, of
Union, for Appellant.

Scarlet Bell Moore, of Greenville, for Respondent.
Carson McCurry Henderson, of The Henderson Law
Firm, PC, of Greenwood, for the Guardian ad Litem.

PER CURIAM: Shelby Briley (Mother) appeals the family court's order
terminating her parental rights to her minor child (Child). The family court
determined clear and convincing evidence supported termination of parental rights
(TPR) on the following statutory grounds: (1) Child was harmed, and because of
the severity or repetition of the abuse or neglect, it was not reasonably likely
Mother's home could be made safe within twelve months; (2) Child lived in foster
care for fifteen of the most recent twenty-two months; and (3) Child lived outside
of Mother's home for at least six months, and Mother failed to remedy the
conditions that caused his removal. Additionally, the family court concluded TPR
was in Child's best interest. On appeal, Mother argues the family court erred in (1)
finding her parental rights should have been terminated and (2) giving any weight
to the Guardian ad Litem's (GAL's) recommendation. 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); 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. at 385, 709
S.E.2d at 652.

The family court may order TPR upon finding one or more of twelve statutory
grounds is satisfied and also finding TPR is in the best interest of the child. S.C.
Code Ann. § 63-7-2570 (Supp. 2016). The grounds for TPR must be proven by
clear and convincing evidence. Dep't of Soc. Servs. v. Mrs. H, 346 S.C. 329, 333,
550 S.E.2d 898, 901 (Ct. App. 2001); S.C. Dep't of Soc. Servs. v. Parker, 336 S.C.
248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999). The TPR statute "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. Code Ann. § 63-7-2620 (2010).

We find clear and convincing evidence shows Mother harmed Child, and due to
the severity or repetition of the abuse or neglect, it was not reasonably likely the
home could be made safe within the next twelve months. See § 63-7-2570(1)
(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 . . . 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"). First, clear and convincing
evidence shows Child was harmed in Mother's home. See S.C. Code Ann. § 63-7-
20(6)(a) (Supp. 2016) ("'[H]arm' occurs when the parent . . . engages in acts or
omissions which present a substantial risk of physical or mental injury to the
child . . . ."). Larry Rice, a DSS investigator, testified law enforcement informed
him Child had multiple bruises. Rice observed and photographed bruising on
Child's head, face, back, and thigh. Thereafter, the family court made a finding of
physical abuse against Mother and placed her on the Central Registry for Abuse
and Neglect (the Central Registry). Additionally, Mother pled guilty to unlawful
neglect of a child and was sentenced to six years' imprisonment, suspended to two
years' probation.

Further, based on the severity and repetition of the harm, we find clear and
convincing evidence shows it was not reasonably likely Mother's home could be
made safe for Child within twelve months. Mother admitted Child had behavioral
problems while he was under her care. The photographs of Child's bruising show
multiple bruises to Child's body—including his face and head. After obtaining a
mental health assessment, Mental Health made several recommendations to
Mother, including anger management counseling, to help her learn how to
appropriately deal with her anger. Although Mother claimed she attended some of
the anger management meetings, she testified she had not received a letter or
certificate showing completion of this program and admitted the last time she went
to Mental Health was "last year." Trieneke Thomas, a DSS foster care worker,
testified Mother failed to follow Mental Health's recommendations. Therefore,
because of Mother's failure to adequately address her anger issues, we find clear
and convincing evidence supports this statutory ground for TPR.

Additionally, we find clear and convincing evidence shows Child was in foster
care for fifteen of the most recent twenty-two months preceding the TPR hearing.
See § 63-7-2570(8) (providing a statutory ground for TPR is met when "[t]he child
has been in foster care under the responsibility of the State for fifteen of the most
recent twenty-two months"); S.C. Dep't of Soc. Servs. v. Sims, 359 S.C. 601, 608,
598 S.E.2d 303, 307 (Ct. App. 2004) ("A finding pursuant to [subsection (8)] alone
is sufficient to support [TPR]."); but see Charleston Cty. Dep't of Soc. Servs. v.
Jackson, 368 S.C. 87, 102 n.8, 627 S.E.2d 765, 773 n.8 (Ct. App. 2006) (noting
there may be circumstances "where this statutory ground would not support [TPR]
despite the passage of a fifteen month stay in foster care"). Child was removed
from the home on October 4, 2013, and at the time of the TPR hearing, Child had
been in foster care for approximately thirty-two months.

We find Mother's reliance on Charleston County Department of Social Services v.
Marccuci, 396 S.C. 218, 721 S.E.2d 768 (2011), is misplaced. In Marccuci, DSS
delayed bringing the initial merits removal hearing for approximately eighteen
months, making "it impossible for the parties to regain legal custody of [child]
prior to the expiration of the fifteen month period." Id. at 227, 721 S.E.2d at 773.
Our supreme court concluded "this case represent[ed] an 'instance[] where this
statutory ground would not support termination of parental rights.'" Id. at 226, 721
S.E.2d at 773 (quoting Jackson, 368 S.C. at 102 n.8, 627 S.E.2d at 773 n.8).

Here, rather than DSS erecting road blocks making it impossible for Mother to
regain legal custody of Child, the delay in reunification was caused by Mother's
inability to provide a safe and suitable home for Child. See S.C. Dep't of Soc.
Servs. v. Sarah W., 402 S.C. 324, 336, 741 S.E.2d 739, 746 (2013) (explaining
section 63-7-2570(8) may be used to sever parental rights when it is in the best
interest of a child and "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"). Mother failed to
complete any portion of her treatment plan by the May 22, 2014 permanency
planning hearing. Although Mother worked on her treatment plan following this
hearing, DSS could not safely reunify Child with her because of her failure to
complete anger management counseling and additional recommendations from
Mental Health. Therefore, we find clear and convincing evidence supports this
ground for TPR.1

We also find TPR is in Child's best interest.2 In a TPR case, the best interest of the
child is the paramount consideration. S.C. Dep't of Soc. Servs. v. Smith, 343 S.C.

1
We decline to address the remaining statutory ground. See S.C. Dep't of Soc.
Servs. v. Headden, 354 S.C. 602, 613, 582 S.E.2d 419, 425 (2003) (stating an
appellate court does not need to address a TPR ground if it finds clear and
convincing evidence supports another TPR ground).
2
Although this issue was not raised in Mother's brief, we address it because it
impacts a minor child. See Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536
S.E.2d 372, 374 (2000) ("[P]rocedural rules are subservient to [this] court's duty to
zealously guard the rights of minors."); Ex parte Roper, 254 S.C. 558, 563, 176
S.E.2d 175, 177 (1970) ("[W]here the rights and best interests of a minor child are
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). "The purpose of [the TPR statute] is to establish procedures for the
reasonable and compassionate [TPR] where children are abused, neglected, or
abandoned in order to protect the health and welfare of these children and make
them eligible for adoption . . . ." S.C. Code Ann. § 63-7-2510 (2010). "Appellate
courts must consider the child's perspective, and not the parent's, as the primary
concern when determining whether TPR is appropriate." Sarah W., 402 S.C. at
343, 741 S.E.2d at 749-50.

Viewed from Child's perspective, we find TPR is in Child's best interest. Child
was removed from Mother's home after DSS observed multiple bruises on Child's
body—including his head, face, back, and thigh. Following a mental health
assessment, it was recommended that Mother attend anger management counseling
to help her learn how to appropriately deal with anger. Although Mother claimed
she attended some of the anger management meetings, she testified she had not
received a letter or certificate showing completion of this program and admitted
the last time she went to Mental Health was "last year." Thomas testified Mother
failed to follow Mental Health's recommendations. Because of Mother's failure to
adequately address her anger issues, we find Mother is unable to provide a safe
home for Child.

Further, Child has been in foster care since October 4, 2013, and has lived with his
current foster family for approximately two years. Although Mother visited Child
approximately once a month, Thomas noted there was "no real communication or
bonding" during those visits. Conversely, Thomas and the GAL testified Child
considered his foster family to be his family and described their relationship as
bonded. Child's foster mother expressed her desire to adopt Child and believed her
family could provide an appropriate home for Child. Therefore, in the interest of
permanency, safety, and future stability, we find TPR is in Child's best interest.
See S.C. Dep't of Soc. Servs. v. Cameron N.F.L., 403 S.C. 323, 329, 742 S.E.2d
697, 700 (Ct. App. 2013) ("[T]his court has considered future stability when
determining whether TPR is in a child's best interest."); S.C. Dep't of Soc. Servs. v.
Cochran, 364 S.C. 621, 626, 614 S.E.2d 642, 645 (2005) ("Parents have a
fundamental interest in the care, custody, and management of their
children. . . . However, a child has a fundamental interest in terminating parental

concerned, [this] court may appropriately raise, ex mero motu, issues not raised by
the parties.").
rights if the parent-child relationship inhibits establishing secure, stable, and
continuous relationships found in a home with proper parental care.").

Finally, we find Mother's argument regarding the family court's consideration of
the GAL's recommendation is unpreserved for appellate review. See Ex parte
Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654 (2006) (declining "to exercise [its]
discretion to avoid application of the procedural bar"); Jackson, 368 S.C. at 104-
05, 627 S.E.2d at 775 (finding father's claim that TPR violated his right to due
process was not preserved for appellate review because the issue was not raised to
or ruled upon by the family court). Although Mother examined the GAL and
questioned the thoroughness and independence of the GAL's investigation, Mother
did not request the family court to exclude the GAL's recommendation in making
its decision. Therefore, we find this issue unpreserved.

Based on the foregoing, the decision of the family court is

AFFIRMED.3

LOCKEMY, C.J., and HUFF and THOMAS, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.