Coyle v. Garcia

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

Matthew and Terra Coyle, Respondents,

v.

Wilmer Garcia, Appellant.

In the Interest of a Minor Under the Age of Eighteen.

Appellate Case No. 2016-000695

Appeal From Cherokee County
Kelly Pope-Black, Family Court Judge

Unpublished Opinion No. 2018-UP-051
Submitted November 9, 2017 – Filed January 29, 2018

REVERSED IN PART AND REMANDED

Megan Marie Early-Soppa, of Smith Moore
Leatherwood, LLP, of Greenville; Darren S. Haley, of
The Haley Law Firm, LLC, of Greenville; and Willie
James Peters, III, of Greenville, all for Appellant.

James Fletcher Thompson, of James Fletcher Thompson,
LLC, of Spartanburg, for Respondents.

Joseph L.V. Johnson, of Saint-Amand Thompson &
Mathis, LLC, of Gaffney, as Guardian ad Litem.
PER CURIAM: Wilmer Garcia appeals a family court order finding his consent
to his minor daughter's (Child's) adoption was not necessary and alternatively
terminating his parental rights to Child. On appeal, Garcia argues the family court
erred in finding (1) his consent was not necessary for Child's adoption by Matthew
and Terra Coyle, (2) the Coyles proved a statutory ground for termination of
parental rights (TPR) by clear and convincing evidence, and (3) TPR was in
Child's best interest. We reverse in part and remand.

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.

I. TPR

We find the Coyles did not prove a statutory ground for TPR by clear and
convincing evidence. First, we find the Coyles did not prove by clear and
convincing evidence that Garcia abandoned Child. See S.C. Code Ann.
§ 63-7-2570(7) (Supp. 2017) (providing a statutory ground for TPR is met when
"[t]he child has been abandoned as defined in Section 63-7-20" of the South
Carolina Code (Supp. 2017)); § 63-7-20(1) ("'Abandonment of a child' means a
parent or guardian willfully deserts a child or willfully surrenders physical
possession of a child without making adequate arrangements for the child's needs
or the continuing care of the child."). The evidence does not show Garcia willfully
deserted or surrendered physical possession of Child. Rather, Child was removed
from the home of Ashley Mitchell, Child's mother, after Child was physically
abused. The Department of Social Services (DSS) initially determined it could not
place Child with Garcia due to concerns about a domestic violence incident
involving Mitchell and Garcia. Prior to the merits hearing in the DSS removal
action, the Coyles filed this private action for custody and obtained custody of
Child. Nothing in the record suggests Garcia willfully deserted Child or willfully
surrendered physical possession of her without making adequate arrangements for
her needs. See id. Further, Garcia visited Child and regularly paid child support
for more than three years prior to this hearing. Although Garcia missed several
visits, we find his job schedule interfered with his ability to visit Child. Overall,
we find the Coyles did not present clear and convincing evidence showing Garcia
abandoned Child.

Further, we find clear and convincing evidence did not show Garcia failed to
remedy the conditions causing Child's removal. See § 63-7-2570(2) (providing a
statutory ground TPR is met when a "child has been removed from the parent
pursuant to . . . [s]ection 63-7-1660 [of the South Carolina Code (2010 & Supp.
2017)] and has been out of the home for a period of six months following the
adoption of a placement plan by court order or by agreement between [DSS] and
the parent has not remedied the conditions which caused the removal"). This
action began when Child was removed from Mitchell's home due to physical
abuse, and the evidence showed Garcia was not living in Mitchell's home when the
removal occurred. The removal order determined Garcia placed Mitchell's twin
sons—not Child—at a substantial risk of physical abuse based on a domestic
violence incident between Garcia and Mitchell, and the only condition DSS
identified in the placement plan that Garcia had to remedy was anger management.
Although we acknowledge Garcia did not complete anger management, we find
the Coyles did not present clear and convincing evidence that Garcia had an
ongoing anger management problem. Other than the vague testimony about one
incident between Garcia and Mitchell, nothing in the record shows Garcia had an
ongoing anger management problem that prevented him from providing a suitable
home for Child. In fact, at the time of the TPR hearing, Garcia had two other
children living in his home, and there is no indication his home was not suitable for
those children.1 Thus, we find the Coyles did not present clear and convincing
evidence to prove this statutory ground. Because the Coyles did not prove a
statutory ground for TPR, we reverse the family court's termination of Garcia's
parental rights.2

1
We do not intend this statement—or anything else in this opinion—to be
construed as an indication that we believe Child should be placed in Garcia's
custody.
2
Because our finding that the Coyles did not prove a statutory ground for TPR is
dispositive to the issue of whether the family court properly terminated Garcia's
parental rights, we decline to consider whether TPR is in Child's best interest. See
§ 63-7-2570 (providing the family court may order TPR upon finding a statutory
ground for TPR is proven and TPR is in the child's best interest); Futch v.
McAllister Towing, 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (providing an
appellate court need not address an issue when its determination of a prior issue is
dispositive).
II. CONSENT

Garcia asserts his consent to Child's adoption was required because he maintained
substantial and continuous or repeated contact with Child by openly living with her
for a period of six months within the year preceding Child's placement.3 See S.C.
Code Ann. § 63-9-310(A)(4) (2010) (providing an unwed father's consent to the
adoption of a child "placed with the prospective adoptive parents more than six
months after the child's birth" is required "only if the father has maintained
substantial and continuous or repeated contact with the child"); id. ("A father of a
child born when the father was not married to the child's mother, who openly lived
with the child for a period of six months within the one-year period immediately
preceding the placement of the child for adoption, and who during the six-months
period openly held himself out to be the father of the child[,] is considered to have
maintained substantial and continuous or repeated contact with the child for the
purpose of this . . . subsection . . . ."). We find the family court should have
considered this portion of the statute when determining whether Garcia maintained
substantial and continuous or repeated contact with Child. During the hearing,
Garcia testified he lived with Mitchell but moved out of her home before Child's
removal, and he saw Child three days before she was removed. Likewise, Dena
Burgess, the DSS caseworker, stated Garcia "was involved with her day-to-day life
in those days leading up to" the removal. Based on the evidence, it appears Garcia
lived with Mitchell and Child until three days before the removal hearing. Because
the evidence shows Garcia may have lived with Child "for a period of six months
within the one-year period immediately preceding the placement of the child for
adoption, and . . . during the six-months period openly held himself out to be the
father of the child," his consent may have been statutorily required. Without
determining whether the record before us establishes Garcia did not maintain
substantial and repeated contacts with Child, we remand this issue to the family
court to take additional testimony. On remand, the family court shall determine
when Mitchell and Garcia began living together, how long they lived together after
Child's birth, and whether Garcia's consent to the adoption was thus required under
section 63-9-310(A)(4). We urge the family court to conduct this hearing
expeditiously.

3
Although the Coyles assert this argument is not preserved, the issue of whether
Garcia's consent was required under section 63-9-310(A)(4) was the precise issue
before the family court. Because the family court considered and ruled on whether
Garcia's consent was required under this subsection, we find this issue is
adequately preserved for appeal.
REVERSED IN PART AND REMANDED.

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