SCDSS v. Smith

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.

Holly M. Smith and Steven L. Smith, Appellants.

In the interest of minors under the age of eighteen.

Appellate Case No. 2015-001095

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

Unpublished Opinion No. 2016-UP-328
Submitted June 14, 2016 – Filed June 20, 2016

AFFIRMED

Raymond Elston MacKay, of MacKay Law Firm, PA, of
Anderson, for Appellant Holly M. Smith.

R. Mills Ariail, Jr., of Law Office of R. Mills Ariail, Jr.,
of Greenville, for Appellant Steven L. Smith.

Kathleen J. Hodges, of the South Carolina Department of
Social Services, of Walhalla; Kimberly Renae Welchel,
of The Rosemond Law Firm, of Seneca; and Dottie C.
Ingram, of the South Carolina Department of Social
Services, of Anderson, for Respondent.

John Frederic Prescott, Jr., of Larry C. Brandt, PA, of
Walhalla, for the Guardian ad Litem.

PER CURIAM: Holly M. Smith (Mother) and Steven L. Smith (Father) appeal
the family court's order terminating their parental rights to their three minor
children (Children).1 On appeal, Mother argues the family court erred in finding
clear and convincing evidence supported termination of parental rights (TPR)
because (1) Mother harmed Children and due to the severity or repetition of the
abuse or neglect, her home could not be made safe within twelve months and (2)
Mother failed to remedy the conditions that led to Children's removal. Mother also
argues the family court erred by (1) making no finding of Mother's wilfulness in
failing to rectify the harm and (2) failing to give adequate consideration to South
Carolina public policy regarding reuniting parents and children in the best interest
of the children. Father argues the family court erred in finding the South Carolina
Department of Social Services (DSS) proved (1) by clear and convincing evidence
he failed to remedy the conditions that caused the removal of Children; (2) by clear
and convincing evidence Children were harmed and that his home could not be
made safe within twelve months; and (3) TPR was in Children's best interest. We
affirm.2

"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, 388-89, 709 S.E.2d 650, 653-54
(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. 2015). 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,

1
This court consolidated the parties' two appeals.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
& 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)).

As to Mother, first, evidence in the record proved by clear and convincing
evidence that, due to the severity or repetition of the abuse or neglect, Mother's
home could not be made safe within twelve months. See § 63-7-2570(1)
(prescribing as a TPR ground a situation in which "[t]he child or another child
while residing in the parent's domicile has been harmed as defined in [s]ection
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"); § 63-7-20(4)(a) (defining "harm" as a situation
in which a parent inflicts physical or mental injury upon the child or "engages in
acts or omissions [that] present a substantial risk of physical or mental injury to the
child"). Mother had a longstanding drug addiction and failed or refused multiple
drug screens until the month prior to the TPR hearing. Mother had yet to complete
counseling and was unsure when she would finish the second of three outpatient
drug treatment stages. We recognize Mother believed she would successfully
finish drug treatment and follow through on counseling;3 however, neither of these
intentions had come to fruition at the time of the TPR hearing. Further, Mother
waited almost one year to begin complying with the treatment plan, thereby
delaying her ability to complete the treatment plan's requirements before the TPR
hearing. Ultimately, Mother's ten-year record of drug abuse coupled with her
inability to complete the treatment plan proved by clear and convincing evidence
her home could not be made safe within one year of the hearing.

Second, DSS proved by clear and convincing evidence Mother failed to remedy the
conditions that caused Children's removal. See S.C. Code Ann. § 63-7-2570(2)
("The family court may order [TPR] upon a finding . . . [t]he child has been
removed from the parent . . . 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

3
Although Mother contends she was unable to follow the psychologist's
recommendations until January 2015 because DSS failed to provide her with an
evaluation report, the DSS caseworker's testimony directly contradicted this
assertion. Also, we note the family court found Mother not to be credible. S.C.
Dep't of Soc. Servs. v. Michelle G., 407 S.C. 499, 504, 757 S.E.2d 388, 391 (2014)
(noting this court is not required "to disregard the findings of the family court,
which was in a better position to evaluate the credibility of the witnesses and
assign weight to their testimony").
between the department and the parent and the parent has not remedied the
conditions [that] caused the removal."). Children were removed from Mother in
November 2013, and the family court ordered a treatment plan in January 2014.
Mother had not completed her drug treatment by February 2015, admitted to being
in only the second of three stages of outpatient drug treatment at the time of the
TPR hearing, and did not begin the recommended psychological treatment until
one month prior to the TPR hearing. Moreover, Mother tested positive for drugs
until, at least, September 2014 and during DSS's involvement prior to that date,
either refused or failed drug tests. Therefore, regardless of Mother's late attempts
to remedy the conditions that led to Children's removal, she failed to do so. See
Dep't of Soc. Servs. v. Pritchett, 296 S.C. 517, 520, 374 S.E.2d 500, 501 (Ct. App.
1988) ("[A]n attempt to remedy alone is [in]adequate to preserve parental
rights. . . . The attempt must have, in fact, remedied the conditions."); S.C. Dep't of
Soc. Servs. v. Cummings, 345 S.C. 288, 294-95, 547 S.E.2d 506, 509-10 (Ct. App.
2001) (affirming the termination of a mother's parental rights pursuant to section
63-7-2570(2) when she continually failed or refused drug tests and completed no
treatment classes). Accordingly, clear and convincing evidence supported this
statutory ground for TPR.4

As to Father,5 first, evidence in the record proved by clear and convincing that due
to the severity or repetition of the abuse or neglect, Father's home could not be

4
Mother's argument that DSS was required to show she wilfully failed to rectify
the harm is meritless. See generally § 63-7-2570(1) and (2) (failing to require a
showing of wilfulness); cf. § 63-7-2570(3), (4), and (7) (requiring a showing of the
parent's wilfulness); see also Hodges v. Rainey, 341 S.C. 79, 87, 533 S.E.2d 578,
582 (2000) ("If the legislature's intent is clearly apparent from the statutory
language, a court may not embark upon a search for it outside the statute."); id.
(reciting the canon of construction that to include one thing implies the exclusion
of another, or the alternative).
5
Father did not appeal the family court's finding that he failed to support Children
pursuant to section 63-7-2570(4) of the South Carolina Code (Supp. 2015);
therefore, this finding is the law of the case. See Jones v. Lott, 387 S.C. 339, 346,
692 S.E.2d 900, 903 (2010) ("Under the two issue rule, whe[n] a decision is based
on more than one ground, the appellate court will affirm unless the appellant
appeals all grounds because the unappealed ground will become the law of the
case."). Nonetheless, we address the merits of the appealed grounds because of our
overriding concern for the welfare of Children and finality of TPR. 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 the court's duty to zealously guard the rights of minors.").
made safe within twelve months. See § 63-7-2570(1) (prescribing as a TPR
ground a situation in which "[t]he child or another child while residing in the
parent's domicile has been harmed as defined in [s]ection 63-7-20, 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"); § 63-7-20(4)(a) (defining "harm"
as a situation in which a parent inflicts physical or mental injury upon the child or
"engages in acts or omissions [that] present a substantial risk of physical or mental
injury to the child"). Father admitted he had been a drug addict for over ten years,
most recently using in June 2014. Despite his longstanding addiction, Father
voluntarily left a ten-month drug treatment center prior to completing treatment
and failed to seek the recommended follow up treatment. Additionally, Father did
not begin to follow the psychologist's recommendation until mere weeks before the
TPR hearing. We also note Father had numerous other treatment plans over the
past decade but failed to comply with any of them. See § 63-7-2570(1) ("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."). Thus, while
Father made an effort to make his home safe, it was unlikely it could be made safe
within one year. Accordingly, the family court did not err in finding clear and
convincing evidence showed that, due to the severity or repetition of the abuse or
neglect, it was not reasonably likely Father's home could be made safe within
twelve months.

Second, clear and convincing evidence supported TPR based upon Father's failure
to remedy the conditions that led to Children's removal. Father did nothing to
comply with the treatment plan until almost six months after its issuance.
Additionally, although Father began a drug treatment program, he left the ten-
month program only two months in, and he failed to follow through with the
program's recommended outpatient treatment. Moreover, Father sought the
required psychological treatment the day he was served with notice of the TPR
hearing. Finally, Father admitted to using drugs as recently as June 2014. This
evidence showed that, regardless of his late attempts, Father had failed to remedy
the conditions that led to Children's removal. See § 63-7-2570(2) (proving a
statutory ground for TPR is met when "[t]he child has been removed from the
parent . . . 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 and the parent has not remedied the conditions which caused the
removal"); Pritchett, 296 S.C. at 520, 374 S.E.2d at 501 ("[A]n attempt to remedy
alone is [in]adequate to preserve parental rights . . . . The attempt must have, in
fact, remedied the conditions."); Abercrombie v. LaBoon, 290 S.C. 35, 38, 348
S.E.2d 170, 171-72 (1986) ("While a parent's curative conduct after initiation of an
action for [TPR] may be considered by the court on the issue of intent, it must be
considered in light of the timeliness by which it occurred."). Thus, clear and
convincing evidence supported TPR because Father failed to remedy the
conditions that cause Children's removal.

As to both Mother and Father, we find TPR was in Children's best interest. S.C.
Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App.
2000) (noting the child's best interest is the paramount consideration in a TPR
proceeding). Mother and Father had abused drugs for over ten years, and Mother
admitted to using drugs just months prior to the TPR hearing. Neither Mother nor
Father had completed any portion of their treatment plans; instead, each began to
comply with some parts of their respective plans in late 2014. Also, Mother stated
she had no job and did not know when she would obtain employment.
Additionally, the guardian ad litem (GAL) testified TPR was in Children's best
interest and, along with the DSS caseworker, recommended TPR. Regarding
Father, we find it concerning that despite his admission to abusing drugs for over
ten years, he voluntarily left a ten-month treatment facility only two months after
beginning treatment and chose not to participate in recommended follow up
treatment post-discharge. We also note Father stated at the TPR hearing he was
unsure when his home would be ready for Children's return. Further, the GAL and
caseworker believed Children were doing well in their foster homes and their
respective foster parents were willing to adopt. See S.C. Code Ann. § 63-7-2510
(2010) (explaining TPR statutes were adopted "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"). Finally, evidence in the record showed Children
lacked stability, having been out of Mother's and Father's care for more than five of
the past eleven years. See S.C. Dep't of Soc. Servs. v. Janice C., 383 S.C. 221, 230,
678 S.E.2d 463, 468 (Ct. App. 2009) ("A primary objective of the TPR statutes is
to free children for the stability adoption can provide."). Based upon this evidence,
we find TPR is in Children's best interest. See § 63-7-2570 (requiring that in order
for a family court to terminate a parent's rights, it must find that TPR is in the
child's best interest); S.C. Code Ann. § 63-7-2620 (2010) ("The interests of the
child shall prevail if the child's interest and the parental rights conflict.").

AFFIRMED.

HUFF, KONDUROS, and GEATHERS, JJ., concur.