Swain v. Bollinger

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

Reginald V. Swain, Appellant,

v.

Daniel Allen Bollinger and Jane Doe, a minor under the
age of eighteen, Respondents.

Appellate Case No. 2020-000761

Appeal From Abbeville County
Matthew P. Turner, Family Court Judge

Unpublished Opinion No. 2021-UP-032
Submitted January 15, 2021 – Filed February 2, 2021

AFFIRMED

Jane Hawthorne Merrill, of Hawthorne Merrill Law,
LLC, of Greenwood; and Scarlet Bell Moore, of
Greenville, both for Appellant.

Heather Vry Scalzo, of Byford & Scalzo, LLC, of
Greenville, for Respondent Daniel Allen Bollinger.

Anne Marie Hempy, of Hite and Stone, of Abbeville, as
Guardian ad Litem for the minor child.
PER CURIAM: Reginald Swain (Grandfather) appeals a family court order
denying his petition to terminate Daniel Allen Bollinger's (Father's) parental rights
to his granddaughter (Child) and allow Grandfather to adopt Child. On appeal,
Grandfather argues the family court erred in finding termination of parental rights
(TPR) and adoption by Grandfather was not in Child'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); 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 family court may order TPR upon finding a statutory ground for TPR is met
and TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2020).
"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). "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).

Child has lived with Grandfather and his wife, Barbara Swain (Grandmother;
collectively, Grandparents), since January 2012, and the family court awarded
Grandparents legal custody of Child in October 2013. The undisputed facts show
Grandparents have provided a stable and suitable home for Child. Child's mother
(Mother), who is Grandparents' biological daughter, now lives with Grandparents
and has an active role in Child's life. Under these facts, TPR would not promote
stability and permanency because Child is already in a stable environment with
Grandparents and Mother, which is unlikely to be affected by the outcome of this
appeal. Thus, TPR and adoption will not serve the ultimate goal of providing
permanency for a child. See S.C. Code Ann. § 63-7-2510 (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 . . . ." ).1

1
Further, Grandfather only sought to terminate Father's parental rights; he did not
seek to terminate Mother's parental rights. As a result, allowing Grandfather to
adopt Child would result in a birth certificate containing Grandfather's name as the
father and his biological daughter's name as the mother. Allowing Grandfather to
adopt Child while Mother remains her legal mother could create issues if Mother
We acknowledge Father has had very limited involvement with Child and thus
does not have a relationship with her. Although he was detained from May 2015
until April 2016 and incarcerated after February 2017, he did very little prior to his
May 2015 arrest to develop and maintain a relationship with Child. However, the
family court found Grandfather and Mother ignored Father's attempted
communications. Additionally, Father made progress in prison and expected to be
released shortly after the TPR hearing. If he has rehabilitated, it may be in Child's
best interest to have visitation with him in the future.

We are cognizant there could be situations when TPR would be in a child's best
interest even if a subsequent adoption is not. We are also cognizant that if this case
involved a child in foster care, TPR would be the likely outcome based on Father's
history and limited efforts to form a relationship with Child. However, based on
Child's stability in Grandparents' home and Father's progress in prison, we agree
with the family court that TPR is not in Child's best interest.

AFFIRMED.2

THOMAS, HILL, and HEWITT, JJ., concur.

ever decided to move out of Grandparents' home with Child because it would place
Grandfather in the same legal footing as Mother if a custody action was filed.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.