SC Department of Social Services v. Wise

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Social Services,       
Respondent,

v.

Latesha Wise, Allison Turner, John Doe, whose true name is unknown and
Tresevant Wise (April 20, 2000),       
Defendants,

of whom Latesha Wise is       
Appellant.

Appeal From Fairfield County

Walter B. Brown, Jr., Family Court
Judge

Unpublished Opinion No. 2003-UP-546

Submitted July 15, 2003 – Filed September
25, 2003   

AFFIRMED

Debra A. Matthews, of Winnsboro, for Appellant

Betsy White Burton, of Winnsboro, for Respondent(s).

April Porter Counterman, of Chester, Carol Ann Tolen, of Winnsboro, for Guardian
Ad Litem

PER CURIAM:   Latesha Wise appeals
from the family court order terminating her parental rights to her son, Tresevant
Wise.  Pursuant to Ex parte Cauthen, 291 S.C. 465, 354 S.E.2d 381 (1987),
Wise’s attorney filed an affidavit asserting the appeal has no merit.  Wise’s
guardian ad litem and the attorney for the South Carolina Department of Social
Services (“DSS”) have also filed affidavits of no merit.  Wise’s attorney did
not file an appellate brief, and Wise did not file a pro se brief. 
We affirm.

FACTUAL/PROCEDURAL HISTORY

Wise was placed in the care of DSS’s
Adult Protective Services on February 2, 1998, and she was later diagnosed with
schizophrenia, undifferentiated type.  Admitted and released from various mental
health facilities, Wise heard voices commanding her to kill someone, had periodic
mood swings, and was occasionally fearful that someone was trying to poison
her.   On May 25, 2000, DSS took custody of Wise’s weeks old infant son, Tresevant,
when Wise appeared unable to care for herself or the child.   Wise was granted
twice monthly visitation with Tresevant and ordered to attend and complete a
parenting class at the merits hearing.   Wise was not ordered to pay child support
at the merits hearing.  DSS later served Wise, Tresevant’s putative father,
[1] and John Doe, to commence this action for termination of parental rights.

Rufus Timms, Wise’s DSS Adult Protective
Services caseworker, testified at the termination hearing.  Timms stated that
Wise was moved to different mental health facilities because she became unstable
and caused disruptions.  Timms stated that although Wise was employed on a couple
of occasions, she was unable to maintain employment and was fired.  He also
stated she was unable to maintain housing for herself and was never competent
after the time she came into Adult Protective Services’ custody. 

Virginia Morris, a social worker at
Richland Springs Psychiatric Hospital, testified regarding Wise’s hallucinations,
paranoia, and mood swings.   Morris stated that Wise was admitted at Richland
Springs because she was noncompliant with her medications.  Wise’s family was
not supportive of her during her hospitalization.   Yvonne Mockabee, Wise’s
social worker from Bryan Hospital, testified that she hoped that Wise would
be released from Bryan into a residential mental health facility.  Mockabee
did not believe that the residential facility allowed a patient’s children to
live there with them.

Essie Brown, Tresevant’s foster care
caseworker, testified that Tresevant remained in the same foster care home from
the time he was removed and that he was adjusting well.   Brown opined that
Wise was unable to care for Tresevant or herself, that she did not have appropriate
housing and could not obtain housing in the foreseeable future, that Wise has
been unable to maintain employment, and that Wise had failed to provide gifts
or clothes to Tresevant.   Brown admitted she had only taken Tresevant for two
or three visits with Wise in the two years he was in foster care because she
was concerned about taking him into mental health facilities. 

The family court found the minor child
had lived outside of Wise’s home for a period exceeding six months and that
Wise had willfully failed to support the child or make material contributions.  
The order noted that although DSS had failed to comply with an earlier order
to facilitate visitation between Wise and the child, the refusal to expose the
child to psychiatric facilities was nevertheless in the best interest of the
child.  The court found that Wise had failed to remedy the conditions that caused
removal and was unable to maintain employment and housing.  The court found
that Wise’s schizophrenia rendered her unlikely to provide minimally acceptable
care for Tresevant in the future.  Finally, the court found it was in the best
interest of Tresevant for Wise’s parental rights to be terminated.  Accordingly,
Wise’s parental rights were terminated.  Wise appeals.

STANDARD OF REVIEW

The best interest of the child is the paramount
consideration in a termination of parental rights case.  South Carolina Dep’t
of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 511 (Ct.
App. 2001); South Carolina Dep’t of Soc. Servs. v. Smith, 343 S.C. 129,
133, 538 S.E.2d 285, 287 (Ct. App. 2000).  “Grounds for termination of parental
rights must be proved by clear and convincing evidence.”  Hardy v. Gunter,
353 S.C. 128, 134, 577 S.E.2d 231, 234 (Ct. App. 2003) (citing Hooper v.
Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 366 (1999)).  On appeal of
a termination of parental rights case, the appellate court may review the entire
record and determine the facts according to our view of the evidence.  Richland
County Dep’t of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864,
868 (1998).  This broad scope of review, however, does not require us to ignore
the family court judge who was in a better position to view the witnesses and
assess their credibility.  Cummings, 345 at 293, 547 S.E.2d at 509.  

DISCUSSION

The family court judge relied upon three
grounds for termination of Wise’s parental rights pursuant to S.C. Code Ann.
§ 20-7-1572 (Supp. 2002): (1) Tresevant lived outside of her home for a period
exceeding six months and Wise willfully failed to support him; (2) Wise failed
to remedy the situation necessitating placement of the child; and (3) Wise’s
diagnosable condition was unlikely to improve.  Based upon these findings, the
family court ordered that it was in Tresevant’s best interest for Wise’s parental
rights to be terminated. [2]  

A.        Willful Failure to Pay
Support

The family court found that Wise willfully
failed to support or make a material contribution to Tresevant’s care pursuant
to section 20-7-1572(4).  A material contribution includes “either financial
contributions according to the parent’s means or contributions of food, clothing,
shelter, or other necessities for the care of the child according to the parent’s
means.”  S.C. Code Ann. § 20-7-1572(4) (Supp. 2002).  Whether the failure to
support a child is “willful” is a “question of intent to be determined in each
case from all the facts and circumstances.”  Hooper, 334 S.C. at 297,
513 S.E.2d at 367.  The decision that a parent has “willfully” failed to support
a child must be supported by clear and convincing evidence and a family court
is given discretion in making this determination.  Id.

Wise was never ordered to pay child support.  
She was gainfully employed on a couple of occasions for a short period of time.  
Nevertheless, she still failed to provide diapers, clothing or any other contributions
to Tresevant’s care.  Because Wise failed to provide any material contributions,
we find there is clear and convincing evidence to support the family court’s
decision to terminate Wise’s parental rights on this ground.

B.        Failure to remedy conditions

The family court found Wise failed to
remedy the conditions that led to the removal of Tresevant pursuant to section
20-7-1572(2).  This section provides as a ground for termination of parental
rights where “[t]he child has been removed from the parent pursuant to Section
20-7-610 or Section 20-7-736, has been out of the home for a period of six months 
. . . , and the parent has not remedied the conditions which caused the removal.” 
S.C. Code Ann. § 20-7-1572(2) (Supp. 2002). 

Tresevant was removed from Wise’s custody
because she appeared unable to care for herself or for a child.   Testimony
from Wise’s Adult Protective Services caseworker, her caseworker from Richland
Springs, the caseworker from Bryan Hospital, and Tresevant’s foster care caseworker
indicate that Wise could not maintain employment or suitable housing and her
condition was not likely to change in the near future.  We find there was clear
and convincing evidence that Wise failed to remedy the situation that necessitated
the original removal of Tresevant from her care and she would be unable to provide
a stable environment in the future.

C.        Diagnosable Condition

The family court found Wise’s schizophrenia,
undifferentiated type, was unlikely to change and rendered her unable to provide
minimally acceptable care for a child.  See S.C. Code Ann. § 20-7-1572(6)
(Supp. 2002) (stating as a grounds for termination where “The parent has a diagnosable
condition unlikely to change within a reasonable time including, but not limited
to,  . . . mental illness . . . , and the condition makes the parent unlikely
to provide minimally acceptable care of the child.”).

The record shows that since coming into Adult
Protective Services’ custody in 1998, Wise has been hospitalized in several
different residential facilities for treatment of her schizophrenia.  Despite
these hospitalizations, Wise was noncompliant with her medications and suffered
from audible hallucinations and paranoia.  Wise’s caseworker testified that
Wise has not been competent since she was placed in Adult Protective Services’
custody.  We conclude there was clear and convincing evidence to support the
family court’s decision to terminate Wise’s parental rights on this ground.  

CONCLUSION

After a thorough review of the briefs
and records pursuant to Ex parte Cauthen, 291 S.C. 465, 354 S.E.2d 381
(1987), we can discern no issues of arguable merit in this appeal.  There is
clear and convincing evidence to support the grounds relied upon by the family
court for termination of Wise’s parental rights.  The evidence also supports
the family court’s determination that termination of Wise’s parental rights
would be in the best interest of the child.  Accordingly, we affirm the decision
of the family court and grant counsel’s petition to be relieved as counsel. 

AFFIRMED.

HEARN, C.J., CONNOR and ANDERSON,
JJ., concur.

[1]   Allison Turner was alleged to be Tresevant’s father.  Paternity
tests revealed that Turner was not the child’s father, and he was dismissed
as a party to the termination action.

[2]   The family court also found DSS failed to facilitate visitation
between Wise and Tresevant, but that failure was nevertheless in the child’s
best interest.  Despite the great concern we have that Wise was denied her
court-ordered visitation by DSS, this issue was not relied upon by the family
court in terminating Wise’s parental rights and we need not address it here.