SCDSS v. Thomas

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Social Services, Respondent,

v.

Tamara Thomas and Craig Rolen, Defendants,

of whom Craig Rolen is Appellant.

In the Interest of Savannah Rolen, DOB 6/16/01, John Doe and Jane Doe,
Respondents,

v.

Baby Girl Roe, a minor under the age of fourteen (14) years, South Carolina
Department of Social Services, Tamara Thomas, and Craig Rolen, Defendants,

of whom Craig Rolen is Appellant.

Appeal From Greenville County

 Stephen S. Bartlett, Family Court Judge

Unpublished Opinion No. 2005-UP-055

Submitted December 1, 2004 – Filed January
21, 2005   

AFFIRMED

Boyd B. Nicholson, Jr., of Greenville, for Appellant.

Rebecca Rush Wray and Robert D. Moseley, Jr., both of Greenville, for Respondents.

Carol Anne Simpson, of Greenville, for Guardian Ad Litem.

PER CURIAM:  This appeal involves the termination of the parental rights
of an incarcerated parent.  Craig Rolen (Father) appeals the family court’s
decision to terminate his parental rights and its issuance of a restraining
order against him.  We affirm. [1]

FACTS         

Father and Tamara Thomas (Mother) conceived a child
out of wedlock, Baby Girl Roe, who was born on June 16, 2001.  DSS took Baby
Girl Roe into protective custody shortly after birth because she tested positive
for crack cocaine.  Mother and Father later testified they used crack cocaine
together during the pregnancy and Mother testified that Father was addicted
to drugs and continued to use crack cocaine after the birth.  DSS placed Baby
Girl Roe in emergency foster care on June 22, 2001.  At the removal hearing,
Father agreed to a treatment plan that required him to “set and keep an appointment
to be evaluated for substance abuse by the Alcohol and Drug commission,” and
“to submit to a hair strand drug test.”  After the permanency planning hearing,
the family court ordered Father to attend a drug program.  Father failed to
comply with the treatment plan, and Baby Girl Roe remained in foster care. 

Father was on probation at the time of Baby Girl Roe’s birth; however, Father’s
probation was revoked on September 17, 2001 and he was incarcerated.  Although
the record is somewhat unclear, Father visited Baby Girl Roe on one occasion,
at most, before his incarceration.  While incarcerated, Father tried to arrange
visits, but DSS refused to allow visitation at the prison. 

On May 21, 2002, John and Jane Doe, Baby Girl Roe’s foster parents,
filed an action seeking to terminate the parental rights of Father and Mother
and to adopt Baby Girl Roe.  Several days later, DSS filed a notice of permanency
planning hearing in which it made no recommendation as to its preferred outcome. 
Father answered the Doe’s amended complaint and contested the termination of
his parental rights.  Thereafter, the family court consolidated both actions
and the case proceeded to trial on March 27, 2003. 

By order dated April 11, 2003, the family court terminated the parental rights
of Father and accepted the relinquishment of parental rights of Mother.  The
order found several grounds for terminating parental rights.  First, Father
willfully failed to visit or support the child for a period of six months. 
Second, Father had a diagnosable condition, addiction to crack cocaine, which
made him unable to provide minimally acceptable care for the child.  Third,
Baby Girl Roe had been in foster care for more than fifteen of the last twenty-two
months.  Finally, the court found termination was in the best interests of the
child. 

The family court noted Father was unable to visit or support because he was
incarcerated; however, it found he pursued a willful course of lawless conduct
that resulted in his incarceration and failed to visit or support Baby Girl
Roe during the three months he was not incarcerated.  Additionally, the court
issued a restraining order against Father, ordering him not to contact or otherwise
harass Baby Girl Roe, the foster family, Mother, or any DSS employee except
in carrying out business with DSS and the clerk of court’s office. 

Father filed a motion to reconsider, or in the alternative, to amend the judgment. 
Father contended he was unable to visit or support Baby Girl Roe due to his
incarceration, and DSS prohibited any visitation after he was incarcerated. 
Father also argued there was insufficient evidence to support the finding he
had a diagnosable condition.  The family court denied the motion.  Father appeals.  

STANDARD OF REVIEW

In a termination of parental rights (TPR) case, this court may review the record
and make its own findings whether clear and convincing evidence supports termination. 
South Carolina Dep’t of Soc. Servs. v. Parker, 336 S.C. 248, 254,
519 S.E.2d 351, 354 (Ct. App. 1999).  The appellate court has jurisdiction to
examine the entire record to determine the facts according to its 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).  However, our broad scope of review
does not require us to disregard the findings below or ignore the fact the trial
judge was in a better position to assess the credibility of the witnesses. Dorchester
County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d
476, 480 (Ct. App. 1996).

LAW/ANALYSIS

I.  Termination of Parental Rights         

Father argues the family court erred in terminating his parental
rights.  We affirm the termination of parental rights on the grounds Father
willfully failed to support his child, had a diagnosable condition that made
him unable to provide minimally acceptable care for his child, and the termination
was in the best interests of the child.

A.  Willful Failure to Support

Father argues the family court lacked clear and convincing evidence
to terminate his parental rights on the ground he willfully failed to support
Baby Girl Roe.  We disagree.
Section 20-7-1572 (Supp. 2003) of the South Carolina Code governs
TPR.  Pursuant to that section, parental rights may be terminated upon showing
one or more enumerated grounds and a finding the termination is in the best
interests of the child.  Under section 20-7-1572(4) parental rights may be terminated
where:

(4) The child has lived outside the home of either parent for a period of six
months, and during that time the parent has willfully failed to support the
child.  Failure to support means that the parent has failed to make a material
contribution to the child’s care.  A material contribution consists of 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.  The court may consider all relevant circumstances in
determining whether or not the parent has willfully failed to support the child,
including requests for support by the custodian and the ability of the parent
to provide support.

  S.C. Code Ann. § 20-7-1572 (Supp. 2003).
The statute
requires a finding of willfulness. Whether a parent’s failure to visit or support a child is willful
is a question of intent to be determined by the facts and circumstances of each
case.  South Carolina Dep’t of Soc. Servs. v. Broome, 307 S.C.
48, 52, 413 S.E.2d 835, 838 (1992).  Our supreme court defined willfulness as
“[c]onduct of the parent which evinces a settled purpose to forego parental
duties . . . because it manifests a conscious indifference to the rights of
the child to receive support and consortium from the parent.” Id. at
53, 413 S.E.2d at 839.  Generally, the family court is given wide discretion
in making this determination. However, the element of willfulness must be established
by clear and convincing evidence.  South Carolina Dep’t of Soc. Servs. v.
Wilson, 344 S.C. 332, 336, 543 S.E.2d 580, 582 (Ct. App. 2001).

Incarceration alone is an insufficient basis for termination
of parental rights.  South Carolina Dep’t. of Soc. Servs. v. Ledford, 357
S.C. 371, 376, 593 S.E.2d 175, 177 (Ct. App. 2004).  However, in Hamby v. Hamby,
264 S.C. 614, 216 S.E.2d 536 (1975), our supreme court found that voluntary pursuit
of lawlessness which results in imprisonment and inability to perform parental
duties may evince willfulness.  The court also considered the parent-child relationship and lack of contact not only during
the father’s incarceration, but also during the period before his incarceration
and during the father’s short intervening periods of freedom.  Id. at
618, 216 S.E.2d at 538.
Father argues his failure to support Baby Girl Roe was not willful
because he was incarcerated and prison policy prevented him from earning income. 
He supports his position by citing Wilson, which held an incarcerated father
did not willfully fail to support his children simply because he was incarcerated
where the father did not otherwise fail in his parental duties to support the
children or provide them with a stable home prior to his incarceration. Wilson
at 338, 543 S.E.2d at 583.

The instant case is clearly distinguishable
from Wilson.  In this case, Father failed to support Baby Girl Roe during
the approximate three-month period after her birth prior to his incarceration. 
Although employed as a truck driver, Father’s sole support of Baby Girl Roe since
her birth arose as a result of DSS garnishing $250 from his tax refund.  By his
own admission, Father knew a violation of his probation would cause him to return
to jail and he would be unable to visit or support his child.  Yet, Father chose
to violate his probation. 

We find Father’s voluntary pursuit of lawlessness
and failure to support Baby Girl Roe showed a willful intent to forego support
of her that falls within the meaning of the statute. 

B.  Diagnosable Condition

Father argues the family court lacked clear and
convincing evidence to terminate his parental rights on the ground he had a
diagnosable condition.  We disagree.  

Pursuant to section 20-7-1572(6), the family court may terminate
parental rights upon showing:

The parent has a diagnosable condition unlikely to change
within a reasonable time including, but not limited to, alcohol or drug addiction,
mental deficiency, mental illness, or extreme physical incapacity, and the condition
makes the parent unlikely to provide minimally acceptable care of the child.
It is presumed that the parent’s condition is unlikely to change within a reasonable
time upon proof that the parent has been required by the department or the family
court to participate in a treatment program for alcohol or drug addiction, and
the parent has failed two or more times to complete the program successfully
or has refused at two or more separate meetings with the department to participate
in a treatment program.

S.C. Code Ann. § 20-7-1572 (Supp. 2003)

Father testified he used crack cocaine prior to
the child’s birth and during the time after her birth when he was not incarcerated. 
Mother testified she used crack with Father during her pregnancy and after the
child’s birth.  Furthermore, Father consistently failed to complete his treatment
plan although ordered to do so, despite the fact that drug programs were available
to him while incarcerated.  Moreover, the record indicates Father had completed
a drug rehabilitation program prior to the child’s birth but had relapsed. 
In Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 106, 536 S.E.2d 372,
374 (2000), our supreme court affirmed the family court’s ruling that a parent’s
failure to respond to previous drug rehabilitative efforts meant that her diagnosable
condition was unlikely to change within a reasonable time.  Father’s admitted
drug use, his past failure to become drug free, and his failure to attend a
drug rehabilitation program despite a court order is clear and convincing evidence
that Father had a diagnosable condition, unlikely to change in a reasonable
time, that made him unable to provide minimally acceptable care for the child. 

C.  Best Interests

After finding one of the grounds for termination exists, section
20-7-1572 requires a determination that the termination is in the best interest
of the child.  In a termination of parental rights case, the best interests
of the child is the paramount consideration.  South Carolina Dep’t of Soc.
Servs. v. Parker, 336 S.C. 248, 258, 519 S.E.2d 351, 356 (Ct. App. 1999). 
“The interests of the child shall prevail if the child’s interest and the parental
interest conflicts.” S.C. Code Ann. § 20-7-1578 (Supp.  2003).  The stated purpose
of the TPR statute is as follows:

[T]o establish procedures for the reasonable and compassionate
termination of parental rights where children are abused, neglected, or abandoned
in order to protect the health and welfare of these children and make them eligible
for adoption by persons who will provide a suitable home environment and the
love and care necessary for a happy, healthful, and productive life.  

S.C. Code Ann. § 20-7-1560 (Supp. 2003).

Additionally, as we reiterated in Parker, “the Supreme Court
noted: ‘[p]arental rights do not spring full-blown from the biological connection
between parent and child.  They require relationships more enduring.’”  Parker,
336 S.C. at 259, 519 S.E.2d at 356 (quoting Caban v. Mohammed, 441 U.S.
380 (1979)). 

An enduring relationship does not exist between Father and Baby Girl
Roe.  Father made no effort to support his child, and he has not seen her since
shortly after her birth.  Father has a history of drug use, criminal behavior,
and incarceration. [2]   Baby Girl Roe’s adoptive parents have a home,
employment, and no criminal record.  Baby Girl Roe has bonded with her adoptive
parents and they are the only parents she has ever known.  Both the Guardian
ad Litem and DSS caseworker testified termination of parental rights was in
the child’s best interests.  Therefore, we find the termination of parental
rights to be in Baby Girl Roe’s best interests.

D.  Visitation

Father also argues the family court erred in finding he willfully
failed to visit his child because DSS prevented him from visiting.  We agree.

Section 20-7-1572(3) states:

The child has lived outside the home of either parent for
a period of six months, and during that time the parent has willfully failed
to visit the child.  The court may attach little or no weight to incidental
visitations, but it must be shown that the parent was not prevented from
visiting by the party having custody or by court order.  The distance of
the child’s placement from the parent’s home must be taken into consideration
when determining the ability to visit.

S.C. Code Ann. § 20-7-1572 (Supp. 2003) (emphasis added).

The family court found Father willfully failed
to visit his child under the totality of the circumstances, because his voluntary
pursuit of lawless behavior resulted in the incarceration that prevented visitation. 
Although we agree Father’s pursuit of lawlessness was willful, we must look
to the totality of the circumstances pursuant to South Carolina Dep’t of
Soc. Servs. v. Wilson, 344 S.C. 332, 543 S.E.2d 580 (Ct. App. 2001).  The
record is somewhat unclear, but clearly indicates Father visited Baby Girl Roe
in the hospital after her birth and may have visited her on one other occasion
during the three-month period when he was not incarcerated.  DSS prevented Father
from visiting with his child based solely on his incarceration.  Despite Father’s
requests, DSS would not arrange visitation at the prison.  Section 20-7-1572(3)
specifically requires a showing “that the parent was not prevented from visiting
by the party having custody” in order to terminate parental rights.  Because
we find DSS prevented visitation between Father and Baby Girl Roe, the statutory
requirement of section 20-7-1572(3) has not been met. 

E.  Foster Care Time Period

Father contends the family court erred in terminating his parental
rights on the ground Baby Girl Roe had been in foster care for more than fifteen
of the last twenty-two months.  We agree. 

Section 20-7-1572(8) allows for termination of
parental rights 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.
Code Ann. § 20-7-1572 (Supp. 2003).  Application of this statutory section usually
requires no more than a mathematical calculation.  However, in this case the
child had not been in foster care for fifteen months when the action was filed. 
Therefore, we find termination of Father’s parental rights on this ground was
in error. 

II. Restraining Order

Father argues the family court erred in
granting a restraining order against him.  We disagree.

Parties who seek a restraining order “must show
facts and circumstances entitling [them] thereto.”  Odom v. Odom, 248
S.C. 144, 147, 149 S.E.2d 353, 355 (1996).  The family court ordered Father
“not to contact, telephone, e-mail, harass, stalk, follow, or observe Plaintiffs,
the minor child, Defendant Thomas, or DSS employees upon his release from prison,
except as may be required in carrying on official business with DSS and the
Clerk of Court’s office.”  Father argues there was insufficient evidence to
support the restraining order and that the order was unduly broad because of
the inclusion of “observe.”  However, the record shows Father knew the identity,
address, and type of vehicle owned by various parties involved in the case. 
Father is also a felon and habitual drug user.  Furthermore, any reviewing court
will be presumed to read and enforce the restraining order with a degree of
common sense.  In light of these facts, we find no error in granting the restraining
order.

CONCLUSION

We affirm the termination of parental rights on the grounds Father
willfully failed to support his child, had a diagnosable condition that made
him unable to provide minimally acceptable care for his child, and the termination
was in the best interests of the child.  The family court erred in finding Father
willfully failed to visit his child and by finding the child had been in foster
care for fifteen of the most recent twenty-two months.  Sufficient facts exist
to support the restraining order.  Section 20-7-1572 only requires a single
ground to terminate a parent’s rights.

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] Father is currently under indictment for murder.