SCDSS v. C.B.

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.

C.B. and T.B., Appellants.

In the Interest of:  I.B., Date of Birth
04/23/05, a Minor Child Under the Age of 18.

Appeal From Lee County

 Marion D. Myers, Family Court Judge

Unpublished Opinion No. 2007-UP-430

Submitted October 1, 2007 – Filed October
9, 2007   

AFFIRMED

James P. Saverance, Jr., of Bishopville, for Appellant T.B., and Charles
Thomas Brooks, of Sumter, for Appellant C.B.

Deborah Truett Nielsen, of Bishopville, for Respondent.

PER CURIAM: 
C.B. (Mother) and T.B. (Father) appeal from a family court order terminating
their parental rights to I.B. (Daughter).  We affirm.[1]

FACTS

Daughter is Mother’s seventh child and Father’s twelfth.[2]  Mother does not have custody of any
of her other children, and several of Father’s children have been raised by
relatives. 

The
Department of Social Services (DSS) became involved in this case when Mother
tested positive for cocaine and marijuana during her third trimester of
pregnancy with Daughter.  DSS received a report about this drug use on March
14, 2005, and the case was indicated on April 28, 2005 for substantial risk of
physical abuse and neglect.  Daughter was born on April 23, 2005, and she was
placed into DSS custody on June 1, 2005. 

Both Mother and Father have long histories of drug abuse.  In
1995, Mother gave birth to a child who tested positive for cocaine, and in
March 2000, Mother tested positive for cocaine while she was pregnant with
another child.  At the termination of parental rights (TPR) hearing, DSS
presented two experts - Sam Tipton, a drug and alcohol counselor, and Dr.
Patrick Goldsmith, a psychologist.    

Tipton diagnosed Mother as having cocaine dependence and cannabis dependence. 
Tipton testified that, although Mother did “real well” in treatment initially,
she relapsed within a week after participating in a program in 2005 at The
Palmetto Center, an inpatient treatment facility.  Mother was tested for drugs a
few months later in early 2006, and she again tested positive for cocaine on
two occasions.  Mother was tested in August 2006 and when that test came back
positive, Mother was sent to The Charleston Center, another inpatient program. 

Dr. Goldsmith testified he met with Mother in July 2005 and
administered several psychological tests to her.  Based on these tests, he
diagnosed her with cannabis dependency, cocaine dependency, and severe mental
retardation.  He also found she had multiple stressors associated with
addiction and mental retardation.  Mother’s overall IQ was below 35, which is
in the severe range of mental retardation.  Dr. Goldsmith opined that “she will
need assistance most of her life, and that generally is not reversible.  She
might have some mental improvement if she would stop using drugs; but, I doubt
. . . her sincerity in regard to that.”  Dr. Goldsmith described Mother’s
addiction as being “as severe as anything [he’d] ever seen” and explained that
“her failed drug screens while pregnant and after removal are indicative of
severity.” 

Dr. Goldsmith also met with Father during
July 2005.  He diagnosed Father with schizophrenia, dementia due to alcoholism,
and as having severe stressors due to his complicated psychiatric problems and
marital difficulties.  Dr. Goldsmith noted Father’s addiction to alcohol was in
remission, but that he suffered permanent damage from his previous alcohol
abuse.  He stated Father reads at a second-grade level and cannot remember
three items after five minutes.  Dr. Goldsmith also noted Father was on disability
and had a guardian appointed to handle his disability fund.    

Melissa Robinson, the foster care worker for Daughter, also
testified at the TPR hearing.  Robinson acknowledged that both Mother and Father
consistently visited Daughter and brought her clothes or other items when they
came to visit.  Robinson stated that, although DSS currently had no prospective
adoptive parents for Daughter, she was “doing great” in her foster home. 
Robinson testified Mother did not complete her treatment plan, but Father had essentially
done everything DSS had asked of him.  Despite Father’s compliance with the
treatment plan, however, Robinson did not believe Father was able to care for
Daughter by himself, nor did she know of any relatives who could help care for
the child.  Robinson noted that DSS performed a home study on one of Father’s
sisters, but DSS declined to place Daughter with the sister because she had
been convicted of criminal domestic violence. 

The guardian ad litem filed a report with the family court
recommending the termination of both Mother’s and Father’s parental rights.  In
the report, the guardian noted she would rather see Daughter placed with a
relative who knew the child’s limitations, but the only relative who wanted the
child was not acceptable to DSS because of her prior conviction.  At the TPR
hearing, the guardian expressed her reluctance to terminate Father’s parental
rights, but ultimately stood by the recommendation in her report. 

The family court found Mother had a diagnosable condition that was
unlikely to change within a reasonable time; she failed to remedy conditions
leading to Daughter’s removal; and, due to the severity and repetition of
Mother’s abuse and neglect, it was unlikely her home could be made safe within
the next twelve months.  With regard to Father, the family court found he had a
diagnosable condition that was unlikely to change within a reasonable time and
that, because of the diagnosable condition, he had failed to remedy conditions
leading to Daughter’s removal.  The family court further found termination of
Mother’s and Father’s parental rights was in Daughter’s best interest.  Mother
and Father have filed separate appeals.

STANDARD OF
REVIEW

In a TPR action, the best interest of the child is the paramount consideration.  Doe
v. Baby Boy Roe, 353 S.C. 576, 578 S.E.2d 733 (Ct. App. 2003).  Before
parental rights may be irrevocably terminated, the State must prove the alleged
grounds for termination by clear and convincing evidence.  Richberg v.
Dawson, 278 S.C. 356, 296 S.E.2d 338 (1982); South Carolina Dep’t
of Soc. Servs. V. Parker, 336 S.C. 248, 519 S.E.2d 351 (Ct. App. 1999). 

On appeal in a TPR action, an appellate court has the authority to
review the entire record to make its own factual findings and to determine whether
the grounds for termination are supported by clear and convincing evidence.  South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 547 S.E.2d 506
(Ct. App. 2001).  This broad scope of review, however, does not require the
appellate court to disregard the findings of the family court, which was in a
better position to evaluate the credibility of the witnesses and to assign comparative
weight to their testimony.  Hardy v. Gunter, 353 S.C. 128, 577 S.E.2d
231 (Ct. App. 2003). 

LAW/ANALYSIS

I.  Expert
Testimony

Mother initially argues the family court erred in qualifying Sam
Tipton as an expert witness and in attaching any weight to his testimony.  We
disagree.

“To qualify as an expert, a person must have acquired by study or
practical experience a special knowledge of a subject matter about which the
[fact-finder’s] good judgment and average knowledge is inadequate.”  Manning
v. City of Columbia, 297 S.C. 451, 453-54, 377 S.E.2d 335, 337 (1989).  The
qualification of expert witnesses and the admissibility of their opinions are
matters resting within the sound discretion of the trial court.  Id. at 453, 377 S.E.2d at 336-37.  On appeal, we will not disturb the trial court’s
ruling in the absence of an abuse of that discretion and a showing of
prejudice.  Strange v. South Carolina Dep’t of Hwys. & Pub. Transp.,
307 S.C. 161, 414 S.E.2d 138 (1992).

Before being qualified as an expert in addiction counseling,
Tipton testified that he had been employed as a drug and alcohol abuse
counselor for approximately seven years.  To become a counselor, Tipton had to
complete four years of college and receive certification from the State. 
Although Tipton does not regularly testify in court, he was qualified as an
expert in another court proceeding several years prior to the TPR hearing in
this case.  Based on Tipton’s experience, education, and training, we find the
family court did not abuse its discretion in qualifying Tipton as an expert in
addiction counseling.

II. Grounds
for Termination

Next, both Mother and Father appeal from the family court’s
finding that grounds exist to terminate their parental rights.  Addressing
Mother’s arguments first, she contends the record does not contain clear and
convincing evidence that she has a diagnosable condition that is unlikely to
change within a reasonable time.  We disagree.

Section 20-7-1572(6) of the South Carolina Code provides in
relevant part as follows:

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(6) (Supp. 2006).

Here,
Mother received inpatient treatment at The Palmetto Center, and she relapsed within
a week of being released to after-care services.  Mother continued to test
positive for cocaine until August 18, 2006, two months prior to the TPR
hearing.  DSS again referred Mother for inpatient treatment, which was supposed
to last for three months, but Mother was discharged with a month.[3]  On October 6, 2006, just days before
the TPR hearing, Mother missed her scheduled appointment at another drug
rehabilitation center. 

In addition to the failed treatments during the pendency of this
action, Mother has a long history of abusing drugs and being unable to overcome
her addiction, even while pregnant or facing the termination of her parental
rights.  DSS presented evidence that Mother used cocaine during two previous pregnancies. 
Accordingly, we find no error in the family court’s determination that Mother
has a diagnosable condition that is unlikely to change within a reasonable
time.[4]

Likewise, Father contends the family court erred in finding he had
a diagnosable condition unlikely to change within a reasonable time.  Specifically,
he argues he has the mental capacity and ability to provide minimally
acceptable care for Daughter.  We disagree.

According to testimony presented at the TPR hearing, Father has a
full- scale IQ of 50.  Dr. Goldsmith testified Father reads at a second-grade
level and could not remember a list of three items after five minutes.  In
addition to these problems, Father has been diagnosed with schizophrenia and
dementia due to alcoholism. 

Father is to be commended for complying with his treatment plan;
however, his intellectual functioning is unfortunately so impaired that neither
Dr. Goldsmith nor Melissa Robinson, the foster care worker, believed Father
could parent Daughter.  Although the guardian initially expressed feeling
“conflicted” about recommending the termination of Father’s parental rights,
the family court, which actually saw and heard Father testify at the hearing,
found the evidence “overwhelmingly clear and convincing” and stated it had “no
doubt . . . that neither of [Daughter’s] two biological parents . . . are fit
and proper individuals to have custody of [Daughter].”  See Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d
476 (Ct. App. 1996) (explaining that despite the appellate court’s broad scope
of review, it should remain cognizant that the family court had the advantage
of seeing and hearing the witnesses before making findings of fact).  We find
clear and convincing evidence was presented to prove Father suffers from a
diagnosable condition that is unlikely to change within a reasonable time.

II. Best
Interest

Finally,
Mother and Father argue terminating their parental rights would not serve
Daughter’s best interest.  We disagree.

At the
time of the TPR hearing, Daughter was eighteen months old, and she had been in
foster care for all but one month of her life.  Although Mother and Father
visited frequently, the guardian testified that any harm to Daughter if her
biological parents’ rights were terminated would be “short-term” as children “rebound
very quickly.”  Furthermore, there was evidence Daughter was doing well in
foster care, and at least one potential adoptive family became disinterested
upon learning Daughter was not yet free for adoption.  Considering Daughter’s
young age and the improbability that either Mother or Father would ever be able
to care for her, we agree a long-term plan of adoption is in Daughter’s best
interest.

CONCLUSION

Based
on the foregoing, the order of the family court terminating Mother’s and
Father’s parental rights is

AFFIRMED.

HEARN, C.J., and HUFF and KITTREDGE, JJ., concur.

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

[2]  At the time of the hearing in this matter, Mother
was pregnant again. 

[3]  It is unclear from the record why Mother was
discharged, but Mother offered no proof that she had successfully completed the
program.

[4]  Having found this statutory ground established by
clear and convincing evidence, we need not address the remaining grounds relied
upon by the family court.