SCDSS v. Melissa S.

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.

Melissa S. and Christopher T., Defendants,

Of whom Christopher T. is the Appellant,

In the interest of minor children under the age of
eighteen.

Appellate Case No. 2012-212270

Appeal From Spartanburg County
James F. Fraley, Jr., Family Court Judge

Unpublished Opinion No. 2013-UP-328
Heard June 13, 2013 – Filed July 16, 2013

AFFIRMED

William Jeffrey McGurk, of the Law Office of W. Jeffrey
McGurk, of Spartanburg, for Appellant.

Deborah Murdock, of Murdock Law Firm, LLC, of
Mauldin, for Respondent.
Michael Todd Thigpen, of the Law Office of Michael
Todd Thigpen and Brendan M. Delaney, of the Law
Office of Delaney & Edwards, LLC; all of Spartanburg,
for Guardians ad Litem.

PER CURIAM: Christopher T. (Father) appeals the termination of his parental
rights (TPR), arguing the family court erred when it found: (1) the minor children
had been in foster care for fifteen of the previous twenty-two months; (2) due to
the severity or repetition of abuse or neglect, Father's home could not be made safe
within twelve months; and (3) Father had not substantially complied with the
South Carolina Department of Social Services's (DSS's) treatment plan. We
affirm.

STANDARD OF REVIEW

"In a TPR case, the best interest of the child is the paramount consideration."
Charleston Cnty. Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 95, 627 S.E.2d 765,
770 (Ct. App. 2006). "Before parental rights can be forever terminated, the alleged
grounds for the termination must be proven by clear and convincing evidence." Id.
"On appeal, this court may review the record and make its own determination
whether the grounds for termination are supported by clear and convincing
evidence." Id. "[W]hile retaining the authority to make our own findings of fact,
we recognize the superior position of the family court judge in making credibility
determinations." Lewis v. Lewis, 392 S.C. 381, 392, 709 S.E.2d 650, 655 (2011)
(footnote omitted). "This degree of deference is especially true in cases involving
the welfare and best interests of a minor child." Ex parte Morris, 367 S.C. 56, 62,
624 S.E.2d 649, 652 (2006). "Moreover, consistent with our constitutional
authority for de novo review, an appellant is not relieved of his burden to
demonstrate error in the family court's findings of fact." Lewis, 392 S.C. at 392,
709 S.E.2d at 655. "Consequently, the family court's factual findings will be
affirmed unless [the] appellant satisfies this court that the preponderance of the
evidence is against the finding of the [family] court." Id. (internal quotation marks
and citation omitted).

LAW/ANALYSIS

I. STATUTORY GROUNDS
Father argues the family court erred in considering the length of time the children
spent in foster care when it decided to terminate Father's parental rights. Although
he concedes the children have been in DSS custody for the statutory period, he
claims DSS caused the delay in reunification. Specifically, Father argues DSS had
no intention of returning the children to him and did not support reunification even
after Father completed his treatment plan. Father asserts DSS used the treatment
plan as a way to keep the children in DSS custody for the statutory time period.
We disagree.1

The family court can terminate a parent's rights upon a finding that TPR is in a
child's best interest and a finding that the child has been in foster care for fifteen of
the last twenty-two months. S.C. Code Ann. § 63-7-2570(8) (2010 & Supp. 2012).
"A finding [under subsection (8)] alone is sufficient to support a termination of
parental rights." S.C. Dep't of Soc. Servs. v. Sims, 359 S.C. 601, 608, 598 S.E.2d
303, 307 (Ct. App. 2004). "[T]he purpose of [this] statutory ground . . . is to
ensure children do not languish in foster care when [TPR] would be in their best
interests." Jackson, 368 S.C. at 101-02, 627 S.E.2d at 773. However, subsection
(8) cannot be used as a ground for TPR when a child remains in foster care for the
statutory period because of delays by parties other than the parents. Charleston
Cnty. Dep't of Soc. Servs. v. Marccuci, 396 S.C. 218, 227, 721 S.E.2d 768, 773
(2011) ("Where there is substantial evidence that much of the delay . . . is
attributable to the acts of others, a parent's rights should not be terminated based
solely on the fact that the child has spent greater than fifteen months in foster
care." (internal quotation marks and citation omitted)). In Marccuci, "various
continuances requested by other parties were largely the reason the child had
remained in foster care for fifteen months at the time the TPR action was
filed . . . ." Id. Thus, the Supreme Court of South Carolina held TPR should not
be granted based on subsection (8). Id. at 229, 721 S.E.2d at 774.

1
Because we find clear and convincing evidence supports this ground, we decline
to address Father's remaining arguments that the family court erred in finding that
due to the abuse or neglect, his home could not be made safe within twelve months
and that he had substantially complied with his treatment plan. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not address remaining issues on appeal
when disposition of a prior issue is dispositive).
Similarly, in Loe v. Mother, Father, and Berkeley Cnty. Dep't of Soc. Servs., DSS
admitted to causing delays that left children in foster care for the statutory period.
382 S.C. 457, 471, 675 S.E.2d 807, 814 (Ct. App. 2009). The Loe court held clear
and convincing evidence did not support TPR under subsection (8) because "the
actions of others raised barriers and caused delays that resulted in [the mother's]
children remaining in foster care beyond the statutory time . . . ." Id. at 469, 675
S.E.2d at 813. However, S.C. Dep't of Soc. Servs. v. Sarah W. clarified that TPR
under subsection (8) could be upheld when "the delay in reunification of the family
unit is attributable not to mistakes by the government, but to the parent's inability
to provide an environment where the child will be nourished and protected." 402
S.C. 324, 336, 741 S.E.2d 739, 746 (2013). In Sarah W., the facts "show[ed]
prolonged foster care [was] because of valid court findings [and] that reunification
of the family unit was not in the children's best interests." Id. at 338, 741 S.E.2d at
747.

Here, the children were removed from Father's home pursuant to a June 11, 2008
court order and have been in foster care since that date. Father did not provide any
evidence the delays in reunification were caused by DSS or another party.
Although the DSS caseworker and the Guardian ad Litem (the GAL) admitted they
supported TPR despite Father's completion of his treatment plan, this testimony
does not prove there was an intent to prevent reunification. Instead, the record
reflects that the children remained in foster care because the family court found, in
four valid orders stemming from separate permanency planning hearings, that
Father had not yet complied with his treatment plan. Father's failure to comply
with his treatment plan is the reason the children were not returned to him prior to
2011; thus, he cannot argue the actions of DSS caused this delay in reunification.
Accordingly, we hold the statutory requirement of section 63-7-2570(8) has been
satisfied by clear and convincing evidence. S.C. Code Ann. § 63-7-2570(8)
(2010).

II. BEST INTEREST
Although the best interest of the children was not raised in Father's brief, we have
the authority and duty to address it. "[P]rocedural rules are subservient to the
court's duty to zealously guard the rights of minors." Joiner ex rel. Rivas v. Rivas,
342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000). "'[W]here the rights and best
interests of a minor child are concerned, the court may appropriately raise, ex mero
motu, issues not raised by the parties.'" Id. (quoting Ex parte Roper, 254 S.C. 558,
563, 176 S.E.2d 175, 177 (1970)).
"The termination of the legal relationship between natural parents and a child
presents one [of] the most difficult issues [our appellate courts are] called upon to
decide." S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d 642,
645 (2005). "We exercise great caution in reviewing termination proceedings and
will conclude termination is proper only when the evidence clearly and
convincingly mandates such a result." Id. "In cases involving the termination of
parental rights, there exist two, often competing, interests: those of the parents and
those of the child." Id. "Parents have a fundamental interest in the care, custody,
and management of their children." Id. "Parental rights warrant vigilant protection
under the law and due process mandates a fundamentally fair procedure when the
state seeks to terminate the parent-child relationship." Id. "However, a child has a
fundamental interest in terminating parental rights if the parent-child relationship
inhibits establishing secure, stable, and continuous relationships found in a home
with proper parental care." Id. "In balancing these interests, the best interest of the
child is paramount to that of the parent." Id. at 626-27, 614 S.E.2d at 645.
"Appellate courts must consider the child's perspective, and not the parent's, as the
primary concern when determining whether TPR is appropriate." Sarah W., 402
S.C. at 343, 741 S.E.2d at 749-50.

Here, the children were removed from Father's home in 2008 because of a
stipulated instance of physical abuse. Between the 2008 removal and the TPR
hearing in 2011, the family court held four permanency planning hearings. At each
permanency planning hearing, the family court determined the children should not
be returned to Father's custody. At the TPR hearing, the GAL and the DSS
caseworker concluded TPR was in the best interest of the children. Additionally,
the psychologist's report concluded:

Based on the psychological considerations from this
evaluation, it seems with a reasonable degree of
certainty, [Father] is likely to have continued difficulties
in effectively providing for the emotional and educational
needs of his four children independently. If [Father] and
[Mother] were to separate and he was awarded custody of
any or all of his children, careful DSS/guardian ad litem
monitoring would be essential for the safety of the
children. Based on the history and psychological
findings, even such monitoring could not assure basic
safety, based on the present environmental
circumstances.
The record also indicates Father has a long history of anger and aggression. He
was ordered to complete one set of anger management and parenting classes prior
to the 2008 removal. Holly Bailey, who worked for the Playworks agency, which
makes home visits to serve special needs children, testified that on one occasion
she found the children locked in their room with a crude device and explained to
Father and Mother this was a fire hazard. However, Bailey stated the device was
not removed for another two or three weeks. Additionally, Father left threatening
messages on Bailey's phone, and Playworks ceased to work with Father's family
because of noncompliance and a "concern for [their] safety" due to Father's
behavior. When the children were removed from the home, Father threw an object
at a police car in which two of his children were riding and then chased the police
car in his truck until it arrived at a children's shelter.

Even after the completion of his second set of anger management courses, Father
continued to display aggression. In May 2011, Father allegedly drove off while
Mother was leaning against his truck, causing Mother to fall to the ground. In
another instance, Father was arrested for breaking Mother's screen door.
Therefore, even after the completion of two anger management courses, Father
continued to display characteristics that would put his children at risk if they were
placed back in his custody.

As to the children's status during the TPR hearing, the DSS caseworker testified all
the children were in pre-adoptive homes and there were plans for the children to
visit one another. According to the caseworker, adoption was "definitely in the
children's best interest," and the children were "not the same children that came
[into] [foster] care." See id. at 338, 343-44, 741 S.E.2d at 747, 750 (stating when
children were in prolonged foster care because of valid court findings and an
adoptive family stepped forward to provide a stable environment, the court would
not contribute to further delay). The DSS caseworker explained the children had
made marked progress while in foster care, and were now under control, respectful,
and well-mannered. By contrast, the DSS caseworker stated when the children
entered foster care, they were "totally out of control" to an extent she had not seen
before, and their behavior reverted to "more out of control" during supervised
visits. The DSS caseworker opined Father could not address the children's special
needs and did not believe they would be taken care of if returned to Father.
Therefore, allowing the children to be adopted would provide them with the
stability and necessary specialized care they would lack in Father's care. See id. at
343, 741 S.E.2d at 749-50 ("Appellate courts must consider the child's
perspective, and not the parent's, as the primary concern when determining whether
TPR is appropriate."). For these reasons, we find clear and convincing evidence
exists to show TPR is in the children's best interest.

CONCLUSION

The family court's order terminating Father's parental rights is

AFFIRMED.

FEW, C.J., and GEATHERS and LOCKEMY, JJ., concur.