SCDSS v. Rivera

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.

Carmen Subia and Raymond Rivera, Defendants,

Of whom Raymond Rivera is the Appellant.

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

Appellate Case No. 2016-001663

Appeal From Chester County
Coreen B. Khoury, Family Court Judge

Unpublished Opinion No. 2017-UP-187
Submitted March 29, 2017 – Filed April 27, 2017

AFFIRMED

Melinda Inman Butler, of The Butler Law Firm, of
Union, for Appellant.

Vanessa Cason, of Greenville, and Emily McRee
Sordian, of Winnsboro, both for Respondent.
Susan Margaret Johnston, of Columbia, for the Guardian
ad Litem.

PER CURIAM: Raymond Rivera (Father) appeals an order terminating his
parental rights to his two-year-old daughter (Child). On appeal, Father argues the
family court erred in finding (1) he failed to remedy the conditions causing Child's
removal, (2) he failed to support Child, and (3) termination of parental rights
(TPR) was in Child's best interests. We affirm.1

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.

"Because terminating the legal relationship between natural parents and a child is
one of the most difficult issues an appellate court has to decide, great caution must
be exercised in reviewing termination proceedings and termination is proper only
when the evidence clearly and convincingly mandates such a result." S.C. Dep't of
Soc. Servs. v. Roe, 371 S.C. 450, 455, 639 S.E.2d 165, 168 (Ct. App. 2006). The
family court may order TPR upon finding a statutory ground for TPR is satisfied
and TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2016).
The grounds for TPR must be proved by clear and convincing evidence. S.C. Dep't
of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999).
TPR statutes "must be liberally construed in order to ensure prompt judicial
procedures for freeing minor children from the custody and control of their parents
by terminating the parent-child relationship." S.C. Code Ann. § 63-7-2620 (2010).

We find clear and convincing evidence showed Father failed to remedy the
conditions causing removal. See S.C. Code Ann. § 63-7-2570(2) (Supp. 2016)
(providing a statutory ground for TPR is met when "[t]he child has been removed
from the parent . . . and has been out of the home for a period of six months
following the adoption of a placement plan by court order or by agreement
between [DSS] and the parent and the parent has not remedied the conditions

1
The family court also terminated the parental rights of Carmen Subia (Mother); she
has not appealed.
which caused the removal"). Child was removed after she and Mother tested
positive for drugs at Child's birth, and Father tested positive for drugs following
Child's removal. Thus, Father had to remedy his drug addiction before
reunification could be possible. Despite agreeing on March 5, 2014, to attend drug
treatment and being ordered on April 4, 2014, to attend drug treatment, Father
waited until December 2014—more than six months—to begin inpatient treatment.
Although Father successfully completed inpatient treatment in January 2015, he
refused to submit to random drug tests after March 23, 2015. Although Father
avers he missed the March 23 drug test due to lack of transportation, his lack of
transportation for that test does not explain why he told DSS he would no longer
submit to any drug test. Father's refusal to submit to random drug testing made it
difficult for DSS to discern whether he remedied his drug addiction and thus
whether Child could be safely returned to his home. Thus, Father's refusal to
submit to random drug testing was sufficient for the family court to find he failed
to remedy the conditions causing removal.

Additionally, clear and convincing evidence showed Father willfully failed to
support Child. See § 63-7-2570(4) (providing a statutory ground for TPR exists
when "[t]he child has lived outside the home of either parent for a period of six
months, and during that time the parent has wilfully 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
wilfully failed to support the child, including requests for support by the custodian
and the ability of the parent to provide support."); Parker, 336 S.C. at 256, 519
S.E.2d at 355 ("Whether a parent's failure to visit or support a child is 'willful' . . .
is a question of intent to be determined from all the facts and circumstances in each
case."). Viewing the support offered in its entirety, we find Father did not provide
material support according to his means. Father testified he was a contractor, and
there is no indication he was disabled or otherwise unable to work.
Notwithstanding that, Felicia Mills, a DSS caseworker, testified Father provided
food or clothing at only eight visits between February 2014 and June 2016. Wanda
Rogers Vanderford, another DSS caseworker, testified Father provided blankets
and clothes in March 2014; a teething ring, snacks, and twenty-five dollars in
December 2014; a stuffed animal in July 2015; a purse and stuffed animals in
September 2015; some toys in March 2016; clothes, pudding, and hand-picked
flowers in April 2016; and food and toys in June 2016. We find the foregoing does
not constitute material support.
Further, Father did not offer valid reasons for not providing more support.
Although Father stated life was "a struggle," he never averred he was financially
unable to provide more support. Rather, he testified he did not provide more
support because Child was on WIC, Child never wore the clothes Father provided,
and no one told him what Child needed. However, Father could have provided
monetary support—in fact, Father sent Child twenty-five dollars in December
2014, which showed he knew how to send money to her.2 Thus, Father did not
offer valid reasons for not providing more support, and we find his failure to
provide material support was willful. See Parker, 336 S.C. at 256, 519 S.E.2d at
355 ("Whether a parent's failure to visit or support a child is 'willful' . . . is a
question of intent to be determined from all the facts and circumstances in each
case.").

Finally, viewed from Child's perspective, we find TPR is in her best interest. See
S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct.
App. 2000) ("In a [TPR] case, the best interests of the [child is] the paramount
consideration."); § 63-7-2620 (2010) ("The interests of the child shall prevail if the
child's interest and the parental rights conflict."); S.C. Dep't of Soc. Servs. v. Sarah
W., 402 S.C. 324, 343, 741 S.E.2d 739, 749-50 (2013) ("Appellate courts must
consider the child's perspective, and not the parent's, as the primary concern when
determining whether TPR is appropriate."). Father's refusal to submit to drug
screens after March 2015 left DSS with no way to determine whether he had
remedied his drug condition and could care for Child; in light of that, it is
questionable whether he remedied his drug addiction such that he can provide a
suitable home for Child.

Further, the testimony showed Child was not bonded with Father. Although
Father's limited visitation likely impacted his bond with Child, Father did not avail
himself of every visit. Vanderford stated Father did not visit between November
2014 and March 2015; visited twice in March 2015; and did not visit between May
and July 2015. Mills stated Father attended five of twelve visits since she became
the caseworker in January 2016, and he missed visits on January 11, January 18,
February 15, March 7, May 2, May 16, and May 23. Father's visitation was
sporadic and inconsistent, and Child was not bonded with Father. Based on the
lack of bonding between Child and Father, the unlikelihood Father can provide a

2
Father testified he sent Child twenty-five dollars and four ten-dollar money orders
while he was in treatment. Regardless of whether Father sent twenty-five dollars
or sixty-five dollars, we find it is not a sufficient amount over a two-year period to
constitute material support.
suitable home, and Child's need for stability, we find TPR is in her best interest.
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 . . . .").

AFFIRMED.3

GEATHERS, MCDONALD, and HILL, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.