SCDSS v. Powell

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.

Nicole Powell and Kyle Parker, Defendants,

Of whom Nicole Powell is the Appellant.

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

Appellate Case No. 2016-002119

Appeal From Spartanburg County
Rochelle Y. Conits, Family Court Judge

Unpublished Opinion No. 2017-UP-267
Submitted May 26, 2017 – Filed June 27, 2017

AFFIRMED

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

Deborah Murdock Gentry, of Murdock Law Firm, LLC
of Mauldin; and Robert C. Rhoden, III, of the South
Carolina Department of Social Services, of Spartanburg,
both for Respondent.
John Brandt Rucker, of The Rucker Law Firm, LLC, of
Greenville, as Guardian ad Litem for Appellant.

Wendy Nicole Griffith, of Talley Law Firm, P.A., of
Spartanburg, for the Guardian ad Litem for the minor
child.

PER CURIAM: Nicole Powell (Mother) appeals the family court's order
terminating her parental rights to her minor son (Child). On appeal, Mother argues
the family court (1) lacked subject matter jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA),1 (2) erred in terminating
her parental rights, and (3) erred in finding Child's permanent plan should be
adoption without considering relative placement. We affirm.

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.

We find the family court had jurisdiction under the UCCJEA to proceed with the
termination of parental rights (TPR) action.2 Although South Carolina may not
have been Child's home state when the removal action commenced,3 the family

1
S.C. Code Ann. §§ 63-15-300 to -394 (2010).
2
This argument was not presented to the family court and is not preserved;
however, we address it because it concerns subject matter jurisdiction. See
Badeaux v. Davis, 337 S.C. 195, 205, 522 S.E.2d 835, 840 (Ct. App. 1999) ("Lack
of subject matter jurisdiction can be raised at any time, can be raised for the first
time on appeal, and can be raised sua sponte by the court." (quoting Lake v. Reeder
Constr. Co., 330 S.C. 242, 248, 498 S.E.2d 650, 653 (Ct. App. 1998))); id. ("[I]t is
the duty of this court to take notice and determine if the [f]amily [c]ourt had proper
jurisdiction for its actions.").
3
The parties acknowledged Mother moved from Alabama to South Carolina
sometime before the removal action commenced in December 2014. The only
evidence we could find in the record of when Mother and Child moved to South
court had temporary emergency jurisdiction under section 63-15-336 of the South
Carolina Code (2010) at that time. See S.C. Code Ann. § 63-15-330(A) (2010)
("Except as otherwise provided in Section 63-15-336, a court of this State has
jurisdiction to make an initial child custody determination only if: (1) this State is
the home state of the child on the date of the commencement of the
proceeding . . . .); S.C. Code Ann. § 63-15-302(7) (2010) ("'Home state' means the
state in which a child lived with a parent or a person acting as a parent for at least
six consecutive months immediately before the commencement of a child custody
proceeding. In the case of a child less than six months of age, the term means the
state in which the child lived from birth with any of the persons mentioned.");
§ 63-15-336(A) ("A court of this State has temporary emergency jurisdiction if the
child is present in this State and the child has been abandoned or it is necessary in
an emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse."). Based on the
plain language of section 63-15-336(B), we find the removal order became a final
order for purposes of the UCCJEA. See id. ("If a child custody proceeding has not
been or is not commenced in a court of a state having jurisdiction under Sections
63-15-330 through 63-15-334, a child custody determination made under this
section becomes a final determination, if it so provides and this State becomes the
home state of the child."). Child remained in South Carolina following the
removal action, and no evidence showed another state had issued orders
concerning Child or an action concerning Child was commenced in another state.
Thus, we find the removal order became a final order under the UCCJEA, and
South Carolina had jurisdiction over Child when the Department of Social Services
(DSS) filed the TPR action in November 2015.

Although Mother acknowledges she did not present evidence of any existing court
order addressing Child's custody from another state, she asserts that under South
Carolina Department of Social Services v. Tran, 418 S.C. 308, 792 S.E.2d 254 (Ct.
App. 2016), the family court should have stopped the proceeding upon learning
"there was an open case in the [s]tate of Alabama with the comparable DSS
Agency" and "the proceeding should not have moved forward without [DSS]
satisfying the family court that it had subject matter jurisdiction to proceed."
However, we find Tran distinguishable. In Tran, this court found the removal
order could not become a final order under section 16-15-336(B) because the
mother "submitted evidence of an existing out-of-state order" and DSS did not
meet its "burden of proving South Carolina ha[d] jurisdiction to proceed with [the]

Carolina was a guardian ad litem report indicating as of December 2014, Mother
and Child had lived in South Carolina for four months.
action." 418 S.C. at 318, 792 S.E.2d at 259; see also Anthony H. v. Matthew G.,
397 S.C. 447, 452, 725 S.E.2d 132, 135 (Ct. App. 2012) ("[F]or South Carolina
cases involving jurisdictional questions under the UCCJEA, if the defendant
provides evidence to the court of an existing out-of-state order, the plaintiff
assumes the burden of proving the new state has jurisdiction to issue the initial
child custody order and the issuing state has lost or declined to exercise its
jurisdiction." (emphasis added)). Here, Mother did not submit any evidence during
the hearing or on appeal that another state issued an order affecting Child. In her
brief, Mother does not allege another order existed—she merely states it could
exist. Mother has not submitted any evidence of an order or proceeding from
another state affecting Child. Thus, we find the removal order became a final
order, and the South Carolina family court had jurisdiction under the UCCJEA to
proceed with the TPR action.

Further, we find clear and convincing evidence showed Mother failed to remedy
the conditions causing Child's 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 pursuant to . . . [s]ection 63-7-1660 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 which caused the removal"). Child was removed from the
home in December 2014 after DSS received a report that Mother physically abused
Child by "grabbing his leg and jerking him around while trying to change his
diaper and punching him with her fist in the buttocks." A doctor examined the
Child's bruises and concluded they were consistent with child abuse. Ashtyn
Gardner, a DSS caseworker, testified DSS was concerned Mother may have a
mental health issue because Mother stated she was bipolar, and Mother had
threatened to harm her grandmother around the time Child was removed. Mother
testified she was admitted to the psychiatric ward around the time of removal, and
they told her she was bipolar. At the March 12, 2015 merits hearing, the family
court determined Mother physically abused Child and ordered her to complete a
placement plan that included attending parenting classes, completing a
psychological evaluation and following recommendations, and attending individual
counseling. Based on the harm Child suffered and DSS's concerns about Mother's
mental health, we find the foregoing services were reasonable and necessary
components of the placement plan. See McCutcheon v. Charleston Cty. Dep't of
Soc. Servs., 302 S.C. 338, 343, 396 S.E.2d 115, 118 (Ct. App. 1990) (providing
DSS must "identify the condition that led to the removal" and "identify appropriate
rehabilitative services"); id. at 342, 396 S.E.2d at 117 ("[I]t is imperative that the
condition which led to [the child's] removal be thoroughly explored.").
Gardner testified DSS made the appropriate referrals, but at the time of the August
27, 2015 permanency planning hearing, Mother had not obtained a psychological
evaluation, attended parenting classes, or completed individual counseling.
Although Mother eventually attended parenting classes, the evidence showed she
waited until 2016—more than a year after the removal—to begin them. Mother
was discharged from mental health treatment in December 2015 due to "[n]on-
compliance with treatment"; thus, we find the evidence shows that as of December
2015—a year after Child was removed and a month after DSS filed the TPR
action—Mother had not completed individual counseling. Although it appears
Mother sought counseling in 2016, we find Mother's delay in seeking counseling
supports affirming this ground. Most concerning, however, was Mother's failure to
obtain a psychological evaluation. Although Mother submitted a document that
she averred was a psychological evaluation, Gardner testified the document did not
"look like the typical psychological evaluation" DSS referred parents to, and DSS
did not consider it a psychological evaluation. Additionally, the family court took
judicial notice that the evaluation stated psychiatric was not assessed. Because the
psychological evaluation was necessary to address the issues causing the removal,
we find Mother's failure to submit to the evaluation supports affirming this
ground.4

Viewed from Child's perspective, we find TPR is in his best interest.5 See S.C.
Code Ann. § 63-7-2570 (Supp. 2016) (providing the family court may order TPR
upon a finding of one or more statutory ground and a finding that TPR is in the
child's best interest); S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538
S.E.2d 285, 287 (Ct. App. 2000) (providing the best interest of the child is the
paramount consideration in a TPR case); S.C. Code Ann. § 63-7-2620 (2010)
("The [interest] 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,

4
We decline to address the remaining TPR grounds. See S.C. Dep't of Soc. Servs.
v. Headden, 354 S.C. 602, 613-14, 582 S.E.2d 419, 425 (2003) (declining to
address a statutory ground for TPR after finding other grounds were met).
5
Mother did not raise this issue, but we address it because it concerns a minor
child. See S.C. Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172
(Ct. App. 2006) ("The duty to protect the rights of minors and incompetents has
precedence over procedural rules otherwise limiting the scope of review and
matters affecting the rights of minors can be considered by this court ex mero
motu.").
and not the parent's, as the primary concern when determining whether TPR is
appropriate."). Although Mother made late efforts at addressing her mental health
issues, her failure to obtain a psychological evaluation makes reunification
unlikely. Child has been in foster care for twenty-nine months and is currently
three years old; he needs stability and permanency. Gardner testified Child
appeared distant from Mother during visits. Likewise, Child's guardian ad litem
stated Child appeared unhappy during visits. Child is bonded with his foster
parents, who wish to adopt him. Thus, we find TPR is in his best interest.

Finally, we find the issue of Child's permanent plan is not properly before this
court. The permanent plan of TPR and adoption was set forth in the September 28,
2015 permanency planning order, which was a final order. See Hooper v.
Rockwell, 334 S.C. 281, 291, 513 S.E.2d 358, 364 (1999) ("[A]ny order issued as a
result of a merit hearing, as well as any later order issued with regard to a
treatment, placement, or permanent plan, is a final order that a party must timely
appeal."). Mother did not serve a notice of appeal from that order within thirty
days; thus, this court lacks jurisdiction to consider this issue. See Rule 203(b)(1),
(3), SCACR (providing a notice of appeal from a family court order "shall be
served on all respondents within thirty (30) days after receipt of written notice of
entry of the order or judgment"); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 14-15,
602 S.E.2d 772, 775 (2004) ("The requirement of service of the notice of appeal is
jurisdictional, i.e., if a party misses the deadline, the appellate court lacks
jurisdiction to consider the appeal and has no authority or discretion to 'rescue' the
delinquent party by extending or ignoring the deadline for service of the notice.").

AFFIRMED.6

LOCKEMY, C.J., and HUFF and THOMAS, JJ., concur.

6
We decide this case without oral argument pursuant to Rule 215, SCACR.