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
John and Jane Doe, Johnny
and Janie Roe, and Jonathan and Janet Moe, Respondents,
v.
Mother and Father, Defendants,
Of Whom Father is the Appellant.
In the interest of three minor children.
Appeal From Greenville County
Timothy H. Pogue, Family Court Judge
Unpublished Opinion No. 2009-UP-397
Heard June 24, 2009 Filed July 29, 2009
REVERSED IN PART, VACATED IN PART, AND
REMANDED
Elizabeth Burns Robertson, of Greenville, for Appellant.
Chace Damon Campbell and Robert Clark, both of Greenville, for
Respondents.
Amanda Craven, of Spartanburg, Guardian ad Litem for Children.
PER CURIAM: Father contends the family court erred
in terminating his parental rights and, thereafter, in granting the petition of
the Does, the Roes, and the Moes (Respondents) to adopt his three minor
children (Children). We reverse the termination of Father's parental rights,
vacate the adoption, and remand to the family court for a custody determination.
FACTS
Father and Mother
married in April 1998. They have three children: J.B., currently age nine;
N.B., currently age seven; and A.B., currently age four. In November 2003, while
the family was living in North Carolina, Father was arrested and incarcerated for
committing statutory rape a year earlier. In May 2004, Father was convicted
and sentenced to serve fifteen years and two months in prison.
Subsequently, Mother
and Children moved to South Carolina. In approximately December 2004, the
South Carolina Department of Social Services (DSS) intervened and placed
Children with their maternal grandparents. On March 15, 2005, the family court
conducted a hearing on the merits of removing Children from Mother. Mother
attended the hearing, but Father did not. According to the family court's
order, Father was "incarcerated in North Carolina and could not be
transported." The family court found Mother's medical and physical
neglect of Children constituted harm justifying their removal from her, and it adopted
a placement plan submitted by DSS. The placement plan's "findings of harm
justifying removal and intervention" and treatment goals related to
"removal conditions" concerned only Mother. On the other hand, findings
"justifying intervention," and goals related to those findings,
concerned Mother and Father. The family court ordered Mother to complete an
extensive placement plan and to pay child support. Grandparents received temporary
legal and physical custody of Children. In addition, the placement plan
required Father to have "no contact, direct or indirect, with [Children]
until [he] is assessed by a sex offender therapist upon release from jail."
The family court held in abeyance other findings regarding Father and determination
of Father's child support obligation. Also, the family court ordered
appointment of legal counsel and a guardian ad litem (GAL) for Father.
On September 8, 2005, the family court conducted a merits
removal hearing to review "issues pertaining to [Father]." Although Father
remained incarcerated in North Carolina, an attorney and a GAL represented him
at the hearing. The family court found "substantial risk of sexual abuse
of [Children] by [Father] based on the presence of pornography in the home"
and ordered entry of Father's name into the Central Registry of Sex Offenders.
Furthermore, the family court's order required Father to complete a
sex-offender program, "either through the North Carolina prison system"
or by contacting DSS "upon his release from prison . . . to be assessed
for a treatment plan to include sex offender therapy." The order
reiterated the court's earlier requirement that Father have no contact with
Children, direct or indirect, until he completed the sex-offender program. The
order also required Father to pay child support of $54 per week to Grandfather "upon
[Father's] release from prison."
On January 16,
2007, the family court conducted a judicial review hearing. Father, his
attorney, and his GAL were absent. The family court determined DSS
intervention services were no longer needed and authorized Grandparents to
retain physical and legal custody of Children. Furthermore, the treatment plan
stated Grandparents were "prevented from transferring custody to a third party
without prior court permission." The placement plan contained no new
provisions regarding Father. Thereafter, the family court closed DSS's case against
Mother and Father and relieved Children's GAL. The order stated child support
would continue according to its prior orders.
In April 2007,
Grandfather filed a complaint to terminate the parental rights (TPR) of Mother
and Father and a petition to adopt Children. Father responded by advising
Grandfather's attorney:
I do not intend to give up my
parental rights to my children. I want to write and see my children as quick
as I can. I appreciate my father-in-law taking care of my children, but I am
not giving up my parental rights to them.
On May 25, 2007,
Mother signed an affidavit relinquishing her parental rights and consenting to
Grandfather's adoption of Children. Mother's affidavit stated she had custody
of Children until March 15, 2005, and thereafter, Grandfather was Children's
primary caretaker.
On September 27,
2007, Father filed a motion asking the family court to deny Grandfather's TPR action
and to continue its then-existing orders regarding "custody, guardianship,
visitation, and child support." Father attached a handwritten,
fifteen-page letter explaining his relationship with Children, his
understanding of the family court's orders restraining him from contacting
Children, his remediation efforts in prison, and the reasons he did not meet
the statutory grounds for TPR set forth in Grandfather's complaint. Father
added:
[I]
know being there part-time is better than no contact at all . . . . [I] do not
feel that giving up my parental rights is the best thing for my children. I
want to be the best father I can while I am in prison then continue that
relationship when I get out and can support my children fully with continuous
contact with them.
In October 2007, Respondents
filed a motion for leave to intervene and to bring their own action for TPR and
adoption. The family court granted the motion and temporarily transferred
custody from Grandfather to Respondents. On January 9, 2008, Respondents
filed their action seeking TPR and adoption, asserting: "[D]ue to ill
health, [Grandparents] can no longer physically care for [Children]." Respondents
contended that, since August 2006, they had "provided for [Children]
financially, physically, emotionally and medically without regular financial
assistance from either parent and [had] formed a close bond with [Children]
such that [Children] [had] come to know and love [Respondents] as their primary
caregivers."
The following month, Father sent a letter to Respondents'
counsel stating: "I will not willfully relinquish my parental rights and
obligations to [Children]." Father contended Respondents' complaints
against him were inaccurate and argued he did not meet any of the alleged statutory
grounds for TPR. Specifically, Father stated he had not willfully failed to
visit or support Children, abandoned Children, or failed to remedy the
conditions leading to their removal from Mother. Father stated he had complied
with the family court's orders requiring him to have no contact with Children
until he completed the sex-offender program. Father explained:
The
problem is that program is only offered in medium custody prison. . . . I
have been trying to get my medium custody so I can take this program and be
able to take part in my children's lives.
Father also stated the family
court ordered child support "beginning 30 days after my release
from prison." Finally, Father asserted:
I did
NOT abandon my children at all. I was incarcerated for a crime and I am paying
the price for it, so by no means did I want to be separated from my children.
I love my children with all my heart and soul and it is not in my children's
best interest to be separated from each other. . . . [Grandfather] has denied
. . . my family and me any and all information concerning the status of my
children.
On May 15, 2008,
Father filed an answer denying Respondents' allegations, asking the family court
to maintain his parental rights, and, upon his release from prison, to reopen
issues of visitation, support, and custody. Moreover, Father asked the family court
to award custody and guardianship to Respondents and to require Respondents to
keep him informed regarding Children.
On June 2, 2008,
the family court conducted a final TPR hearing. At that hearing, Grandfather
testified Mother left Children with a friend, who later told DSS that Mother had
"dropped [Children] off and hadn't been around for a while."
Grandfather stated DSS contacted him in December 2004 and told him Children
would be put in foster care if he did not take them immediately. Grandfather's
custody of Children was formalized by the March 15, 2005, family court order.
Grandfather
testified that since Children had come into his custody, Father had written one
letter to them. He added: "And [the family court's] order says in part
that [Father] is to have no contact with [Children] whatsoever. So I simply
destroyed the letter." Grandfather acknowledged that shortly after
Children came to live with him, Father registered Children to participate in a "prisoner
gift program." Grandfather testified Father had sent no support to him for
Children's care; however, he later acknowledged the family court's order
specified Father's child support obligation began thirty days after his release
from prison.
Next, the family
court heard testimony from the three couples who had temporary custody of
Children. Mr. Doe testified he and Mrs. Doe met N.B. in December 2005 at
Children's childcare center, where Mrs. Doe was then working. Mrs. Doe was
present but did not testify. Mrs. Roe testified she and Mr. Roe met A.B., who
was then eighteen months old, in January 2006. Mrs. Roe explained:
[Mr.
Roe] is the uncle of [Mrs. Doe] who has [N.B.] and she works at the daycare,
and she had [A.B.] in her infant room. And she had contacted us knowing that,
you know, we did not have any children. So on and so forth. And that
[Grandparents] were having problems caring for A.B. because she was so small.
She was very active. She was 18 months at the time. And asked, you know, if
we could help out by taking her, you know, a day or two here just to help them
out because they needed help.
Mr. Roe was present but did
not testify. Mr. Moe testified he and Mrs. Moe met J.B. in August 2006 through
a mutual friend. Mr. Moe explained J.B. had been "off and on
visiting" them when Grandfather filed his TPR action in April 2007, but he
did not move into their home until October 2007. Mrs. Moe was present, but did
not testify. All of the testifying Respondents acknowledged: (1) they had
never communicated with Father; (2) after obtaining temporary custody in
October 2007, they paid all of their respective child's expenses; and (3) if
the family court denied their TPR and adoption action, they would continue to
care for the child in their custody.
Amanda Craven was
appointed as Children's GAL in the underlying DSS action, which closed in
January 2007, and in the subsequent private actions. Craven acknowledged
the family court's March 2005 and September 2005 orders stated that Children
were removed due to Mother's neglect, and the only treatment goals for Father
related to conditions "justifying intervention, but not removal."
Father's counsel asked Craven if she had "done anything to facilitate
contact between [Father] and [Children] while he's in jail." Craven
responded: "No. The court order prohibits any contact between him and
[Children]." Craven admitted: "I don't know anything about [Father's]
finances or assets."
At the close of Respondents'
evidence, Father's counsel submitted a written motion asking the family court
to dismiss the action against Father, contending clear and convincing evidence
failed to establish that Father satisfied any statutory ground for TPR. The family
court took the TPR matter under advisement and asked both parties to submit
proposed orders.
Three weeks later, the
hearing resumed. The family court found Father satisfied the following
statutory grounds for TPR: (1) Father failed to remedy the conditions that led
to Children's removal, (2) Father willfully failed to visit Children for six
months, (3) Father willfully failed to support Children for six months, and (4)
Father abandoned Children. The family court additionally found TPR was in
Children's best interest. Thereafter, the family court excused Father's
counsel and conducted the adoption hearing. Later that day, the family court
issued an order terminating Father's parental rights and another order granting
Respondents' petitions to adopt Children.
STANDARD OF REVIEW
Although "the
grounds for TPR must be proved by clear and convincing evidence," an
appellate court may examine the entire record in a TPR case "to determine
facts in accordance with its own view of the evidence." Stinecipher v.
Ballington, 366 S.C. 92, 97, 620 S.E.2d 93, 96 (Ct. App. 2005). Despite
this broad scope of review, the appellate court should not necessarily
disregard the findings of the family court because it was in a better position
to evaluate the credibility of the witnesses and to assign weight to their
testimony. Charleston County Dep't of Soc. Servs. v. Jackson,
368 S.C. 87, 95, 627 S.E.2d 765, 770 (Ct. App. 2006).
LAW/ANALYSIS
I. Statutory Grounds
for TPR
Father contends the
family court erred in finding clear and convincing evidence established he
satisfied four statutory grounds for TPR. We agree.
In South Carolina, TPR is governed by statute. The family court can order TPR only upon finding the
existence of one or more of the eleven statutory grounds and also finding TPR
is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2008). Before
terminating parental rights, the alleged statutory grounds must be proven by
clear and convincing evidence. Loe v. Mother, Father, & Berkeley County
Dep't of Soc. Servs., 382 S.C. 457, 465, 675 S.E.2d 807, 811 (Ct. App. 2009).
On appeal, this court may review the record and make its own determination of
whether the termination grounds are supported by clear and convincing
evidence. Id.
Clear
and convincing evidence is that degree of proof which will produce in the mind
of the trier of facts a firm belief as to the allegations sought to be
established. Such measure of proof is intermediate, more than a mere
preponderance but less than is required for proof beyond a reasonable doubt; it
does not mean clear and unequivocal.
Anonymous (M-156-90) v.
State Bd. of Med. Examiners, 329 S.C.
371, 374 n.2, 496 S.E.2d 17, 18 n.2 (1998) (internal citations and quotation
marks omitted).
A. Failure
to Remedy
Father argues the
family court erred in finding he failed to remedy the conditions that led to
Children's removal. We agree.
One statutory
ground for TPR addresses a parent's failure to remedy the conditions that led
to the child's removal from the parent:
The
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 . . . and the
parent has not remedied the conditions which caused the removal.
S.C. Code Ann. § 63-7-2570(2)
(Supp. 2008).
Here, DSS
recommended, and the family court ordered, that Children be removed from
Mother. The record reflects "the conditions which caused the
removal" related to Mother's neglect of Children. The family court found
no conditions pertaining to Father that merited Children's removal. Father's
imprisonment began more than a year before Children's removal. He neither
lived in the home nor exercised control over it at the time Children were
removed, or thereafter. As a result, Father had no ability to remedy the
conditions that led to Children's removal from Mother. Accordingly, the family
court erred in finding Father satisfied this statutory ground for TPR.
B. Grounds
Requiring a Finding of "Willfulness"
Father argues the
family court erred in finding he willfully failed to visit or support Children
and in finding he willfully abandoned them. We agree.
A parent's conduct
is "willful" when it demonstrates the
"settled purpose to forego parental duties" and "manifests a
conscious indifference to the rights of the child to receive support and
consortium from the parent." S.C. Dep't of Soc. Servs. v. Broome,
307 S.C. 48, 53, 413 S.E.2d 835, 839 (1992).
1. Failure
to Visit
A statutory ground
exists to terminate a parent's rights when:
The
child has lived outside the home of either parent for a period of six months,
and during that time the parent has wil[l]fully 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. § 63-7-2570(3)
(Supp. 2008) (emphasis added).
This statutory
ground for TPR requires satisfaction of two criteria: (1) the child must be
absent from the parental home for six months, and (2) during that time, the
parent willfully failed to visit the child. Father's arrest and imprisonment in
North Carolina removed him from the family's home in 2003. The record includes
a letter from Father, stating Mother brought Children to visit him in jail eight
times before she and Children moved to South Carolina. No evidence in the
record established that Father failed to communicate with Children from the
time they moved to South Carolina until they began living with Grandparents in
December 2004.
Additionally, no
evidence in the record indicates the date Mother left Children with her
friend. Children certainly "lived outside the home" of their parents
when they moved into Grandfather's home in December 2004. Grandfather
acknowledged while Children were living with him, Father arranged for them to
receive gifts through a prisoner gift program. On March 15, 2005, the family
court entered an order removing Children from Mother. By this order, the
family court also mandated Father "shall have no contact, direct or
indirect, with [Children] until [he] is assessed by a sex offender therapist
upon release from jail." Thus, after March 15, 2005, Father was prevented
by a court order from having any contact, direct or indirect, with Children.
Based on these
facts, we find the record does not establish by clear and convincing evidence
that Father, who was in prison in North Carolina, willfully failed to visit
Children for a six-month period. We find that aside from arranging gifts for
Children through a prisoner program, Father did not visit or otherwise contact
Children between the time they began living with Grandparents and entry of the
no-contact order. This period, from December 2004 to March 2005, comprises
only three months. Consequently, the family court erred in finding clear and
convincing evidence supported Father's willful failure to visit Children for
more than six months.
2. Failure
to Support
A statutory ground for TPR also exists when:
The
child has lived outside the home of either parent for a period of six months,
and during that time the parent has wil[l]fully 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 wil[l]fully 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. § 63-7-2570(4)
(Supp. 2008).
The
evidence pertaining to Father's purported failure to visit Children applies also
to his failure to support them. In both instances, the statutory clock began
to run when Children began living outside the parent's home. For the reasons
discussed above, the record indicates Children began living outside the
parental home in December 2004. The family court's order of March 15, 2005, prohibited
Father from having "any contact with Children, either direct or
indirect." That same order held in abeyance the determination of Father's
child support obligation. On September 8, 2005, the family court ruled
Father's child support obligation would not commence until thirty days
following his release from prison. This order continued to prohibit Father
having any contact, direct or indirect, with Children.
Despite
the family court's order, Respondents contend Father could have used his prison
"canteen credits" to support Children. However, no evidence
indicated those credits could be distributed as support to Children. Moreover,
the record contains no evidence Father had any disposable income. Therefore,
the family court erred in finding clear and convincing evidence supported TPR
based upon Father's willful failure to support Children for more than six
months.
3. Abandonment
Abandonment
is another ground for TPR. S.C. Code Ann. § 63-7-2570(7) (Supp. 2008). "Abandonment"
occurs when a parent "wil[l]fully deserts a child or wil[l]fully
surrenders physical possession of a child without making adequate arrangements
for the child's needs or the continuing care of the child." S.C. Code
Ann. § 63-7-20(1) (Supp. 2008). Incarceration alone, even a lengthy
incarceration, is not a ground for TPR. S.C. Dep't of Soc. Servs. v.
Ledford, 357 S.C. 371, 376, 593 S.E.2d 175, 177 (Ct. App. 2004). However, when
an incarcerated parent willfully disregards his child's wellbeing and
continuing care, the family court may find abandonment. Id. at 377, 593
S.E.2d at 177-78.
Here, after Father
was incarcerated in November 2003, Children remained in Mother's care and
custody for over a year. According to Father, he remained in contact with
Children through prison visits. No evidence established that Father willfully
deserted Children or failed to make arrangements for their care. To the
contrary, Father expected Children to live with Mother, and thereafter, he
acknowledged appreciation for Grandfather's care of Children. Furthermore,
Father wrote lengthy letters to the family court expressing his desire to remain
a part of Children's lives and asking the family court to give Respondents
permanent custody of Children, but also to require Respondents to provide
Father with information about Children. Accordingly, the family court erred in
finding clear and convincing evidence established that Father abandoned
Children.
II. Remaining Issues
Father
argues the issue of adoption was "not ripe for adjudication" until
his appeal of the TPR ruling was finally determined. He also contends the
family court violated his constitutional rights by "holding a final
adoption hearing on the heels of verbally issuing an order of [TPR]." Because
our decision to reverse the termination of Father's parental rights is
dispositive of this appeal, we need not address these issues. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a
prior issue is dispositive of the appeal).
CONCLUSION
As
to whether the family court erred in terminating Father's parental rights, we
find Respondents failed to establish by clear and convincing evidence that
Father satisfied any of the four statutory grounds for TPR. Therefore, we
reverse the family court's termination of Father's parental rights. As a
consequence of this reversal, Father's parental rights remain intact, and we vacate
the family court's order of adoption. We remand this matter to the family
court for entry of an order determining permanent custody. Children shall
remain in the custody of Respondents pending further order of the family
court.
Because
our decision on the issue of TPR is dispositive of the appeal, we need not
reach Father's remaining arguments.
Accordingly,
the order of the family court is
REVERSED IN PART, VACATED IN PART, AND REMANDED.
WILLIAMS, J., and CURETON and GOOLSBY, A.JJ., concur.