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
Erika W. and
Rodney W., Appellants,
v.
Vanessa Lee
W., Dusty Ray S., and Emily Faith S., a minor under the age of fourteen (14)
years, Respondents.
Appeal From Cherokee County
Gerald C. Smoak, Jr., Family Court Judge
Unpublished Opinion No. 2007-UP-459
Submitted October 1, 2007 Filed October
11, 2007
REVERSED AND REMANDED
Usha Jeffries Bridges and William G.
Rhoden, both of Gaffney, for Appellants.
Dusty
Ray S., of Mooresboro; Vanessa Lee W., of Gaffney, for Respondents.
PER CURIAM: Erika W. and Rodney W. (Grandparents) brought this
action seeking to terminate the parental rights of Vanessa Lee W. (Mother) and
Dusty Ray S. (Father). Grandparents sought to adopt their granddaughter after
the termination. The family court found Mother consented to their termination
and, in its amended order, terminated her parental rights. However, the court
denied the request to terminate Fathers parental rights based on either a
failure to visit or a failure to support the child.[1]
FACTS
The child was born
in August 2000, and Mother and Father were living together at the time. In
2003, Grandparents took custody of the child. Rodney W. (Grandfather)
testified he visited the childs home in November 2003 and the child opened the
door. He was unable to wake the parents, so he took custody of the child. The
parents finally called later that afternoon. Several days later, Grandfather
called the home and Mother hung up on him. He again went to the home only to
find it had been ransacked. In the process of helping clean the house,
Grandfather found numerous items of drug paraphernalia.
A family court
order filed December 3, 2004, granted custody to Grandparents and required
Mother and Father to pay child support. Specifically, Father was ordered to
pay $50 per week in child support through the court. The order allowed
supervised visitation for the parents. Fathers visitation was supervised by
his parents.
In April 2005,
Father went to jail for violating probation for his unauthorized use of a motor
vehicle. At the same time, he was on probation in North Carolina for felony
fleeing, alluding arrest in a motor vehicle, possession of a schedule two
narcotic, driving while license is revoked, speeding, and public passing. Upon
his release in South Carolina in October 2005, he had to spend a month in jail
in North Carolina. While in jail, he sent at least one letter to his daughter,
but he did not pay any child support. He called to speak to his daughter
either while in jail or once he got out.
After he was
released, Father failed to make most of his required child support payments;
however, he had difficulty obtaining a job upon his release. In addition, he
had little to no visitation with his daughter after his release. The parties
dispute the reason for the lack of visitation.
In January 2006,
Grandparents brought this action to terminate the parental rights of Mother and
Father. The action was brought against Father on the grounds that he willfully
failed to support and willfully failed to visit his daughter for a period of at
least six months. Grandparents sought to adopt the child. Mother signed a
relinquishment of rights and consented to the adoption prior to trial. Father, pro se, contested the TPR action and the adoption.
The family court
issued an order finding Fathers failure to support and failure to visit was
not willful. The court found he was incarcerated and had difficulty obtaining
work. The family court noted he paid some child support and had regular
visitation prior to going to jail. The court denied the termination of
Mothers parental rights. The court did not address whether termination would
be in the best interest of the child.
Grandparents filed
a motion to reconsider, arguing they provided sufficient proof of Fathers
failure to support and visit. They maintained Mother voluntarily relinquished
her rights and the court should have terminated her rights. The court agreed
Mothers rights should have been terminated. However, the court found
Grandparents failed to carry their burden of proof to show Fathers failure to
support and visit was willful. The court, therefore, denied the termination of
Fathers parental rights. Again, the court did not address the best interest
of the child.
STANDARD OF REVIEW
Section
20-7-1578 of the South Carolina Code (Supp. 2005) mandates that the 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. See also Joiner
v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000) (overruling prior cases
calling for strict construction of the TPR statutes). The interests of the
child shall prevail if the childs interest and the parental rights conflict.
S.C. Code Ann. § 20-7-1578. Grounds for termination of parental rights must
be proven by clear and convincing evidence. South Carolina Dept of
Soc. Servs. v. Headden, 354 S.C. 602, 608-09, 582 S.E.2d 419, 423 (2003)
(citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982)).
In
appeals from the family court, this court may find facts in accordance with its
own view of the preponderance of the evidence. Rutherford v.
Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v.
Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct. App. 1996). However,
this broad scope of review does not require us to disregard the family courts
findings. Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616,
617 (1981). Nor must we ignore the fact that the trial judge, who saw and
heard witnesses, was in a better position to evaluate their credibility and
assign comparative weight to their testimony. Cherry v. Thomasson, 276
S.C. 524, 525, 280 S.E.2d 541, 541 (1981); Miles v. Miles, 355 S.C. 511,
516, 586 S.E.2d 136, 139 (Ct. App. 2003).
LAW/ANALYSIS
Grandparents
contend the family court erred in finding Fathers failure to visit and failure
to support his child for six months was not willful due at least in part to his
incarceration. They maintain the court used the wrong standard in considering
Fathers incarceration as a mitigating factor.
The
family court may order the termination of parental rights upon a finding of one
or more of eleven statutory grounds and a finding that termination is in the
best interest of the child. The relevant grounds in this case are:
(3) The 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 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 childs placement from the parents home must be taken into consideration
when determining the ability to visit;
(4) The 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 childs care. A material
contribution consists of either financial contribution according to the
parents means or contributions of food, clothing, shelter, or other
necessities for the care of the child according to the parents means. The
court may consider all relevant circumstances in determining whether or not the
parent has willfully 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. § 20-7-1572 (Supp. 2005).
Willful
conduct is conduct that evinces a settled purpose to forego parental duties
because it manifests a conscious indifference to the rights of the child to
receive support and consortium from the parent. S.C. Dept of Soc. Servs.
v. Broome, 307 S.C. 48, 53, 413 S.E.2d 835, 838 (1992). Whether a parent
has willfully failed to visit or support his or her child is a question of
intent to be determined from the facts and circumstances of each individual
case. S.C. Dept of Soc. Servs. v. Headden, 354 S.C. 602, 610, 582
S.E.2d 419, 423 (2003); Stinecipher v. Ballington, 366 S.C. 92, 98, 620
S.E.2d 93, 96 (Ct. App. 2005). The family court has wide discretion to make
this determination, but the element of willfulness must be established by clear
and convincing evidence. Broome, 307 S.C. at 52, 413 S.E.2d at 838.
The court may consider all relevant circumstances in determining whether or
not the parent has willfully failed to support the child, including
the
ability of the parent to provide support. S.C. Code Ann. § 20-7-1572.
Incarceration
alone is insufficient to justify TPR. See S.C. Dept of Soc. Servs.
v. Wilson, 344 S.C. 332, 337, 543 S.E.2d 580, 583 (Ct. App. 2001). In Wilson, the father was incarcerated after the birth of his three children. We
reversed the family courts grant of TPR, holding that [t]erminating the
parental rights of an incarcerated parent requires consideration of all of the
surrounding facts and circumstances in the determination of wilfullness. Id. at 340, 543 S.E.2d at 584. We noted the record was replete with evidence of not
only the fathers repeated requests to the Department to visit his children,
but the Departments active role in thwarting the fathers attempts to visit
his children. Id. at 338, 543 S.E.2d at 583.
In
the instant case, everyone acknowledges Father regularly maintained his
visitation prior to his incarceration, seeing his daughter at least once a
month until his incarceration. Upon incarceration, his efforts to maintain
contact greatly diminished. He only sent a couple letters and made a couple
phone calls. He offered no explanation for the drop off in contact. Father
asserted at the hearing that, after he was released from incarceration, he and
his grandparents attempted to obtain visitation from Grandparents. Father
claimed he was told that Grandparents had to discuss the possibility of
visitation with their attorneys. As a result, there was no visitation by
Father after he was released. The evidence is not nearly as strong as that
provided in the Wilson case. However, the family court concluded
Grandparents had not met their burden to prove by clear and convincing evidence
that the failure to visit was willful. Accordingly, the courts determination
should be given deference.
As
to the failure to support, there is significantly less evidence in Fathers
favor. He made almost no payments to Grandparents prior to the December 3
order. After the order, he made no payments through the court as required
until December 2005. In total, he only made $110 in payments, and, at the time
of the hearing, was in arrears $3,932.50. Even if the period of his incarceration
and the time he was unemployed were considered excused, he never made payments
through the court as he was supposed to prior to his incarceration. In
addition, he only made two total payments between his release in November 2005
and the hearing in May 2006.
Father
testified he made some payments to Grandparents after they first obtained
custody. He testified that he had a hard time finding employment after he was
released from incarceration. Additionally, he admitted he did not pay like I
was supposed to. Finally, he testified that he has withheld support due to
his inability to obtain visitation with his child since his incarceration.
In
looking at the family court history of payments, he has only made two payments
through the court between December 2004 and May 2006. Even if the
incarceration and the subsequent unemployment were omitted, he still went
significant periods of time without making payments of support as ordered by
the court. The only mitigating factor is the failure of the Grandparents to
show how much Father could have paid. Father admitted he was employed prior to
his incarceration and did not make payments as he should. In addition, he
admitted that, at the time of the hearing, he was making about $600 per month
and failed to provide support. Accordingly, this court finds by clear and
convincing evidence that Father failed to support his child.
When
adjudicating a TPR case, the best interests of the child are paramount. S.C.
Dept of Soc. Servs. v. Cummings, 345 S.C. 288, 298, 547 S.E.2d 506, 511 (Ct. App. 2001). Once a statutory ground has been proven, section 20-7-1572 of the South
Carolina Code (Supp. 2005) requires that the best interest of the child must be
served by termination of parental rights. Our supreme court has held that the
termination of parental rights statute should be liberally construed consistent
with the purpose to facilitate prompt adoption and the best interest of the
child. Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000).
Here,
we conclude that the issue of the best interest of the child should be remanded
to the family court for a full evidentiary hearing on this issue.
CONCLUSION
For
the foregoing reasons, we find Grandparents met their burden to show Father
willfully failed to support his child. We find the issue of the best interest
of the child should be remanded to the family court for a full evidentiary
hearing on this issue. Accordingly, the decision of the family court is
REVERSED AND
REMANDED.
HEARN, C.J., AND
ANDERSON, and THOMAS, JJ., concur.