SC Department of Social Services v. Wise

• Court: Court of Appeals of South Carolina
• Decided: September 25, 2003
• Docket: 2003-UP-546
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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South Carolina Department of Social Services,        Respondent,

v.

Latesha Wise, Allison Turner, John Doe, whose true name is unknown and Tresevant Wise (April 20, 2000),        Defendants,

of whom Latesha Wise is        Appellant.

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Appeal From Fairfield County
Walter B. Brown, Jr., Family Court Judge

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Unpublished Opinion No. 2003-UP-546
Submitted July 15, 2003 – Filed September 25, 2003   

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AFFIRMED

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Debra A. Matthews, of Winnsboro, for Appellant

Betsy White Burton, of Winnsboro, for Respondent(s).

April Porter Counterman, of Chester, Carol Ann Tolen, of Winnsboro, for Guardian Ad Litem

PER CURIAM:   Latesha Wise appeals from the family court order terminating her parental rights to her son, Tresevant Wise.  Pursuant to Ex parte Cauthen, 291 S.C. 465, 354 S.E.2d 381 (1987), Wise’s attorney filed an affidavit asserting the appeal has no merit.  Wise’s guardian ad litem and the attorney for the South Carolina Department of Social Services (“DSS”) have also filed affidavits of no merit.  Wise’s attorney did not file an appellate brief, and Wise did not file a pro se brief.  We affirm.

FACTUAL/PROCEDURAL HISTORY

Wise was placed in the care of DSS’s Adult Protective Services on February 2, 1998, and she was later diagnosed with schizophrenia, undifferentiated type.  Admitted and released from various mental health facilities, Wise heard voices commanding her to kill someone, had periodic mood swings, and was occasionally fearful that someone was trying to poison her.   On May 25, 2000, DSS took custody of Wise’s weeks old infant son, Tresevant, when Wise appeared unable to care for herself or the child.   Wise was granted twice monthly visitation with Tresevant and ordered to attend and complete a parenting class at the merits hearing.   Wise was not ordered to pay child support at the merits hearing.  DSS later served Wise, Tresevant’s putative father, [1] and John Doe, to commence this action for termination of parental rights.

Rufus Timms, Wise’s DSS Adult Protective Services caseworker, testified at the termination hearing.  Timms stated that Wise was moved to different mental health facilities because she became unstable and caused disruptions.  Timms stated that although Wise was employed on a couple of occasions, she was unable to maintain employment and was fired.  He also stated she was unable to maintain housing for herself and was never competent after the time she came into Adult Protective Services’ custody. 

Virginia Morris, a social worker at Richland Springs Psychiatric Hospital, testified regarding Wise’s hallucinations, paranoia, and mood swings.   Morris stated that Wise was admitted at Richland Springs because she was noncompliant with her medications.  Wise’s family was not supportive of her during her hospitalization.   Yvonne Mockabee, Wise’s social worker from Bryan Hospital, testified that she hoped that Wise would be released from Bryan into a residential mental health facility.  Mockabee did not believe that the residential facility allowed a patient’s children to live there with them.

Essie Brown, Tresevant’s foster care caseworker, testified that Tresevant remained in the same foster care home from the time he was removed and that he was adjusting well.   Brown opined that Wise was unable to care for Tresevant or herself, that she did not have appropriate housing and could not obtain housing in the foreseeable future, that Wise has been unable to maintain employment, and that Wise had failed to provide gifts or clothes to Tresevant.   Brown admitted she had only taken Tresevant for two or three visits with Wise in the two years he was in foster care because she was concerned about taking him into mental health facilities. 

The family court found the minor child had lived outside of Wise’s home for a period exceeding six months and that Wise had willfully failed to support the child or make material contributions.   The order noted that although DSS had failed to comply with an earlier order to facilitate visitation between Wise and the child, the refusal to expose the child to psychiatric facilities was nevertheless in the best interest of the child.  The court found that Wise had failed to remedy the conditions that caused removal and was unable to maintain employment and housing.  The court found that Wise’s schizophrenia rendered her unlikely to provide minimally acceptable care for Tresevant in the future.  Finally, the court found it was in the best interest of Tresevant for Wise’s parental rights to be terminated.  Accordingly, Wise’s parental rights were terminated.  Wise appeals.

STANDARD OF REVIEW

The best interest of the child is the paramount consideration in a termination of parental rights case.  South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 511 (Ct. App. 2001); South Carolina Dep’t of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000).  “Grounds for termination of parental rights must be proved by clear and convincing evidence.”  Hardy v. Gunter, 353 S.C. 128, 134, 577 S.E.2d 231, 234 (Ct. App. 2003) (citing Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 366 (1999)).  On appeal of a termination of parental rights case, the appellate court may review the entire record and determine the facts according to our view of the evidence.  Richland County Dep’t of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 868 (1998).  This broad scope of review, however, does not require us to ignore the family court judge who was in a better position to view the witnesses and assess their credibility.  Cummings, 345 at 293, 547 S.E.2d at 509.  

DISCUSSION

The family court judge relied upon three grounds for termination of Wise’s parental rights pursuant to S.C. Code Ann. § 20-7-1572 (Supp. 2002): (1) Tresevant lived outside of her home for a period exceeding six months and Wise willfully failed to support him; (2) Wise failed to remedy the situation necessitating placement of the child; and (3) Wise’s diagnosable condition was unlikely to improve.  Based upon these findings, the family court ordered that it was in Tresevant’s best interest for Wise’s parental rights to be terminated. [2]  

A.        Willful Failure to Pay Support

The family court found that Wise willfully failed to support or make a material contribution to Tresevant’s care pursuant to section 20-7-1572(4).  A material contribution includes “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.”  S.C. Code Ann. § 20-7-1572(4) (Supp. 2002).  Whether the failure to support a child is “willful” is a “question of intent to be determined in each case from all the facts and circumstances.”  Hooper, 334 S.C. at 297, 513 S.E.2d at 367.  The decision that a parent has “willfully” failed to support a child must be supported by clear and convincing evidence and a family court is given discretion in making this determination.  Id.

Wise was never ordered to pay child support.   She was gainfully employed on a couple of occasions for a short period of time.   Nevertheless, she still failed to provide diapers, clothing or any other contributions to Tresevant’s care.  Because Wise failed to provide any material contributions, we find there is clear and convincing evidence to support the family court’s decision to terminate Wise’s parental rights on this ground.

B.        Failure to remedy conditions

The family court found Wise failed to remedy the conditions that led to the removal of Tresevant pursuant to section 20-7-1572(2).  This section provides as a ground for termination of parental rights where “[t]he child has been removed from the parent pursuant to Section 20-7-610 or Section 20-7-736, has been out of the home for a period of six months  . . . , and the parent has not remedied the conditions which caused the removal.”  S.C. Code Ann. § 20-7-1572(2) (Supp. 2002). 

Tresevant was removed from Wise’s custody because she appeared unable to care for herself or for a child.   Testimony from Wise’s Adult Protective Services caseworker, her caseworker from Richland Springs, the caseworker from Bryan Hospital, and Tresevant’s foster care caseworker indicate that Wise could not maintain employment or suitable housing and her condition was not likely to change in the near future.  We find there was clear and convincing evidence that Wise failed to remedy the situation that necessitated the original removal of Tresevant from her care and she would be unable to provide a stable environment in the future.

C.        Diagnosable Condition

The family court found Wise’s schizophrenia, undifferentiated type, was unlikely to change and rendered her unable to provide minimally acceptable care for a child.  See S.C. Code Ann. § 20-7-1572(6) (Supp. 2002) (stating as a grounds for termination where “The parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to,  . . . mental illness . . . , and the condition makes the parent unlikely to provide minimally acceptable care of the child.”).

The record shows that since coming into Adult Protective Services’ custody in 1998, Wise has been hospitalized in several different residential facilities for treatment of her schizophrenia.  Despite these hospitalizations, Wise was noncompliant with her medications and suffered from audible hallucinations and paranoia.  Wise’s caseworker testified that Wise has not been competent since she was placed in Adult Protective Services’ custody.  We conclude there was clear and convincing evidence to support the family court’s decision to terminate Wise’s parental rights on this ground.  

CONCLUSION

After a thorough review of the briefs and records pursuant to Ex parte Cauthen, 291 S.C. 465, 354 S.E.2d 381 (1987), we can discern no issues of arguable merit in this appeal.  There is clear and convincing evidence to support the grounds relied upon by the family court for termination of Wise’s parental rights.  The evidence also supports the family court’s determination that termination of Wise’s parental rights would be in the best interest of the child.  Accordingly, we affirm the decision of the family court and grant counsel’s petition to be relieved as counsel. 

AFFIRMED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.

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[1]   Allison Turner was alleged to be Tresevant’s father.  Paternity tests revealed that Turner was not the child’s father, and he was dismissed as a party to the termination action.

[2]   The family court also found DSS failed to facilitate visitation between Wise and Tresevant, but that failure was nevertheless in the child’s best interest.  Despite the great concern we have that Wise was denied her court-ordered visitation by DSS, this issue was not relied upon by the family court in terminating Wise’s parental rights and we need not address it here.