SC DEPT. OF SOCIAL SERVICES v. Smith

538 S.E.2d 285, 343 S.C. 129
CourtCourt of Appeals of South Carolina
DecidedOctober 9, 2000
Docket3251
StatusPublished

This text of 538 S.E.2d 285 (SC DEPT. OF SOCIAL SERVICES v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SC DEPT. OF SOCIAL SERVICES v. Smith, 538 S.E.2d 285, 343 S.C. 129 (S.C. Ct. App. 2000).

Opinion

343 S.C. 129 (2000)
538 S.E.2d 285

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent,
v.
Nicole N. SMITH, Alexander Camn, Anthony Gilmore, and Nicole Octavia Smith, DOB: 10-09-89, and Vincent Antonio Davis, DOB: 4-7-92, minors under the age of fourteen (14) years, of whom Nicole N. Smith is the, Appellant.

No. 3251.

Court of Appeals of South Carolina.

Heard September 13, 2000.
Decided October 9, 2000.
Rehearing Denied December 18, 2000.

*132 D. Cravens Ravenel, of Baker, Ravenel & Bender, of Columbia, for appellant.

Lyn Howell Hensel, of SC Department of Social Services, of Columbia, for respondent.

Guardian ad Litem: Elisabeth C. Gallant, of Columbia.

HUFF, Judge:

Nicole N. Smith appeals a family court order terminating her parental rights to her minor children, Nicole Octavia Smith and Vincent Davis. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

The South Carolina Department of Social Services removed Smith's children from the home in February of 1995. They were subsequently returned to her care. On August 15, 1995, the family court issued an ex parte order granting DSS *133 emergency protective custody of the children. The order stated Smith was incarcerated and the children were in the custody of an aunt who may be involved in drugs. In addition, the order stated Smith had tested positive for drugs in June of 1995 after being ordered to remain drug free. The family court consolidated the February, 1995 action with the August, 1995 action. The children have remained in the custody of DSS since their removal in August of 1995.

On January 15, 1997, DSS filed a complaint seeking termination of Smith's parental rights. Following a three day hearing on the matter, the family court determined Smith's parental rights to the children should be terminated. The court found the children had lived outside of Smith's home for a period of six months and Smith had wilfully failed to visit or support them. In addition, the family court found the children were removed from Smith pursuant to S.C.Code Ann. Section 20-7-736 for at least six months and, despite DSS's reasonable and meaningful efforts to provide appropriate rehabilitative services, Smith failed to remedy the conditions that caused removal. Accordingly, the family court terminated Smith's rights to the children and ordered DSS to submit a plan for permanent placement of the children.

LAW/ANALYSIS

1. Standard of Review

In a termination of parental rights case, the best interests of the children are the paramount consideration. South Carolina Dep't of Social Servs. v. Vanderhorst, 287 S.C. 554, 340 S.E.2d 149 (1986); South Carolina Dep't of Social Servs. v. Richardson, 298 S.C. 130, 378 S.E.2d 601 (Ct.App. 1989). A decision by the family court to terminate parental rights must be supported by clear and convincing evidence. Hopkins v. South Carolina Dep't of Social Servs., 313 S.C. 322, 437 S.E.2d 542 (1993). On appeal, this court may review the record and make its own findings as to whether clear and convincing evidence supports termination. South Carolina Dep't of Social Servs. v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992); South Carolina Dep't of Social Servs. v. O'Banner, 291 S.C. 253, 353 S.E.2d 151 (Ct.App.1987). Due deference, however, is accorded the decision of the family court judge, who *134 saw and heard the witnesses and is in a better position to evaluate their credibility and assign comparative weight to their testimony. Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999); see also Aiken County Dep't of Social Servs. v. Wilcox, 304 S.C. 90, 93, 403 S.E.2d 142, 144 (Ct.App.1991) ("[W]here the evidence presented in the record adequately supports the findings of the trial judge, due deference should be given to his judgment based on his superior position in weighing such evidence. This is especially true in cases involving the welfare and best interests of children.") (citations omitted).

2. Jurisdiction

Smith asserts the family court and DSS lacked jurisdiction under S.C.Code Ann. § 20-7-736 by virtue of a failure to find abuse or neglect following the removal of the children from Smith's home.[1] She argues, because no finding of abuse or neglect was ever made, the children were improperly removed under § 20-7-736(F) and the court, therefore, was deprived of jurisdiction. We disagree.

We first note Smith cites no authority for the proposition that, following removal of a child from the home of a parent, a failure by the court to make a finding of abuse or neglect deprives the family court of jurisdiction in a subsequent *135 termination of parental rights action. The law provides the family court has exclusive jurisdiction over all proceedings involving the termination of parental rights. S.C.Code Ann. § 20-7-1562 (Supp.1999). We are aware of no provision divesting the court of that jurisdiction based on alleged improper removal of a child. Further, whether or not there was no finding of abuse or neglect is questionable. In an order dated May 22, 1997, the family court stated, "That there has been no finding of abuse or neglect in this case and this order shall so reflect." However, in an unchallenged order dated September 21, 1995, the family court found, by a preponderance of the evidence, physical neglect of the children.[2] Finally, assuming arguendo the May 1997 order supersedes the September 1995 order and there was therefore no finding of abuse or neglect, we hold the lack of such a finding in this case did not deprive the family court of jurisdiction over a proceeding for termination of Smith's parental rights. In an unappealed order dated December 10, 1996, Smith consented to DSS retaining custody of her children. She therefore acquiesced in the placement of her children in the care of DSS, and the initial reason for removal is irrelevant. Accordingly, we find no jurisdictional defect.

3. Failure to visit or support

The termination of parental rights is governed by statute. South Carolina Code Ann. § 20-7-1572 provides for termination upon the family court's finding at least one of several grounds and that termination is in the best interest of the child. Here, the family court found evidence to sustain the following statutory grounds for termination:

(2) The child has been removed from the parent pursuant to 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;

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Related

South Carolina Department of Social Services v. Vanderhorst
340 S.E.2d 149 (Supreme Court of South Carolina, 1986)
Jackson v. Speed
486 S.E.2d 750 (Supreme Court of South Carolina, 1997)
Aiken County Department of Social Services v. Wilcox
403 S.E.2d 142 (Court of Appeals of South Carolina, 1991)
Hooper v. Rockwell
513 S.E.2d 358 (Supreme Court of South Carolina, 1999)
South Carolina Department of Social Services v. Broome
413 S.E.2d 835 (Supreme Court of South Carolina, 1992)
Thomas R. v. South Carolina Department of Social Services
313 S.E.2d 350 (Court of Appeals of South Carolina, 1984)
Beattie v. Aiken County Department of Social Services
462 S.E.2d 276 (Supreme Court of South Carolina, 1995)
Whitner v. State
492 S.E.2d 777 (Supreme Court of South Carolina, 1997)
South Carolina Department of Social Services v. O'Banner
353 S.E.2d 151 (Court of Appeals of South Carolina, 1987)
South Carolina Department of Social Services v. Richardson
378 S.E.2d 601 (Court of Appeals of South Carolina, 1989)
Hopkins v. South Carolina Department of Social Services
437 S.E.2d 542 (Supreme Court of South Carolina, 1993)
South Carolina Department of Social Services v. Smith
538 S.E.2d 285 (Court of Appeals of South Carolina, 2000)

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Bluebook (online)
538 S.E.2d 285, 343 S.C. 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sc-dept-of-social-services-v-smith-scctapp-2000.