SCDSS v. Rayshana H.

• Court: Court of Appeals of South Carolina
• Decided: April 28, 2011
• Docket: 2011-UP-195
• Status: Unpublished

Opinion

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.

Rayshana H., Randall S., and John Doe, Defendants,

Of Whom Randall S. is the Appellant.

In the interest of two minor child under the age of 18.

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Appeal From Sumter County
George M. McFaddin, Jr., Family Court Judge

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Unpublished Opinion No. 2011-UP-195
Heard February 23, 2011 – Filed April 28, 2011   

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AFFIRMED

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Richard T. Jones, of Sumter, for Appellant.

Deborah Truett Nielsen, of Sumter, for Respondent.

Edgar R. Donnald, Jr., of Sumter, for Guardian ad Litem.

PER CURIAM:  Randall S. (Father) appeals from the family court's final order terminating his parental rights to his two minor children (Children).  Father argues the family court erred in (1) denying his motion for involuntary dismissal and (2) terminating his parental rights.  We affirm.

I.  Motion for involuntary dismissal

This issue is not preserved for appellate review.  After Father moved for involuntary dismissal at the close of the Department of Social Services' (DSS) case, he presented testimony from six witnesses but did not renew his motion for involuntary dismissal at the close of his case.  See Wallace v. Milliken & Co., 300 S.C. 553, 559, 389 S.E.2d 448, 451 (Ct. App. 1990) (holding an appellant waives the right to question on appeal the trial court's denial of Rule 41, SCRCP, motion when the appellant presents evidence after the initial denial of the motion and fails to renew the motion at the close of the case).     

II. Termination of parental rights (TPR)    

The grounds for TPR must be proven by clear and convincing evidence.  S.C. Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999).  "Upon review, the appellate court may make its own finding from the record as to whether clear and convincing evidence supports the termination [of parental rights]."  S.C. Dep't of Soc. Servs. v. Headden, 354 S.C. 602, 609, 582 S.E.2d 419, 423 (2003).  However, despite our broad scope of review, we are not required to disregard the findings of "the family court, who saw and heard the witnesses, [and] was in a better position to evaluate their credibility and assign comparative weight to their testimony."  Id.  The family court may order TPR upon finding one or more of eleven statutory grounds is satisfied and also finding TPR is in the best interest of the child.  S.C. Code Ann. § 63-7-2570 (2010). 

Section 63-7-2570(7) of the South Carolina Code (2010) states a statutory ground for TPR is met when "[t]he child has been abandoned as defined in section 63-7-20."  Section 63-7-20(1) of the South Carolina Code (2010) states abandonment of a child occurs when:

[A] parent or guardian 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.

Father argues he did not abandon Children because he presented evidence proving he continually provided for Children's care before and after he was imprisoned.  We disagree. 

"Conduct of the parent which evinces a settled purpose to forego parental duties may fairly be characterized as 'willful' because it 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).  The determination of whether a parent acts willfully "within the meaning of the statute is a question of intent to be determined in each case from all the facts and circumstances."  Id. at 47, 413 S.E.2d at 838.  Additionally, in order to ascertain whether a parent evinces a settled purpose to forego parental duties requires "consideration of all of the surrounding circumstances reflected in the record, including the nature of the parent-child relationship during times when the father was not incarcerated."  S.C. Dep't of Soc. Servs. v. Wilson, 344 S.C. 332, 337, 543 S.E.2d 580, 583 (Ct. App. 2001).             

On the facts presented by this case, we find clear and convincing evidence supports the family court's finding that Father abandoned Children.[1]  Here, in reviewing the surrounding circumstances reflected in the record on appeal, Father evinced a settled purpose to forgo his parental duties before and after he was imprisoned.  DSS presented multiple witnesses who testified Father failed to consistently support or visit Children during the intervening period when he was not incarcerated, and the family court made extensive factual and credibility findings in favor of these witnesses' testimony in its final order.  Additionally, after Father was imprisoned, he delayed in taking any affirmative steps to set up visitation with Children for more than a year.  Furthermore, Father demonstrated a deliberate and willful indifference to caring for Children through his decision to continue to engage in criminal activity during his intervening period of freedom.  See S.C. Dep't of Soc. Servs. v. Truitt, 361 S.C. 272, 603 S.E.2d 867 (Ct. App. 2004) (finding the statutory ground of abandonment was satisfied because of "the parent's voluntary pursuit of a course of lawlessness" that resulted in imprisonment and the parent's "flagrant indifference towards the children during intervening periods of freedom.").  Accordingly, the family court correctly found sufficient statutory grounds for TPR.           

In a TPR case, the best interests of the child are the paramount consideration.  S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000).  "The interests of the child shall prevail if the child's interest and the parental rights conflict."  S.C. Code Ann. § 63-7-2620 (2010). 

We find clear and convincing evidence in the record supports the family court's finding that termination of Father's parental rights was in Children's best interests.[2] Father will not be able to adequately support or otherwise provide for Children's continued care until 2024, when his max-out date for imprisonment occurs.  Even assuming Father is released from prison early, Father has displayed a history of abusing drugs and unstable housing, which indicates he would not be able to raise Children in a safe environment.  Lastly, Children's current foster care family expressed interest in adopting Children and terminating Father's parental rights would give Children permanence by allowing the adoption process to proceed.    See Doe v. Roe, 386 S.C. 624, 634, 690 S.E.2d 573, 579 (2010) (quoting S.C. Code Ann. § 63-7-2510 (2010)) ("Overturning the family court's decision to terminate [parent's] rights clearly conflicts with the TPR statute's purpose to make a child eligible for adoption by someone 'who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.'").  Accordingly, the family court correctly determined TPR was in Children's best interests.       

AFFIRMED.

WILLIAMS and KONDUROS, JJ., and CURETON, A.J., concur. 

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[1]  Because we find Father abandoned Children, we need not address the remaining statutory grounds for TPR.  See Stinecipher v. Ballington, 366 S.C. 92, 100 n.6, 620 S.E.2d 93, 98 n.6 (Ct. App. 2005) (stating once one statutory ground is met, this court need not address whether any other ground for TPR has been proved).  Additionally, we note while DSS did not allege the statutory grounds of either failure to support or failure to visit in its TPR complaint against Father, both grounds would have been equally applicable to the case at bar.   

[2]  Although the guardian ad litem (GAL) recommended TPR, we decline to rely on the GAL's testimony in this case.  A review of the GAL's report and the testimony of the GAL at the TPR hearing indicates the GAL declined to interview Father.  We note while Father was imprisoned, he remained one of the principal parties involved in this case and the GAL is authorized by statute to "conduct an independent assessment of the facts" and "interview persons involved in the case" on behalf of the family court.  S.C. Code Ann. § 63-11-530(B) (2010).