THE STATE OF
In The Court of Appeals
Thomas Henry Stinecipher and Hipolita Viego Stinecipher, Appellants,
Thomas Ray Ballington and Christopher Austin Ballington, a minor under the age of ten (10) years, Respondents.
C. David Sawyer, Jr., Family Court Judge
Opinion No. 4024
Heard June 15, 2005 – Filed September 12, 2005
REVERSED AND REMANDED
M. Gwyn DuBose-Schmitt, of
Lexington and Thomas M. Neal, of Columbia, for Appellants.
James B. Richardson, Jr., of
Columbia, for Respondents.
George W. Branstiter, of
Lexington, for Guardian ad Litem.
PER CURIAM: This is an appeal from a family court order declining to terminate Thomas Ray Ballington’s parental rights to his minor son, Christopher Austin Ballington (
Austin was born to Ballington and his wife, Edna, in 1995 and was three years old when the Ballingtons separated in June of 1998. After the separation, Edna brought
After Ballington was arrested for the murder, the Stineciphers took physical custody of
Three months after Edna’s murder, Ballington wrote his sister from jail and asked her to purchase several Christmas gifts for
In June of 1999, Ballington petitioned the family court for visitation of
At the termination of parental rights (“TPR”) hearing, Mr. Stinecipher testified that in the three-and-a-half years he and his wife had custody of Austin, Ballington never sent any money for Austin’s support. In fact, although Edna’s estate was worth $500,000, those funds were not available for
The family court refused to terminate Ballington’s parental rights, finding no ground for termination was proved by clear and convincing evidence. The court further ruled that there was “no way” to find termination was in
STANDARD OF REVIEW
“[I]n a TPR case, the appellate court has jurisdiction to examine the entire record to determine facts in accordance with its own view of the evidence.” Doe v. Baby Boy Roe, 353 S.C. 576, 579-80, 578 S.E.2d 733, 735 (Ct. App. 2003) (citing Richland County Dep’t of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 866 (1998)). In this examination and in our determination, the best interest of the child is our paramount consideration.
The Stineciphers argue the family court erred by not finding Ballington wilfully failed to support
Parental rights may be terminated if the child has lived outside the home of either parent for six months and, during that time, “the parent has wilfully failed to support the child.” S.C. Code Ann. § 20-7-1572(4) (Supp. 2004). According to section 20-7-1572(4):
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 wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support.
Whether the failure to support is wilful is a question of intent to be determined by the facts and circumstances of each case. S.C. Dep’t of Soc. Servs. v. Wilson, 344 S.C. 332, 335, 542 S.E.2d 580, 582 (Ct. App. 2001). Wilfulness 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.’”
In declining to find Ballington had wilfully failed to support
It is true, as the family court noted, that Mr. Stinecipher had “control” over the rents collected from the houses Ballington and Edna jointly owned. However, this control stemmed from his being the personal representative of Edna’s estate and only allowed him to collect the rents and to make repairs to the properties as necessary. Although Ballington testified at one point that he believed he was supporting Austin through the excess rents, he later admitted that Mr. Stinecipher was obligated to account for all the money collected on the houses and could only use the rent money collected to maintain the properties. Thus, Ballington’s assertion that he assumed the rent money was being used to support
As for the $500,000 in Edna’s estate, that money was not available for
Finally, although the family court noted that the Stineciphers never sought support, this factor is not determinative. Prior to 1992, parental rights could not be terminated on the ground of failure to support unless the child’s custodian requested support from the parent. However, the legislature amended section 20-7-1572(4) in 1992 so that a custodian’s request was not required, though the lack of a request could be considered along with all other relevant circumstances. S.C. Code Ann. § 20-7-1572(4) (“The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support.”); see also S.C. Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 296, 547 S.E.2d 506, 510 (Ct. App. 2001) (noting that nothing requires a parent be notified of his duty to support his child before failure to discharge this duty may serve as grounds for termination of parental rights). Thus, Ballington was not relieved of his duty to support
We therefore find clear and convincing evidence that Ballington not only failed to send any money to aid in Austin’s support, but that he actually prevented Austin from deriving the benefits of Edna’s estate. Were it only a failure to send money to Austin, we might be inclined to defer to the trial court’s determination that such a failure was not wilful; however, considering Ballington’s actions which actually impeded Austin from receiving money from his mother’s estate, we are compelled to find Ballington’s failure to provide for Austin was wilful. Finding the Stineciphers proved a ground for termination of parental rights by clear and convincing evidence, we move on to determine whether termination would be in
The Stineciphers assert that the trial court erred in failing to find TPR and adoption were in Austin’s best interest and in concluding that expert testimony was necessary to make such a finding. We agree.
If the trial court finds a proven statutory ground for TPR, it must also find the best interest of the child would be served by TPR. See Doe v. Baby Boy Roe, 353 S.C. 576, 581, 578 S.E.2d 733, 736 (Ct. App. 2003). If the child’s interests and the parent’s interests conflict, the interests of the child shall prevail. S.C. Code Ann. § 20-7-1578 (Supp. 2004); see also S.C. Dep’t of Soc. Servs. v. Vanderhorst, 287 S.C. 554, 561, 340 S.E.2d 149, 153 (1986). While the appointment of a guardian ad litem is required in TPR cases, there is no such requirement for expert testimony. S.C. Code Ann. § 20-7-1570(B) (Supp. 2004). Family court judges often determine whether TPR is in a child’s best interest without the aid of an expert.
We find persuasive evidence in the record indicating that termination of Ballington’s rights to
Based on Ballington’s wilful failure to support and because it is in
REVERSED and REMANDED.
HEARN, C.J., and BEATTY and SHORT, JJ., concur.
 This court affirmed Ballington’s conviction for murder in State v. Ballington, 346 S.C. 262, 551 S.E.2d 280 (Ct. App. 2001). According to the facts set forth in that opinion, which was part of the family court’s record, Ballington gave a statement to police confessing to murdering Edna after she told him she was planning to seek full custody of
 Shortly before the TPR hearing, Ballington had finally forfeited his interest in the estate after refusing to do so for three-and-a-half years.
 When the Stineciphers initially filed suit against Ballington in October 2000,
 Ballington did not forfeit his interest in Edna’s property and insurance until three-and-a-half years after he murdered her.
 During oral argument, Ballington’s attorney argued that sending a check to the Stineciphers would have been futile because they would not have accepted it. Such a conclusion is purely speculation, especially when letters Ballington sent to
 Because we find Ballington wilfully failed to support
 By contrast, a family court need not reach best interest when no ground for termination exists. Despite this, the family court in this case ruled on best interest even though it found no ground for TPR was proved.
 Though Ballington testified that he believed he would one day be freed from prison, the Lexington County Solicitor, Donnie Myers, testified that Ballington was serving a sentence of life without the possibility of parole.