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2004-UP-313 - SC Department of Social Services v. Swindler

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


South Carolina Department of Social Services,        Respondent,

v.

Teresa Swindler, Anthony Sheppard, and Carolyn Sheppard, DOB:  2-4-92  A minor under the age of 18,        Defendants,

of whom Teresa Swindler and Anthony Sheppard are the        Appellants.


Appeal From Horry County
Lisa A. Kinon, Family Court Judge


Unpublished Opinion No. 2004-UP-313
Submitted March 8, 2004 – Filed May 13, 2004


AFFIRMED


William Issac Diggs, of Myrtle Beach, for Appellant, Teresa Swindler; John L. Martini, Jr., of North Myrtle Beach, for Appellant, Anthony Sheppard.

Ernest Joseph Jarrett, of Kingstree; for Respondent.

PER CURIAM:  The South Carolina Department of Social Services (DSS) sought to terminate the parental rights of Teresa Swindler and Anthony Sheppard to their minor child.  The family court terminated the parental rights of both parents.  We affirm.

FACTS

Swindler and Sheppard married and had one child together.  At the time of the child’s birth, Swindler and Sheppard were already separated.  They divorced in 1994 and Swindler received custody of the minor child. 

On March 2, 1998, DSS received a complaint Swindler left the minor child with strangers and could not be located.  Subsequently, DSS and Swindler entered into a safety plan, with Swindler retaining custody.  DSS received a second call in May 1998 indicating, again, that Swindler could not be located.  Beth Katzenberger, with whom Swindler had been living, informed DSS she had cared for the child for approximately two weeks without contact by Swindler.

DSS contacted Swindler’s mother, who indicated Swindler had been staying at the mother’s home, without the child. At that time, Swindler had gone to Columbia with a boyfriend.  However, Swindler’s mother did not know of Swindler’s exact whereabouts. Since Swindler could not be located, the child was taken into emergency protective custody on May 19, 1998. 

After a merits hearing, the court entered a finding that Swindler physically neglected the child and granted custody of the child to Sheppard, with supervised visits to Swindler.  Both parents were ordered to attend individual and family counseling.  Additionally, both were required to attend and complete parenting skills classes. 

Sheppard failed to actively participate in the counseling sessions and had minimal participation in the treatment plan.  In fact, he was not cooperative with DSS’s permanency plan. Further, the child began acting out sexually in school and her behavior was continuing to deteriorate.    Based upon these facts, DSS took custody of the child in November 1999, and the minor child has remained in DSS custody since that time.  Because of her “aggressive and sexually reactive behavior and agitated behavior,” the minor child was placed in a therapeutic foster home.

While the child was in foster care, DSS completed a home study of Swindler’s home and the study came back negative because she had married Anthony Swindler, a registered sex offender.  Swindler maintained visitation until her pregnancy and transportation problems caused her to stop. 

Swindler was referred to Dr. Melissa Muse for continued counseling and supervised visitation.  Dr. Muse expressed concern that Swindler would be unable to prevent the child from inappropriately touching Swindler’s other children.  Additionally, Dr. Muse was concerned that Swindler showed little ability to set and enforce boundaries for the child. 

 DSS brought this action seeking to terminate the parental rights of both Swindler and Sheppard.  DSS claimed Sheppard’s parental rights should be terminated under S.C. Code Ann §§ 20-7-1572(2), (4), (6), and (8) (Supp. 2002).  DSS sought to terminate Swindler’s parental rights under sections 20-7-1572(2), (4), and (8). 

The court determined Sheppard’s parental rights should be terminated under all sections alleged by DSS.  Specifically, the court found he: 1) had failed to provide support for a period of more than six months; 2) had a diagnosable condition unlikely to change which made him unlikely to provide acceptable care; 3) failed to properly complete the treatment plan and remedy the conditions leading to the removal of the child; and 4) the child had been in foster care for fifteen of the previous twenty-two months. 

In regards to terminating Swindler’s parental rights, the family court found:  1) she willfully failed to provide support for in excess of six months, as she had not made a single payment or offer of support in over nine months; and 2) the child has been in DSS custody for more than fifteen out of the last twenty-two months. 

Finally, the family court concluded this was a case where the interests of the parents and child were in conflict.  The court determined the child had been in DSS custody for twenty-eight months and that the best interest of the child was to terminate Sheppard and Swindler’s parental rights. 

STANDARD OF REVIEW

South Carolina Code Ann. § 20-7-1578 (Supp. 2002), 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.”  “The interests of the child shall prevail if the child’s 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 Dep’t 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)).

“Upon review, the appellate court may make its own finding from the record as to whether clear and convincing evidence supports the termination.”  Headden, 354 S.C. at 609, 582 S.E.2d at 423.  The reviewing court, however, is not required “to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.”  Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 367 (1999).

LAW/ANALYSIS

I.       Termination of Teresa Swindler’s Parental Rights

Swindler contends the court erred in terminating her parental rights pursuant to S.C. Code Ann. §§ 20-7-1572(4) and (8) (Supp. 2002).  We find there was clear and convincing evidence to support the court’s decision to terminate parental rights.

Pursuant to section 20-7-1572:

The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:

. . . .

(8) The child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months . . . .  

Swindler maintains the trial court erred in terminating her parental rights pursuant to section 20-7-1572(8), because the child was removed for unlawful reasons.  We disagree and find this section supports the court’s decision to terminate Swindler’s parental rights to her daughter.

Swindler’s main contentions are two-fold.  First, she asserts the statute requires that she be responsible for the removal of the child and subsequent need for custody by DSS, and that she contribute to the continuance of the removal.  Second, she maintains that section 20-7-1572(8) requires a showing that DSS undertook reasonable efforts to return the child but was unsuccessful due to the parent’s actions or inactions.

“All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.” Ray Bell Constr. Co. v. Sch. Dist. of Greenville County, 331 S.C. 19, 26, 501 S.E.2d 725, 729 (1998).  The stated purpose of the TPR statute “is to establish procedures for the reasonable and compassionate termination of parental rights where children are abused, neglected, or abandoned in order to protect the health and welfare of such children and make them eligible for adoption. . . .”  S.C. Code Ann. § 20-7-1560 (1976).  Furthermore, 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.”  Joiner ex. rel. Rivas v. Rivas, 342 S.C. 102, 108, 536 S.E.2d 372, 375 (2000) (quoting S.C. Code Ann.§ 20-7-1578).

A clear reading of the statute juxtaposed with its stated purpose demonstrates the legislature intended a child in the care of DSS for more than fifteen out of twenty-two months to be freed from the custody and control of their parents when it is in the child’s best interest.  The legislature did not express any further requirement to be proven. 

The child in this case had been in the care of DSS from November 3, 1999, until the date of the hearings in March 2002, or a total of twenty-eight consecutive months.  The family court found that subsection 8 was enacted to address the situation presented by Swindler’s termination. The court opined that the legislature made provisions for termination when a child was in care for fifteen of the most recent twenty-two months.  The court held the Department met its burden and showed that the minor child remained in foster care because of Swindler’s failure or inability to provide a home that was the subject of a positive home study.

Swindler failed to provide a safe home and demonstrate the necessary ability to care for the child in order to have her returned prior to the twenty-eight months she spent in foster care.  We find that termination under section 20-7-1572(8) was proper.

B.      Best Interest of Child

We find the family court properly terminated Swindler’s parental rights under § 20-7-1572(8) and find that termination of Swindler’s rights is in the minor child’s best interests. [1]   Accordingly, we affirm the family court's termination. See Doe v. Baby Boy Roe, 353 S.C. 576, 580, 578 S.E.2d 733, 735 (Ct. App. 2003); See also S.C. Code § 20-7-1572 (“The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child.”).

There is ample evidence in the record to support the conclusion that termination of Swindler’s parental rights is in the child’s best interest.  First, the reason for the child’s removal from her home was leaving the child with other people for extended periods of time while she was out of town.  Swindler’s mother indicated that Swindler would leave the child with her while she went to Columbia.

Additionally, Dr. Muse testified that Swindler was ill equipped to care for the special needs of the child.  Additionally, Dr. Muse indicated that Swindler would be unable to prevent the child from possible perpetration of sexual acts against the two younger children.  Finally, Dr. Muse indicated that Swindler’s mother put forth the most effort in counseling and therapy sessions.  Accordingly, we find the family court correctly found termination of Swindler’s parental rights was in the best interest of the minor child.

II.      Termination of Anthony Sheppard’s Parental Rights

The family court terminated Sheppard’s parental rights on four grounds. [2]   Upon reviewing the record, Sheppard’s statement, and the family court’s determination in its entirety, we find no error in the court’s decision.  The child was in foster care under the responsibility of the state continuously from November 1999 until March 2002.  Accordingly, the family court’s decision to terminate Sheppard’s parental rights is affirmed.

CONCLUSION

We find the court did not err in terminating Swindler and Sheppard’s parental rights under section 20-7-1572(8) and the termination was in the best interest of the minor child.    Accordingly, the decision of the family court is

AFFIRMED.

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


[1] This issue was not appealed.  While an unappealed ruling is normally the law of the case, see ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997), because the ruling involves the best interest of a child, this court may raise the issue ex mero motu.  Ex parte Roper, 254 S.C. 558, 563, 176 S.E.2d 175, 177 (1970); see also Galloway v. Galloway, 249 S.C. 157, 160, 153 S.E.2d 326, 327 (1967) (“The duty to protect the rights of minors has precedence over procedural rules otherwise limiting the scope of review and matters affecting the rights of minors can be considered by this court ex mero motu.”).   

[2] Pursuant to Ex Parte Cauthen, 291 S.C. 465, 354 S.E.2d 381 (1987), Sheppard’s counsel attached to the record of the family court proceedings an affidavit stating his belief that the appeal lacks merit.  Sheppard filed a response to counsel’s affidavit, indicating that he has done all he could to bring the child back home and that DSS has used his child to get money with no intention of returning the minor child.