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2004-UP-316 - SC DEpartment of Social Services v. McFarland

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.

Michael McFarland, Sr. and John Doe, and Child:  Sarah McFarland (05/05/1995) Child:  Michael McFarland, Jr., (12/04/1996),        Defendants,

of whom Michael McFarland, Sr. is        Appellant.


Appeal From Cherokee County
Wesley L. Brown, Family Court Judge


Unpublished Opinion No. 2004-UP-316
Submitted March 19, 2004 – Filed May 13, 2004


AFFIRMED


Michael Dean Hamrick, of Gaffney, for Appellant.

Meredith Brooks Moss, of Gaffney, for Respondents.  

Usha Jefferies Bridges, of Gaffney, for Guardian Ad Litem.

PER CURIAM:  Michael McFarland appeals a family court’s order terminating his parental rights. We affirm.

FACTS

Michael (Appellant) and Christine McFarland are the biological parents of Michael McFarland, Jr.  The other member of the family is Sara McFarland. [1] While the family was living in Cherokee County, the children, then age 3 and 4, were found “walking down a busy highway,” unsupervised and improperly clothed. This occurred in March of 2000. The children had wandered away from their home while Mrs. McFarland was sleeping and Appellant was at work. When confronted by the authorities, both Appellant and Mrs. McFarland admitted drug use. The family court ordered the children’s removal from the home because of a lack of supervision and because of the drug use. However, the family court granted supervised visitations to Mrs. McFarland and Appellant at the discretion of the DSS. The family court also adopted a treatment plan and ordered the McFarlands to pay child support in the amount of $32.00 per week.

On April 17, 2000, Appellant was arrested on burglary charges. [2] He tested positive for marijuana and cocaine on that day as well. While Appellant was in prison, the family court held a first Permanency Hearing in May 2001, which meeting the McFarlands attended. The family court decided to extend the plan of reunification by six months. In December of the same year, another hearing was held, where Appellant formally requested visitation with the children. The family court denied the request and ordered a plan of termination of parental rights.

By an order dated March 7, 2003, the family court terminated Appellant’s parental rights regarding both children. [3] It found that:

(a) the children have lived outside of the home of the parent for a period of six (6) months and the parent has failed to visit pursuant to S.C.Code Ann. § 20-7-1572(3); (b) the children have lived outside of the home of the parent for a period of six (6) months and the parent has willfully failed to support pursuant to S.C.Code Ann. § 20-7-1572(4); and (c) the children have been in foster care under the responsibility of the State for fifteen (15) of the last twenty-two (22) months pursuant to S.C.Code Ann. § 20-7-1572(8).

The family court ruled that the lack of support was willful, since Appellant was gainfully employed when the children were removed. [4] The family court also noted that Appellant had committed three serious felonies shortly after the children left, “voluntarily pursu[ing] course of lawlessness [leading to] his imprisonment and inability to pay child support.” The family court ruled that the termination was in the best interest of the children.

ISSUES

  1. Did the family court err in terminating Appellant’s parental rights for failure to support his children while he was in prison?

  2. Did the family court err in terminating Appellant’s parental rights for failure to visit his children while he was in prison?

LAW/ANALYSIS

“The termination of parental rights is governed by statute.” Dep’t. of Soc. Servs. v. Wilson, 344 S.C. 322, 335, 543 S.E.2d 580, 582 (Ct. App. 2001) (citing S.C.Code Ann. § 20-7-1772 (Supp. 2000)). Under § 20-7-1572, one of three conditions must be met: the child must have lived outside the home of the parent for at least six months; the court must determine that the parent has willfully failed to support the child; or the parent has willfully failed to visit the child. Id. An order terminating parental rights must be supported by clear and convincing evidence. South Carolina Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992). An appellate court is free to make its own findings as to the existence of facts, but is not required to ignore the findings from the trial court.  Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct. App. 1996).  Where the trial court’s findings are adequately supported, an appellate court should give proper deference to those findings since the trial court was able to personally observe the parties and weigh their credibility.  South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 547 S.E.2d 506 (Ct. App. 2001).

The family court terminated Appellant’s parental rights on three statutory grounds and because it found that termination was in the best interest of the children. On appeal, Appellant addresses only two of those grounds. However, “[a] 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 . . . .” § 20-7-1572 (emphasis added). Additionally, “[an] appellate court may affirm any ruling, order, or judgment upon any ground(s) in the Record on Appeal.”  Rule 220 (c), SCACR. Therefore, we affirm the family court using only statutory ground since we agree that the termination of Appellant’s parental rights serves the best interest of the children.

The facts before us clearly satisfy the requirement under § 20-7-1572(8) that the children live outside the parent’s home for fifteen of the twenty-two months preceding an order for termination. Here, the children were removed from the home on April 9, 2000 and have lived in the continuous care of DSS. The family court held the termination hearing in October 2002 and did not issue the termination order until March 2003. Therefore, the children had lived outside the home for at least thirty- six months, more than twice the required time.

As for the best interest of the children, the family court found that Appellant had a “history of domestic violence, drug use and neglect, lack of compliance with the treatment plan.” The record indicates that the authorities had already removed the children from the McFarland home on a prior occasion in 1998. Additionally, the family court noted that one of the children suffered from an illness that required expensive medication that Appellant would probably have difficulty providing. The family court also placed much emphasis on the strong bond between the children, a bond that would be at risk if the children were separated and placed in different homes. That scenario, according to DSS, was more likely to happen without the termination of Appellant’s parental rights. Given all of that evidence, plus Appellant’s long-term incarceration, we agree with the family court that the termination of Appellant’s parental rights serves the best interest of the children.

CONCLUSION

Based on the foregoing, the family court’s ruling is

AFFIRMED.

GOOLSBY, HOWARD, and BEATTY, JJ., concur.


[1] Mrs. McFarland is Sara’s biological mother, but Sara’s biological father is unknown. Mrs. McFarland has waived her parental rights to both children.

[2] Appellant was convicted on burglary charges in June 2000, and sentenced to twenty years in prison. He has been incarcerated since his arrest.

[3] By the same order, the court also terminated the rights of Mrs. McFarland and of John Doe, the biological father of Sara McFarland. 

[4] Appellant subsequently quit his job but offers no justification for that decision.