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2004-UP-657 - SCDSS v. Cannon

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.

Carlos Cannon,

In the Interest Of: Kelli Marie Cannon (DOB: 10/11/01)

A Minor Under the Age of 18        Appellant.


Appeal From Greenville County
Stephen S. Bartlett, Family Court Judge


Unpublished Opinion No. 2004-UP-657
Submitted December 1, 2004 – Filed December 28, 2004


AFFIRMED


Thomas L. Bruce, of Greenville, for Appellant.

Rebecca Rush Wray, of Greenville, for Respondent.

PER CURIAM: Carlos Cannon appeals a family court order terminating his parental rights to his minor child, Kelli Cannon.  We affirm.

FACTS

Carlos Cannon and Pepper Smith are the biological parents of the minor child, Kelli Cannon.  Kelli was born on October 11, 2001.  In January 2002, Kelli was placed in foster care due to severe abuse by Smith.  Subsequently, the family court, by order dated November 7, 2002 (the November order), terminated Smith’s parental rights to Kelli and further concluded that Cannon had failed to protect or seek medical treatment for Kelli.  Cannon was ordered to enroll in a family violence intervention program and participate in DSS parenting classes.  He attended several in-home parenting classes through DSS.  After those classes were canceled, Cannon was referred by DSS to parenting classes at Prevent Child Abuse Carolina.  However, he never attended those classes.  Cannon also never attended the family violence intervention program as recommended by DSS.

Although Cannon did visit Kelli while she was in foster care, he never provided any monetary support for her.  The November 2002 order did not require Cannon to pay child support for Kelli but left it to his discretion. [1]   Nevertheless, the Guardian ad Litem urged Cannon to provide some amount of monetary support for Kelli.  In January 2003, DSS instituted a Termination of Parental Rights action against Cannon for willful failure to support.  Thereafter, he provided Kelli with some clothing and toys valued at no more than $200.00.

A termination of parental rights hearing was held on July 11, 2003.  The family court terminated Cannon’s parental rights based on his willful failure to support Kelli.  Cannon appeals this order.          

STANDARD OF REVIEW

On appeal of a termination of parental rights case, this court may review the entire record and make a determination of the facts according to our review of the evidence. Hardy v. Gunter, 353 S.C. 128, 577 S.E.2d 231 (Ct. App. 2003). However, this court 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). Termination of parental rights 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.”  S.C. Code Ann. § 20-7-1578 (Supp. 2003); South Carolina Dep’t of Soc. Servs. v. Headden, 354 S.C. 602, 608, 582 S.E.2d 419, 423 (2003).  Finally, “[t]he interests of the child shall prevail if the child’s interest and the parental rights conflict.”  S.C. Code Ann. §20-7-1578 (Supp. 2003).  Grounds for termination of parental rights must be proven by clear and convincing evidence.  Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); Headden, 354 S.C. at 608-09, 582 S.E.2d at 423.

ISSUES

I.      Did the family court err in holding Cannon willfully failed to support his minor child when Cannon was not under a court order to pay child support?

II.     Did the family court err in holding that terminating Cannon’s parental rights was in the best interest of the minor child?

LAW/ANALYSIS

 I.  Willful Failure to Support 

Cannon argues the family court erred in holding he willfully failed to support Kelli.  We affirm.

A family court may order the termination of parental rights if a parent has willfully failed to support his child for six months or more and it is in the child’s best interest.  See S.C. Code Ann. §20-7-1572(4) (Supp. 2003). Under Section 20-7-1572(4), “[f]ailure to support means that the parent has failed to make a material contribution to the child’s care.”  A court may consider all relevant issues in determining whether the parent has failed to support the child.  See S.C. Code Ann. §20-7-1572(4) (Supp. 2003). This includes consideration of the parent’s ability to provide support and requests for support by the custodian.  Id.  Moreover, these grounds must be proven by clear and convincing evidence.  South Carolina Dep’t of Soc. Servs. v. Headden, 354 S.C. 602, 608, 582 S.E.2d 419, 423 (2003).

In the present case, it is clear that Cannon willfully failed to make any meaningful effort to support his child.  During the time Kelli was in foster care, Cannon never provided any money for her support.  Section 20-7-1572(4) states that “support” can consist of money or food, clothing, shelter, or other necessities.  Cannon provided Kelli with clothing and toys worth no more than $200.00.  And although Kelli had been in foster care for over a year, Cannon did not make those contributions until after DSS filed a termination of parental rights action against him. Additionally, Cannon presented no justification for his failure to provide any support for Kelli during the above mentioned period. We conclude that Cannon’s contribution of a few clothing and toys was not a material contribution to the health and welfare of Kelli as required by Section 20-7-1572(4).

Cannon next argues the trial court erred in finding he willfully failed to support Kelli because he was never ordered to pay child support.  We disagree. This court held, in South Carolina Dep’t of Soc. Servs. v. Cummings, that “nothing in §20-7-1572(4), requires a parent be ‘notified’ of her duty to support her child before failure to discharge this duty may serve as grounds for termination of parental rights.”  South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 296, 547 S.E.2d 506, 510 (Ct. App. 2001). Clearly, Cannon was required to make a material contribution to the support of Kelli, within his means, even without being ordered to pay child support.  Moreover, the Guardian ad Litem urged Cannon to monetarily contribute to Kelli’s support, even if it consisted of no more than “five to ten dollars a week.”  For the foregoing reasons, we agree with the trial court that DSS has shown by clear and convincing evidence that Cannon willfully failed to support Kelli.   

II.      Child’s Best Interest     

Cannon argues the family court erred in holding that terminating his parental rights was in Kelli’s best interest.  We affirm.

Under Section 20-7-1572 of the S.C. Code (Supp. 2003), a family court may order the termination of a parent’s parental rights if the parent willfully fails to support his minor child and termination is in the child’s best interest.  For the following reasons, we find the termination of Cannon’s parental rights is in Kelli’s best interest.

As noted above, Cannon willfully failed to provide support for Kelli.  While he had been employed for four continuous months at the time of the termination hearing, his prior employment had been sporadic. Additionally, he had only moved into his own apartment shortly before the hearing and the Guardian had not had an opportunity to investigate his accommodations. He also failed to complete the DSS parenting classes or to attend the family violence intervention program.  Moreover, the November 2002 family court order stated that Cannon failed to protect or seek medical treatment for Kelli after she was abused by Smith.  Further, Kelli has been in foster care for most of her life and is currently in a suitable pre-adoptive placement in a two-parent home. Terminating Cannon’s parental rights would free Kelli for adoption. Finally, there is evidence to support the trial court’s finding that Kelli has not bonded with Cannon. This court does not take lightly the measure of permanently severing the parent-child relationship. However, after a thorough review of the record on appeal, we conclude DSS has shown by clear and convincing evidence that that termination of Cannon’s parental rights is in Kelli’s best interest.

CONCLUSION

We conclude that DSS proved by clear and convincing evidence that Cannon willfully failed to provide support for his minor child, Kelli. We also conclude that termination of Cannon’s parental rights is in Kelli’s best interest. Therefore, the order of the family court terminating Cannon’s parental rights is hereby

AFFIRMED. [2]

STILWELL, J., SHORT, J. and CURETON, A.J., concur.


[1] The November order also held that Cannon had willfully failed to provide any support or make any material contribution towards Kelli for a period of over ten months while she was in foster care.  Moreover, the court also found “no agency or court prevented him from doing so.” The November order was not appealed by Cannon, and thus would ordinarily control in this case.  However, because the rights of a minor are involved, we review this case on appeal whether or not the issue is preserved. Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000) (quoting 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] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215 and 220(b)(2), SCACR.