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2005-UP-055 - SCDSS v. Thomas

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.

Tamara Thomas and Craig Rolen, Defendants,

of whom Craig Rolen is Appellant.

In the Interest of Savannah Rolen, DOB 6/16/01, John Doe and Jane Doe, Respondents,

v.

Baby Girl Roe, a minor under the age of fourteen (14) years, South Carolina Department of Social Services, Tamara Thomas, and Craig Rolen, Defendants,

of whom Craig Rolen is Appellant.


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


Unpublished Opinion No. 2005-UP-055
Submitted December 1, 2004 – Filed January 21, 2005   


AFFIRMED


Boyd B. Nicholson, Jr., of Greenville, for Appellant.

Rebecca Rush Wray and Robert D. Moseley, Jr., both of Greenville, for Respondents.

Carol Anne Simpson, of Greenville, for Guardian Ad Litem.

PER CURIAM:  This appeal involves the termination of the parental rights of an incarcerated parent.  Craig Rolen (Father) appeals the family court’s decision to terminate his parental rights and its issuance of a restraining order against him.  We affirm. [1]

FACTS         

Father and Tamara Thomas (Mother) conceived a child out of wedlock, Baby Girl Roe, who was born on June 16, 2001.  DSS took Baby Girl Roe into protective custody shortly after birth because she tested positive for crack cocaine.  Mother and Father later testified they used crack cocaine together during the pregnancy and Mother testified that Father was addicted to drugs and continued to use crack cocaine after the birth.  DSS placed Baby Girl Roe in emergency foster care on June 22, 2001.  At the removal hearing, Father agreed to a treatment plan that required him to “set and keep an appointment to be evaluated for substance abuse by the Alcohol and Drug commission,” and “to submit to a hair strand drug test.”  After the permanency planning hearing, the family court ordered Father to attend a drug program.  Father failed to comply with the treatment plan, and Baby Girl Roe remained in foster care. 

Father was on probation at the time of Baby Girl Roe’s birth; however, Father’s probation was revoked on September 17, 2001 and he was incarcerated.  Although the record is somewhat unclear, Father visited Baby Girl Roe on one occasion, at most, before his incarceration.  While incarcerated, Father tried to arrange visits, but DSS refused to allow visitation at the prison. 

On May 21, 2002, John and Jane Doe, Baby Girl Roe’s foster parents, filed an action seeking to terminate the parental rights of Father and Mother and to adopt Baby Girl Roe.  Several days later, DSS filed a notice of permanency planning hearing in which it made no recommendation as to its preferred outcome.  Father answered the Doe’s amended complaint and contested the termination of his parental rights.  Thereafter, the family court consolidated both actions and the case proceeded to trial on March 27, 2003. 

By order dated April 11, 2003, the family court terminated the parental rights of Father and accepted the relinquishment of parental rights of Mother.  The order found several grounds for terminating parental rights.  First, Father willfully failed to visit or support the child for a period of six months.  Second, Father had a diagnosable condition, addiction to crack cocaine, which made him unable to provide minimally acceptable care for the child.  Third, Baby Girl Roe had been in foster care for more than fifteen of the last twenty-two months.  Finally, the court found termination was in the best interests of the child. 

The family court noted Father was unable to visit or support because he was incarcerated; however, it found he pursued a willful course of lawless conduct that resulted in his incarceration and failed to visit or support Baby Girl Roe during the three months he was not incarcerated.  Additionally, the court issued a restraining order against Father, ordering him not to contact or otherwise harass Baby Girl Roe, the foster family, Mother, or any DSS employee except in carrying out business with DSS and the clerk of court’s office. 

Father filed a motion to reconsider, or in the alternative, to amend the judgment.  Father contended he was unable to visit or support Baby Girl Roe due to his incarceration, and DSS prohibited any visitation after he was incarcerated.  Father also argued there was insufficient evidence to support the finding he had a diagnosable condition.  The family court denied the motion.  Father appeals.  

STANDARD OF REVIEW

In a termination of parental rights (TPR) case, this court may review the record and make its own findings whether clear and convincing evidence supports termination.  South Carolina Dep’t of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999).  The appellate court has jurisdiction to examine the entire record to determine the facts according to its view of the evidence.  Richland County Dep’t of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 868 (1998).  However, our broad scope of review does not require us to disregard the findings below or ignore the fact the trial judge was in a better position to assess the credibility of the witnesses. Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996).

LAW/ANALYSIS

I.  Termination of Parental Rights         

Father argues the family court erred in terminating his parental rights.  We affirm the termination of parental rights on the grounds Father willfully failed to support his child, had a diagnosable condition that made him unable to provide minimally acceptable care for his child, and the termination was in the best interests of the child.

A.  Willful Failure to Support

Father argues the family court lacked clear and convincing evidence to terminate his parental rights on the ground he willfully failed to support Baby Girl Roe.  We disagree.

Section 20-7-1572 (Supp. 2003) of the South Carolina Code governs TPR.  Pursuant to that section, parental rights may be terminated upon showing one or more enumerated grounds and a finding the termination is in the best interests of the child.  Under section 20-7-1572(4) parental rights may be terminated where:

(4) The child has lived outside the home of either parent for a period of six months, and during that time the parent has willfully failed to support the child.  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 willfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support.

  S.C. Code Ann. § 20-7-1572 (Supp. 2003).

The statute requires a finding of willfulness. Whether a parent’s failure to visit or support a child is willful is a question of intent to be determined by the facts and circumstances of each case.  South Carolina Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992).  Our supreme court defined willfulness as “[c]onduct of the parent which 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.” Id. at 53, 413 S.E.2d at 839.  Generally, the family court is given wide discretion in making this determination. However, the element of willfulness must be established by clear and convincing evidence.  South Carolina Dep’t of Soc. Servs. v. Wilson, 344 S.C. 332, 336, 543 S.E.2d 580, 582 (Ct. App. 2001).

Incarceration alone is an insufficient basis for termination of parental rights.  South Carolina Dep’t. of Soc. Servs. v. Ledford, 357 S.C. 371, 376, 593 S.E.2d 175, 177 (Ct. App. 2004).  However, in Hamby v. Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975), our supreme court found that voluntary pursuit of lawlessness which results in imprisonment and inability to perform parental duties may evince willfulness.  The court also considered the parent-child relationship and lack of contact not only during the father’s incarceration, but also during the period before his incarceration and during the father’s short intervening periods of freedom.  Id. at 618, 216 S.E.2d at 538.

Father argues his failure to support Baby Girl Roe was not willful because he was incarcerated and prison policy prevented him from earning income.  He supports his position by citing Wilson, which held an incarcerated father did not willfully fail to support his children simply because he was incarcerated where the father did not otherwise fail in his parental duties to support the children or provide them with a stable home prior to his incarceration. Wilson at 338, 543 S.E.2d at 583.

The instant case is clearly distinguishable from Wilson.  In this case, Father failed to support Baby Girl Roe during the approximate three-month period after her birth prior to his incarceration.  Although employed as a truck driver, Father’s sole support of Baby Girl Roe since her birth arose as a result of DSS garnishing $250 from his tax refund.  By his own admission, Father knew a violation of his probation would cause him to return to jail and he would be unable to visit or support his child.  Yet, Father chose to violate his probation. 

We find Father’s voluntary pursuit of lawlessness and failure to support Baby Girl Roe showed a willful intent to forego support of her that falls within the meaning of the statute. 

B.  Diagnosable Condition

Father argues the family court lacked clear and convincing evidence to terminate his parental rights on the ground he had a diagnosable condition.  We disagree.  

Pursuant to section 20-7-1572(6), the family court may terminate parental rights upon showing:

The parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unlikely to provide minimally acceptable care of the child. It is presumed that the parent’s condition is unlikely to change within a reasonable time upon proof that the parent has been required by the department or the family court to participate in a treatment program for alcohol or drug addiction, and the parent has failed two or more times to complete the program successfully or has refused at two or more separate meetings with the department to participate in a treatment program.

S.C. Code Ann. § 20-7-1572 (Supp. 2003)

Father testified he used crack cocaine prior to the child’s birth and during the time after her birth when he was not incarcerated.  Mother testified she used crack with Father during her pregnancy and after the child’s birth.  Furthermore, Father consistently failed to complete his treatment plan although ordered to do so, despite the fact that drug programs were available to him while incarcerated.  Moreover, the record indicates Father had completed a drug rehabilitation program prior to the child’s birth but had relapsed.  In Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 106, 536 S.E.2d 372, 374 (2000), our supreme court affirmed the family court’s ruling that a parent’s failure to respond to previous drug rehabilitative efforts meant that her diagnosable condition was unlikely to change within a reasonable time.  Father’s admitted drug use, his past failure to become drug free, and his failure to attend a drug rehabilitation program despite a court order is clear and convincing evidence that Father had a diagnosable condition, unlikely to change in a reasonable time, that made him unable to provide minimally acceptable care for the child. 

C.  Best Interests

After finding one of the grounds for termination exists, section 20-7-1572 requires a determination that the termination is in the best interest of the child.  In a termination of parental rights case, the best interests of the child is the paramount consideration.  South Carolina Dep’t of Soc. Servs. v. Parker, 336 S.C. 248, 258, 519 S.E.2d 351, 356 (Ct. App. 1999).  “The interests of the child shall prevail if the child’s interest and the parental interest conflicts.” S.C. Code Ann. § 20-7-1578 (Supp.  2003).  The stated purpose of the TPR statute is as follows:

[T]o 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 these children and make them eligible for adoption by persons who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.  

S.C. Code Ann. § 20-7-1560 (Supp. 2003).

Additionally, as we reiterated in Parker, “the Supreme Court noted: ‘[p]arental rights do not spring full-blown from the biological connection between parent and child.  They require relationships more enduring.’”  Parker, 336 S.C. at 259, 519 S.E.2d at 356 (quoting Caban v. Mohammed, 441 U.S. 380 (1979)). 

An enduring relationship does not exist between Father and Baby Girl Roe.  Father made no effort to support his child, and he has not seen her since shortly after her birth.  Father has a history of drug use, criminal behavior, and incarceration. [2]   Baby Girl Roe’s adoptive parents have a home, employment, and no criminal record.  Baby Girl Roe has bonded with her adoptive parents and they are the only parents she has ever known.  Both the Guardian ad Litem and DSS caseworker testified termination of parental rights was in the child’s best interests.  Therefore, we find the termination of parental rights to be in Baby Girl Roe’s best interests.

D.  Visitation

Father also argues the family court erred in finding he willfully failed to visit his child because DSS prevented him from visiting.  We agree.

Section 20-7-1572(3) states:

The child has lived outside the home of either parent for a period of six months, and during that time the parent has willfully failed to visit the child.  The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order.  The distance of the child’s placement from the parent’s home must be taken into consideration when determining the ability to visit.

S.C. Code Ann. § 20-7-1572 (Supp. 2003) (emphasis added).

The family court found Father willfully failed to visit his child under the totality of the circumstances, because his voluntary pursuit of lawless behavior resulted in the incarceration that prevented visitation.  Although we agree Father’s pursuit of lawlessness was willful, we must look to the totality of the circumstances pursuant to South Carolina Dep’t of Soc. Servs. v. Wilson, 344 S.C. 332, 543 S.E.2d 580 (Ct. App. 2001).  The record is somewhat unclear, but clearly indicates Father visited Baby Girl Roe in the hospital after her birth and may have visited her on one other occasion during the three-month period when he was not incarcerated.  DSS prevented Father from visiting with his child based solely on his incarceration.  Despite Father’s requests, DSS would not arrange visitation at the prison.  Section 20-7-1572(3) specifically requires a showing “that the parent was not prevented from visiting by the party having custody” in order to terminate parental rights.  Because we find DSS prevented visitation between Father and Baby Girl Roe, the statutory requirement of section 20-7-1572(3) has not been met. 

E.  Foster Care Time Period

Father contends the family court erred in terminating his parental rights on the ground Baby Girl Roe had been in foster care for more than fifteen of the last twenty-two months.  We agree. 

Section 20-7-1572(8) allows for termination of parental rights when, “[t]he child has been in foster care under the responsibility of the State for fifteen of the most recent twenty‑two months.”  S.C. Code Ann. § 20-7-1572 (Supp. 2003).  Application of this statutory section usually requires no more than a mathematical calculation.  However, in this case the child had not been in foster care for fifteen months when the action was filed.  Therefore, we find termination of Father’s parental rights on this ground was in error. 

II. Restraining Order

Father argues the family court erred in granting a restraining order against him.  We disagree.

Parties who seek a restraining order “must show facts and circumstances entitling [them] thereto.”  Odom v. Odom, 248 S.C. 144, 147, 149 S.E.2d 353, 355 (1996).  The family court ordered Father “not to contact, telephone, e-mail, harass, stalk, follow, or observe Plaintiffs, the minor child, Defendant Thomas, or DSS employees upon his release from prison, except as may be required in carrying on official business with DSS and the Clerk of Court’s office.”  Father argues there was insufficient evidence to support the restraining order and that the order was unduly broad because of the inclusion of “observe.”  However, the record shows Father knew the identity, address, and type of vehicle owned by various parties involved in the case.  Father is also a felon and habitual drug user.  Furthermore, any reviewing court will be presumed to read and enforce the restraining order with a degree of common sense.  In light of these facts, we find no error in granting the restraining order.

CONCLUSION

We affirm the termination of parental rights on the grounds Father willfully failed to support his child, had a diagnosable condition that made him unable to provide minimally acceptable care for his child, and the termination was in the best interests of the child.  The family court erred in finding Father willfully failed to visit his child and by finding the child had been in foster care for fifteen of the most recent twenty-two months.  Sufficient facts exist to support the restraining order.  Section 20-7-1572 only requires a single ground to terminate a parent’s rights.

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Father is currently under indictment for murder.