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2007-UP-430 - SCDSS v. C.B.

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.

C.B. and T.B., Appellants.

In the Interest of:  I.B., Date of Birth 04/23/05, a Minor Child Under the Age of 18.


Appeal From Lee County
 Marion D. Myers, Family Court Judge


Unpublished Opinion No. 2007-UP-430
Submitted October 1, 2007 – Filed October 9, 2007   


AFFIRMED


James P. Saverance, Jr., of Bishopville, for Appellant T.B., and Charles Thomas Brooks, of Sumter, for Appellant C.B.

Deborah Truett Nielsen, of Bishopville, for Respondent.

PER CURIAM:  C.B. (Mother) and T.B. (Father) appeal from a family court order terminating their parental rights to I.B. (Daughter).  We affirm.[1]

FACTS

Daughter is Mother’s seventh child and Father’s twelfth.[2]  Mother does not have custody of any of her other children, and several of Father’s children have been raised by relatives. 

The Department of Social Services (DSS) became involved in this case when Mother tested positive for cocaine and marijuana during her third trimester of pregnancy with Daughter.  DSS received a report about this drug use on March 14, 2005, and the case was indicated on April 28, 2005 for substantial risk of physical abuse and neglect.  Daughter was born on April 23, 2005, and she was placed into DSS custody on June 1, 2005. 

Both Mother and Father have long histories of drug abuse.  In 1995, Mother gave birth to a child who tested positive for cocaine, and in March 2000, Mother tested positive for cocaine while she was pregnant with another child.  At the termination of parental rights (TPR) hearing, DSS presented two experts - Sam Tipton, a drug and alcohol counselor, and Dr. Patrick Goldsmith, a psychologist.    

Tipton diagnosed Mother as having cocaine dependence and cannabis dependence.  Tipton testified that, although Mother did “real well” in treatment initially, she relapsed within a week after participating in a program in 2005 at The Palmetto Center, an inpatient treatment facility.  Mother was tested for drugs a few months later in early 2006, and she again tested positive for cocaine on two occasions.  Mother was tested in August 2006 and when that test came back positive, Mother was sent to The Charleston Center, another inpatient program. 

Dr. Goldsmith testified he met with Mother in July 2005 and administered several psychological tests to her.  Based on these tests, he diagnosed her with cannabis dependency, cocaine dependency, and severe mental retardation.  He also found she had multiple stressors associated with addiction and mental retardation.  Mother’s overall IQ was below 35, which is in the severe range of mental retardation.  Dr. Goldsmith opined that “she will need assistance most of her life, and that generally is not reversible.  She might have some mental improvement if she would stop using drugs; but, I doubt . . . her sincerity in regard to that.”  Dr. Goldsmith described Mother’s addiction as being “as severe as anything [he’d] ever seen” and explained that “her failed drug screens while pregnant and after removal are indicative of severity.” 

Dr. Goldsmith also met with Father during July 2005.  He diagnosed Father with schizophrenia, dementia due to alcoholism, and as having severe stressors due to his complicated psychiatric problems and marital difficulties.  Dr. Goldsmith noted Father’s addiction to alcohol was in remission, but that he suffered permanent damage from his previous alcohol abuse.  He stated Father reads at a second-grade level and cannot remember three items after five minutes.  Dr. Goldsmith also noted Father was on disability and had a guardian appointed to handle his disability fund.    

Melissa Robinson, the foster care worker for Daughter, also testified at the TPR hearing.  Robinson acknowledged that both Mother and Father consistently visited Daughter and brought her clothes or other items when they came to visit.  Robinson stated that, although DSS currently had no prospective adoptive parents for Daughter, she was “doing great” in her foster home.  Robinson testified Mother did not complete her treatment plan, but Father had essentially done everything DSS had asked of him.  Despite Father’s compliance with the treatment plan, however, Robinson did not believe Father was able to care for Daughter by himself, nor did she know of any relatives who could help care for the child.  Robinson noted that DSS performed a home study on one of Father’s sisters, but DSS declined to place Daughter with the sister because she had been convicted of criminal domestic violence. 

The guardian ad litem filed a report with the family court recommending the termination of both Mother’s and Father’s parental rights.  In the report, the guardian noted she would rather see Daughter placed with a relative who knew the child’s limitations, but the only relative who wanted the child was not acceptable to DSS because of her prior conviction.  At the TPR hearing, the guardian expressed her reluctance to terminate Father’s parental rights, but ultimately stood by the recommendation in her report. 

The family court found Mother had a diagnosable condition that was unlikely to change within a reasonable time; she failed to remedy conditions leading to Daughter’s removal; and, due to the severity and repetition of Mother’s abuse and neglect, it was unlikely her home could be made safe within the next twelve months.  With regard to Father, the family court found he had a diagnosable condition that was unlikely to change within a reasonable time and that, because of the diagnosable condition, he had failed to remedy conditions leading to Daughter’s removal.  The family court further found termination of Mother’s and Father’s parental rights was in Daughter’s best interest.  Mother and Father have filed separate appeals.

STANDARD OF REVIEW

In a TPR action, the best interest of the child is the paramount consideration.  Doe v. Baby Boy Roe, 353 S.C. 576, 578 S.E.2d 733 (Ct. App. 2003).  Before parental rights may be irrevocably terminated, the State must prove the alleged grounds for termination by clear and convincing evidence.  Richberg v. Dawson, 278 S.C. 356, 296 S.E.2d 338 (1982); South Carolina Dep’t of Soc. Servs. V. Parker, 336 S.C. 248, 519 S.E.2d 351 (Ct. App. 1999). 

On appeal in a TPR action, an appellate court has the authority to review the entire record to make its own factual findings and to determine whether the grounds for termination are supported by clear and convincing evidence.  South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 547 S.E.2d 506 (Ct. App. 2001).  This broad scope of review, however, does not require the appellate court to disregard the findings of the family court, which was in a better position to evaluate the credibility of the witnesses and to assign comparative weight to their testimony.  Hardy v. Gunter, 353 S.C. 128, 577 S.E.2d 231 (Ct. App. 2003). 

LAW/ANALYSIS

I.  Expert Testimony

Mother initially argues the family court erred in qualifying Sam Tipton as an expert witness and in attaching any weight to his testimony.  We disagree.

“To qualify as an expert, a person must have acquired by study or practical experience a special knowledge of a subject matter about which the [fact-finder’s] good judgment and average knowledge is inadequate.”  Manning v. City of Columbia, 297 S.C. 451, 453-54, 377 S.E.2d 335, 337 (1989).  The qualification of expert witnesses and the admissibility of their opinions are matters resting within the sound discretion of the trial court.  Id. at 453, 377 S.E.2d at 336-37.  On appeal, we will not disturb the trial court’s ruling in the absence of an abuse of that discretion and a showing of prejudice.  Strange v. South Carolina Dep’t of Hwys. & Pub. Transp., 307 S.C. 161, 414 S.E.2d 138 (1992).

Before being qualified as an expert in addiction counseling, Tipton testified that he had been employed as a drug and alcohol abuse counselor for approximately seven years.  To become a counselor, Tipton had to complete four years of college and receive certification from the State.  Although Tipton does not regularly testify in court, he was qualified as an expert in another court proceeding several years prior to the TPR hearing in this case.  Based on Tipton’s experience, education, and training, we find the family court did not abuse its discretion in qualifying Tipton as an expert in addiction counseling.

II. Grounds for Termination

Next, both Mother and Father appeal from the family court’s finding that grounds exist to terminate their parental rights.  Addressing Mother’s arguments first, she contends the record does not contain clear and convincing evidence that she has a diagnosable condition that is unlikely to change within a reasonable time.  We disagree.

Section 20-7-1572(6) of the South Carolina Code provides in relevant part as follows:

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(6) (Supp. 2006).

Here, Mother received inpatient treatment at The Palmetto Center, and she relapsed within a week of being released to after-care services.  Mother continued to test positive for cocaine until August 18, 2006, two months prior to the TPR hearing.  DSS again referred Mother for inpatient treatment, which was supposed to last for three months, but Mother was discharged with a month.[3]  On October 6, 2006, just days before the TPR hearing, Mother missed her scheduled appointment at another drug rehabilitation center. 

In addition to the failed treatments during the pendency of this action, Mother has a long history of abusing drugs and being unable to overcome her addiction, even while pregnant or facing the termination of her parental rights.  DSS presented evidence that Mother used cocaine during two previous pregnancies.  Accordingly, we find no error in the family court’s determination that Mother has a diagnosable condition that is unlikely to change within a reasonable time.[4]

Likewise, Father contends the family court erred in finding he had a diagnosable condition unlikely to change within a reasonable time.  Specifically, he argues he has the mental capacity and ability to provide minimally acceptable care for Daughter.  We disagree.

According to testimony presented at the TPR hearing, Father has a full- scale IQ of 50.  Dr. Goldsmith testified Father reads at a second-grade level and could not remember a list of three items after five minutes.  In addition to these problems, Father has been diagnosed with schizophrenia and dementia due to alcoholism. 

Father is to be commended for complying with his treatment plan; however, his intellectual functioning is unfortunately so impaired that neither Dr. Goldsmith nor Melissa Robinson, the foster care worker, believed Father could parent Daughter.  Although the guardian initially expressed feeling “conflicted” about recommending the termination of Father’s parental rights, the family court, which actually saw and heard Father testify at the hearing, found the evidence “overwhelmingly clear and convincing” and stated it had “no doubt . . . that neither of [Daughter’s] two biological parents . . . are fit and proper individuals to have custody of [Daughter].”  See Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct. App. 1996) (explaining that despite the appellate court’s broad scope of review, it should remain cognizant that the family court had the advantage of seeing and hearing the witnesses before making findings of fact).  We find clear and convincing evidence was presented to prove Father suffers from a diagnosable condition that is unlikely to change within a reasonable time.

II. Best Interest

Finally, Mother and Father argue terminating their parental rights would not serve Daughter’s best interest.  We disagree.

At the time of the TPR hearing, Daughter was eighteen months old, and she had been in foster care for all but one month of her life.  Although Mother and Father visited frequently, the guardian testified that any harm to Daughter if her biological parents’ rights were terminated would be “short-term” as children “rebound very quickly.”  Furthermore, there was evidence Daughter was doing well in foster care, and at least one potential adoptive family became disinterested upon learning Daughter was not yet free for adoption.  Considering Daughter’s young age and the improbability that either Mother or Father would ever be able to care for her, we agree a long-term plan of adoption is in Daughter’s best interest.

CONCLUSION

Based on the foregoing, the order of the family court terminating Mother’s and Father’s parental rights is

AFFIRMED.

HEARN, C.J., and HUFF and KITTREDGE, JJ., concur.


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

[2]  At the time of the hearing in this matter, Mother was pregnant again. 

[3]  It is unclear from the record why Mother was discharged, but Mother offered no proof that she had successfully completed the program.

[4]  Having found this statutory ground established by clear and convincing evidence, we need not address the remaining grounds relied upon by the family court.