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2007-UP-459 - Erika W. v. Vanessa W.

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


Erika W. and Rodney W., Appellants,

v.

Vanessa Lee W., Dusty Ray S., and Emily Faith S., a minor under the age of fourteen (14) years, Respondents.


Appeal From Cherokee County
Gerald C. Smoak, Jr., Family Court Judge


Unpublished Opinion No. 2007-UP-459
Submitted October 1, 2007 – Filed October 11, 2007
   


REVERSED AND REMANDED


Usha Jeffries Bridges and William G. Rhoden, both of Gaffney, for Appellants.

Dusty Ray S., of Mooresboro; Vanessa Lee W., of Gaffney, for Respondents.


PER CURIAM:   Erika W. and Rodney W. (Grandparents) brought this action seeking to terminate the parental rights of Vanessa Lee W. (Mother) and Dusty Ray S. (Father).  Grandparents sought to adopt their granddaughter after the termination.  The family court found Mother consented to their termination and, in its amended order, terminated her parental rights.  However, the court denied the request to terminate Father’s parental rights based on either a failure to visit or a failure to support the child.[1]  

FACTS

The child was born in August 2000, and Mother and Father were living together at the time.  In 2003, Grandparents took custody of the child.  Rodney W. (Grandfather) testified he visited the child’s home in November 2003 and the child opened the door.  He was unable to wake the parents, so he took custody of the child.  The parents finally called later that afternoon.  Several days later, Grandfather called the home and Mother hung up on him.  He again went to the home only to find it had been ransacked.  In the process of helping clean the house, Grandfather found numerous items of drug paraphernalia. 

A family court order filed December 3, 2004, granted custody to Grandparents and required Mother and Father to pay child support.  Specifically, Father was ordered to pay $50 per week in child support through the court.  The order allowed supervised visitation for the parents.  Father’s visitation was supervised by his parents. 

In April 2005, Father went to jail for violating probation for his unauthorized use of a motor vehicle.  At the same time, he was on probation in North Carolina for felony fleeing, alluding arrest in a motor vehicle, possession of a schedule two narcotic, driving while license is revoked, speeding, and public passing.  Upon his release in South Carolina in October 2005, he had to spend a month in jail in North Carolina.  While in jail, he sent at least one letter to his daughter, but he did not pay any child support.  He called to speak to his daughter either while in jail or once he got out.

After he was released, Father failed to make most of his required child support payments; however, he had difficulty obtaining a job upon his release.  In addition, he had little to no visitation with his daughter after his release.  The parties dispute the reason for the lack of visitation. 

In January 2006, Grandparents brought this action to terminate the parental rights of Mother and Father.  The action was brought against Father on the grounds that he willfully failed to support and willfully failed to visit his daughter for a period of at least six months.  Grandparents sought to adopt the child.  Mother signed a relinquishment of rights and consented to the adoption prior to trial.  Father, pro se, contested the TPR action and the adoption.

The family court issued an order finding Father’s failure to support and failure to visit was not willful.  The court found he was incarcerated and had difficulty obtaining work.  The family court noted he paid some child support and had regular visitation prior to going to jail.  The court denied the termination of Mother’s parental rights.  The court did not address whether termination would be in the best interest of the child.

Grandparents filed a motion to reconsider, arguing they provided sufficient proof of Father’s failure to support and visit.  They maintained Mother voluntarily relinquished her rights and the court should have terminated her rights.  The court agreed Mother’s rights should have been terminated.  However, the court found Grandparents failed to carry their burden of proof to show Father’s failure to support and visit was willful.  The court, therefore, denied the termination of Father’s parental rights.  Again, the court did not address the best interest of the child. 

STANDARD OF REVIEW

Section 20-7-1578 of the South Carolina Code (Supp. 2005) 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.”  See also Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000) (overruling prior cases calling for strict construction of the TPR statutes).  “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)).

In appeals from the family court, this court may find facts in accordance with its own view of the preponderance of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v. Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct. App. 1996).  However, this broad scope of review does not require us to disregard the family court’s findings.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  Nor must we ignore the fact that the trial judge, who saw and heard witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981); Miles v. Miles, 355 S.C. 511, 516, 586 S.E.2d 136, 139 (Ct. App.  2003).

LAW/ANALYSIS

Grandparents contend the family court erred in finding Father’s failure to visit and failure to support his child for six months was not willful due at least in part to his incarceration.  They maintain the court used the wrong standard in considering Father’s incarceration as a mitigating factor. 

The family court may order the termination of parental rights upon a finding of one or more of eleven statutory grounds and a finding that termination is in the best interest of the child.  The relevant grounds in this case are:

(3)  The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully 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;

(4)  The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully 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 contribution 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. 2005). 

Willful conduct is conduct that “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.”  S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 53, 413 S.E.2d 835, 838 (1992).  Whether a parent has willfully failed to visit or support his or her child is a “question of intent to be determined from the facts and circumstances of each individual case.”  S.C. Dep’t of Soc. Servs. v. Headden, 354 S.C. 602, 610, 582 S.E.2d 419, 423 (2003); Stinecipher v. Ballington, 366 S.C. 92, 98, 620 S.E.2d 93, 96 (Ct. App. 2005).  The family court has wide discretion to make this determination, but the element of willfulness must be established by clear and convincing evidence.  Broome, 307 S.C. at 52, 413 S.E.2d at 838.  “The court may consider all relevant circumstances in determining whether or not the parent has willfully failed to support the child, including … the ability of the parent to provide support.”  S.C. Code Ann.  § 20-7-1572. 

Incarceration alone is insufficient to justify TPR.  See S.C. Dep’t of Soc. Servs. v. Wilson, 344 S.C. 332, 337, 543 S.E.2d 580, 583 (Ct. App. 2001).  In Wilson, the father was incarcerated after the birth of his three children.  We reversed the family court’s grant of TPR, holding that “[t]erminating the parental rights of an incarcerated parent requires consideration of all of the surrounding facts and circumstances in the determination of wilfullness.”  Id. at 340, 543 S.E.2d at 584.  We noted the record was replete with evidence of not only the father’s repeated requests to the Department to visit his children, but the Department’s active role in thwarting the father’s attempts to visit his children.  Id. at 338, 543 S.E.2d at 583. 

In the instant case, everyone acknowledges Father regularly maintained his visitation prior to his incarceration, seeing his daughter at least once a month until his incarceration.  Upon incarceration, his efforts to maintain contact greatly diminished.  He only sent a couple letters and made a couple phone calls.  He offered no explanation for the drop off in contact.  Father asserted at the hearing that, after he was released from incarceration, he and his grandparents attempted to obtain visitation from Grandparents. Father claimed he was told that Grandparents had to discuss the possibility of visitation with their attorneys.  As a result, there was no visitation by Father after he was released.  The evidence is not nearly as strong as that provided in the Wilson case.  However, the family court concluded Grandparents had not met their burden to prove by clear and convincing evidence that the failure to visit was willful.  Accordingly, the court’s determination should be given deference. 

As to the failure to support, there is significantly less evidence in Father’s favor.  He made almost no payments to Grandparents prior to the December 3 order.  After the order, he made no payments through the court as required until December 2005.  In total, he only made $110 in payments, and, at the time of the hearing, was in arrears $3,932.50.  Even if the period of his incarceration and the time he was unemployed were considered excused, he never made payments through the court as he was supposed to prior to his incarceration.  In addition, he only made two total payments between his release in November 2005 and the hearing in May 2006.

Father testified he made some payments to Grandparents after they first obtained custody.  He testified that he had a hard time finding employment after he was released from incarceration.  Additionally, he admitted he did not pay “like I was supposed to.”  Finally, he testified that he has withheld support due to his inability to obtain visitation with his child since his incarceration.

In looking at the family court history of payments, he has only made two payments through the court between December 2004 and May 2006.  Even if the incarceration and the subsequent unemployment were omitted, he still went significant periods of time without making payments of support as ordered by the court.  The only mitigating factor is the failure of the Grandparents to show how much Father could have paid.  Father admitted he was employed prior to his incarceration and did not make payments as he should.  In addition, he admitted that, at the time of the hearing, he was making about $600 per month and failed to provide support. Accordingly, this court finds by clear and convincing evidence that Father failed to support his child.   

When adjudicating a TPR case, the best interests of the child are paramount.  S.C. Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 298, 547 S.E.2d 506, 511 (Ct. App. 2001).  Once a statutory ground has been proven, section 20-7-1572 of the South Carolina Code (Supp. 2005) requires that the best interest of the child must be served by termination of parental rights.  Our supreme court has held that the termination of parental rights statute should be liberally construed consistent with the purpose to facilitate prompt adoption and the best interest of the child.  Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000).

Here, we conclude that the issue of the best interest of the child should be remanded to the family court for a full evidentiary hearing on this issue. 

CONCLUSION

For the foregoing reasons, we find Grandparents met their burden to show Father willfully failed to support his child.  We find the issue of the best interest of the child should be remanded to the family court for a full evidentiary hearing on this issue.  Accordingly, the decision of the family court is

REVERSED  AND REMANDED.

HEARN, C.J., AND ANDERSON, and THOMAS, JJ., concur.


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