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2009-UP-397 - Doe v. Father

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John and Jane Doe, Johnny and Janie Roe, and Jonathan and Janet Moe, Respondents,

v.

Mother and Father, Defendants,

Of Whom Father is the Appellant.

In the interest of three minor children. 


Appeal From Greenville County
Timothy H. Pogue, Family Court Judge


Unpublished Opinion No.  2009-UP-397
Heard June 24, 2009 – Filed July 29, 2009


REVERSED IN PART, VACATED IN PART, AND REMANDED


Elizabeth Burns Robertson, of Greenville, for Appellant.

Chace Damon Campbell and Robert Clark, both of Greenville, for Respondents.

Amanda Craven, of Spartanburg, Guardian ad Litem for Children. 

PER CURIAM:  Father contends the family court erred in terminating his parental rights and, thereafter, in granting the petition of the Does, the Roes, and the Moes (Respondents) to adopt his three minor children (Children).  We reverse the termination of Father's parental rights, vacate the adoption, and remand to the family court for a custody determination. 

FACTS

Father and Mother married in April 1998.  They have three children: J.B., currently age nine; N.B., currently age seven; and A.B., currently age four.  In November 2003, while the family was living in North Carolina, Father was arrested and incarcerated for committing statutory rape a year earlier.  In May 2004, Father was convicted and sentenced to serve fifteen years and two months in prison.   

Subsequently, Mother and Children moved to South Carolina.  In approximately December 2004, the South Carolina Department of Social Services (DSS) intervened and placed Children with their maternal grandparents.  On March 15, 2005, the family court conducted a hearing on the merits of removing Children from Mother.  Mother attended the hearing, but Father did not.  According to the family court's order, Father was "incarcerated in North Carolina and could not be transported."  The family court found Mother's medical and physical neglect of Children constituted harm justifying their removal from her, and it adopted a placement plan submitted by DSS.  The placement plan's "findings of harm justifying removal and intervention" and treatment goals related to "removal conditions" concerned only Mother.  On the other hand, findings "justifying intervention," and goals related to those findings, concerned Mother and Father.  The family court ordered Mother to complete an extensive placement plan and to pay child support.  Grandparents received temporary legal and physical custody of Children.  In addition, the placement plan required Father to have "no contact, direct or indirect, with [Children] until [he] is assessed by a sex offender therapist upon release from jail."  The family court held in abeyance other findings regarding Father and determination of Father's child support obligation.  Also, the family court ordered appointment of legal counsel and a guardian ad litem (GAL) for Father. 

On September 8, 2005, the family court conducted a merits removal hearing to review "issues pertaining to [Father]."  Although Father remained incarcerated in North Carolina, an attorney and a GAL represented him at the hearing.  The family court found "substantial risk of sexual abuse of [Children] by [Father] based on the presence of pornography in the home" and ordered entry of Father's name into the Central Registry of Sex Offenders.  Furthermore, the family court's order required Father to complete a sex-offender program, "either through the North Carolina prison system" or by contacting DSS "upon his release from prison . . . to be assessed for a treatment plan to include sex offender therapy."  The order reiterated the court's earlier requirement that Father have no contact with Children, direct or indirect, until he completed the sex-offender program.  The order also required Father to pay child support of $54 per week to Grandfather "upon [Father's] release from prison."

On January 16, 2007, the family court conducted a judicial review hearing.  Father, his attorney, and his GAL were absent.  The family court determined DSS intervention services were no longer needed and authorized Grandparents to retain physical and legal custody of Children.  Furthermore, the treatment plan stated Grandparents were "prevented from transferring custody to a third party without prior court permission."  The placement plan contained no new provisions regarding Father.  Thereafter, the family court closed DSS's case against Mother and Father and relieved Children's GAL.  The order stated child support would continue according to its prior orders. 

In April 2007, Grandfather filed a complaint to terminate the parental rights (TPR) of Mother and Father and a petition to adopt Children.  Father responded by advising Grandfather's attorney:

I do not intend to give up my parental rights to my children.  I want to write and see my children as quick as I can.  I appreciate my father-in-law taking care of my children, but I am not giving up my parental rights to them. 

On May 25, 2007, Mother signed an affidavit relinquishing her parental rights and consenting to Grandfather's adoption of Children.  Mother's affidavit stated she had custody of Children until March 15, 2005, and thereafter, Grandfather was Children's primary caretaker. 

On September 27, 2007, Father filed a motion asking the family court to deny Grandfather's TPR action and to continue its then-existing orders regarding "custody, guardianship, visitation, and child support."  Father attached a handwritten, fifteen-page letter explaining his relationship with Children, his understanding of the family court's orders restraining him from contacting Children, his remediation efforts in prison, and the reasons he did not meet the statutory grounds for TPR set forth in Grandfather's complaint.  Father added:

[I] know being there part-time is better than no contact at all . . . .  [I] do not feel that giving up my parental rights is the best thing for my children.  I want to be the best father I can while I am in prison then continue that relationship when I get out and can support my children fully with continuous contact with them. 

In October 2007, Respondents filed a motion for leave to intervene and to bring their own action for TPR and adoption.  The family court granted the motion and temporarily transferred custody from Grandfather to Respondents.  On January 9, 2008, Respondents filed their action seeking TPR and adoption, asserting: "[D]ue to ill health, [Grandparents] can no longer physically care for [Children]."  Respondents contended that, since August 2006, they had "provided for [Children] financially, physically, emotionally and medically without regular financial assistance from either parent and [had] formed a close bond with [Children] such that [Children] [had] come to know and love [Respondents] as their primary caregivers." 

The following month, Father sent a letter to Respondents' counsel stating:  "I will not willfully relinquish my parental rights and obligations to [Children]."  Father contended Respondents' complaints against him were inaccurate and argued he did not meet any of the alleged statutory grounds for TPR.  Specifically, Father stated he had not willfully failed to visit or support Children, abandoned Children, or failed to remedy the conditions leading to their removal from Mother.  Father stated he had complied with the family court's orders requiring him to have no contact with Children until he completed the sex-offender program.  Father explained:

The problem is that program is only offered in medium custody prison.  . . .  I have been trying to get my medium custody so I can take this program and be able to take part in my children's lives. 

Father also stated the family court ordered child support "beginning 30 days after my release from prison."  Finally, Father asserted:

I did NOT abandon my children at all.  I was incarcerated for a crime and I am paying the price for it, so by no means did I want to be separated from my children.  I love my children with all my heart and soul and it is not in my children's best interest to be separated from each other.  . . .  [Grandfather] has denied . . . my family and me any and all information concerning the status of my children. 

On May 15, 2008, Father filed an answer denying Respondents' allegations, asking the family court to maintain his parental rights, and, upon his release from prison, to reopen issues of visitation, support, and custody.  Moreover, Father asked the family court to award custody and guardianship to Respondents and to require Respondents to keep him informed regarding Children.

On June 2, 2008, the family court conducted a final TPR hearing.  At that hearing, Grandfather testified Mother left Children with a friend, who later told DSS that Mother had "dropped [Children] off and hadn't been around for a while."  Grandfather stated DSS contacted him in December 2004 and told him Children would be put in foster care if he did not take them immediately.  Grandfather's custody of Children was formalized by the March 15, 2005, family court order. 

Grandfather testified that since Children had come into his custody, Father had written one letter to them.  He added: "And [the family court's] order says in part that [Father] is to have no contact with [Children] whatsoever.  So I simply destroyed the letter."  Grandfather acknowledged that shortly after Children came to live with him, Father registered Children to participate in a "prisoner gift program."  Grandfather testified Father had sent no support to him for Children's care; however, he later acknowledged the family court's order specified Father's child support obligation began thirty days after his release from prison.   

Next, the family court heard testimony from the three couples who had temporary custody of Children.  Mr. Doe testified he and Mrs. Doe met N.B. in December 2005 at Children's childcare center, where Mrs. Doe was then working.  Mrs. Doe was present but did not testify.  Mrs. Roe testified she and Mr. Roe met A.B., who was then eighteen months old, in January 2006.  Mrs. Roe explained:

[Mr. Roe] is the uncle of [Mrs. Doe] who has [N.B.] and she works at the daycare, and she had [A.B.] in her infant room.  And she had contacted us knowing that, you know, we did not have any children.  So on and so forth.  And that [Grandparents] were having problems caring for A.B. because she was so small.  She was very active.  She was 18 months at the time.  And asked, you know, if we could help out by taking her, you know, a day or two here just to help them out because they needed help.

Mr. Roe was present but did not testify.  Mr. Moe testified he and Mrs. Moe met J.B. in August 2006 through a mutual friend.  Mr. Moe explained J.B. had been "off and on visiting" them when Grandfather filed his TPR action in April 2007, but he did not move into their home until October 2007.  Mrs. Moe was present, but did not testify.  All of the testifying Respondents acknowledged: (1) they had never communicated with Father; (2) after obtaining temporary custody in October 2007, they paid all of their respective child's expenses; and (3) if the family court denied their TPR and adoption action, they would continue to care for the child in their custody. 

Amanda Craven was appointed as Children's GAL in the underlying DSS action, which closed in January 2007, and in the subsequent private actions.  Craven acknowledged the family court's March 2005 and September 2005 orders stated that Children were removed due to Mother's neglect, and the only treatment goals for Father related to conditions "justifying intervention, but not removal."  Father's counsel asked Craven if she had "done anything to facilitate contact between [Father] and [Children] while he's in jail."  Craven responded:  "No.  The court order prohibits any contact between him and [Children]."  Craven admitted: "I don't know anything about [Father's] finances or assets." 

At the close of Respondents' evidence, Father's counsel submitted a written motion asking the family court to dismiss the action against Father, contending clear and convincing evidence failed to establish that Father satisfied any statutory ground for TPR.  The family court took the TPR matter under advisement and asked both parties to submit proposed orders.   

Three weeks later, the hearing resumed.  The family court found Father satisfied the following statutory grounds for TPR: (1) Father failed to remedy the conditions that led to Children's removal, (2) Father willfully failed to visit Children for six months, (3) Father willfully failed to support Children for six months, and (4) Father abandoned Children.  The family court additionally found TPR was in Children's best interest.  Thereafter, the family court excused Father's counsel and conducted the adoption hearing.  Later that day, the family court issued an order terminating Father's parental rights and another order granting Respondents' petitions to adopt Children. 

STANDARD OF REVIEW

Although "the grounds for TPR must be proved by clear and convincing evidence," an appellate court may examine the entire record in a TPR case "to determine facts in accordance with its own view of the evidence."  Stinecipher v. Ballington, 366 S.C. 92, 97, 620 S.E.2d 93, 96 (Ct. App. 2005).  Despite this broad scope of review, the appellate court should not necessarily disregard the findings of the family court because it was in a better position to evaluate the credibility of the witnesses and to assign weight to their testimony.  Charleston County Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 95, 627 S.E.2d 765, 770 (Ct. App. 2006).

LAW/ANALYSIS

I.  Statutory Grounds for TPR

Father contends the family court erred in finding clear and convincing evidence established he satisfied four statutory grounds for TPR.  We agree.

In South Carolina, TPR is governed by statute.  The family court can order TPR only upon finding the existence of one or more of the eleven statutory grounds and also finding TPR is in the child's best interest.  S.C. Code Ann. § 63-7-2570 (Supp. 2008).  Before terminating parental rights, the alleged statutory grounds must be proven by clear and convincing evidence.  Loe v. Mother, Father, & Berkeley County Dep't of Soc. Servs., 382 S.C. 457, 465, 675 S.E.2d 807, 811 (Ct. App. 2009).  On appeal, this court may review the record and make its own determination of whether the termination grounds are supported by clear and convincing evidence.  Id.

Clear and convincing evidence is that degree of proof which will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established.  Such measure of proof is intermediate, more than a mere preponderance but less than is required for proof beyond a reasonable doubt; it does not mean clear and unequivocal.

Anonymous (M-156-90) v. State Bd. of Med. Examiners, 329 S.C. 371, 374 n.2, 496 S.E.2d 17, 18 n.2 (1998) (internal citations and quotation marks omitted).

A.  Failure to Remedy

Father argues the family court erred in finding he failed to remedy the conditions that led to Children's removal.  We agree. 

One statutory ground for TPR addresses a parent's failure to remedy the conditions that led to the child's removal from the parent:

The child has been removed from the parent . . . [and] has been out of the home for a period of six months following the adoption of a placement plan . . . and the parent has not remedied the conditions which caused the removal.

S.C. Code Ann. § 63-7-2570(2) (Supp. 2008). 

Here, DSS recommended, and the family court ordered, that Children be removed from Mother.  The record reflects "the conditions which caused the removal" related to Mother's neglect of Children.  The family court found no conditions pertaining to Father that merited Children's removal.  Father's imprisonment began more than a year before Children's removal.  He neither lived in the home nor exercised control over it at the time Children were removed, or thereafter.  As a result, Father had no ability to remedy the conditions that led to Children's removal from Mother.  Accordingly, the family court erred in finding Father satisfied this statutory ground for TPR.

B.  Grounds Requiring a Finding of "Willfulness"

Father argues the family court erred in finding he willfully failed to visit or support Children and in finding he willfully abandoned them.  We agree. 

A parent's conduct is "willful" when it demonstrates the "settled purpose to forego parental duties" and "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, 839 (1992). 

1.  Failure to Visit

A statutory ground exists to terminate a parent's rights when:

The child has lived outside the home of either parent for a period of six months, and during that time the parent has wil[l]fully 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. § 63-7-2570(3) (Supp. 2008) (emphasis added). 

This statutory ground for TPR requires satisfaction of two criteria: (1) the child must be absent from the parental home for six months, and (2) during that time, the parent willfully failed to visit the child.  Father's arrest and imprisonment in North Carolina removed him from the family's home in 2003.  The record includes a letter from Father, stating Mother brought Children to visit him in jail eight times before she and Children moved to South Carolina.  No evidence in the record established that Father failed to communicate with Children from the time they moved to South Carolina until they began living with Grandparents in December 2004. 

Additionally, no evidence in the record indicates the date Mother left Children with her friend.  Children certainly "lived outside the home" of their parents when they moved into Grandfather's home in December 2004.  Grandfather acknowledged while Children were living with him, Father arranged for them to receive gifts through a prisoner gift program.  On March 15, 2005, the family court entered an order removing Children from Mother.  By this order, the family court also mandated Father "shall have no contact, direct or indirect, with [Children] until [he] is assessed by a sex offender therapist upon release from jail."  Thus, after March 15, 2005, Father was prevented by a court order from having any contact, direct or indirect, with Children.

Based on these facts, we find the record does not establish by clear and convincing evidence that Father, who was in prison in North Carolina, willfully failed to visit Children for a six-month period.  We find that aside from arranging gifts for Children through a prisoner program, Father did not visit or otherwise contact Children between the time they began living with Grandparents and entry of the no-contact order.  This period, from December 2004 to March 2005, comprises only three months.  Consequently, the family court erred in finding clear and convincing evidence supported Father's willful failure to visit Children for more than six months. 

2.  Failure to Support

A statutory ground for TPR also exists when:

The child has lived outside the home of either parent for a period of six months, and during that time the parent has wil[l]fully 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 wil[l]fully 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. § 63-7-2570(4) (Supp. 2008). 

The evidence pertaining to Father's purported failure to visit Children applies also to his failure to support them.  In both instances, the statutory clock began to run when Children began living outside the parent's home.  For the reasons discussed above, the record indicates Children began living outside the parental home in December 2004.  The family court's order of March 15, 2005, prohibited Father from having "any contact with Children, either direct or indirect."  That same order held in abeyance the determination of Father's child support obligation.  On September 8, 2005, the family court ruled Father's child support obligation would not commence until thirty days following his release from prison.  This order continued to prohibit Father having any contact, direct or indirect, with Children. 

Despite the family court's order, Respondents contend Father could have used his prison "canteen credits" to support Children.  However, no evidence indicated those credits could be distributed as support to Children.  Moreover, the record contains no evidence Father had any disposable income.  Therefore, the family court erred in finding clear and convincing evidence supported TPR based upon Father's willful failure to support Children for more than six months. 

3.  Abandonment     

Abandonment is another ground for TPR.  S.C. Code Ann. § 63-7-2570(7) (Supp. 2008).  "Abandonment" occurs when a parent "wil[l]fully deserts a child or wil[l]fully surrenders physical possession of a child without making adequate arrangements for the child's needs or the continuing care of the child."  S.C. Code Ann. § 63-7-20(1) (Supp. 2008).  Incarceration alone, even a lengthy incarceration, is not a ground for TPR.  S.C. Dep't of Soc. Servs. v. Ledford, 357 S.C. 371, 376, 593 S.E.2d 175, 177 (Ct. App. 2004).  However, when an incarcerated parent willfully disregards his child's wellbeing and continuing care, the family court may find abandonment.  Id. at 377, 593 S.E.2d at 177-78. 

Here, after Father was incarcerated in November 2003, Children remained in Mother's care and custody for over a year.  According to Father, he remained in contact with Children through prison visits.  No evidence established that Father willfully deserted Children or failed to make arrangements for their care.  To the contrary, Father expected Children to live with Mother, and thereafter, he acknowledged appreciation for Grandfather's care of Children.  Furthermore, Father wrote lengthy letters to the family court expressing his desire to remain a part of Children's lives and asking the family court to give Respondents permanent custody of Children, but also to require Respondents to provide Father with information about Children.  Accordingly, the family court erred in finding clear and convincing evidence established that Father abandoned Children. 

II.  Remaining Issues

Father argues the issue of adoption was "not ripe for adjudication" until his appeal of the TPR ruling was finally determined.  He also contends the family court violated his constitutional rights by "holding a final adoption hearing on the heels of verbally issuing an order of [TPR]."  Because our decision to reverse the termination of Father's parental rights is dispositive of this appeal, we need not address these issues.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal). 

CONCLUSION

As to whether the family court erred in terminating Father's parental rights, we find Respondents failed to establish by clear and convincing evidence that Father satisfied any of the four statutory grounds for TPR.  Therefore, we reverse the family court's termination of Father's parental rights.  As a consequence of this reversal, Father's parental rights remain intact, and we vacate the family court's order of adoption.  We remand this matter to the family court for entry of an order determining permanent custody.  Children shall remain in the custody of Respondents pending further order of the family court. 

Because our decision on the issue of TPR is dispositive of the appeal, we need not reach Father's remaining arguments. 

Accordingly, the order of the family court is

REVERSED IN PART, VACATED IN PART, AND REMANDED.

WILLIAMS, J., and CURETON and GOOLSBY, A.JJ., concur.