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2009-UP-570 - Charleston County DSS v. Latrina R.

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

Ex Parte:

C. Tyson Nettles, as Guardian ad Litem, Appellant,

In Re:

Charleston County Department of Social Services, Respondent,

v.

Latrina R., Harry B., Harold B., and John Doe, representing the unknown biological father of minor children, Defendants,

Of Whom Latrina R. is the Appellant.

In the Interest of: A.F. and J.F., both minor children under the age of eighteen.


Appeal From Charleston County
Jan B. Holmes, Family Court Judge


Unpublished Opinion No. 2009-UP-570
Submitted December 1, 2009 – Filed December 3, 2009


AFFIRMED


C. Tyson Nettles, of Charleston, for Appellant Guardian ad Litem.

David K. Haller, of Charleston, for Appellant Latrina R.

Bonnie T. Brisbane, of North Charleston, for Respondent.

PER CURIAM: Latrina R. (Mother) appeals from the family court's order terminating her parental rights (TPR) to A.F. and J.F. (Children).  Mother argues the Charleston County Department of Social Services (DSS) did not prove by clear and convincing evidence the multiple grounds upon which the family court terminated her parental rights.  Mother further argues the application of section 63-7-1710(B) of the South Carolina Code (2008) was unconstitutional because DSS decided the Children would be adopted before Mother had a full opportunity to be heard.   Lastly, Mother argues the family court erred in finding TPR was in the Children's best interest despite the guardian ad litem's (GAL) contrary recommendation.  Further, the GAL appeals, arguing (1) the TPR action was time barred because the permanency planning order of the family court required DSS to initiate the TPR action within sixty days and (2) the family court essentially overruled the prior order of another family court judge in allowing the action to proceed when the prior order was the law of the case.  We affirm.[1]

DSS took the Children into custody in May of 2005.  A permanency planning hearing was held March 10, 2006, and the family court ordered DSS to initiate the TPR action within sixty days.   However, DSS did not file the TPR action until February of 2007.  The family court held the TPR hearing from June 16 to 18, 2008.  At the time of the hearing, Mother, a recovering drug addict, was living in a residential treatment facility where children were not allowed, and she had not used drugs since July of 2007.  

1. As to the GAL's argument the TPR action was time barred, section 63-7-1700(E) of the South Carolina Code (2008) provides if the court determines at the permanency planning hearing the child should not be returned to the parent at the time, the court's order must require DSS to file a TPR petition no later than sixty days after receipt of the order.  However, an appellant must demonstrate prejudice to be afforded relief on appeal.  Sanders v. Wal-Mart Stores, Inc., 379 S.C. 554, 562, 666 S.E.2d 297, 301 (Ct. App. 2008). 

The GAL does not specifically articulate a prejudice argument on behalf of the Children; rather, he generally states that the timely determination of custody and adherence to procedure provides a just result.  While we agree with the GAL's observation, the prejudice to the Children is unclear.  The testimony shows A.F. worked through her grief and found peace in her pre-adoptive home, and J.F. did not remember Mother or have any concept of the proceedings.  Mother also does not specifically argue prejudice.  Mother did argue the delay effectively caused the Children to be in foster care for fifteen of the last twenty-two months.  However, Mother was still using drugs and had not provided support within sixty days of the permanency planning hearing.  Therefore, any prejudice the delay caused her is unclear. 

2. Concerning the GAL's argument that the family court overruled a previous family court order that was the law of the case, this argument was not raised, and thus, it is not preserved for review.  See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.").

3. We affirm the family court's finding TPR was proper under section 63-7-2570(4) of the South Carolina Code (2008) because under the circumstances, Mother's support payments totaling $215 and Christmas gifts were not material contributions to the Children's support.  S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 53, 413 S.E.2d 835, 839 (1992) ("Conduct of the parent which evinces a settled purpose to forego parental duties may fairly be characterized as 'willful' 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. Cummings, 345 S.C. 288, 296, 547 S.E.2d 506, 511 (Ct. App. 2001) (finding judicially-motivated repentance, standing alone, rarely warrants a finding of curative conduct, and it must be considered together with all the relevant facts and circumstances).[2] 

4. Concerning Mother's argument that the application of section 63-7-1710(B) of the South Carolina Code (2008) was unconstitutional because DSS decided the Children would be adopted before Mother had a full opportunity to be heard, section 63-7-1710(B) mandates:  "Concurrently with filing of the petition [for TPR], [DSS] shall seek to identify, recruit, process, and approve a qualified family for adoption of the child if an adoptive family has not yet been selected and approved."  Furthermore, Mother had notice and a full opportunity to be heard.

5. Despite Mother's arguments to the contrary, our review of the record indicates TPR is in the Children’s best interests.  In a termination of parental rights case, the best interests of the child are the paramount consideration.  S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000).  If the parent's and child's interests conflict, the child's interest prevails.  See S.C. Code Ann. § 63-7-2620 (2008).  The court considered the GAL's recommendation to return the Children to Mother but found it benefited Mother rather than recognizing the Children's interests prevailed.  Mother did not have a home for the Children, and she has a history of drug abuse with periods of sobriety and relapse.  Mother admitted neglecting the Children when using drugs, and she had not completed a treatment plan.  Additionally, the record contained evidence the Children were settled in with a stable pre-adoptive family and were doing well socially and academically.  Accordingly, the court did not err in finding the termination of Mother's parental rights was proper. 

The family court order terminating the parental rights of Mother is  

AFFIRMED.

HEARN, C.J., WILLIAMS, and KONDUROS, JJ., concur.


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

[2]   Once one statutory ground is met, this court need not address whether any other ground for TPR has not been proved.  Stinecipher v. Ballington, 366 S.C. 92, 100 n.6, 620 S.E.2d 93, 98 n.6 (Ct. App. 2005).