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2010-UP-217 - SCDSS v. Lisa H.

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.

South Carolina Department of Social Services, Respondent,

v.

Lisa H. and David R., Defendants,

 

Of whom Lisa H. is the Appellant.                 

In the Interest of:
N.R., a minor child under
the age of 18 years.


Appeal From Aiken County
 Peter R. Nuessle, III, Family Court Judge


Unpublished Opinion No. 2010-UP-217
Submitted March 1, 2010 – Filed March 16, 2010


AFFIRMED


A. Shane Massey, of Aiken, for Appellant.

Dennis M. Gmerek, of Aiken, for Respondent.

Patrick A. McWilliams, of Aiken, for Guardian ad Litem.

PER CURIAM:  Lisa H. (Mother) appeals the family court's decision to terminate her parental rights to her minor child, N.R. (Child).  See S.C. Code Ann. § 63-7-2570 (2008).  Mother argues the family court erred in considering six unfounded reports of child abuse and neglect and in considering Mother's arrest history when it made the decision to terminate Mother's rights.  We affirm. 

FACTS

Child entered foster care for the first time in September of 2004, after Mother admitted in a police report she used illicit drugs and left Child unattended.  Mother eventually complied with her court ordered treatment plan, and Child was returned to her custody in November of 2005.  Child entered foster care for the second time after Mother was arrested for burglary and no one was available to care for Child.  Mother again complied with her treatment plan, and Child was returned to her custody in July of 2008.  Child entered foster care for the third time in August of 2008, due to Mother's arrest on driving under the influence (DUI) charges.  No adult was available to take care of Child.  The family court approved the South Carolina Department of Social Services' (the Department) recommendation for termination of parental rights (TPR) and adoption after Child entered foster care for the third time. 

During the TPR hearing, a case worker for the Department testified regarding six unfounded reports of abuse or neglect regarding Mother and Child.  The unfounded reports at issue in this case included: three reports stating Mother was using illegal drugs around Child; one report stating Mother left Child alone in a car; one report stating Child was being physically abused; and one report stating Mother left Child in the care of a man being treated for depression and alcohol addiction.  Mother objected, arguing the admission of these unfounded reports was more prejudicial than probative, and moreover, the reports were irrelevant.  The family court overruled Mother's objection and allowed the Department's case worker to testify regarding all six unfounded reports of abuse or neglect. 

Mother testified during the TPR hearing and admitted she had been arrested four or five times since Child's birth.  The Department asked Mother about two 1985 convictions, one for DUI and the other for a property crime.  Mother immediately objected, arguing these crimes were inadmissible because they were both over ten years old and did not carry a term over one year's imprisonment.  The family court first sustained Mother's objection, but later changed its stance and overruled the objection.  The family court also allowed the Department to ask Mother about a 1995 arrest for an open container in her car.  Mother explained her 2008 DUI arrest charge was reduced to reckless driving.  The Department entered a copy of Mother's arrest history into evidence over Mother's objection.  The arrest history included a 2007 arrest for first-degree burglary, two separate 2005 arrests for disorderly conduct, and a 2002 arrest for providing false information to a police officer. 

The guardian ad litem's (GAL) report noted Child told troubling stories about living with Mother, including the following:

Child tells stories of things that happened when he lived with mom, e.g., mom attacked the pool with a knife, mom sleeps with him without her shirt on, a man sleeps with him and had a heart attack, cats scratching him, dogs biting him, somebody shooting out of the back window of mom's car, dad chasing mom down the street and beating her up, being held underwater in the bathtub so he couldn't breathe.

The GAL also noted Child was overly affectionate with women, used profanity and profane gestures, and had recurring nightmares when he entered foster care for the second time in July of 2007.  Finally, the GAL report stated Child is "much better adjusted since entering foster care.  He plays well with other children and enjoys his current home.  He listens to and obeys authoritative figures.  He has even gone off his medication at the request of his doctor."  The GAL recommended termination of Mother's parental rights because of her instability and inability to care for Child.

The family court's final TPR order found Mother's rights should be terminated on the following statutory grounds: (1) physical neglect or substantial risk of physical neglect and because of the severity or repetition of the abuse or neglect, it was not reasonably likely that the home could be made safe within twelve months and (2) Child was in foster care under the responsibility of the state for fifteen of the most recent twenty-two months.  See S.C. Code Ann. § 63-7-2570(1), (8) (2008).  The family court noted the Department received nine reports involving Child and Mother, and while six of the reports were unfounded, at least three were indicated and resulted in Child being placed in foster care.  The family court described the conduct that resulted in Child entering foster care, including Mother's use of illegal drugs, Mother's criminal activity, and Mother's misuse of alcohol.  The order did not explicitly mention any of Mother's remote convictions or arrests.  The family court also found TPR was in Child's best interest.  Finally, the order noted adoption services accepted Child for placement, and the Department identified a number of potential resources for Child.  This appeal followed.  

LAW/ANALYSIS

After reviewing the record on appeal, and we find the statutory grounds for TPR were supported by clear and convincing evidence.  Charleston County Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 95, 627 S.E.2d 765, 770 (Ct. App. 2006) (noting in an appeal from a TPR, an appellate court may review the record and make its own determination of whether the grounds for termination are supported by clear and convincing evidence).  Specifically, Child was in foster care under the responsibility of the state for fifteen of the most recent twenty-two months.  S.C. Code Ann. § 63-7-2570(8) (2008).  In addition, the Department entered three indicated reports of abuse and neglect, which resulted in Child entering foster care on three separate occasions.  We believe this evidence was sufficient to demonstrate a repetitive history of abuse and neglect such that it was not reasonably likely the home could be made safe within twelve months.  S.C. Code Ann. § 63-7-2570(1) (2008).  Finally, the GAL's report recommended termination would be in Child's best interest due to Mother's instability and inability to care for Child.  § 63-7-2570; S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000) ("In a [TPR] case, the best interests of the child are the paramount consideration.").

Mother argues the family court erred in admitting six unfounded reports of abuse and neglect and in considering Mother's arrest history.  However, we do not believe Mother can demonstrate any prejudice from the admission of this arguably irrelevant evidence.  See Brown v. Allstate Ins. Co., 344 S.C. 21, 27, 542 S.E.2d 723, 726 (2001) ("A trial judge's role in a bench trial is to admit all evidence and then evaluate it in a non-jury setting."); Green v. Green, 228 S.C. 364, 369, 90 S.E.2d 253, 255 (1955) (noting "where a trial is had before the court without a jury, the admission of incompetent evidence does not necessarily require reversal, particularly where there is no reasonable probability that such evidence had any effect on the result").  The family court did not appear to rely on the unfounded reports in its final termination order, nor did it mention Mother's criminal history aside from the three indicated reports of abuse.  In addition, we find the statutory grounds for termination and best interest of Child were supported by clear and convincing evidence.  Therefore, we believe the family court's error, if any, in admission of this incompetent evidence was harmless.  S.C. Dep't of Social Servs. v. Janice C., 383 S.C. 221, 226, 678 S.E.2d 463, 466 (Ct. App. 2009) (finding any error by the family court was harmless because the appellate court determines its own findings from the record as to whether clear and convincing evidence supports the termination of parental rights).

AFFIRMED.[1]

HUFF, THOMAS, and KONDUROS, JJ., concur.


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