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2011-UP-389 - SCDSS v. Shawna O.

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

South Carolina Department of Social Services, Respondent,

v.

Shawna Rene' O. also known as Shawna Rene O., and David S., Appellants.

In the interests of two minor children under the age of 18.


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


Unpublished Opinion No.  2011-UP-389 
Submitted July 1, 2011 – Filed August 16, 2011


AFFIRMED


Courtney Caroline Rugg Garrison, of Aiken, for Appellant Shawna Rene O.

Scott J. Klosinski, of Augusta, GA, for Appellant David S..

Amanda F. Whittle, of Aiken, for Respondent. 

Patrick McWilliams, of Aiken, for Guardian ad Litem. 

PER CURIAM:  Shawna Rene O. (Mother) and David S. (Father) both appeal the termination of parental rights (TPR) to their two minor children by the family court.  We affirm.

The grounds for TPR must be proven by clear and convincing evidence.  S.C. Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999).  On appeal from the family court, this court reviews factual and legal issues de novo.  Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).  Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Lewis, 392 S.C. at 385, 709 S.E.2d at 652.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id.         

"In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence."  Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006).  "This broad scope of review does not, however, require the appellate court to disregard the findings of the family court."  Id.  "This degree of deference is especially true in cases involving the welfare and best interests of a minor child."  Id. at 62, 624 S.E.2d at 652.

FATHER'S APPEAL

Father argues the family court violated his due process rights by: (1) denying his motion to continue so that he could testify after his criminal proceedings were complete; (2) denying his motion to continue so he could obtain a psychosexual evaluation; and (3) finding he failed to remedy the conditions that caused removal of his children although he could not afford to pay for a psychosexual evaluation.  Additionally, Father argues the family court erred by finding he willfully failed to support his children.

I.  First Motion to Continue

Father argues the family court violated his due process rights when it denied his motion to continue so he could testify without invoking his right to remain silent.  We disagree.

"If good and sufficient cause for continuance is shown, the continuance may be granted by the court."  Rule 40(i)(1), SCRCP.  "The grant or denial of a continuance is within the sound discretion of the family court and its ruling will not be reversed on appeal absent an abuse of discretion."  Dep't of Soc. Servs. v. Laura D., 386 S.C. 382, 385, 688 S.E.2d 130, 132 (Ct. App. 2009).

We find the family court had a substantial basis to deny the motion.  First, Father was present at the hearing and was represented by counsel.  His decision not to testify was therefore tactical and did not implicate either the state or federal constitutions.  See S.C. Dep't of Soc. Servs. v. Walter, 369 S.C. 384, 387-88, 631 S.E.2d 913, 914 (Ct. App. 2006) (upholding the family court's denial of a motion to continue where a father chose not to testify during a removal hearing due to pending sexual abuse charges).  Second, the Department of Social Services (DSS) intended to question Father about his failure to submit to a psychosexual evaluation and not the issues surrounding his pending criminal charges.  Thus, Father would not have had to invoke his right to remain silent.  Third, the family court, over the objection of DSS, allowed counsel for Father to proffer Father's testimony.  Thus, Father's version of events was before the court.  Lastly, at the time of the hearing, the minor children had been in foster care for approximately twenty-seven months, and were entitled to a final decision in order to allow adoption proceedings to commence.  Accordingly, we do not believe the family court abused its discretion in denying the motion.  See Laura D., 386 S.C. at 385, 688 S.E.2d at 132.  

II.  Second Motion to Continue

Father argues the family court violated his due process rights when it denied his motion to continue in order to obtain a psychosexual evaluation.  We disagree.

DSS clearly demonstrated Father was aware for approximately twenty-three months he was required to submit to an evaluation.  Nothing in the record indicates Father was more likely to submit to the evaluation had the family court granted the continuance.  Accordingly, we find the family court did not abuse its discretion in denying the motion.  See Laura D., 386 S.C. at 385, 688 S.E.2d at 132.

III.  Failure to Remedy Conditions

Father argues the family court violated his due process rights and erred when it found he failed to remedy the conditions which led to the removal of his children.  Specifically, Father maintains he could not afford the psychosexual evaluation; therefore, he was deprived of his liberty interest in the care and custody of his children based on his status as an indigent.  We disagree.

"Parental rights warrant vigilant protection under the law and due process mandates a fundamentally fair procedure when the state seeks to terminate the parent-child relationship."  S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d 642, 645 (2005).

Father correctly argues he has a fundamental interest at stake.  Id.  However, this interest is not absolute.  See id. at 626-27, 614 S.E.2d at 645 (holding the best interest of the child outweighs the parent's fundamental interest in the care, custody, and management of their children); see also Hooper v. Rockwell, 334 S.C. 281, 294, 513 S.E.2d 358, 365 (1999) ("Courts uniformly have concluded that, while parents have a constitutionally protected liberty interest in the care and custody of their children, that right is not absolute."). 

Father analogizes the denial of an indigent to access of a state-funded psychiatrist during a death penalty trial to DSS's denial of funds for his psychosexual evaluation.  See Ake v. Oklahoma, 470 U.S. 68, 76-80 (1985) (holding it is a violation of due process to deprive an indigent defendant access to a state-funded psychiatrist where the defendant's sanity at the time of the offense is a significant factor in the trial).  We believe this case is distinguishable because the minor children's interest in protection from harm overrides Father's liberty interest.  See Hooper, 334 S.C. at 294, 513 S.E.2d at 365 (holding child protection and removal cases are fundamentally different than a typical criminal case).

Moreover, Father has not cited any case requiring DSS to provide all necessary means to achieve the goals of the treatment plan and the South Carolina Children's Code does not indicate a legislative intent to place this burden on DSS.  See S.C. Code Ann. §§ 63-7-1670, -1680 (2010 & Supp. 2010).

Finally, Father had two years to submit to an evaluation.  During that time he voluntarily quit his job and, when it behooved him, he was able to raise $3,000 in bail money in two weeks.  However, he was not able to raise half that amount in two years despite repeated warnings from DSS that failure to do so would result in TPR.  DSS was not required to ensure a successful outcome.  See McCutcheon v. Charleston Co. Dep't of Soc. Servs., 302 S.C. 338, 343, 396 S.E.2d 115, 118 (Ct. App. 1990).  Accordingly, we find Father's due process rights were not violated.

IV.  Failure to Support       

Father argues the family court erred by finding he willfully failed to support his minor children.  We decline to address this issue because it is not necessary for the disposition of this case.  See Stinecipher v. Ballington, 366 S.C. 92, 100 n.6, 620 S.E.2d 93, 98 n.6 (Ct. App. 2005) (stating once one statutory ground is met, this court need not address whether any other ground for TPR has been proven).[1]

MOTHER'S APPEAL

With regard to Mother's issues on appeal, we affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. As to whether the family court erred in finding Mother failed to remedy the conditions leading to her children's removal:  S.C. Code Ann. § 63-7-2570 (2010) (providing the family court may terminate parental rights when TPR is in the child's best interests and 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 by court order or by agreement between the department and the parent, and the parent has not remedied the conditions which caused the removal); Dep't of Soc. Servs. v. Pritchett, 296 S.C. 517, 520, 374 S.E.2d 500, 501 (Ct. App. 1988) (emphasis in original) ("[A]n attempt to remedy alone is [not] adequate to preserve parental rights. Otherwise, the statute would be couched in such terms. The attempt must have, in fact, remedied the conditions.").   

2. As to whether the family court erred in determining TPR was in the children's best interests:  Doe v. Roe, 386 S.C. 624, 634, 690 S.E.2d 573, 579 (2010) ("Overturning the family court's decision to terminate [parent's] rights clearly conflicts with the TPR statute's purpose to make a child eligible for adoption by someone 'who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.'" (quoting S.C. Code Ann. § 63-7-2510 (2010))); S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000) (holding the best interests of the child are the paramount consideration in a TPR case). 

AFFIRMED.[2]

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


[1] On appeal, Father does not argue the family court erred by finding TPR was in the best interests of the minor children.  Accordingly, this finding is the law of the case.  See Sloan v. Dep't of Transp., 365 S.C. 299, 307, 618 S.E.2d 876, 880 (2005) ("The failure to appeal an alternative ground of the judgment below will result in affirmance.").

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