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2011-UP-491 - SCDSS v. Tony B.

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

Rodney A., Plaintiff,

v.

Keisha G., Tony B., and South Carolina Department of Social Services, Defendants,

And South Carolina Department of Social Services, Respondent,

v.

Keisha G., Tony B., and John Doe, Defendants,

Of whom Tony B. is the Appellant.

In the interest of a minor child under the age of 18.


Appeal From Greenville County
 Robert N. Jenkins, Sr., Family Court Judge


Unpublished Opinion No. 2011-UP-491
Submitted November 1, 2011 – Filed November 3, 2011   


AFFIRMED


Amos A. Workman, of Greenville, for Appellant.

Deborah  Murdock, of Mauldin, for Respondent.

Robert A. Clark, of Greenville, for Guardian ad Litem.

PER CURIAM: Tony B. (Father) appeals the family court's order terminating his parental rights to his minor child (Child), arguing the family court erred in finding (1) he wilfully failed to support Child, (2) Child has been in foster care for at least fifteen of the most recent twenty-two months, and (3) termination of parental rights (TPR) was in Child's best interests. We affirm.[1]

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 also 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 388, 709 S.E.2d at 653.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id. at 391, 709 S.E.2d at 655.  "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.

We find clear and convincing evidence exists that Father wilfully failed to support Child.[2]  See § 63-7-2570(4) (2010) (noting one ground for TPR is when 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").  "Willful conduct is that which '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. Marccuci, Op. No. 27049 (S.C. Sup. Ct. filed Oct. 3, 2011) (Shearhouse Adv. Sh. No. 35 at 20) (citation omitted).  "Whether a parent's failure to visit or support a child is wilful is a question of intent to be determined by the facts and circumstances of each case."  S.C. Dep't of Soc. Servs. v. Wilson, 344 S.C. 332, 336, 543 S.E.2d 580, 582 (Ct. App. 2001).

Here, clear and convincing evidence exists that Father has not paid child support since the family court ordered it in 2002.  Although Child's guardian ad litem indicated that Father paid child support once in 2005, the Department of Social Services (DSS) caseworker testified DSS had no records of Father paying any child support.  Although Father explained he gave the money directly to Child's mother, Father offered no evidence in support of this claim.  Additionally, the family court found Father in civil contempt in 2006 for failure to pay child support and ordered him to serve four months' incarceration and pay the arrearages upon release.  Moreover, the family court never modified or suspended his child support obligation.  In fact, the 2006 merits removal order redirected Father's child support to DSS and the civil contempt order required Father to pay his child support payment in addition to the arrearages upon his release. 

Furthermore, Father's argument that his failure to support was not wilful because he was incarcerated is unpersuasive.  Although Father explained he did not pay child support while incarcerated because he had no financial means of paying, Father acknowledged he was employed occasionally while incarcerated.  Furthermore, Father acknowledged he never asked anyone in his family to provide child support.   Father's brother, sister, and aunt all testified that Father never asked them to help with child support.  Essentially, the record reflects that Father has made no effort to pay child support or provide material contributions to Child since the family court's order in 2002.  Thus, we find his behavior evinces a settled purpose to forgo his obligation to support Child, and the family court did not err in finding Father wilfully failed to support Child. 

Once a statutory ground has been proven, this court must determine whether there was evidence termination was in the child's best interests.  In a TPR case, the best interests of the child are the paramount consideration.  S.C. Dep't of Soc. Servs. v. Janice C., 383 S.C. 221, 228, 678 S.E.2d 463, 467 (Ct. App. 2009).  If the parent's and child's interests conflict, the child's interest prevails.  See S.C. Code Ann. § 63-7-2620 (2010). 

We find clear and convincing evidence in the record supports the family court's findings that the termination of Father's parental rights is in Child's best interests.  The record reveals that Father essentially has never cared for Child during her lifetime.  Furthermore, Father has repeatedly put his own interests ahead of hers.  Father purposefully chose to leave Child at his cousin's house immediately after gunshots were fired in order to evade the police and arrest. Additionally, Father's whereabouts were unknown for the first two years of DSS's involvement with Child.  In fact, Father only began participating in the DSS proceedings and hearings after he was incarcerated in 2006.  Additionally, Child has indicated that she was ready to move on and no longer wanted to receive letters from Father.  Child has also chosen not to write him anymore.  Furthermore, Child is in need of a stable home environment with caretakers who can provide the love and support she needs to live a happy, healthy, and productive life.  According to Child's guardian ad litem and the DSS caseworker, Child currently has this support from her foster parents. Accordingly, we find the family court correctly determined TPR was in Child's best interest.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


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

[2] Because we find Father wilfully failed to support Child, we need not address the remaining statutory ground for TPR.  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 proved).