Aunt & Uncle v. Mother & Father, 2008-UP-210

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM.
PartiesAunt and Uncle, Appellants, v. Mother and Father, Respondents. In the Interest of Child (DOB: 03/03/02), a minor child.
Decision Date31 March 2008
Docket Number2008-UP-210

Aunt and Uncle, Appellants,

Mother and Father, Respondents.

In the Interest of Child (DOB: 03/03/02), a minor child. [1]

No. 2008-UP-210

Court of Appeals of South Carolina

March 31, 2008


Heard February 5, 2008

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

Jeffrey M. Butler, of Walterboro, for Appellants.

David W. Miller, of Aiken and John D. Elliott, of Columbia, for Respondents.


Aunt and Uncle appeal from the family court's order, which (1) denied their petition to terminate the parental rights of Mother and Father, (2) granted Mother additional and more extensive visitation with Child, and (3) required Aunt and Uncle to pay Father's and Child's guardian ad litem (GAL) fees. We affirm in part, reverse in part, and remand.


Shortly after Child's birth on March 3, 2002, Father was hospitalized due to a drug overdose. Thereafter, Mother and Father (collectively Parents) tested positive for cocaine, and the Department of Social Services (DSS) placed Child with her maternal grandmother (Grandmother). DSS also imposed a safety plan which prohibited Parents from any unsupervised contact with Child. After Parents violated the safety plan, law enforcement removed Child from Grandmother's custody and took her into emergency protective custody (EPC). On April 25, 2002, DSS placed Child in foster care.

At a removal merits hearing on May 30, 2002, the family court found Child was an abused and/or neglected child as defined in [South Carolina Code Annotated section] 20-7-490 (Supp. 1997). The nature of the harm to the child is threat of harm of physical neglect by [Mother and Father] based on their positive drug screen for cocaine.” The family court ratified a consent order for removal and a placement plan, which granted legal custody of Child to DSS. The family court also required Parents to attend bi-weekly supervised visits with Child and to each pay $50 per month in child support. Further, it ordered Parents to participate in a drug assessment program, submit to random drug tests, and attend family counseling to address past instances of criminal domestic violence. Additionally, the family court required Father to attend parenting and anger management classes. Parents agreed to comply with the placement plan and were notified their failure to accomplish the plan's objectives within the specified time frame could result in the loss of their parental rights. [2]

On May 29, 2003, after Child resided in foster care for one year, the family court conducted a permanency planning hearing to review the progress of Parents. The family court found the following: (1) Mother had recently tested positive for illegal substance abuse; (2) Father had failed to comply with the placement plan; and (3) Parents were in arrears on their child support payments.

Based on these findings, the family court accepted DSS's recommendation that custody of Child be granted to Aunt and Uncle. [3] Under a consent order filed May 29, 2003, the family court awarded legal and physical custody of Child to Aunt and Uncle, granted Parents supervised visits with Child, and ordered Parents to pay past-due child support. The family court's order stated reunification of Child with Parents was no longer a goal. The family court informed Parents they must successfully complete the original, court-approved placement plan before petitioning the family court for Child's return. Because Child had been successfully placed with relatives, DSS closed the case; however, DSS retained a right to intervene in the future.

During the next twelve months, Mother and Father divorced, Father was incarcerated in federal prison, and Mother was arrested for public intoxication and reckless driving. In July 2004, Aunt and Uncle filed a petition seeking termination of Parents' parental rights. [4] Aunt and Uncle additionally requested the suspension of Mother's visitation privileges should the family court decline to terminate her parental rights. Subsequent to the filing of the petition, Mother was indicted and pled guilty to charges of possession of cocaine.

A termination of parental rights (TPR) hearing was conducted on June 27 and 30, 2006. Aunt and Uncle testified Child had lived with them for the past three years, and they hoped to adopt Child following the termination of Parents' parental rights. No petition for adoption had been filed prior to the TPR hearing. Child's GAL, Gregory Harlow (Harlow), testified Mother had not responded to his attempts to contact her. Harlow stated termination of Mother's and Father's parental rights was in Child's best interest. However, the family court found Aunt and Uncle failed to prove a statutory ground for the termination of Parents' parental rights by clear and convincing evidence and denied Aunt and Uncle's petition. The family court also granted Mother additional and more extensive visitation with Child and ordered Aunt and Uncle to pay Father's and Child's GAL fees. The family court subsequently denied Aunt and Uncle's post-judgment motion to amend findings of fact and conclusions of law. This appeal follows.


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). Upon review, the appellate court may make its own finding from the record as to whether clear and convincing evidence supports the termination [of parental rights].” S.C. Dep't of Soc. Servs. v. Headden, 354 S.C. 602, 609, 582 S.E.2d 419, 423 (2003).

On appeal from the family court, this [C]ourt has jurisdiction to correct errors of law and find facts in accordance with its own view of the preponderance of the evidence.” Henggeler v. Hanson, 333 S.C. 598, 601, 510 S.E.2d 722, 724 (Ct. App. 1998). A preponderance of the evidence stated in simple language, is that evidence which convinces as to its truth.” Frazier v. Frazier, 228 S.C. 149, 168, 89 S.E.2d 225, 235 (1955) (internal quotations omitted). Despite this broad scope of review, this Court is not required to disregard the family court's findings. Doe v. Roe, 369 S.C. 351, 359, 631 S.E.2d 317, 321 (Ct. App. 2006). This Court remains mindful the family court saw and heard the witnesses, placing it in a better position to evaluate the credibility and assign comparative weight to each witness' testimony. Id.


I. Statutory Grounds for TPR

Aunt and Uncle first argue the family court erred in finding there was insufficient evidence to support a statutory ground for termination of Parents' parental rights. We disagree in regards to Mother's parental rights but agree in regards to Father's parental rights.

The procedures for TPR are governed by statute. See S.C. Code Ann. §§ 20-7-1560 to -1582 (Supp. 2007). The family court may order TPR upon a finding of one or more of the eleven statutory grounds listed in the TPR statute and upon a finding that termination is in the best interest of the child. S.C. Code Ann. § 20-7-1572. Therefore,

to terminate parental rights under section 20-7-1572, the family court must first find at least one of the statutory grounds set forth in that section. If the family court finds that a statutory ground for termination has been proven, it must then find that the best interests of the child would be served by termination

Doe v. Baby Boy Roe, 353 S.C. 576, 580, 578 S.E.2d 733, 735 (Ct. App. 2003).

a. Termination of Mother's Parental Rights

i. Mother's Failure to Make Home Safe and Mother's Failure to Remedy Conditions

We begin by noting a discrepancy between the family court record and the arguments raised on appeal. In the family court, Aunt and Uncle argued Mother's parental rights should be terminated pursuant to section 20-7-1572(1), which allows for TPR upon a showing that it is not likely the parent could make his or her home safe for the child within twelve months. Mother made a motion for a directed verdict [5] on this ground, and the family court judge granted the motion, finding Aunt and Uncle presented insufficient evidence to support their argument. Aunt and Uncle failed to appeal this ruling; instead they argue a different statutory ground in their appeal.

The Court of Appeals [has] properly concluded procedural rules are subservient to the [C]ourt's duty to zealously guard the rights of minors, ” making it proper for this Court to address issues raised for the first time on appeal if those issues concern a minor. Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000). However, due process prohibits the termination of parental rights on a ground for which the parent did not receive notice. Greenville County Dep't of Soc. Servs. v. Bowes, 313 S.C. 188, 195, 437 S.E.2d 107, 111 (1993), superseded by statute, SC Code Ann. § 20-7-1572, as recognized in Hooper v. Rockwell, 334 S.C. 281, 296 n.6, 513 S.E.2d 358, 366 n.6 (1999) (recognizing a family court must, in addition to finding a statutory ground for TPR has been proven by clear and convincing evidence, make the additional finding that termination is in the best interest of the child).

Aunt and Uncle's failure to raise section 20-7-1572(1) in their appeal resulted in Mother having no notice that her parental rights could be terminated pursuant to that statutory ground. The issues on appeal failed to advise Mother she would be called upon to address the possible applicability of section 20-7-1572(1), and therefore, she was deprived of an opportunity to rebut any allegations concerning this statutory ground. Therefore, due process prevents us from terminating Mother's parental rights pursuant to section 20-7-1572(1). Id. See also Blanton v. Stathos, 351 S.C. 534, 542, 570 S.E.2d 565, 569 (Ct...

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