Baker v. Wolfe, 2919.

Citation333 S.C. 605,510 S.E.2d 726
Decision Date21 December 1998
Docket NumberNo. 2919.,2919.
PartiesJenny BAKER and Jerry Baker, Appellants, v. Scott G. WOLFE, Barbara Miller and Charles Miller, Respondents.
CourtCourt of Appeals of South Carolina

Robert T. Williams, Sr., of Williams, Hendrix, Steigner & Brink, of Lexington, for appellants.

Donald D. Aaron, of Aaron & Aaron, of Columbia, for respondents.

Guardian ad Litem: Warren A. Kohn, of Columbia.

HOWELL, Chief Judge:

In this child custody dispute, Jenny and Jerry Baker (the Bakers, or the Mother and the Stepfather) appeal from an order of the family court awarding custody of the Mother's two minor children to their paternal grandparents, Barbara and Charles Miller (the Grandparents). We affirm.

I.

The Mother married Scott Wolfe (the Father) in 1989; they divorced in 1991. In the 1991 divorce decree, the family court granted custody of the parties' two minor children to the Mother. In May 1993, the children began living with the Father, who was living with the Grandparents. According to the Father, the children came to live with him because the Mother "dropped them off at the house one weekend and they just started living with me from then on. She didn't come back for them."

In June 1994, the Father brought an action against the Mother seeking joint custody of the children. The Mother answered and joined in the Father's request. By order dated August 10, 1994, the family court awarded the Father joint custody, and gave primary physical custody of the children to the Father "so long as [the Father] resides with his mother, Barbara Miller."

In November 1995, the Mother commenced this action, seeking to have the Father held in contempt for failing to comply with the court-ordered visitation schedule and also seeking sole custody of the children. The Father counterclaimed for sole custody of the children. At the time this action was commenced, the children were still living with the Father in the Grandparents' home.

The Grandparents and the Stepfather were made parties to the action. The order adding the Grandparents to the action provided that "any and all pleadings previously filed for relief or filed subsequently hereto ... by the [Father], shall be treated as if it were a joint request by the [Father] and [the Grandparents]."

While all parties were present on the first day of the hearing, the Mother and Stepfather were not present on the second day. Their attorney informed the court that an emergency prevented his clients from attending, but that he was authorized to proceed in their absence.

By order dated March 12, 1997, the family court determined that both the Mother and Father were unfit.1 The court determined that Barbara Miller (the Grandmother) "has provided by far more of the parenting functions on a regular basis to the children than either [the Mother] or [the Father]." The court, therefore, awarded the Grandmother sole custody of the children and established a visitation schedule for the Mother. On March 19, 1997, the Grandmother filed a motion pursuant to Rule 59(e), SCRCP, seeking to change the visitation awarded to the Mother. In the motion, the Grandmother informed the court that the Mother and Stepfather had been arrested for trafficking in cocaine between the first and second day of the custody hearing. The Grandmother alleged the Mother had threatened to take the children out of state and had attempted to remove them from their school. At the hearing on the Grandmother's motion, the Grandmother submitted affidavits and documentation from the Richland County Sheriffs Department indicating the Mother and Stepfather had been under police surveillance for more than two months and that they sold more than 28 grams of cocaine to an undercover police agent.

By order dated April 4, 1997, the family court amended its custody decree to restrict the Mother's visitation with the children to two hours per week at a restaurant under the supervision of the Grandmother or her designee.

II.

On appeal, the Bakers first argue that the family court erred in awarding custody of the children to the Grandmother. The Bakers contend the evidence does not support the family court's determination that the Mother is unfit, and that the family court failed to consider all of the factors applicable to custody disputes between natural parents and third parties. We find no error.

The welfare and best interests of the child are paramount in all custody disputes. However, the law recognizes a rebuttable presumption that it is in the best interest of any child to be in the custody of its biological parent. Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989); Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985).

In Moore, our Supreme Court set forth the following factors to be considered in cases where a natural parent seeks to reclaim custody from a third party: (1) the parent's fitness and ability to properly care for and provide a good home for the child; (2) the amount of contact, in the form of visitation, financial support, or both, the parent had with the child while the child was in the care of a third party; (3) the circumstances under which temporary relinquishment occurred; and (4) the degree of attachment between the child and the third party. Id. at 79, 80, 386 S.E.2d at 458. The Bakers contend the family court erred by failing to analyze the custody question in light of the factors set forth in Moore. We disagree.

This case began as a custody dispute between parents who had joint custody of the children. There was no court order or agreement between the parents relinquishing custody to the Grandmother. Although the Mother voluntarily relinquished physical custody of the children in 1993, she relinquished custody to the Father, not a third party. Given that the Father resided with the Grandparents, the Mother may well have assumed that the Grandmother would be the primary caretaker of the children. Nonetheless, her relinquishment of the children to the Father does not seem to be the same type of relinquishment contemplated in Moore. Accordingly, given the unique factual circumstances of this case, we conclude that Moore is not controlling, although its factors may provide some guidance. Instead, we believe this case is controlled by a determination of the Mother's fitness as a parent and a consideration of the best interests of the children.

We agree with the family court that the Mother is unfit to parent the children. First and foremost, there is evidence in the record that the Mother and Stepfather are drug users and dealers,2 which clearly supports the family court's determination that the Mother is unfit. In addition, there is evidence that both the Mother and the children have suffered physical abuse at the hands of the Stepfather. That the Mother has allowed her children to be physically abused by the Stepfather indicates that the Mother is either unable to or uninterested in properly protecting the children, and again supports the conclusion that the Mother is not fit to parent her children.

The Bakers contend, however, that the evidence establishing the drug use and domestic violence came from the Father and his witnesses and, therefore, should not be believed. In this family court action, we of course have jurisdiction to make findings of fact based upon our own view of the preponderance of the evidence. See, e.g., Epperly v. Epperly, 312 S.C. 411, 440 S.E.2d 884 (1994)

. Nonetheless, given the divergent testimony in this case, we believe it wise to defer to the factual findings of the family court judge, who saw and heard the witnesses and was in the best position to judge their credibility. See Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 477 (Ct.App.1996) ("Because the appellate court lacks the opportunity for direct observation of the witnesses, it should accord great deference to trial court findings where matters of credibility are involved. This is especially true in cases involving the welfare and best interests of children.") (citations omitted); Morehouse v. Morehouse, 317 S.C. 222, 225-26, 452 S.E.2d 632, 634 (Ct.App.1994) ("In reviewing the family court's factual determinations, we may take our own view of the preponderance of the evidence. We need not, however, disregard the findings of the trial court. Particularly where evidence is disputed, we may adhere to the findings of the trial judge, who saw and heard the witnesses and was in a superior position to judge their credibility. We should be reluctant to substitute our own evaluation of the evidence on child custody for that of the trial court.") (citations omitted).

The family court concluded that the Bakers are users and dealers of drugs and that the Stepfather had physically abused the Mother and the children, and, as noted above, there is evidence supporting those conclusions. We decline to set aside these critical factual findings. The evidence of drug use and domestic violence, particularly when considered with the evidence establishing the Mother's sporadic interest and participation in the children's lives and her failure to properly care for the children while they were in her custody, is more than sufficient to support the family court's conclusion that the Mother is not fit to parent her children.

Because we have concluded that the Mother is not fit to be a parent, our inquiry is effectively over. While there is a presumption in favor of awarding custody to a natural parent over a third party, that presumption applies only if the parent is found to be fit. See Hopkins v. South Carolina Dep't of Soc. Servs., 313 S.C. 322, 327, 437 S.E.2d 542, 544 (1993) ("In Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) we held there is a rebuttable presumption that a fit natural parent should have custody as against a third party.") (emphasis added); cf. McDowell v. Richardson, 279 S.C. 268, 305 S.E.2d 577 (1983)

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