Department of Social Services v. MRS. H, 3364.

• Decision Date: 02 July 2001
• Docket Number: No. 3364.,3364.
• Citation: 346 S.C. 329,550 S.E.2d 898
• Court: South Carolina Court of Appeals
• Parties: The DEPARTMENT OF SOCIAL SERVICES, Respondent, v. MRS. H and Mr. H, Appellants.

346 S.C. 329

550 S.E.2d 898

The DEPARTMENT OF SOCIAL SERVICES, Respondent, v. MRS. H and Mr. H, Appellants.

No. 3364.

Court of Appeals of South Carolina.

Heard May 8, 2001.

Decided July 2, 2001.

Rehearing Denied August 22, 2001.

Charles T. Brooks, III, of Sumter, for appellants.

Sharon Baker Clark, of Sumter, for respondent.

HUFF, Judge:

Mrs. H and Mr. H appeal from an order of the family court terminating their parental rights to two minor children, the older child and the younger child. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Mrs. H is the natural mother of the older child and the younger child. Mr. H is the younger child's natural father and the older child's stepfather. Law enforcement officers took the older child into emergency protective custody on June 2, 1992, after the Department of Social Services (DSS) received a report alleging she had been sexually abused, had bruises on her legs, and had head lice. The younger child was taken into emergency protective custody pursuant to an ex parte order dated August 28, 1992, due to risk of sexual abuse.

After a merits hearing in October of 1992, the family court, by its order dated December 15, 1992, continued custody with DSS. In its order, the court found: (1) Mr. H had inappropriately touched the older child in her vaginal area; (2) Mrs. H would be unable or unwilling to protect the child from such abuse because she did not believe the abuse occurred; and (3) Mr. H's conduct with the older child placed the younger child in danger "until such time as Mr. H and Mrs. H can be rehabilitated...." In the same order, the court approved a treatment plan for Mr. H and Mrs. H and directed both parents to comply with its terms.

Mrs. H and Mr. H filed a pro se motion dated December 29, 1992, seeking reconsideration of the December 15, 1992 order pursuant to Rule 60(b)(1), (2), (3), (4), and (5), based on newly discovered evidence.¹ A hearing on the motion was set for September 23, 1993, but was subsequently continued. Mr. H and Mrs. H through their attorney, filed an amended motion to reconsider on November 30, 1993, and the court rescheduled the hearing for December 14, 1993. On the same day, DSS filed a return opposing the motion, and the hearing was rescheduled for December 17, 1993. After the December 17th hearing, the court issued an order dated January 24, 1994, continuing the hearing and finding the motion should be heard by the judge who issued the December 15, 1992 order.

Subsequent to the December 15, 1992 order and up until April 1998, the family court held numerous review and motion hearings. In September of 1993, the family court continued custody of the children with DSS and ordered Mrs. H and Mr. H to continue counseling and "cooperate with the professionals." Following an August 1994 review hearing, the court found a "significant aspect of the Treatment Plan," that Mr. H and Mrs. H receive individual counseling, had not materialized, and that the children should remain in foster care. The court ordered Mrs. H and Mr. H to promptly arrange to begin counseling and noted, if Mrs. H and Mr. H failed to attend counseling, it would be an indication to the court that they "did not wish to remediate the problems which necessitated the removal of the children." In February of 1995, the court suspended Mr. H's visitation with the older child and encouraged Mrs. H and Mr. H to cooperate with the treatment plan. In May of 1995, the court held two hearings, one on the issue of evaluation of the children by Mrs. H's and Mr. H's counselor and another on the issue of whether Mr. H should be allowed to resume visitation with the older child. By order dated June 21, 1995, the court found that the detriment to the older child in allowing such visitation outweighed any benefit therefrom, and the order suspending that visitation should remain in force. The court further urged Mrs. H and Mr. H to be faithful to the treatment plan.

In 1995, Mrs. H and Mr. H filed a complaint, and in 1996 an amended complaint, seeking to regain custody of the children. On September 11, 1997, DSS filed this action for termination of parental rights. By order dated October 2, 1998, the family court consolidated all of the pending actions, including Mrs. H's and Mr. H's action to regain custody, and all issues were preserved for a final hearing on the merits.

The family court held the final hearing on the consolidated actions on November 17, 18, and 19, 1999. By order dated January 4, 2000, the court terminated Mr. H's parental rights as to the younger child, and terminated Mrs. H's parental rights as to both the younger child and the older child.² The court also directed DSS to devise a permanent placement plan for the children. Regarding Mr. H, the court specifically found, despite identification by DSS of the conditions leading to removal and meaningful efforts of the agency to provide appropriate rehabilitative services, clear and convincing evidence indicated Mr. H failed to complete his treatment plan and, therefore, never remedied the conditions which caused the younger child's removal from the home. The court further found that termination of Mr. H's parental rights was proper based on the undisputed evidence that the younger child had been in foster care for fifteen of the twenty-two months preceding trial. As to termination of Mrs. H's parental rights, the court found that she too had failed to remedy the conditions which caused removal of the children, inasmuch as she continued to believe Mr. H had not committed the alleged abuse and, therefore, she continued to be unable or unwilling to protect them from the risk of abuse. As well, the court found termination of Mrs. H's parental rights proper on the ground the children had been in foster care for fifteen of the most recent twenty-two months preceding trial of the case. Mrs. H and Mr. H filed a post trial motion for reconsideration, which was denied. This appeal followed.

STANDARD OF REVIEW

Grounds for termination of parental rights must be proved 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); Greenville County Dep't of Soc. Servs. v. Bowes, 313 S.C. 188, 193, 437 S.E.2d 107, 110 (1993). On appeal of a termination of parental rights case, this court may review the record and make its own finding of whether clear and convincing evidence supports the termination. S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 54, 413 S.E.2d 835, 839 (1992) ("The appellate court may review the record on appeal on the issue of termination of parental rights and make its own finding as to whether such termination is supported by clear and convincing evidence."). Statutes involving the termination of parental rights "must be liberally construed in order to ensure prompt judicial procedures for freeing minor children from the custody and control of their parents by terminating the parent child relationship. The interests of the child shall prevail if the child's interest and the parental rights conflict." S.C.Code Ann. § 20-7-1578 (Supp.2000); Joiner ex rel Rivas v. Rivas, 342 S.C. 102, 108, 536 S.E.2d 372, 375 (2000).

LAW/ANALYSIS

I.

On appeal, Mrs. H and Mr. H assert the family court lacked jurisdiction to proceed with the termination of parental rights action because their December 29, 1992 motion for reconsideration of the court's December 15, 1992 order was never heard. We disagree.

At the onset of the final hearing on November 17, 1999, Mrs. H's and Mr. H's attorney brought to the court's attention the fact that the court had never held a hearing on Mrs. H's and Mr. H's Rule 60 motion for reconsideration of the family court's order of removal dated December 15, 1992. The court found it had "directed back in 1993 that [the Rule 60 motion hearing] be scheduled in front of the [trial judge who held the removal hearing], and it was not done." It determined "[t]hat it should have been heard and it is incumbent upon the moving party to see that it is heard ... in conjunction with ... the trial judge." Noting the numerous review and motion hearings conducted over the seven year period since the initial filing of the motion to reconsider, the court determined, having participated in these hearings, Mrs. H and Mr. H waived and abandoned the opportunity to have the Rule 60 motion heard.

The family court has exclusive jurisdiction over all proceedings involving the termination of parental rights. S.C.Code Ann. § 20-7-1562 (Supp.2000); S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 538 S.E.2d 285 (Ct.App.2000). Mrs. H and Mr. H assert, however, the TPR court was divested of jurisdiction until such time as the motion for reconsideration of the removal order could be heard.

We recognize, as noted by Mrs. H and Mr. H on appeal, that the family court in its January 24, 1994 order continued the hearing on their Rule 60 motion and found the motion should be heard by the judge who issued the December 15, 1992 order, but this hearing never actually occurred. There is no indication in the record, however, that Mrs. H and Mr. H sought to have the hearing rescheduled at any time after the January 24, 1994 order, even though several subsequent hearings were conducted and approximately six years elapsed between the time Mrs. H and Mr. H filed the amended motion in 1993 and the final hearing was held in 1999. It was incumbent on Mrs. H and Mr. H to reschedule the motion for hearing before the removal judge, as directed by the January 24, 1994 order. Under these circumstances, we are inclined to agree with the trial court's treatment of Mrs. H's and Mr. H's Rule 60 motion as having been waived. Accord Johnson v. Hampton Indus., Inc., 83 N.C.App. 157, 158, 349 S.E.2d 332, 333 (1986) (where the North Carolina Court of Appeals held defendant waived its right to change of venue where it failed to press the motion until some ten months after it was filed, although the...