DEPT. OF SOCIAL SERVICES v. Truitt

Decision Date11 October 2004
Docket NumberNo. 3873.,3873.
CourtSouth Carolina Court of Appeals
PartiesSOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Michael TRUITT, Sandra Ivester, John Doe, Defendants, of whom Michael Truitt and Sandra Ivester are, Appellants. In the Interest of: Gabriel Truitt (DOB: 11-2-99), Elijah Truitt (DOB: 11-2-99), and Alexis Truitt (DOB: 12/11/00), Minors Under the Age of 18.

Katherine H. Tiffany and Tracy Welsh Tiddy, both of Greenville, for Appellants.

Rebecca Rush Wray, of Greenville, for Respondent.

Carol Anne Simpson, of Greenville, for Guardian Ad Litem.

WILLIAMS, J.

Michael Truitt and Sandra Ivester appeal the termination of their parental rights. We affirm.

FACTS

Sandra Ivester and Michael Truitt are the parents of three children — Gabriel, Elijah, and Alexis. Although the two have been romantically involved for eight years, they never married. When this action commenced, Gabriel and Elijah were eighteen months old and Alexis was six months old.

On June 10, 2001, Sandra took the children to have Sunday dinner at Michael's parents' house. After dinner, while Sandra and her children were napping, Michael borrowed Sandra's car and went to visit friends. Later, he returned to the house and asked Sandra to accompany him as he dropped off his friends. Sandra agreed to go, left her children with their grandparents, and told them she would be back in approximately fifteen minutes.1

Sandra and Michael did not return home in fifteen minutes. In fact, they had not returned by the next morning. Because Michael's mother had to work and his father suffered from medical difficulties, neither was able to care for the children.2 Having tried to contact Sandra and Michael numerous times, the grandparents were left with no option but to call the Department of Social Services ("DSS"). Corporal Miller, of the Mauldin Police Department, testified that when he arrived at the Truitt's home on Monday he made further attempts to locate the children's parents, but was unsuccessful. Lacking proper supervision, the children were taken into emergency protective custody.

After Sandra and Michael left his parent's house on Sunday, Michael allowed a couple of "friends" to borrow Sandra's car in exchange for $100.00 of crack cocaine. While the car was gone, both parents smoked the crack at another friend's apartment. Neither parent attempted to contact the grandparents until after DSS took custody of the children. When they finally did call Monday afternoon, they were informed that DSS removed the children.

Sandra testified she did not return on Sunday to pick up the children because Michael's friends never brought back the car. She also testified she did not call the grandparents because there was no telephone in the apartment where they were staying. Sandra explained that a number of Mauldin police officers lived in the area, and she was afraid if she left the apartment to find a telephone then she would be picked up on outstanding warrants. Even though both were fully aware DSS had their children, for the next two months Sandra and Michael spent their time living in motel rooms and smoking crack every other day. They called Michael's parents from time to time to ask for money and talk about the children, but otherwise did not attempt to contact their children or DSS despite testimony that they knew the name of their caseworker. The authorities did not locate Sandra and Michael until they were arrested, living in a hotel, on August 14, 2001.

Following their arrest, Sandra did not request visitation with her children until the first week of October 2001. She cancelled the first scheduled visitation and did not actually meet with the children until October 25, 2001, more than four months after the children were left with their grandparents. Michael never contacted DSS to seek visitation or to check on the children's welfare. Thus, DSS initiated this termination of parental rights ("TPR") action on July 26, 2001.

At the time of the hearing, Sandra was released from jail and working in a family catering business. Although Michael was still incarcerated, he expected to be released from custody at the end of 2003. The children were placed with a foster family who expressed interest in adopting all three children.

Significantly, this was not the first time DSS became involved in the children's lives. In October 2000, Michael left Gabriel and Elijah — then eleven months old — home alone while he went to purchase illegal drugs. Sandra was incarcerated at the time and unable to watch the children. Accordingly, Gabriel and Elijah were taken into emergency protective custody. DSS filed an action concerning this incident and an Order was issued on February 21, 2001, which made a "finding of threat of harm of physical neglect" against Michael and ordered treatment plans for both parents. The order granted custody to Sandra, but only granted Michael supervised visitation. Although Sandra completed the treatment plans outlined in the order, Michael did not. The third child, Alexis, was born in December 2000; therefore, the previous court order did not address custody or visitation rights as they pertained to her.

STANDARD OF REVIEW

"In a termination of parental rights (TPR) case, the best interests of the children are the paramount consideration." Doe v. Baby Boy Roe, 353 S.C. 576, 579, 578 S.E.2d 733, 735 (Ct.App.2003) (citing South Carolina Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct.App.2000)). Before a parent's rights may be terminated, the alleged grounds for termination must be proven by clear and convincing evidence. Dep't of Soc. Servs. v. Mrs. H, 346 S.C. 329, 333, 550 S.E.2d 898, 901 (Ct.App.2001).

On appeal, this court may review the record and make its own determination of whether the grounds for termination are supported by clear and convincing evidence. Id.; see also South Carolina Dep't of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 509 (Ct.App.2001)

. However, despite this broad scope of review, this court is not required to disregard the findings of the family court nor ignore the fact that the trial judge was in a better position to evaluate the credibility of the witnesses and assign weight to their testimony. Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct.App.1996). This is especially true in cases involving the welfare of children. Aiken County Dep't of Soc. Servs. v. Wilcox, 304 S.C. 90, 93, 403 S.E.2d 142, 144 (Ct.App.1991).

LAW/ANALYSIS

Under South Carolina's termination of parental rights statute, "[t]he family court may order the termination of parental rights upon a finding of one or more of the [listed] grounds and a finding that termination is in the best interest of the child." S.C.Code Ann. § 20-7-1572 (Supp.2003).3 If the family court finds a statutory ground for termination has been proven, it must then find the best interests of the children would be served by termination. Id. Significantly, as our supreme court has noted and the TPR statute provides: "TPR statutes `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.'" Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 108, 536 S.E.2d 372, 375 (2000) (quoting S.C.Code Ann. § 20-7-1578 (Supp.1999)).

In the current case, the family court determined that Michael and Sandra abandoned their three children. See S.C.Code Ann. § 20-7-1572(7) (Supp.2003). As an alternative ground, the court ruled that Michael's rights should also be terminated because of harm inflicted on the children pursuant to S.C.Code Ann. § 20-7-1572(1) (Supp.2003).4 After finding statutory grounds for termination, the family court determined it would be in the children's best interest for Sandra and Michael's parental rights to be terminated.

1. Abandonment

The family court found that Michael and Sandra abandoned their three children. We agree.

Section 20-7-1572(7) of the South Carolina Code (Supp.2003) provides in pertinent part, that a family court may order the termination of parental rights upon a finding of abandonment. Section 20-7-490(19) defines abandonment as occurring when "a parent or guardian wilfully deserts a child or wilfully surrenders physical possession of a child without making adequate arrangements for the child's needs or the continuing care of the child." S.C.Code Ann. § 20-7-490 (Supp.2003). The willful standard for termination has been explained as "a question of intent to be determined from the facts and circumstances of each individual case." South Carolina Dep't of Soc. Servs. v. Headden, 354 S.C. 602, 610, 582 S.E.2d 419, 423 (2003). Furthermore, parental conduct "which evinces a settled purpose to forego parental duties may fairly be characterized as `willful' because it manifests a conscious indifference to the rights of the child to receive support and consortium from the parent." South Carolina Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 53, 413 S.E.2d 835, 839 (1992).

We do not think the family court erred in deciding that Michael and Sandra's actions constituted a willful intent to abandon. As noted previously, both Michael and Sandra were aware the grandparents were unable to care for the children for extended periods of time. Michael's mother specifically told them she was leaving Sunday evening for an engagement, both knew she had to work the next day, and both knew that Mr. Truitt was unable to care for the children. Despite this knowledge, neither made an effort to return to the Truitts' and resume care of their children. Although the parents assert they did not have access to a car, both must admit it was their decision to trade the use of the car for drugs. The fact that the car's borrowers did not promptly return the car does not serve...

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