DEPT. OF SOCIAL SERVICES v. Cummings, No. 3336.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON.
• Citation: 345 S.C. 288,547 S.E.2d 506
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Paula CUMMINGS, John Doe, and Christopher Cummings, Defendants. In the Interest of Alexia Nickola Bruce, DOB: 9/22/97: A Minor Child Under the Age of 18 years, of whom Paula Cummings is the Appellant.
• Docket Number: No. 3336.
• Decision Date: 30 April 2001

345 S.C. 288
547 S.E.2d 506

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent,
v.
Paula CUMMINGS, John Doe, and Christopher Cummings, Defendants.
In the Interest of Alexia Nickola Bruce, DOB: 9/22/97: A Minor Child Under the Age of 18 years, of whom Paula Cummings is the Appellant

No. 3336.

Court of Appeals of South Carolina.

Submitted February 22, 2001.

Decided April 30, 2001.

Rehearing Denied July 2, 2001.

345 S.C. 291

William Isaac Diggs, of Myrtle Beach, for appellant

Charles E. Parrish, of the South Carolina Department of Social Services, of Conway, for respondent.

Guardian ad Litem: George M. Hearn, Jr., of Hearn, Brittain & Martin, of Conway.

ANDERSON, Judge:

The Family Court terminated the parental rights of Paula Cummings. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

Paula Cummings gave birth to a daughter, Alexia Nickola Bruce. Paula and the baby tested positive for cocaine while in the hospital. Though grounds for removal, the Family Court permitted the baby to remain with Paula because there was an adult in Paula's home, Terry Bruce, who was willing to assume the role of father and initially appeared suited to help care for Alexia. The Department created a treatment plan for the

345 S.C. 292

family, which required Paula and Terry to: participate in alcohol and drug assessment; follow the recommendations given to them during this assessment; undergo random drug screenings; take parenting skills classes; and submit to supervised visitation

Within two months of Alexia's birth, Terry tested positive for drugs. The Department removed Alexia from the home and placed the child in foster care.

Soon after, the Family Court held a judicial review hearing. The court ordered Paula and Terry to complete their treatment plan. Additionally, the judge mandated the couple to each pay $15.00 a week in child support.

Seven months later, the Department sought termination of Paula's parental rights. The Department alleged, inter alia, Paula continued to abuse cocaine and had wilfully failed to pay child support. Citing these grounds and the best interests of Alexia, the Family Court found by clear and convincing evidence that termination of Paula's rights was warranted. Paula sought post-trial relief fashioned as a "Motion for Relief from Judgment by Defendant Paula Cummings/To Stay the Final Order and To Enjoin Any Adoption of the Minor Child Pending this Action." Paula's motion was denied.

ISSUES

I. Did the Family Court err by concluding termination of Paula's parental rights was warranted upon the grounds of § 20-7-1572(2)?

II. Did the Family Court err by concluding termination of Paula's parental rights was warranted upon the grounds of § 20-7-1572(4)?

III. Did the Family Court err by concluding termination of Paula's parental rights was warranted upon the grounds of § 20-7-1572(1)?

IV. Did the Family Court err by concluding Paula had "conflict-free" representation for the TPR proceedings?

V. Did the Family Court err by concluding termination of Paula's parental rights was in the best interests of her child?

345 S.C. 293

STANDARD OF REVIEW

Grounds for termination of parental rights must be proved by clear and convincing evidence. Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999); see also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982), cited in South Carolina Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992) (The United States Supreme Court held: "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.").

In a termination of parental rights case, the appellate court has jurisdiction to examine the entire record to determine the facts according to its view of the evidence. Richland County Dep't of Soc. Servs. v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998). This Court may review the record and make its own findings whether clear and convincing evidence supports termination. South Carolina Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 519 S.E.2d 351 (Ct.App.1999). Our broad scope of review does not require us to disregard the findings below or ignore the fact the trial judge was in a better position to assess the credibility of the witnesses. Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996), cited in Jean Hoefer Toal et al., Appellate Practice in South Carolina 187 (1999).

LAW/ANALYSIS

Section 20-7-1572 provides for termination of parental rights:

The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:

....

(2) The child has been removed from the parent pursuant to Section 20-7-610 or Section 20-7-736, has been out of the home for a period of six months following the adoption of a placement plan by court order or by agreement between the

345 S.C. 294

department and the parent, and the parent has not remedied the conditions which caused the removal;

....

(4) 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. Failure to support means that the parent has failed to make a material contribution to the child's care. A material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support;

I. Section 20-7-1572(2): Paula's Failure to Correct Conditions that Warranted Alexia's Initial Removal

An "abused" or "neglected" child may be removed from the home pursuant to §§ 20-7-610 or -736. An "abused" or "neglected" child is, inter alia, a child whose physical or mental welfare is harmed or threatened with harm by the acts or omissions of the child's parent. S.C.Code Ann. § 20-7-490(2) (Supp.1998). The legal presumption exists that a newborn child is "abused" or "neglected" upon proof that a blood or urine test of either the mother or child shows the presence of a controlled substance such as cocaine. S.C.Code Ann. 20-7-736(G)(3) (Supp.1998). This presumption may be overcome by proof that...