Hardy v. Gunter, 3595.
| Decision Date | 03 February 2003 |
| Docket Number | No. 3595.,3595. |
| Citation | 577 S.E.2d 231,353 S.C. 128 |
| Court | South Carolina Court of Appeals |
| Parties | Diane Cannon HARDY and James Hardy, Appellants, v. Shane Courtland Cannon GUNTER, Tyler Cannon Gunter, minors and John S. Gunter, Jr., Respondents. |
Raymond William Godwin, of Greenville; for Appellants.
Robert K. Whitney, of Seneca; for Respondents.
In this termination of parental rights case, Diane Cannon Hardy and James Hardy (mother and stepfather) appeal from an order of the family court denying their plea to terminate the parental rights of John S. Gunter, Jr. (the father) to his two minor children. We affirm.
The mother and father were married in April 1988. They have two children, Shane and Tyler, born on November 18, 1992 and March 1, 1995, respectively. During the marriage, the father retired as a major from the United States Air Force, having earned two master's degrees during his military service.
The mother and father separated in June 1996. During the same month, the father admitted himself to the Anderson Area Medical Center Psychiatric Ward where he was diagnosed with depression and drug addiction.
The parties were divorced by order of the family court dated November 8, 1996. Pursuant to the divorce decree, which embodied the parties' settlement agreement, the mother was granted full custody of the children. Visitation for the father was held in abeyance pending the father's compliance with requirements that he obtain a psychological evaluation from the Veteran's Administration (VA) and approval to visit the children from the guardian ad litem. The order specifically provided that "upon receipt of the recommendation of the Guardian Ad Litem ... the Court, without further hearing, may review the same and adopt the recommendation ... as the order of this Court, however, either party may request a hearing on the visitation as recommended within 30 days of the receipt of such recommendation." Determination of the father's child support obligation was held in abeyance.
In December 1996, the father began receiving disability payments totaling $1,345 per month.1 Simultaneously, the parties' children each began receiving $212 monthly social security checks related to the father's disability status. The father has made no additional support payments for the children.
After the parties' divorce, the father moved to Florida in order to be near and assist his mother, who has been diagnosed with Alzheimer's disease, and his father, who has been diagnosed with congestive heart failure. In addition, the father's son from a former marriage resides in Florida.
Although the divorce degree specifically directed that the father's psychological evaluation be conducted through the VA and the father obtained two evaluations from the VA prior to the entry of the divorce decree, the guardian ad litem desired a doctor independent from the VA to do an evaluation. The father consented to have the evaluation performed by the doctor of the guardian's choosing. The guardian arranged for Dr. Spurgeon Cole to evaluate the father in her office on October 13, 1998. The father arrived at the guardian's office at the appointed time, but Dr. Cole did not appear. The father agreed to reschedule with Dr. Cole; however, at a December 8, 1998 interview with the guardian, he declared his reluctance to be evaluated by a psychologist whose base of operation was in Oconee County and expressed financial concerns about having the evaluation carried out by a doctor not associated with the VA. In August 1999, the father provided the guardian with the notes from a third evaluation administered by Dr. Phillip Tate of the VA in Florida. The father testified that he "was calling [the guardian] at least once every couple weeks ... to see what [he] could do to hasten the process." The father went on to state: The guardian admittedly received both the notes from the father's third evaluation and several follow-up telephone calls from the father; however, the guardian never made any proposal to the parties or the family court regarding the father's visitation with the children. The father has not visited with the children since the date of the divorce order holding the issue of visitation in abeyance. The mother and stepfather were married in September 1997. On December 9, 1999, they instituted the instant action against the father, alleging the father's parental rights be terminated due to willful failure to visit and/or support the children and seeking an order of adoption establishing a parent/child relationship between the stepfather and the minor children. The mother and stepfather's complaint also alleged the father's parental rights should be terminated based on a diagnosable condition (drug addiction and mental illness), which condition was not likely to change within a reasonable time and rendered him unfit to provide minimally acceptable care for the children; however, the mother and stepfather abandoned this ground for termination at trial. Proceeding pro se, the father answered the complaint, denying the mother and stepfather were entitled to the requested relief.
By order dated October 16, 2000, the family court found the father's conduct following his separation and divorce from the mother did not constitute willful failure to visit and support the children. Accordingly, the court denied the mother and stepfather's petition for termination of the father's parental rights and ordered the guardian ad litem to enter a recommendation as to visitation between the father and children within fifteen days of the order. The mother and stepfather's post-trial motion for reconsideration was denied without a hearing.
In a termination of parental rights case, the best interests of the children are the paramount consideration. South Carolina Dep't of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 509 (Ct.App.2001); South Carolina Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct.App.2000); South Carolina Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct.App.1999). Grounds for termination of parental rights must be proved by clear and convincing evidence. Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 366 (1999); South Carolina Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992) (); Cummings, 345 S.C. at 293,547 S.E.2d at 509; Parker, 336 S.C. at 254,519 S.E.2d at 354.
On appeal of a termination of parental rights case, the court of appeals may review the entire record to make a determination of the facts according to our view of the evidence. Richland County Dep't of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 866 (1998); Cummings, 345 S.C. at 293, 547 S.E.2d at 509. "This Court may review the record and make its own findings whether clear and convincing evidence supports termination." Cummings, 345 S.C. at 293, 547 S.E.2d at 509; accord Parker, 336 S.C. at 254, 519 S.E.2d at 354; South Carolina Dep't of Soc. Servs. v. Humphreys, 297 S.C. 118, 121, 374 S.E.2d 922, 924 (Ct.App.1988). "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." Cummings, 345 S.C. at 293, 547 S.E.2d at 509; accord Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct.App.1996); Berry v. lanuario, 286 S.C. 522, 525, 335 S.E.2d 250, 251 (Ct.App.1985).
Our supreme court has held that a finding of a willful failure to visit will not be predicated upon parental conduct that can be reasonably explained. Wilson v. Higgins, 294 S.C. 300, 305, 363 S.E.2d 911, 914 (Ct.App.1987), rev'd in part on other grounds, Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000). A finding of willful failure to support will not be predicated upon parental conduct that can be reasonably explained.
The mother and stepfather claim the family court erred in not finding the father willfully failed to support the children from the time the parties separated in June 1996 until December 1996, and the failure, if proven, should serve as a basis for termination of the father's parental rights. We disagree.
South Carolina Code Annotated section 20-7-1572(4) (Supp. 2001) provides for termination of parental rights upon a finding that termination is in the best interest of the child and:
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.
Whether a parent's failure to support a child is "willful" within the meaning of section...
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