Middleton v. Johnson, 4108.
| Decision Date | 24 April 2006 |
| Docket Number | No. 4108.,4108. |
| Citation | 633 S.E.2d 162 |
| Court | South Carolina Court of Appeals |
| Parties | Kenneth MIDDLETON, Appellant, v. Elizabeth Ann JOHNSON and Eugene Hollington, Respondents. |
Daphne A. Burns, of Mt. Pleasant, and Margaret D. Fabri, of Charleston, for Appellant.
Elizabeth Johnson McCants, of Florence, and Eugene Hollington, of Warner-Robbins, GA, no appearance.
Kenneth Middleton appeals from an order of the family court denying him visitation with Joshua Hollington, a minor child. Although Middleton admits he is not biologically related to Josh, he argues he is entitled to visitation because he served as Josh's "psychological parent" for ten years and because visitation is in Josh's best interest. We reverse and remand.
Middleton and Elizabeth Johnson (Mother) had a long-term relationship from 1979 until the early 1990s. At the time they met, Mother had two small daughters: a four-year-old named Chelsea and a one-year-old named Tenille. Middleton also had two daughters; his older daughter, Andrea, was eleven, and his younger daughter, Kenisha, was four. While Mother dated Middleton, she and her children spent Thursdays through Sundays at his home. Middleton, with Mother's encouragement, developed a strong, parental relationship with both Mother's daughters. He supported the two girls financially and emotionally, and even though they are now grown, he still considers them his daughters. In fact, when Chelsea married, Middleton escorted her down the aisle despite the fact that her biological father attended the wedding.
By 1992, Mother and Middleton were no longer in a serious relationship; however, they had an intimate encounter in July of that year. Nine months later, on April 7, 1993, Joshua Hollington was born. During Mother's pregnancy, she told Middleton that Eugene Hollington was the father of her child. However, after Josh's birth, Mother called Middleton and told him he needed to see Josh, and she sent a photograph to Middleton when Josh was three months old. The implication was that Middleton was Josh's father because the resemblance between Josh and Middleton was so striking.
Once Middleton saw the photograph and the physical similarity between Josh and himself, he showed the picture to various family members and friends. They all thought, as did Middleton, that Josh and Middleton were biologically related. Subsequently, Middleton went to his doctor to have a blood test performed, and the test did not exclude him as Josh's biological father.
Beginning when Josh was three months old, Middleton took an active role in Josh's life. He regularly spent time with Josh and supported him financially. When Josh was approximately one year old, a DNA test revealed Eugene Hollington to be Josh's biological father. By that time, Middleton testified he was already committed to being Josh's father, and with Mother's blessing, Middleton continued to love and take care of Josh as though he were a son. When Josh was three, Mother lived in a home owned by Middleton that was next door to Middleton's father's house. Middleton checked on his father daily, and nearly every time Middleton was at his father's house, Mother sent Josh over to visit. Often, Middleton would take Josh home to spend the night.
When Josh began preschool, Middleton and Mother shared the costs. Middleton signed Josh's report cards and picked Josh up from preschool at least three days per week. Essentially, Middleton and Mother had a joint custody arrangement, with Mother caring for Josh Mondays through Wednesdays and Middleton keeping Josh the remainder of the week.
This joint custody arrangement was interrupted briefly when Josh was approximately four years old, and Mother moved in with her boyfriend. At that point, Mother attempted to stop Middleton from seeing Josh because her boyfriend did not like Middleton's presence in their lives. This was resolved when Middleton offered to pay Josh's entire daycare expense, at which point, his normal Thursday through Sunday visitation schedule resumed.
When Josh started public school, Middleton, without Mother, took Josh to his first day of kindergarten. Josh's teachers from second, third, and fourth grades testified that they all believed Middleton was Josh's biological father. Even on the days when Josh did not spend the night with Middleton, Middleton would drive him to school in the mornings. He also picked up Josh nearly every day after school, and he attended PTA meetings, open houses, field trips, and other school-related activities. The teachers acknowledged Middleton as Josh's father in front of Mother, and Mother never corrected them. Middleton also enrolled Josh in the Boy Scouts and in a basketball league. Josh's basketball coach testified that Josh referred to Middleton as "my dad," and Middleton took Josh to every practice and game.
When Josh was in third grade, Mother began to date John McCants. As the couple became more serious, Mother called Middleton and stated McCants did not want Josh at Middleton's house every weekend. To accommodate her boyfriend, Mother came up with a schedule where she and Middleton rotated days every week. By this point in time, McCants was living with Mother, and eventually the two married.
As part of the rotating schedule, Josh spent Christmas of 2002 with Middleton and New Year's Eve with Mother. According to the visitation schedule, Josh was to return to Middleton's house on January 1, 2003; however, Mother called Middleton that day and explained that she was not going to bring Josh over because he had been acting up, and she had to punish him. When Josh came over the following day, he hugged Middleton and told him that Mother had left marks on him by hitting him with a studded belt. Josh showed Middleton the marks on his upper thighs, near his groin area.
Middleton testified that he had previously observed signs of physical abuse and that he had spoken to Mother about hitting Josh. Middleton was concerned that if he reported this suspected abuse, Mother would forbid him from seeing Josh. Because Middleton did not want to jeopardize his relationship with Josh, he spoke with Josh's principal about the marks, but did not otherwise contact the authorities.
Later that evening, Mother called and asked to speak with Josh. Middleton informed her Josh was about to get in the shower, and that Josh would call her back once he was through. Moments later, Mother called back and demanded Josh be brought to her. Middleton did not understand what could have transpired in those few minutes to make Mother so angry, but speculated that Mother's change in demeanor could have occurred because she thought Middleton might see the marks she left on Josh when Josh undressed to shower. Middleton told Mother it was his night with Josh, and because Josh had been sick earlier, he should not travel outside in the winter right after a shower. Middleton testified he was afraid for Josh's welfare and refused to bring him to Mother's house. When the telephone conversation ended, he called the police department and reported the alleged abuse. Mother and McCants also contacted the police to report Middleton's refusal to return Josh.
When the police arrived, they brought Mother and McCants with them. Because Mother had legal custody, Josh was returned to her. Officer Maggie Carver reported the case to the Department of Social Services, but inexplicably, the Department informed Officer Carver in a voicemail that it would not "take the case." Officer Carver testified she believed Middleton's reason for reporting the alleged abuse was out of true concern for Josh.
After this incident in January 2003, Mother terminated all contact between Josh and Middleton. She also contacted school officials and told them Middleton was not allowed to see Josh. Approximately one year later, Mother, McCants, and Josh moved to Florence, South Carolina.
On February 11, 2003, Middleton filed this action seeking custody of Josh.1 He also filed a motion to have a guardian ad litem appointed to represent Josh. Mother answered, stating the action should be dismissed because Middleton, not being biologically related to Josh, lacked standing to proceed. The family court (1) denied Mother's motion to dismiss; (2) appointed a guardian to represent Josh; (3) required Middleton to join Eugene Hollington, Josh's biological father; and (4) denied Middleton any visitation. On April 14, 2003, Middleton filed an amended complaint joining Hollington to the action. Despite being joined in the action and having the pleadings served on him by certified mail, return receipt requested, Hollington has never made an appearance or responded.
On June 23, 2003, the guardian filed a motion seeking counseling for Josh. The family court issued an order requiring Mother, Middleton, and Josh to cooperate in counseling. Several months later the guardian filed an ex parte emergency motion seeking to compel Mother's continued compliance with court mandated counseling because Mother stopped taking Josh to counseling. After a hearing, the family court ordered both Mother and Josh to continue meeting with the therapist, Dr. Kay Newman.
On November 10, 2004, Dr. Newman issued her report recommending Middleton resume visitation with Josh. In her report she stated Josh was a kind, gentle boy whose primary concern was that Dr. Newman understand how much he loves Middleton. According to Dr. Newman, Josh and Middleton separately, Dr. Newman noted that Josh's biological dad had never been involved in Josh's life,2 while Middleton had been, with Mother's blessing, very involved. She also stated McCants...
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