S.C. Dep't of Soc. Servs. v. Smith

Decision Date09 May 2018
Docket NumberOpinion No. 27797,Appellate Case No. 2017-000784
Citation814 S.E.2d 148,423 S.C. 60
Parties SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, and Sherry Powers, Edward Anthony Dalsing and Tammy Gaye Causey Dalsing, Intervenors, of whom Edward Anthony Dalsing and Tammy Gaye Causey Dalsing, are Petitioners, v. Erica SMITH and Andrew Jack Myers, Respondents. In the interest of a minor under the age of eighteen.
CourtSouth Carolina Supreme Court

James Fletcher Thompson, of James Fletcher Thompson, LLC, of Spartanburg; and Larry Dale Dove, of Dove Law Group, LLC, of Rock Hill, for Petitioners.

Melinda Inman Butler, of The Butler Law Firm, of Union; Debra A. Matthews, of Debra A. Matthews, Attorney at Law, LLC, and Carol Ann Tolen, of Coleman & Tolen, LLC, both of Winnsboro; David E. Simpson, of Rock Hill, and Shawn L. Reeves, of Columbia, both of South Carolina Department of Social Services; all for Respondents.

Allison Boyd Bullard, of Harling & West, LLC, of Lexington, for Amici Curiae Law Professors and Lecturers James Dwyer, Paulo Barrozo, Elizabeth Bartholet, J. Herbie Difonzo, Jennifer Drobac, Crisanne Hazen, Jennifer Mertus, Deborah Paruch, Iris Sunshine, Lois A. Weithorn, and Crystal Welch.


In this matter, Petitioners Edward and Tammy Dalsing (Foster Parents) are seeking to adopt a young girl (Child). Foster Parents' private action for termination of parental rights (TPR) and adoption was consolidated with the South Carolina Department of Social Services' removal action against Erica Smith (Mother) and Andrew Myers (Father). At the final hearing, the family court (1) adopted the permanent plan of TPR and adoption; (2) terminated Mother's parental rights; (3) found Father was not a person whose consent was required for Child's adoption, but as a further sustaining ground, terminated Father's parental rights; and (4) granted Foster Parents' petition for adoption. Father appealed, and the court of appeals vacated in part, reversed in part, and remanded the case to the family court for a new permanency planning hearing. S.C. Dep't of Soc. Servs. v. Smith , 419 S.C. 301, 797 S.E.2d 740 (Ct. App. 2017). This Court granted certiorari to review the court of appeals' decision. For the reasons discussed below, we reverse the court of appeals and reinstate the family court's grant of adoption to Foster Parents.


On appeal from a matter in the family court, this Court reviews factual and legal issues de novo. Simmons v. Simmons , 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011) ; Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this Court reviews the family court's factual findings de novo, we are not required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis , 392 S.C. at 385, 709 S.E.2d at 652. Also, "de novo review neither relieves an appellant of demonstrating error nor requires us to ignore the findings of the family court." Id . at 389, 709 S.E.2d at 654. Because of our de novo standard of review, we will undertake a detailed review of both the facts of this case and its tortuous procedural history.


Mother and Father were living together, unmarried, at the time Child was conceived in 2012. Mother has a long history of drug addiction and instability, and Father has a troubled history as a teenager and young adult, which includes the use of illegal drugs and other criminal activity. Mother and Father did not have stable housing, and Mother was working to pay the bills at the time Child was conceived. In October 2012, a week or two after learning about the pregnancy, Father voluntarily surrendered to Maryland authorities on outstanding criminal charges. Mother testified she and Father discussed Father's outstanding charges and decided Father should surrender to authorities to timely serve his sentence in order for him to assist Mother in raising Child upon his release. Father remained incarcerated in Maryland until June 2013, when he was transferred to a penal facility in Virginia to serve even more prison time for two contempt of court charges; two fraud, bank notes, or coins charges; and one probation violation. At the time of the final family court hearing in 2015, Father's expected release date was November 1, 2016.

Mother testified that after Father went to prison, "I was just bouncing from here to there, [living] wherever I could." Around Thanksgiving 2012, Mother contacted Sherry Powers (Grandmother),1 who lived in Virginia, and asked if Grandmother could pick her up in South Carolina. Mother was approximately three months pregnant at the time. Grandmother testified Mother called and asked her to come pick her up because Mother had been beaten up, had been in the hospital, and had nowhere to go. Grandmother and Step-Grandfather (collectively, Grandparents) picked up Mother in South Carolina and took her to Virginia to live with them.

Mother lived with Grandparents for approximately four months. During this time, Grandmother provided food, shelter, transportation, and support for Mother. Grandmother purchased items in anticipation of Child's birth and attended Mother's prenatal appointments. Grandmother testified she provided these items for Child on Father's behalf. Grandmother believed that after Child's birth, Child was going to live in her house. Father never sent Mother or Grandmother any money in anticipation of Child's birth. However, according to Mother, Father "frequently" contacted her via phone calls and letters during the time she was living with Grandparents.

In late March or early April 2013—prior to Child's birth—Mother left Grandparents' home, taking some of the items Grandmother purchased for Child. Mother testified she left Grandparents' home after Step-Grandfather made sexual advances toward her on more than one occasion. Mother went to live with her father in South Carolina. Within a week of her moving, Father called and sent Mother a letter. Mother testified that following her receipt of Father's phone call and letter, she never received another call, letter, or offer of support from him. Mother testified she ended her relationship with Father around the time she left Virginia but noted she never prohibited Father from contacting her.

Mother gave birth to Child in South Carolina on May 15, 2013. Grandparents were present and brought the remaining items they had purchased for Child. Mother tested positive for opiates and amphetamines at Child's birth; however, because Child's meconium drug screen was inconclusive, Mother was permitted to take Child home. On May 31, 2013, Child was given a hair strand drug screen, and Child tested positive for cocaine and benzoylecgonine (the main metabolite of cocaine).

On June 6, 2013, law enforcement took emergency protective custody of Child. On the same day, the South Carolina Department of Social Services (DSS) placed her in foster care with Foster Parents and filed an action for removal against Mother and Father. DSS's Affidavit of Reasonable Efforts accompanying its removal complaint noted Mother informed DSS that she did not want Child placed with Grandmother. A probable cause hearing was held on June 10, 2013, and the family court found probable cause for Child's removal and for DSS to assume legal custody of Child. Grandmother testified she was surprised to hear Child was removed and placed in foster care because she thought DSS would have contacted her first. She explained she had previously contacted DSS and sought Child's placement in her home. However, because Grandparents lived in Virginia, Grandparents were required to complete a home study pursuant to the Interstate Compact on the Placement of Children (ICPC).2

At the June 19, 2013 merits hearing, the matter was continued; however, the family court ordered an ICPC home study for Grandparents. The family court also ordered a paternity test for Father and permitted him to file and serve an affidavit attesting he was Child's natural father. On June 27, 2013, Father executed an affidavit acknowledging paternity indicating he was aware of Child's birth and his responsibility to support Child. A September 2013 DNA paternity test confirmed Father's paternity. Grandmother scheduled and paid for the test.

At the required merits hearing on July 18, 2013, the family court adopted the agreement of the parties and made a finding of physical abuse against Mother. The family court's order from the merits hearing—signed August 13, 2013—again ordered an ICPC home study for Grandparents3 and required Father's child support obligation be held in abeyance, referencing Father's incarceration. On August 20, 2013, Grandparents filed a motion to intervene in DSS's action and sought custody of Child; their motion to intervene was granted in November 2013. Additionally, on August 20, 2013, Grandmother filed an answer, counterclaim, and crossclaim in DSS's action, alleging neither Mother nor Father were "capable, suitable, fit, or proper persons to be granted custody of Child ." (emphasis added).

On November 8, 2013, Mother signed a consent and relinquishment of her parental rights, specifying Foster Parents as her desired adoptive parents for Child. Foster Parents filed a private TPR and adoption action on November 19, 2013. In their complaint, Foster Parents alleged Father was Child's natural father and that he was not a person from whom consent was required under section 63-9-310(A) of the South Carolina Code (2010). In December 2013, Father—still in prison—filed an answer contesting Child's adoption by Foster Parents, contesting his TPR, and seeking Child's placement with Grandmother.

In January 2014, Foster Parents filed a motion to intervene and requested dismissal of DSS's action against Mother and Father. Alternatively, Foster Parents asked the family court to change Child's...

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    ...case—whether Mallory "wilfully failed to visit" her daughter. Willfulness "is a question of intent." S.C. Dep't of Soc. Servs. v. Smith , 423 S.C. 60, 81, 814 S.E.2d 148, 159 (2018) (quoting S.C. Dep't of Soc. Servs. v. Broome , 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992) ). As is always th......
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3 books & journal articles
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