S.C. Dep't of Soc. Servs. v. Michelle G. & Robert L. Whom Michelle G. Is The

• Decision Date: 27 March 2014
• Docket Number: No. 27371.,27371.
• Citation: 407 S.C. 499,757 S.E.2d 388
• Court: South Carolina Supreme Court
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. MICHELLE G. and Robert L., of whom Michelle G. is the Appellant. Appellate Case No. 2013–001383.

407 S.C. 499

757 S.E.2d 388

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent,

v. MICHELLE G. and Robert L., of whom Michelle G. is the Appellant.Appellate Case No. 2013–001383.

No. 27371.

Supreme Court of South Carolina.

Heard March 19, 2014.

Decided March 27, 2014.

Charles R. Griffin, Jr., of Anderson, for Appellant.

Kathleen J. Hodges, of Anderson, for Respondent.

Justice BEATTY.

This is an expedited appeal by a mother in a termination of parental rights (TPR) case.¹ The family court terminated Appellant's parental rights to her two minor sons and denied Appellant's motion to dismiss, in which she challenged the constitutionality of section 63–7–2570(1) of the South Carolina Code. On appeal, Appellant contends the TPR statute violates the Fourteenth Amendment and is void for vagueness. We affirm.

I. FACTS

Appellant is the biological mother of four children: a daughter and a son who are now adults, and two minor sons who are the subject of this TPR action. Appellant and Robert L. (Biological Father) were previously married and lived in North Carolina. After the divorce, their two oldest children, then minors, alleged Biological Father had sexually abused them. Appellant reported the allegations to authorities. A finding of abuse was made against Biological Father in North Carolina, and Appellant obtained custody of the children.

During this time, while Appellant was still living in North Carolina with her children, she met Kenneth G. (Stepfather) online. Stepfather lived in South Carolina. According to Appellant, Stepfather initially lied to her about his identity, and he was physically and sexually abusive to her when she went to visit him in South Carolina. For example, Stepfather demanded that Appellant perform sex acts for him via a webcam and that she include her daughter, and that Appellant have sex with other men. However, Appellant continued to visit Stepfather, reportedly due to his threat to help Biological Father regain custody of the children.

Despite these incidents, Appellant married Stepfather. On their wedding night, Stepfather raped Appellant's daughter in Appellant's presence. Appellant's daughter thereafter had two children with Stepfather as a result of ongoing sexual abuse. Appellant has admitted that she was aware of the rape incident and the fact that Stepfather is the biological father of her daughter's two children. In addition, Appellant has admitted that, on repeated occasions, she engaged in oral sex with her daughter and had sexual intercourse with her oldest son. Appellant has maintained these acts occurred due to threats or coercion by Stepfather. However, the incidents occurred over an extended period of time, and some of the incidents occurred via webcam when Stepfather was in another town. Appellant never reported any of this abuse to the police.

Appellant's three sons entered foster care on June 11, 2012 after the oldest son revealed to law enforcement that there had been sexual abuse in the home. ² The South Carolina Department of Social Services (DSS) filed a summons and complaint dated August 29, 2012 seeking the termination of Appellant's parental rights to her three sons. Appellant filed a motion to dismiss, arguing section 63–7–2570(1), the TPR provision pled in this case, was impermissibly vague in violation of the Fourteenth Amendment.

Appellant's oldest son was removed as a party because he turned eighteen prior to the hearing in this matter and was no longer subject to TPR. The matter proceeded as to Appellant's younger sons at a hearing held on April 4 and 5, 2013. By order dated May 9, 2013, the family court terminated Appellant's parental rights to her two minor sons. The court found there was clear and convincing evidence they had been harmed as defined in section 63–7–20(4) of the South Carolina Code and, because of the severity or repetition of the abuse or neglect, as provided by section 63–7–2570(1), it was not reasonably likely that the home could be made safe within twelve (12) months, and termination was in the children's best interests. The family court denied Appellant's motion to dismiss the action based on her allegation that section 63–7–2570(1) is unconstitutionally vague.

II. STANDARD OF REVIEW

A state must prove a case for termination of parental rights by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Richberg v. Dawson, 278 S.C. 356, 296 S.E.2d 338 (1982). Upon review, this Court is entitled to make its own determination whether the grounds for termination are supported by clear and convincing evidence. S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 614 S.E.2d 642 (2005). However, this scope of review does not require this Court to disregard the findings of the family court, which was in a better position to evaluate the credibility of the witnesses and assign weight to their testimony. Charleston Cnty. Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 627 S.E.2d 765 (Ct.App.2006).

III. LAW/ANALYSIS

On appeal, Appellant argues the family court erred in denying her motion to dismiss this TPR action because section 63–7–2570(1) violates the Fourteenth Amendment to the United States Constitution. Appellant asserts section 63–7–2570(1) is unconstitutionally vague and violates her procedural due process rights because it fails (1) to give sufficiently fair notice to one who would avoid its sanctions, and (2) to provide ascertainable standards to the trier of fact, here, the family court, in determining whether to terminate parental rights. In particular, Appellant points to the use of the undefined term “severity” in the statute and argues section 63–7–2570(1) “permits [TPR] to be wantonly and freakishly meted out to a parent whose conduct is subjectively, arbitrarily and capriciously determined to be ‘Severe[.]’ ”

The United States Supreme Court has historically recognized “that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky, 455 U.S. at 753, 102 S.Ct. 1388. Accordingly, parents have a fundamental liberty interest in the care, custody, and management of their children. Id.; see also S.C. Dep't of Soc. Servs. v. Sarah W., 402 S.C. 324, 335, 741 S.E.2d 739, 745 (2013) (citing Santosky).

Statutes terminating parental rights must, therefore, comport with basic due process requirements guaranteed by the Fourteenth Amendment. In re Maricopa Cnty. Juvenile Action Nos. JS–5209 & JS–4963, 143 Ariz. 178, 692 P.2d 1027, 1032 (Ct.App.1984). “A statute whose terms are vague and conclusory does not satisfy due process requirements.” Id.

“The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication.” In re Anonymous Member of S.C. Bar, 392 S.C. 328, 335, 709 S.E.2d 633, 637 (2011) (citation omitted); City of Beaufort v. Baker, 315 S.C. 146, 152, 432 S.E.2d 470, 473 (1993) (citation omitted). Consequently, a statute may be unconstitutionally vague where “(1) it does not provide fair notice of the conduct proscribed,” or “(2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed[.]” In re Gentry, 142 Mich.App. 701, 369 N.W.2d 889, 893 (1985).³ In the current appeal, Appellant makes both of these contentions as to section 63–7–2570(1).

This Court begins with a presumption of constitutionality. Curtis v. State, 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001) (“This Court has a limited scope of review in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid.”). “[A] legislative act will not be declared unconstitutional unless its repugnance to the Constitution is clear and beyond a reasonable doubt.” Id. at 570, 549 S.E.2d at 597.

“A law is unconstitutionally vague if it forbids or requires the doing of an act in terms so vague that a person of common intelligence must necessarily guess as to its meaning and differ as to its application.” In re Anonymous Member of S.C. Bar, 392 S.C. at 335, 709 S.E.2d at 637 (citing Curtis, 345 S.C. at 572, 549 S.E.2d at 598). “[A]ll the Constitution requires is that the language convey sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices.” Curtis, 345 S.C. at 572, 549 S.E.2d at 599; cf. Maricopa, 692 P.2d at 1034 (“The requirement that statutory language must be reasonably certain is satisfied ‘by the use of ordinary terms which find adequate interpretation in common usage and understanding,’ or if the term can be given meaning by reference to other definable sources.” (internal citation omitted)).

“The constitutionality of a statute must be considered in light of the standing of the party who seeks to raise the question and of its particular application....” Town of Mount Pleasant v. Chimento, 401 S.C. 522, 535 n. 7, 737 S.E.2d 830, 839 n. 7 (2012) (citation omitted). “Standing is not a separate issue when the constitutionality of a statute is challenged under the due process clause, but is instead the foundation of the inquiry.” Id.

“One whose conduct clearly falls within the statutory proscription does not have standing to raise a void-for-vagueness challenge.” Id. at 535, 737 S.E.2d at 839; accord Curtis, 345 S.C. at 572, 549 S.E.2d at 598; see also In re Amir X.S., 371 S.C. 380, 385 n. 2, 639 S.E.2d 144, 146 n. 2 (2006) (stating the traditional rule of standing for constitutional attacks is that one to whom application of a statute is constitutional may not attack the statute on the ground that it might be unconstitutional when applied to other people or situations (citing United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960))). “A statute's constitutionality is judged on an objective, not subjective,...