S.C. Dep't of Soc. Servs. v. Cantrell, Appellate Case No. 2018-000187

• Decision Date: 26 November 2018
• Docket Number: Unpublished Opinion No. 2018-UP-430,Appellate Case No. 2018-000187
• Court: South Carolina Court of Appeals
• Parties: South Carolina Department of Social Services, Respondent, v. Kendra Diane Cantrell and John Doe, Defendants, Of whom Kendra Diane Cantrell is the Appellant. In the interest of a minor under the age of eighteen.

South Carolina Department of Social Services, Respondent, v. Kendra Diane Cantrell and John Doe, Defendants,Of whom Kendra Diane Cantrell is the Appellant.In the interest of a minor under the age of eighteen.

Appellate Case No. 2018-000187

Unpublished Opinion No. 2018-UP-430

STATE OF SOUTH CAROLINA In The Court of Appeals

Submitted October 26, 2018

November 26, 2018

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From Spartanburg County

Phillip K. Sinclair, Family Court Judge

REVERSED AND REMANDED

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of Spartanburg, for Appellant.

Robert C. Rhoden, III and Kathryn J. Walsh, both of South Carolina Department of Social Services, of Spartanburg, for Respondent.

Jamia Diann Foster, of Law Office of Jamia D. Foster LLC, of Spartanburg, for the Guardian ad Litem.

PER CURIAM: Kendra Diane Cantrell (Mother) appeals the family court's order terminating her parental rights to her minor son (Child). On appeal, Mother argues the Department of Social Services (DSS) did not prove (1) a statutory ground for termination of parental rights (TPR) or (2) TPR was in Child's best interest. Because DSS did not prove a statutory ground for TPR by clear and convincing evidence, we reverse and remand for a new permanency planning hearing.

On appeal from 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 findings de novo, we are not required to ignore the fact that the family court, which 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 651-52.

In terminating Mother's parental rights, the family court found DSS proved the following three statutory grounds for TPR: (1) Mother failed to remedy the conditions causing removal, (2) it was not reasonably likely Mother's home could be made safe in twelve months due to the severity or repetition of the abuse or neglect, and (3) Mother willfully failed to support Child. See S.C. Code Ann. § 63-7-2570 (Supp. 2017) (providing the family court may order TPR upon finding at least one statutory ground is satisfied and also finding TPR is in the child's best interest). However, based on our review of the record, DSS did not prove any of these grounds by clear and convincing evidence. See Dep't of Soc. Servs. v. Mrs. H, 346 S.C. 329, 333, 550 S.E.2d 898, 901 (Ct. App. 2001) (providing TPR grounds must be proved by clear and convincing evidence); S.C. Dep't of Soc. Servs. v. Roe, 371 S.C. 450, 455, 639 S.E.2d 165, 168 (Ct. App. 2006) ("Because terminating the legal relationship between natural parents and a child is one of the most difficult issues an appellate court has to decide, great caution must be exercised in reviewing [TPR] proceedings[,] and [TPR] is proper only when the evidence clearly and convincingly mandates such a result.").

First, DSS did not prove by clear and convincing evidence Mother failed to remedy the conditions causing removal. See § 63-7-2570(2) (providing a statutory ground for TPR is met when "[t]he child has been removed from the parent . . . and has been out of the home for a period of six months following the adoption of aplacement plan by court order or by agreement between [DSS] and the parent[,] and the parent has not remedied the conditions which caused the removal"); McCutcheon v. Charleston Cty. Dep't of Soc. Servs., 302 S.C. 338, 343, 396 S.E.2d 115, 118 (Ct. App. 1990) ("First, DSS must identify the condition that led to the removal of the child. Second, DSS must identify appropriate rehabilitative services, and third, DSS must make a meaningful offer of those services. DSS is not, however, responsible for insuring successful outcomes."); id. at 342, 396 S.E.2d at 117 ("[I]t is imperative that the condition which led to [the child's] removal be thoroughly explored.").

In finding this ground was met, the family court relied on Mother's prescription opioid use to find she had not overcome her substance abuse issue. However, DSS never identified Mother's prescription drug use as a condition that needed to be remedied. Taylor Martin, the DSS foster care worker, acknowledged the only basis for DSS's involvement in 2016 was Mother's positive test for marijuana, and she agreed neither Child's or his sister's¹ case "had anything to do with prescription medication abuse." In its removal complaint, DSS did not allege Mother was abusing prescription medication, and in its TPR complaint, DSS did not identify prescription drug use as a concern. Further, the placement plan did not identify prescription drug use as a concern. Because DSS never identified Mother's prescription drug use as an issue that needed to be remedied prior to the TPR hearing, her use of prescription medicine cannot serve as a basis to find she failed to remedy the conditions causing removal.² See McCutcheon, 302 S.C. at 343, 396 S.E.2d at 118 ("First, DSS must identify the condition that led to the removal of the child.").

Regarding the condition DSS did identify—Mother's marijuana use—DSS did not present any evidence showing Mother failed to remedy that condition. Mother successfully completed substance abuse treatment between October 3, 2016, and December 14, 2016, and Martin acknowledged the treatment center regularly tested patients for drugs and Mother would not have successfully completed the program if she failed drug tests. Martin admitted the only positive drug test DSS had in this case was the February 2016 test. Finally, the November 27, 2017 hair follicle test to which Mother voluntarily submitted was negative for all drugs except amphetamine.³ No evidence shows Mother's illegal drug use continued after the February 2016 positive drug test. Because the failed drug test was the basis for the 2016 removal, DSS did not prove this ground by clear and convincing evidence.

Second, DSS did not prove by clear and convincing evidence Mother's home could not be made safe within twelve months due to the severity or repetition of the harm. See § 63-7-2570(1) (providing a statutory ground for TPR is met when "[t]he child or another child while residing in the parent's domicile has been harmed . . . , and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months"); S.C. Code Ann. § 63-7-20(6)(a) (Supp. 2017) ("'Child abuse or neglect' or 'harm' occurs when the parent . . . engages in acts or omissions which present a substantial risk of physical or mental injury to the child . . . ."). Although a child in Mother's home was harmed by Mother's marijuana use, we cannot say by clear and convincing evidence it was not reasonably likely Mother's home could be made safe in twelve months.⁴ We acknowledge Mother had four prior indicated cases: one in 2006 involving cocaine use, one in 2007 involving cocaine use, one in 2009 involving cocaine use, and one in 2012 involving alcohol use. However, Mother successfully completed treatment for cocaine addiction in 2010, and nothing indicates she used cocaine thereafter. Likewise, Mother stated she successfully completed treatment for alcohol abuse in 2012, and nothing indicates she abused alcohol after that time. Although it is problematic that Mother moved from one substance to another, nothing indicates Mother had a substance abuse issue the four years prior to herpositive drug test in February 2016. Following the February 2016 positive drug test, Mother successfully completed treatment between October and December 2016, and nothing indicates Mother used marijuana in the twenty-one months between the February 2016 drug test and the November 2017 TPR hearing. In fact, the only evidence submitted—Mother's successful completion of drug treatment in December 2016 and her November 2017 drug test—showed Mother did not have an ongoing substance abuse problem. Thus, DSS did not present clear and convincing evidence showing it was not reasonably likely Mother's home could be made safe within twelve months.

Third, DSS did not prove by clear and convincing evidence Mother willfully failed to support Child. See § 63-7-2570(4) (providing a statutory ground for TPR is met when "[t]he 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"). The family court ordered DSS to refer this case to child support enforcement in the March 20, 2017 merits removal order. In that same order, the family court found Mother filed a financial declaration with the Clerk of Court on March 17, 2017. Notwithstanding this, DSS never set child support for Mother. Martin testified a prior...