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

• Decision Date: 15 December 2016
• Docket Number: Opinion No. 5472,Appellate Case No. 2015-002045
• Citation: 797 S.E.2d 740,419 S.C. 301
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, and Sherry Powers, Edward Anthony Dalsing and Tammy Gaye Causey Dalsing, Intervenors, v. Erica SMITH and Andrew Jack Myers, Defendants, Of whom Edward Anthony Dalsing, Tammy Gaye Causey Dalsing, and Erica Smith are Respondents, and Andrew Jack Myers is the Appellant. In the interest of a minor under the age of eighteen.

419 S.C. 301

797 S.E.2d 740

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent,

and

Sherry Powers, Edward Anthony Dalsing and Tammy Gaye Causey Dalsing, Intervenors,

v.Erica SMITH and Andrew Jack Myers, Defendants,Of whom Edward Anthony Dalsing, Tammy Gaye Causey Dalsing, and Erica Smith are Respondents,andAndrew Jack Myers is the Appellant.

In the interest of a minor under the age of eighteen.

Appellate Case No. 2015-002045

Opinion No. 5472

Court of Appeals of South Carolina.

Heard October 19, 2016

Filed December 15, 2016

Withdrawn, Substituted and Refiled March 1, 2017

Melinda Inman Butler, of The Butler Law Firm, of Union; and Nathan James Sheldon, of The Law Office of Nathan J. Sheldon, LLC, of Rock Hill, for Appellant.

James Fletcher Thompson, of James Fletcher Thompson, LLC, of Spartanburg; and Larry Dale Dove, of Dove Law Group, LLC, of Rock Hill, for Respondents Edward A. Dalsing and Tammy G. Dalsing.

David E. Simpson, of South Carolina Department of Social Services, of Rock Hill, for Respondent South Carolina Department of Social Services.

Debra A. Matthews, of Debra A. Matthews, Attorney at Law, LLC, of Winnsboro, for Respondent Erica Smith.

Lindsey Ann McCallister, of Foster Care Review Board, of Columbia, for Respondent Foster Care Review Board.

Brenda L. Gorski, of South Carolina Guardian ad Litem Program, of Columbia, for the Guardian ad Litem.

Erick Matthew Barbare, of The Barbare Law Firm, of Greenville, for Intervenor Sherry Powers.

PER CURIAM:

Appellant Andrew Jack Myers (Father) appeals a family court order terminating his parental rights to his minor daughter (Child) and granting an adoption of Child to Respondents Edward and Tammy Dalsing (Foster Parents). On appeal, Father argues the family court erred by (1) finding his consent was not required for Child's adoption, (2) terminating his parental rights, (3) granting adoption to Foster Parents while finding they lacked standing to file an adoption petition, (4) allowing Foster Parents to be parties to this action, and (5) finding Child's permanent plan should be termination of parental rights (TPR) and adoption.¹ We vacate in part, reverse in part, 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) ; see also 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.

Initially, we find the issue of Foster Parents' intervention in the removal action brought by the Department of Social Services (DSS) is not properly before this court. The October 8, 2014 order allowing Foster Parents to intervene in the DSS action was by agreement; having consented to the intervention, Father cannot now challenge it on appeal. See Hooper v. Rockwell , 334 S.C. 281, 290, 513 S.E.2d 358, 363 (1999) (providing a party "may not appeal [a] consent order because such orders are not appealable").

Next, we find the family court erred by considering adoption once it determined Foster Parents did not have standing to file an adoption action.² Once the family court determined Foster Parents did not have standing to file an adoption petition, the issue of adoption was not before the family court, and the family court did not have the authority to consider it. See Youngblood , 402 S.C. at 317, 741 S.E.2d at 518 (noting standing is "a fundamental prerequisite to instituting an action"); Rule 2(a), SCRFC (limiting the applicability of Rule 54(c), SCRCP, in family court actions "to the extent it permits the court to grant relief not requested in the pleadings"); Bass v. Bass , 272 S.C. 177, 179–80, 249 S.E.2d 905, 906 (1978) (finding the family court erred as a matter of law in awarding the wife business compensation when she did not assert a claim for compensation in the pleadings); id . at 180, 249 S.E.2d at 906 ("While it is true that pleadings in the family court must be liberally construed, this rule cannot be stretched so as to permit the judge to award relief not contemplated by the pleadings." (footnote omitted)). We acknowledge that in certain instances, the family court may award relief not requested in pleadings. For example, Rule 17(a), SCRFC, permits a defaulting defendant to "be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees." However, we find this rule does not extend to permit the family court to sua sponte consider adoption when the party requesting it does not have standing to make such a request. Because adoption is contrary to common law, our supreme court mandates that statutes authorizing adoption must be strictly construed. See Hucks v. Dolan , 288 S.C. 468, 470, 343 S.E.2d 613, 614 (1986) ("The adoption of a child was a proceeding unknown to the common law. Adoption exists in this state only by virtue of statutory authority which expressly prescribes the conditions under which an adoption may legally be effected. Since the right of adoption in South Carolina is not a natural right but wholly statutory, it must be strictly construed." (citation omitted)). Thus, the family court erred in granting the adoption of Child to Foster Parents once it determined they did not have standing to file the adoption petition. Further, because the issue of Father's consent to the adoption was tied to the adoption, we find it was not properly before the family court. Therefore, we vacate the family court's finding that Father's consent was not required for the adoption and the family court's order granting Foster Parents adoption of Child.

Additionally, we agree with Father that the family court erred by terminating his parental rights with regard to Child because Foster Parents failed to prove by clear and convincing evidence that a statutory ground for TPR existed.³

The family court may terminate parental rights only when a statutory ground for TPR exists and TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2016). Under our statutory framework, for the family court to order TPR, it must find a statutory ground for TPR; it is not enough to find only that TPR is in the child's best interest. Charleston Cty. Dep't of Soc. Servs. v. Jackson , 368 S.C. 87, 97, 627 S.E.2d 765, 771 (Ct. App. 2006) ; see also Loe v. Mother, Father, & Berkeley Cty. Dep't of Soc. Servs. , 382 S.C. 457, 471, 675 S.E.2d 807, 815 (Ct. App. 2009) ("The [twelve] statutory grounds serve as a safety net that protects a fit and willing parent's fundamental right to raise his or her child. Even if the [f]oster [p]arents are perhaps better situated than [the parent] to offer advantages to [the children], we believe the fundamental right of a fit parent to raise his or her child must be vigorously protected."). Indeed, the Supreme Court of the United States has strongly indicated any attempt by a state to terminate parental rights based solely upon a showing of the child's best interest would be a Constitutional violation. See Quilloin v. Walcott , 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.’ " (alteration in original) (quoting Smith v. Org. of Foster Families , 431 U.S. 816, 862–63, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) )).

Also, to terminate parental rights, the family court must find clear and convincing evidence proves the existence of a statutory ground. S.C. Dep't of Soc. Servs. v. Parker , 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999). Our supreme court has long recognized and required clear and convincing evidence to terminate a parent's rights in his or her child. S.C. Dep't of Soc. Servs. v. Sarah W. , 402 S.C. 324, 335, 741 S.E.2d 739, 745 (2013). Moreover, the Supreme Court of the United States has held a state may not completely and irrevocably sever the rights of parents in their natural child unless the allegations against those parents are proven by at least clear and convincing evidence. Id . (citing Santosky v. Kramer , 455 U.S. 745, 747–48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). Understanding the "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment," the Santosky court explained the clear and convincing standard of proof was required "when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’ " 455 U.S. at 753, 756, 102 S.Ct. 1388 (quoting Addington v. Texas , 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ). The Santosky court noted further that such a level of certainty is "necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ " Id . at 756, 102 S.Ct. 1388 (quoting Addington , 441 U.S. at 425–26, 99 S.Ct. 1804 ).

Indeed, the fundamental liberty interest at issue in an action for TPR is a highly cherished right. See id . at 758–59, 102 S.Ct. 1388 (declaring it "plain beyond the need for multiple citation" that a parent's "desire for and right to ‘the companionship, care, custody, and management of his or her children’ " is a fundamental interest "far more precious than any property right" (quoting Lassiter v. Dep't of Soc. Servs. of Durham Cty., N.C. , 452 U.S. 18, 27, 101...