S.C. Dep't of Soc. Servs. v. Jean N.
| Decision Date | 19 October 2006 |
| Docket Number | 2006-UP-353 |
| Parties | South Carolina Department of Social Services, Respondent, v. Tina Jean N., Clifford S. and John Doe, Respondents, In the interest of Abigail N., DOB 12/10/01, Intervenors: Dewayne N., Sandra N. and Gena N., Appellants. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Appeal from Pickens County Alvin D. Johnson, Family Court Judge
Submitted September 1, 2006
W Daniel Yarborough, Jr. of Greenville, for Appellants.
Dottie C. Ingram, of Florence, for Respondents.
Dwayne N., Sandra N., and Gena N. (Appellants) appeal from a family court order denying their motion to intervene in this action for termination of parental rights (TPR). We affirm.
Abigail N., the minor and subject of this termination of parental rights (TPR) action, was born December 10, 2001, to Clifford N. (Father) and Tina N. (Mother). On February 12, 2005, A.N was admitted to the hospital with at least two fractured ribs, a bruised pancreas, burns to her left arm, face, chest and abdomen, and low hemoglobin due to massive soft tissue injuries to her posterior where blood had pooled. That same day, she was placed into emergency protective custody pursuant to section 20-7-610(E) of the South Carolina Code (2003). Two days later, the family court held a probable cause hearing and found the South Carolina Department of Social Services (DSS) had probable cause to remove Abigail from her home. DSS filed this action for TPR on February 17 2005.
A family meeting was held on March 3, 2005, pursuant to section 20-7-762(B) of the South Carolina Code (2003). At the meeting, DSS informed Appellants, all of whom were present, that the TPR action would proceed. On March 14, 2005, Appellants went to DSS to speak to a case worker about obtaining custody of Abigail. Appellants informed DSS that they did not want permanent custody of Abigail, and they would only care for her for a short period of time. Significantly, Appellants took no action regarding custody of Abigail even after DSS informed Appellants of its decision to not recommend them for custody.
By order dated March 9, 2005, the merits hearing for the abuse and neglect action was consolidated with the TPR action. On May 12, 2005, the second day of the hearing, Appellants faxed a notice of motion and motion for intervention pursuant to Rule 24, SCRCP. The motion for intervention was served upon the opposing parties via facsimile that same day. The motion was scheduled to be heard on May 16, 2005.
At the hearing on the motion to intervene, Dewayne N. submitted an affidavit stating he believed the testimony would show that Mother had no part in injuring Abigail, and that she provided the child with prompt medical attention. A DSS caseworker and a DSS supervisor also submitted affidavits, in which they expressed concern that neither Dewayne N. nor Gena N. believed the abuse had occurred. Because these relatives did not believe the child had been abused, DSS believed they could not be relied upon to provide adequate protection for [the minor child].”
The family court denied Appellants' motion to intervene, finding they failed to provide adequate notice of the motion pursuant to Rule 6(d), SCRCP, and Rule 21(a), SCRFC. Additionally, the family court found that it [was] clearly not in the child's best interest to continue this case....” This appeal followed.
In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence.” Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). However, because the family court is in a superior position to judge the witnesses' demeanor and veracity, its findings should be given broad discretion.” Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003). The standard of review for a motion for intervention is whether the judge abused his discretion in granting or denying the motion. See, e.g., In re Horry County State Bank, 361 S.C. 503, 507, 604 S.E.2d 723, 725 (Ct. App. 2004).
Appellants argue the family court erred in denying their motion to intervene. [1] We disagree.
Appellants filed their motion to intervene pursuant to Rule 24 of the South Carolina Rule of Civil Procedure. Rule 6(d), SCRCP provides for a minimum of ten days' notice for written motions and provides, in part:
Written motion(s) other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than ten days before the time specified for the hearing....
(emphasis added).
Here, Appellants provided only four days' notice of their motion to intervene to opposing parties, notwithstanding the fact they were aware of both DSS's intent to file the TPR action as early as March 3, 2005, and of DSS's decision to not recommend Appellants for custody. The parties were noticed via facsimile on May 12, 2005 that the motion to intervene would be heard on May 16, 2005. Therefore, the family court correctly found Appellants' motion to intervene was untimely under Rule 6(d), SCRCP.
Additionally, in their motion to intervene, Appellants sought temporary custody of Abigail. Therefore, the family court also analyzed their motion under Rule 21 of the South Carolina Rules of Family Court, finding the motion was untimely under that rule as well. We agree.
Rule 21(a), SCRFC, provides, in part: A written motion for temporary relief, and notice of the hearing thereof, shall be served not later than five days before the time specified for the hearing....” (emphasis added). We agree with the family court that Appellants' motion was untimely under Rule 21(a), SCRFC.
Moreover all matters involving the custody and care of children must be decided in the best interests of the child. Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d 386, 388 (2001). In a termination of parental rights case, the best interest of the child is the paramount consideration. Doe v. Baby Boy Roe, 353 S.C. 576, 579, 578 S.E.2d 733, 735 (Ct. App. 2003). Our General Assembly has mandated that when the interest of the child and the parental rights conflict, the interest of the child shall prevail. S.C. Code Ann....
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