Sanders v. Emery, 2275

• Decision Date: 03 November 1994
• Docket Number: No. 2275,2275
• Citation: 317 S.C. 230,452 S.E.2d 636
• Court: South Carolina Court of Appeals
• Parties: Carlos SANDERS and Lisa Marie Sanders, Appellants, v. Grace EMERY, Elmer Rice and Harley Bond Rice, Respondents. . Heard

Page 636

452 S.E.2d 636

317 S.C. 230

Carlos SANDERS and Lisa Marie Sanders, Appellants, v. Grace EMERY, Elmer Rice and Harley Bond Rice, Respondents.

No. 2275.

Court of Appeals of South Carolina.

Heard Nov. 3, 1994.

Decided Dec. 19, 1994.

Adam Fisher, Jr., Greenville, for appellants.

Susan Cobb Singleton, and Andrea B. Williams, Greenville, for respondents.

Guardian ad Litem: P. Joyce McCarrell, of Travelers Rest.

HOWARD, Acting Judge:

Carlos and Lisa Marie Sanders brought this action seeking a return of custody of their child, Diana. In previous proceedings, custody had been placed with Diana's maternal grandmother, Grace Emery, who at the time of this action was unable to care for the child. Diana's great-grandparents, Elmer Lee Rice and Harley Bond Rice, also sought custody. The trial court awarded custody to the great-grandparents. The parents appeal. We reverse and remand.

Diana was born on December 8, 1988, and is the first child of Carlos and Lisa Marie Sanders. In early 1989 Carlos and Lisa Marie separated. At that time, Lisa Marie was 19 years old and Carlos was 22. During the separation, Carlos pled guilty to criminal sexual conduct with a fourteen year old and received a sentence of incarceration. He served three months and was then paroled. Also following the separation, Lisa Marie attempted to give Diana to neighbors because of her inability to care for the child.

As a result of Lisa Marie's actions, the Department of Social Services (DSS) intervened and initially placed Diana in the care of the paternal grandparents. Thereafter, the maternal grandmother and the great-grandparents sought custody of Diana. At the time this initial custody case was heard, DSS was dismissed as a party by consent because a return of custody to Carlos and Lisa Marie was not an issue. The court found Lisa Marie to be borderline mentally retarded, emotionally immature and not capable of caring for Diana. The court also noted Lisa Marie was working very hard with DSS and other agencies by attending parenting classes and other coping and educational programs in an effort to "eventually" regain custody. Carlos was by that time also attending parenting classes, having reconciled with Lisa Marie.

The court ultimately determined Diana's maternal grandmother should have custody, noting "the best scenario would be for the child to be with her parents, and if the parents continue to work diligently and the grandparents assist them in their effort, this occurrence will hopefully take place in the not too distant future."

In 1992 Carlos and Lisa Marie obtained an order granting them unsupervised visitation with Diana. In the 1992 order, the court relied in part on the testimony of Mary Foster, a licensed social worker and counselor. Foster indicated that Lisa Marie had continued to participate in parenting classes. Foster also testified she had observed Lisa Marie visiting with Diana and observed her with her second child, Jessica, then eight months old. Foster stated she had no further reservations about Lisa Marie's capabilities to adequately care for Diana in an unsupervised surrounding. The court awarded unsupervised visitation from 6:00 p.m. on Friday or Saturday (to correspond with Carlos' work schedule) until 9:00 a.m. the following morning, and visitation each Tuesday from 9:00 a.m. until 1:00 p.m.

Carlos and Lisa Marie brought the present custody action after the maternal grandmother was hospitalized for psychiatric reasons. They now have two other children, Jessica, who was two years old at the time of the hearing, and Micah, who was two months old. The Rices, Diana's great-grandparents, have cared for Diana during the two years prior to the hearing. At the time of the hearing, Mrs. Rice was 71 years old, and Mr. Rice was 74 years old.

The trial court awarded custody to the great-grandparents. The court acknowledged a presumption in favor of custody to natural parents, but found the presumption rebutted by factual findings in favor of the great-grandparents. The court then applied the four factors set forth in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) for determining a custody dispute between natural parents and a third party. The court concluded the welfare and best interests of Diana required placing custody with the great-grandparents, although specifically declining to find the parents unfit.

In an action on appeal from the family court, this court has jurisdiction to find facts in accordance with its own view of the preponderance of the evidence. Epperly v. Epperly, --- S.C. ----, 440 S.E.2d 884 (1994). This broad scope of review does not require us to disregard the findings of the trial judge, who saw and heard the witnesses, nor does it relieve the appellants of the burden of convincing this court that the family court committed error. Skinner v. King, 272 S.C. 520, 252 S.E.2d 891 (1979); Bramlett v. Davis, 289 S.C. 85, 344 S.E.2d 867 (Ct.App.1986). We recognize the trial judge in this case was faced with a difficult decision. Upon review, however, we are convinced that improper weight was accorded to the present relationship which the great grandparents enjoy with Diana, and insufficient weight was given to the strong presumption favoring the return of custody to the home of fit biological parents.

The best interest of the child is always the primary consideration in this type of proceeding. Moore, 300 S.C. 75, 386 S.E.2d 456; Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Koon v. Koon, 203 S.C. 556, 28 S.E.2d 89 (1943). Where the issue of custody arises with regard to third persons, there is a rebuttable presumption which favors placing custody with the biological parents. Moore, 300 S.C. 75, 386 S.E.2d 456; Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985); Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 (1978). In Moore our Supreme Court characterized the Rowland decision as placing "a substantial burden on any third party attempting to take custody over a biological parent." 300 S.C. at 79, 386 S.E.2d at 458. Moore quotes Rowland as recognizing "the superior rights of a natural parent in a custody dispute with a third party. Once the natural parent is deemed fit, the issue of custody is decided." Id. (quoting Rowland, 285 S.C. at 517, 331 S.E.2d at 782).

In child custody matters, the public policy of this state is to reunite parents and children. S.C.Code Ann. § 20-7-20(D) (1985); Hopkins v. South Carolina Dep't of Social Servs., --- S.C. ----, 437 S.E.2d 542 (1993). In Moore, the court established the following criteria to consider in making custody determinations when a parent seeks to reclaim custody:

1) The parent must prove that he [or she] is a fit parent, able to properly care for the child and provide a good home.

2) The amount of contact, in the form of visits, financial support or both, which the parent had with the child while it was in the care of a third party.

3) The circumstances under which temporary relinquishment occurred.

4) The degree of attachment between the child and the temporary custodian.

300 S.C. at 79-80, 386 S.E.2d at 458 (citations omitted).

It is important in the evaluation of the relevant criteria in each case to remember the context in which they are framed. As stated in Moore, "Since the paramount consideration of the courts...