SC DEPT. OF SOC. SERV. v. Parker

• Citation: 336 S.C. 248,519 S.E.2d 351
• Decision Date: 21 June 1999
• Docket Number: No. 3014.,3014.
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Tashanda Nicole PARKER, Ben J. Cooper, Rico O'Brien Taylor, and John Doe, whose true name is unknown, and Rodricuv I'Keem Daqune Cooper, a/k/a Daquon Parker, DOB: April 7, 1993, and Deborah ReQonisha Taylor, DOB: May 3, 1994, of whom Rico O'Brien Taylor is the Appellant.
• Court: Court of Appeals of South Carolina

336 S.C. 248

519 S.E.2d 351

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Tashanda Nicole PARKER, Ben J. Cooper, Rico O'Brien Taylor, and John Doe, whose true name is unknown, and Rodricuv I'Keem Daqune Cooper, a/k/a Daquon Parker, DOB: April 7, 1993, and Deborah ReQonisha Taylor, DOB: May 3, 1994, of whom Rico O'Brien Taylor is the Appellant.

No. 3014.

Court of Appeals of South Carolina.

Submitted June 8, 1999.

Decided June 21, 1999.

Rehearing Denied August 28, 1999.

George R. Sharwell, of Columbia, for Appellant.

Celeste Moore, of South Carolina Department of Social Services, of Columbia, for Respondent.

Laura Waring, of Columbia, for Guardian ad Litem.

ANDERSON, Judge:

Rico O'Brien Taylor (Father) appeals from an order of the Family Court terminating his parental rights as to his minor daughter, Deborah ReQonisha Taylor (Deborah). We affirm.¹

FACTS/PROCEDURAL BACKGROUND

Father and Tashanda Nicole Parker (Mother) are the natural parents of Deborah ReQonisha Taylor, born May 3, 1994. Mother has another minor child, Rodricuv I'Keem Daqune Cooper a/k/a Daquon Parker (Rodricuv), born April 7, 1993. On April 12, 1993, the Richland County Department of Social Services (DSS) received a report that Rodricuv tested positive for syphilis and marijuana at birth. The report was substantiated. DSS referred Mother to the Lexington/Richland Alcohol and Drug Abuse Council (LRADAC) for treatment services, but Mother failed to follow through with the referral. Subsequently, DSS was informed that Deborah tested positive for syphilis at birth. DSS continued to offer Mother rehabilitative services, including drug abuse counseling at LRADAC.

On July 1, 1994, DSS was notified Mother was staying at a local motel and was using cocaine in the presence of the minor children. Although Mother tested positive for cocaine on the same day, DSS elected not to take Deborah and Rodricuv into emergency protective custody. On August 9, 1994, DSS received a report alleging: (1) Mother had failed to seek necessary medical care for the children; (2) she was not providing proper infant care for the children; and (3) the family apartment and the children were in a dirty and unsanitary condition. The report was verified upon investigation. The Columbia Police Department took the children into protective services. By order dated September 14, 1994, the Family Court granted DSS custody of the children.

A merits hearing was held October 6, 1994. The Family Court found Mother had medically and physically neglected the children. The Court granted custody of the children to one of Mother's relatives. However, Mother's relative voluntarily relinquished custody to DSS on December 30, 1994. According to the relative, Mother was involved with drugs and was disrupting the relative's household. The children were thereafter returned to foster care and remain in that status. DSS had no contact with Mother from December 30, 1994 until February 8, 1995, when Mother called the DSS caseworker and reported she was still using drugs but wanted help. The next day, the DSS caseworker attempted to visit Mother at her last known address, but the home was vacant. As a result of a review hearing held March 2, 1995, the Court (1) relieved DSS of its obligation to offer Mother treatment services and (2) approved a termination of parental rights (TPR) and adoption plan.

On June 1, 1995, Mother visited the DSS caseworker at her office. The caseworker informed Mother about the TPR and adoption plan. Additional rehabilitative services were offered and Mother was notified that a Foster Care Review Board hearing was scheduled for June 7, 1995. During the meeting, Mother told the caseworker that Rico Taylor was Deborah's father, and he was incarcerated at the Richland County Detention Center on charges of drug trafficking. On the same day, the caseworker contacted the Richland County Detention Center to obtain information as to Father. She was informed Father was indeed incarcerated at the Richland County Detention Center. On June 6, 1995, the DSS caseworker mailed a letter to Father at the Richland County Detention Center informing him DSS was involved with Deborah and Mother had named him as Deborah's father. The letter included the caseworker's name and office number. The June 6, 1995, letter was not returned to the caseworker. On October 28, 1995, the caseworker sent a second letter to Father, inviting him to appear before the Foster Care Review Board. The October 28, 1995, letter was returned to the caseworker with a notation that Father was no longer at the Richland County Detention Center. The caseworker never spoke with Father. She received no correspondence from him.

DSS filed a summons and complaint on March 13, 1996, seeking TPR as to, among others, Father. He was personally served with the summons and complaint on March 22, 1996, at the federal penitentiary in Atlanta, Georgia, where he was incarcerated. In response, Father drafted a letter, dated March 23, 1996, opposing the termination. Although Father mailed the letter to the address provided on the summons, the letter was returned to him marked "Address Unknown." By order dated March 3, 1997, the Family Court appointed a guardian ad litem and an attorney for Father. On May 12, 1997, Father filed an answer denying his parental rights should be terminated.

The Family Court terminated the parental rights of both Mother² and Father after a TPR hearing on August 11, 1997. In support of its decision to grant TPR, the Court found Father had failed to visit or support Deborah. Specifically, the Court determined Father (1) had seen Deborah only once, when she was two months old; (2) had neither provided Deborah with financial support nor made any material contribution to her care; and (3) was arrested in July of 1994 on drug charges and incarcerated continuously since that time. Father contended he was unable, due to his incarceration, to perform his parental dudes, and he had made efforts to rehabilitate himself during his incarceration. However, the Court concluded any difficulties Father experienced due to being incarcerated resulted directly from his voluntary course of lawlessness. In holding TPR was in Deborah's best interest, the Court noted, absent a successful appeal, Father's anticipated date of release is 2004. The Family Court terminated Father's parental rights. This appeal followed.

ISSUES

I. Is incarceration a reasonable excuse for failure to visit and support a child?

II. Was there clear and convincing evidence to support the termination of Father's parental rights?

STANDARD OF REVIEW

A ground for termination of parental rights must be proved by clear and convincing evidence. Greenville County Dep't of Social Services v. Bowes, 313 S.C. 188, 194, 437 S.E.2d 107, 110 (1993) ("This Court cannot sanction the precipitous termination of parental rights based on emotionally charged complaints not proved to the level of this objective standard"); see also South Carolina Dep't of Social Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992)

(citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (U.S. Supreme Court held that "[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence")).

In a termination of parental rights case, the appellate court has jurisdiction to review the entire record to determine the facts in accordance with its view of the evidence. Richland County Dep't of Social Servs. v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998). This Court may review the record and make its own findings as to whether clear and convincing evidence supports termination. Broome, supra.

LAW/ANALYSIS

I. Consideration of Incarceration

Father argues the Court erred in terminating his parental rights on the basis of his criminal misconduct and consequent incarceration, which he asserts are not statutory grounds for termination. We reject this contention inasmuch as it stems from Father's misapprehension of the Family Court's order. Regarding Father's incarceration, the Family Court found:

Although [Father] contends he has been unable to perform his parental responsibilities due to his incarceration and that he has made efforts to rehabilitate himself during this time, he overlooks the important fact that his criminal conduct was voluntary and the true cause of his being unable to fulfill his parental responsibility.

However, a careful reading of the order leads to the ineluctable conclusion that Father's parental rights were terminated pursuant to S.C.Code Ann. § 20-7-1572(3) & (4) (Supp.1998). That section provides for termination where:

(3) The 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 visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit;

(4) The 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. Failure to support means that the parent has failed to make a material contribution to the child's care. A material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support.

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