SC DEPT. OF SOCIAL SERVICES v. Lail

• Decision Date: 19 April 1999
• Docket Number: No. 2975.,2975.
• Citation: 335 S.C. 284,516 S.E.2d 463
• Parties: SC DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Sheila LAIL, Appellant.
• Court: South Carolina Court of Appeals

335 S.C. 284

516 S.E.2d 463

SC DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Sheila LAIL, Appellant.

No. 2975.

Court of Appeals of South Carolina.

Heard March 11, 1999.

Decided April 19, 1999.

James W. Boyd, of Rock Hill, for appellant.

Michael G. Matthews, of Rock Hill, for respondent.

Guardian ad Litem: Michael H. Lifsey.

PER CURIAM:

Sheila Lail appeals from an order of the family court terminating her parental rights to her two minor children, eleven-year-old twin girls, April and Amber. We reverse.

Facts/Procedural History

Sheila Lail (the mother) and Keith Lail (the father) are the parents of four children: the twins, a son, Scott, who was seventeen at the time of the hearing, and another emancipated daughter, Christina. On July 21, 1992, the South Carolina Department of Social Services (DSS) received a report alleging the father had sexually abused Christina, who was sixteen at the time. The report also alleged all four of the children were being neglected. A caseworker was assigned to investigate the allegations. When the caseworker visited the home, it was messy and contained little food. Shortly thereafter, the DSS caseworker again went to the Lail residence and found the parties had moved, leaving behind Christina, who was staying with a friend at the time. The Lails were subsequently arrested and jailed in Michigan on charges of abandonment, and DSS took April, Amber, and Scott into protective custody. The Lails were incarcerated in Michigan for two months and were extradited to South Carolina where they remained incarcerated for a month and a half. The criminal charges of abandonment were ultimately dismissed.

The family court held a merits hearing on November 11, 1992. On March 9, 1993, the court issued its order finding the allegations of sexual abuse against the father unfounded. The order did not address the issues of abandonment or physical neglect and failed to set forth a treatment plan. However, the court found the children should remain in DSS custody because both parents were still incarcerated at the time. Upon DSS's motion, the court issued an amended order on April 11, 1993, finding that: (1) the DSS caseworker observed the home to be filthy and to contain little food but that the evidence did not constitute physical neglect; (2) the sexual abuse allegations against the father were unfounded; and, (3) the parties had abandoned Christina. The court adhered to its previous finding that the children were to remain in DSS custody and ordered visitation for the parents.¹ Further, the court ordered the mother and father to complete counseling "as recommended by [DSS]" and to undergo substance abuse evaluations.

Pursuant to the court's order, DSS established a twelve month treatment plan for the mother and father. The Lails, however, refused to cooperate with the DSS caseworker when she attempted to explain the plan and refused to sign the plan. As well, the mother and father were disruptive during their visits with the children. Specifically, the father repeatedly accused DSS personnel of "dragging their feet" in returning the minor children to their care. The mother and father failed to complete the first treatment plan.

DSS established a second treatment plan in August of 1993. This plan required the parents to continue counseling, to undergo substance abuse evaluations, and to maintain visitation with the children. The plan also included a request that the mother and father undergo psychological evaluations.

The mother and father were again uncooperative during the explanation and signing of the plan. However, the parties underwent the recommended psychological evaluation. The evaluating physician recommended the children not be returned to the parents at that time and that parenting skills and family therapy be incorporated into a treatment plan. According to DSS, the mother and father never successfully dealt with their resentment of Christina. Further, the parties failed to complete the substance abuse counseling incident to the second treatment plan.

During the course of the second treatment plan, the parties' son, Scott, ran away from the foster care facility. A DSS caseworker discovered the mother and father were harboring the child. The parties were ruled into court and held in contempt.

According to DSS, the mother continued being uncooperative through three additional treatment plans. Specifically, the mother repeatedly failed to complete recommended counseling and parenting skills classes. The mother also failed to visit the children from late November of 1994 until May of 1995.² DSS had no contact with the father after May of 1995.

According to the mother, it is DSS that has been uncooperative. She cites her attempts to comply with DSS-ordered counseling. DSS ordered the Lails to attend counseling at the Saluda Center and initially agreed to pay for the counseling. The Lails attended for five months until December 2, 1994. At that time, DSS declined to pay. The mother, who felt uncomfortable with DSS's counselor, sought a different therapist. Since August of 1995 she has attended regular counseling at the Carolina Counseling Center in Rock Hill. The mother had been seeing her current therapist for a year at the time of trial. Although this therapist describes the mother's progress as "excellent," DSS maintains that the mother has not completed family therapy. However, all the mother's written requests for visits with her children for the express purpose of family therapy with her current therapist have been denied. Similarly, although the mother completed a DSS-recommended parenting class, DSS indicated it did not address all its concerns for her parenting skills.

In March of 1996, DSS filed a complaint seeking termination of the parties' parental rights to April and Amber. The complaint alleged the parties had failed to support the children and had failed to remedy the circumstances causing the children's removal. The mother answered, denying her parental rights should be terminated, and counterclaimed, seeking to have Amber and April returned to her custody.

On May 3, 1996, the family court issued an order which, inter alia, transferred jurisdiction of Scott Lail to York County DSS,³ required DSS to establish a six-month treatment plan for the mother, required the mother to complete family counseling at her own expense, and directed the mother to pay child support for April and Amber.

On January 16, 1997, the family court issued another order removing Christina from the case, finding April and Amber should remain in DSS custody, relieving DSS of any further obligation to provide the mother with treatment plans, and terminating the mother's visitation rights with the twins.

The family court held the merits hearing on DSS's termination of parental rights action on August 14, 1997. By order dated September 5, 1997, the family court terminated the parental rights of both the mother and father to April and Amber.⁴ As to the mother, the court found the children had been out of the mother's home for more than six months during which time the mother failed to support the children. The court also found the mother had failed to rehabilitate or remedy the conditions which caused the removal. Specifically, the family court found the mother failed to comply with various court orders and four separate DSS treatment plans by failing to complete counseling, failing to undergo substance abuse evaluations, and failing to complete parenting skills programs. The court further found that the mother's belated efforts to comply with the rehabilitative programs were judicially motivated and thus not indicative that the conditions causing removal had been cured.⁵

Standard of Review

Grounds for termination of parental rights must be proved by clear and convincing evidence. Greenville County Dep't of Social Servs. v. Bowes, 313 S.C. 188, 193, 437 S.E.2d 107, 110 (1993); South Carolina Dep't of Social Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992) ("Before 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." quoting Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)); South Carolina Dep't of Social Servs. v. Brown, 317 S.C. 332, 337, 454 S.E.2d 335, 338 (Ct.App.1995). On appeal of a termination of parental rights case, this court may review the record and make its own finding of whether clear and convincing evidence supports the termination. South Carolina Dep't of Social Servs. v. Humphreys, 297 S.C. 118, 121, 374 S.E.2d 922, 924 (Ct.App.1988). Statutes providing for the termination of parental rights must be strictly construed in favor of the parent and the preservation of the parent-child relationship. Leone v. Dilullo, 294 S.C. 410, 413, 365 S.E.2d 39, 40 (Ct.App.1988); Wilson v. Higgins, 294 S.C. 300, 304, 363 S.E.2d 911, 913-14 (Ct.App. 1987); see, e.g., Goff v. Benedict, 252 S.C. 83, 86-87, 165 S.E.2d 269, 271 (1969)

(strictly construing adoption statutes).

Discussion

The mother argues on appeal that the family court erred in terminating her parental rights based on her willful failure to support the twins. We agree.

By order dated May 3, 1996, the mother was ordered to pay $20.60 per week in support for April and Amber. At trial, a DSS caseworker testified that since being ordered to pay support, the mother had not missed a payment. Prior to being formally requested to provide support for the girls, the mother had sent $100.00 to DSS. The mother also testified that prior to being ordered by the court to pay support she had given spending money to the girls during visits.

The only finding contained in the order concerning the mother's payment of child support is this:

The defendant minor children have lived outside the home of the defendant Sheila Lail for a period of at least six (6)

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