Sc Dept. of Social Services v. Roe, 4191.

• Decision Date: 21 December 2006
• Docket Number: No. 4191.,4191.
• Citation: 639 S.E.2d 165
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Richard ROE, Jane Doe, John Doe, and Matthew B. (DOB: 05/30/02), Defendants, of whom Jane Doe is Appellant.

639 S.E.2d 165

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Richard ROE, Jane Doe, John Doe, and Matthew B. (DOB: 05/30/02), Defendants, of whom Jane Doe is Appellant.

No. 4191.

Court of Appeals of South Carolina.

Submitted December 1, 2006.

Decided December 21, 2006.

COPYRIGHT MATERIAL OMITTED

Charles R. Griffin, Jr., of Anderson, for Appellant.

Kimberly Welchel, of Walhalla, for Respondents.

Blair L. Stoudemire, of Seneca, for Guardian Ad Litem.

ANDERSON, J.:

The South Carolina Department of Social Services (DSS) initiated this termination of parental rights action against Richard, Roe, John Doe, and Jane Doe. The family court terminated Jane Doe's parental rights on the grounds: (1) she has a diagnosable condition not likely to change within a reasonable time that makes her unlikely to provide minimally acceptable care for the child and (2) termination of her parental rights is in the child's best interest.¹ We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Doe gave birth to the minor child Matthew on May 30, 2002, after twenty-four (24) weeks of gestation.² Matthew was placed in foster care in Georgia until November of 2003, when he was returned to Doe. In April 2004, DSS took Matthew into custody as the result of allegations of neglect and violence in the family home, including the possibility of physical abuse.

Shortly after Matthew's birth, Doe was referred to psychologist Fred W. Fussell for evaluation because of hospital personnel's concern regarding her parenting ability. Background information revealed that Doe receives a monthly Supplemental Security Income check and has never been married or employed. She graduated from a special education curriculum at Stephens County High School. Doe's parents divorced when she was nine. Since then her home has been with her mother. Her mother's boyfriend lives in the home as well.

After Matthew was removed from Doe's custody in April 2004, Doe was evaluated by psychologist David G. Cannon. Subsequently, through the Oconee Department of Disabilities and Special Needs, Doe participated in counseling and parenting classes as part of a treatment plan.

DSS instituted this action to terminate Doe's parental rights pursuant to section 20-7-766 of the South Carolina Code (Supp.1996, amended 1997). By order dated July 2, 2005, the family court announced, inter alia, the following findings of fact:

(9) I find that [DSS] has proven by clear and convincing evidence and unchallenged expert psychological testimony that Defendant [Jane Doe] has a diagnosable condition of Personality Disorder NOS [not otherwise specified] with Antisocial Traits, Mild Mental Retardation, and Borderline Intellectual Functioning unlikely to change within a reasonable time and the condition makes the Defendant unlikely to provide minimally acceptable care for the child pursuant to S.C.Code Ann. § 20-7-1572(6).

(14) I find it to be in the best interest of the Defendant child for the parental rights of Defendant [Jane Doe] to be terminated. The minor child has excelled in his present placement pursuant to testimony provided in that he talks constantly, knows his animal sounds, loves to play outside, eats a wide variety of foods and is potty trained. The Guardian ad Litem states that termination of parental rights is in the child's best interest.

STANDARD OF REVIEW

In a termination of parental rights (TPR) action, 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). Before parental rights can be forever terminated, the alleged grounds for the termination must be proven by clear and convincing evidence. Richberg v. Dawson, 278 S.C. 356, 357, 296 S.E.2d 338, 339 (1982); S.C. Dep't of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct.App.1999). On appeal, this court may review the record and make its own determination as to whether the grounds for termination are supported by clear and convincing evidence. S.C. Dep't of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 509 (Ct.App.2001). However, in reviewing a termination of parental rights, an appellate court is not required to ignore the fact that the family court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. S.C. Dep't of Soc. Servs. v. Seegars, 367 S.C. 623, 629, 627 S.E.2d 718, 721 (2006); Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct.App.1996). "While we have jurisdiction in such matters to find facts based on our own view of the preponderance of the evidence, where the evidence presented in the record adequately supports the findings of the trial judge, due deference should be given to his judgment based on his superior position in weighing such evidence. This is especially true in cases involving the welfare and best interests of children." Aiken County Dep't of Soc. Servs. v. Wilcox, 304 S.C. 90, 93, 403 S.E.2d 142, 144 (Ct.App.1991) (citations omitted). Because terminating the legal relationship between natural parents and a child is one of the most difficult issues an appellate court has to decide, great caution must be exercised in reviewing termination proceedings and termination is proper only when the evidence clearly and convincingly mandates such a result. S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626, 614 S.E.2d 642, 645 (2005).

LAW/ANALYSIS

Doe contends that, although DSS may have shown she has a diagnosable condition, the condition can be remedied. She argues the family court erred in finding clear and convincing evidence that her parental rights should be terminated, because DSS failed to prove a diagnosable condition not likely to change within a reasonable time. We disagree.

Termination of parental rights statutes must be liberally construed in order to ensure prompt judicial procedures for freeing minor children from the custody and control of their parents by terminating the parent-child relationship. Parker, 336 S.C. at 258, 519 S.E.2d at 356 (citing S.C.Code Ann. § 20-7-1578 (Supp.1998)). The interests of the child shall prevail if the child's interest and the parental rights conflict. Id. The family court may order the termination of parental rights upon a finding that one or more of the nine statutory grounds is met and a finding that termination is in the best interest of the child. Seegars, 367 S.C. at 629, 627 S.E.2d at 721; S.C.Code Ann. § 20-7-1572 (Supp.2005) (emphasis added). Subsection (6) provides for termination upon clear and convincing evidence that:

[t]he parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unlikely to provide minimally acceptable care of the child. . . .

S.C.Code Ann. § 20-7-1572(6) (Supp.2005).

When the diagnosable condition alleged is mental deficiency, there must be clear and convincing evidence that: (1) the parent has a diagnosed mental deficiency, and (2) this deficiency makes it unlikely that the parent will be able to provide minimally acceptable care of the child. S.C. Dep't of Soc. Servs. v. Smith, 311 S.C. 426, 428, 429 S.E.2d 807, 808 (1993); Orangeburg County Dep't of Soc. Servs. v. Harley, 302 S.C. 64, 66, 393 S.E.2d 597, 598 (Ct.App.1990). We have determined that testimony by a clinical psychologist provided clear and convincing evidence of a diagnosable condition of mental deficiency, unlikely to change within reasonable time, and that condition made the mother unlikely to provide minimally acceptable care of her child. S.C. Dep't of Soc. Servs. v. Humphreys, 297 S.C. 118, 122, 374 S.E.2d 922, 925 (Ct.App.1988). In Humphreys, as in the instant case, the mother was mildly mentally deficient and the psychologist opined there was little likelihood that a course in parenting skills could ever make her capable of being primary caretaker for her child. Id. Distinguishing Humphreys, in Smith, 311 S.C. at 426, 429 S.E.2d at 807, our Supreme Court reversed the family court's termination of parental rights based on section 20-7-1572(6). Both parents in Smith were mildly mentally retarded and expert psychological testimony indicated the mother's ability to function in a parental role was poor and unlikely to improve. Id. at 428, 429 S.E.2d at 808. On cross examination, however, the psychologist opined the parents could possibly benefit from a new and innovative program for the education of the mentally retarded focusing on parenting skills, family planning, and sexuality. Id. at 429, 429 S.E.2d at 809. The DSS social worker along with the administrator of the educational program agreed, and the Court reversed, remanding the case to the family court for reconsideration of termination following the parents' participation in the program.

Our precedent has traditionally distinguished between the provisions under section 20-7-1572(2) and section 20-7-1572(6) as to the remediation of conditions that lead to a TPR action. See Harley, 302 S.C. at 66, 393 S.E.2d at 598; Humphreys, 297 S.C. at 122, 374 S.E.2d at 924-25. Subsection (2) provides that parental rights may be terminated if "[t]he child has been removed from the parent pursuant to Section 20-7-610 or Section 20-7-736, has been out of the home for a period of six months following the adoption of a placement plan by court order or by agreement between the department and the parent, and the parent has not remedied the conditions which caused the removal. . . ." S.C.Code Ann. § 20-7-1572(2) (Supp.2005) (emphasis added). On the other hand, section 20-7-1572(6) does not expressly provide an opportunity to remedy a diagnosed condition that is "unlikely to change within a reasonable time." Id., § 20-7-1572(6). However, as Smith inculcates, even though a diagnosis of mental...