South Carolina Department of Social Services v. Headden

• Decision Date: 12 June 2002
• Docket Number: Opinion No. 25665.
• Citation: 582 S.E.2d 419
• Court: South Carolina Supreme Court
• Parties: South Carolina Department of Social Services, Respondent, v. Robin Headden, Robert Gandy and Tabitha Gandy, 06-20-88, Defendants, and John Doe and Mary Doe, Third Party Intervenors, of whom Robin Headden is Appellant.

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South Carolina Department of Social Services, Respondent, v. Robin Headden, Robert Gandy and Tabitha Gandy, 06-20-88, Defendants and John Doe and Mary Doe, Third Party Intervenors of whom Robin Headden is Appellant.

Opinion No. 25665.

Supreme Court of South Carolina.Heard March 19, 2003.

Filed June 12, 2002.

Appeal From Berkeley County Clyde K. Laney, Jr., Family Court Judge

Laree Anne Hensley, of North Charleston, for Appellant.

Thomas P. Stoney, II, of Cordesville, for Respondent.

Wolfgang L. Kelly, of Summerville, for Guardian Ad Litem.

CHIEF JUSTICE TOAL:

Robin Headden ("Mother") appeals from the family court's termination of her parental rights to her daughter, ("Child"). [¹]

FACTUAL/PROCEDURAL BACKGROUND

The Child was taken into emergency protective custody by law enforcement on June 23, 1996, when she was 8 years old. The police arrived at the Mother's trailer and observed the Mother intoxicated and throwing clothes and other items out of the house through a door and a broken window. Mother testified that she was throwing out her roommate's belongings because her roommate had failed to pay rent or bills for several months, and that she broke the window accidentally in the process. The Mother was also accused of destroying furniture with a knife, but she denied cutting the furniture and blamed this on her ex-boyfriend. When the police arrived, the Child returned home from a neighbor's house and was taken into protective custody based on threat of harm. Custody of the Child was transferred to Respondent, South Carolina Department of Social Services ("DSS").

The family court found probable cause existed for the Child's removal at the 10 day hearing on July 2, 1996, and ordered that she remain in DSS's custody. The family court held a merits hearing on September 18, 1996, and found that the Child was physically neglected as defined by S.C. Code Ann. § 20-7-490, ordered the Child remain in DSS's custody, and adopted a treatment plan for the Mother.[²] From June of 1996 through December 1996, the Mother coordinated visitation with the Child through DSS. A Judicial Review hearing was held on December 19, 1996. In addition to holding that all previous orders remained in full force and effect, the court ordered the Mother to pay child support in the amount of $51.50 per month beginning January 1, 1997. In December, the Mother decided to move to Memphis, Tennessee, apparently after receiving a job offer there and after speaking with the Child's DSS case manager at the time, Susan Kellar. [³]

The Mother arrived in Memphis on a Greyhound bus on Christmas Day 1996, but did not begin working at her intended job until April of 1997, apparently due to delays in construction. From January to April, the Mother testified she held several temporary jobs. The Mother testified that she had difficulty locating the appropriate agencies in Tennessee that could assist her in completing her treatment plan, and went through a period of heavy drug and alcohol use beginning in late June 1997. She testified that she was spending as much as $600 per week on drugs (crack cocaine) in July 1997. On August 12, 1997, the Mother entered Grace House, an in-patient drug and alcohol rehabilitation center in Memphis. The Mother remained at Grace House until she successfully completed the program in February 1998.

Although the Mother was making child support payments through May 1997, she ceased making payments in June 1997 and did not resume payments until April 1998. The Mother claims she believed her parental rights were terminated in the Fall of 1997, and regardless that she could not pay support while living at Grace House because she was not allowed to work. She based her belief that her parental rights had been terminated on the Order for Permanency Planning she received in September 1997 and on a subsequent comment by her attorney's receptionist that her attorney was no longer involved in the case. All of this occurred while Mother was a patient at Grace House and could not travel to South Carolina. The Mother claims she made numerous calls to DSS that were not returned during this time. However, the DSS case manager assigned to the Child, Romona Keitt, testified that the Mother called her from Grace House once in December 1997.[⁴]

Ms. Keitt stated that she and the Mother spoke about sending Christmas presents to the Child and that the Mother gave her a new mailing address on Candlelight Drive in Tennessee. The Mother did not give Ms. Keitt the address at Grace House, but she did tell Ms. Keitt that she was in a full-time treatment center. Ms. Keitt testified that the next call she received from the Mother was in September of 1999, 18 months later. In the intervening months, Ms. Keitt testified that she sent certified letters to the Mother at Candlelight Drive address the Mother gave her, but that the letters were returned to her.[⁵]

After completion of the program at Grace House, the Mother moved to Arkansas temporarily for work on a construction project and then returned to Memphis. The Mother made several child support payments beginning in April 1998, but ceased payments again in July 1998 until October 1999, 16 months later, when she was served with notice that DSS was pursuing termination of her parental rights ("TPR").

The Family Court appointed counsel to represent Mother in the TPR action upon Mother's request. DSS voluntarily non-suited its case due to defects in pleadings and service in June 2000. Before DSS re-filed, the Mother's motion for visitation, to be supervised by the Child's therapist, was granted. The Child's therapist, Dr. McClain, refused to participate and the Mother was forced to locate another professional to determine whether visitation would be in the best interest of the child. Dr. Geddes at MUSC performed an evaluation of the Mother and the Child and recommended that supervised visitation be allowed. DSS refused to allow Dr. Geddes to supervise. After filing a Rule to Show Cause, the Mother was permitted visitation with the Child supervised by Dr. McClain. [⁶]

The TPR hearing took place on November 28 and 29 of 2000. The family court granted TPR based on willful failure to support, willful failure to visit, and because the Child had been in foster care for 15 of the most recent 22 months, all pursuant to S.C. Code Ann. § 20-7-1572 (Supp. 2000). The Mother raises the following issues on appeal:

I. Did the Family Court err in finding that clear and convincing evidence supported the finding that the Mother willfully failed to visit and support the Child under S.C. Code Ann. § 20-7-1572(3) and (4) (Supp. 2000)?

II. Is TPR justified based solely on a finding that a child has been in foster care for 15 of the last 22 months under S.C. Code Ann. § 20-7-1572(8) (Supp. 2000)?

LAW/ANALYSIS

The Mother's parental rights were terminated pursuant to three different statutory grounds. S.C. Code Ann. § 20-7-1572(3), (4), and (8).[⁷]

The South Carolina Code mandates that the TPR 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." S.C. Code Ann. § 20-7-1578 (Supp. 2000); see Joiner v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000) (overruling prior cases calling for strict construction of the TPR statutes). In addition, "[t]he interests of the child shall prevail if the child's interest and the parental rights conflict." S.C. Code Ann. § 20-7-1578. Grounds for termination of parental rights must be proven by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct 1388, 71 L. Ed. 2d 599 (1982); Richland County DSS v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998).

Upon review, the appellate court may make its own finding from the record as to whether clear and convincing evidence supports the termination. South Carolina DSS v. Brown, 317 S.C. 332, 454 S.E.2d 335 (Ct. App. 1995). The reviewing court, however, 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." Hooper v. Rockwell, 334 S.C. 281, 297, 513 S.E.2d 358, 367 (1999).

I.

The Mother argues that the family court erred in finding that DSS had proven by clear and convincing evidence that she willfully failed to visit and support the Child as defined in S.C. Code Ann. § 20-7-1572(3) and (4). We disagree.

A. Failure to Visit

The family court may order TPR upon a finding of one of several statutory grounds and a finding that termination would be in the best interest of the child. S.C. Code Ann. § 20-7-1572 (Supp. 2000). Section 20-7-1572(3) provides that the family court may terminate if it is in the best interest of the child and if

[t]he 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.

S.C. Code Ann. § 20-7-1572(3) (emphasis added).

It is undisputed that the Child has "lived outside the home of either parent" for much longer than six months as she has been in DSS's custody since June 1996.[⁸] The question before the family court then was whether the Mother's failure to visit the Child between 1996 and 2000 was wilful.

Whether a parent's failure to visit is "wilful" is a question of intent to be determined from the facts and circumstances of each individual case. SCDSS v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992). "Parental conduct which evinces a settled purpose to forego parental duties may be characterized as `wilfu...