South Carolina Department of Social Services v. Stokes, 2015-UP-518

• Decision Date: 05 November 2015
• Docket Number: 2015-UP-518
• Court: South Carolina Court of Appeals
• Parties: South Carolina Department of Social Services, Respondent, v. Jessica Stokes, Bruce Walters, Anthony Dudley, and John Doe, Defendants, Of Whom Bruce Walters is the Appellant. In the interest of minors under the age of eighteen. Appellate Case No. 2015-000223

South Carolina Department of Social Services, Respondent, v. Jessica Stokes, Bruce Walters, Anthony Dudley, and John Doe, Defendants,

Of Whom Bruce Walters is the Appellant. In the interest of minors under the age of eighteen. Appellate Case No. 2015-000223

No. 2015-UP-518

Court of Appeals of South Carolina

November 5, 2015

UNPUBLISHED OPINION

Heard October 20, 2015

Appeal From Darlington County Roger E. Henderson, Family Court Judge

Phillips Lancaster McWilliams, of Nelson Mullins Riley &amp Scarborough, LLP, of Columbia; and Cody Tarlton Mitchell, of Lucas Warr & White, of Hartsville, for Appellant.

Delton W. Powers, Jr., of Powers Law Firm, PC, of Bennettsville, for Respondent.

Robbie Forrester Gardner, III, of Rob F. Gardner, III, PC, of Hartsville, for the Guardian ad Litem.

PER CURIAM:

The Department of Social Services (DSS) brought this termination of parental rights (TPR) action against Bruce Walters (Father). The family court terminated Father's parental rights to his minor son (Child), and Father appealed. We affirm.

When Child was born in January 2013, he tested positive for opiates, amphetamines, and benzodiazepines. Father was incarcerated at that time, and Child's mother listed another man as the father on the birth certificate. However a paternity test later excluded that man as Child's father.

In an April 2014 permanency planning order, the family court noted Father had been named as Child's father and ordered paternity testing. DSS filed this TPR action on June 19 2014, and the family court held a hearing on September 9 2014. At that time, DSS had not conducted the paternity test on Father. Because Father had requested paternity testing in his responsive pleadings, the family court scheduled a paternity test for September 17, 2014, and continued the TPR hearing.

The family court held the final TPR hearing on November 20, 2014. During the hearing, the DSS caseworker testified DSS received the results of the paternity test concluding Father was Child's father two or three weeks before the TPR hearing. Father asserted he learned the results of the paternity test the morning of the hearing. After hearing testimony from DSS and Father and reviewing the report of the guardian ad litem, the family court determined clear and convincing evidence supported TPR because (1) Father did not remedy the conditions causing removal, (2) Father willfully failed to visit Child, (3) Father willfully failed to support Child, and (4) Child was in foster care for fifteen of the most recent twenty-two months. Additionally, the family court determined TPR was in Child's best interest.

On appeal, Father argues (1) the family court violated due process by terminating his parental rights, (2) clear and convincing evidence does not support the statutory grounds for TPR, and (3) clear and convincing evidence does not show TPR was in Child's best interest.

On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court reviews the family court's findings de novo, we are 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. Lewis, 392 S.C. at 385, 709 S.E.2d at 651-52.

We find Father's argument that TPR violated his due process rights is not preserved. "It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review." Charleston Cty. Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 105, 627 S.E.2d 765, 775 (Ct. App. 2006) (quoting Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000)). In his brief, Father argued for the first time that TPR violated his substantive due process rights. Because this issue was not raised to the family court, it is not preserved. See id. at 104-05, 627 S.E.2d at 775 (finding the father's argument that TPR violated his due process rights was not preserved when it was not raised to or ruled upon by the family court).

Additionally we find clear and convincing evidence supports TPR because Child was in foster care for fifteen of the most recent twenty-two months. See S.C Code Ann § 63-7-2570(8) (Supp 2014) (stating a statutory ground for TPR exists when a "child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months") It is undisputed that at the time of the TPR hearing Child had been in foster care for nearly twenty-three months-his entire life While we agree DSS was dilatory in conducting the paternity test, we do not believe DSS's delay in conducting the paternity test caused the delay in Father's reunification with Child Rather, we find the delay in reunification was caused by Father's inability to provide a home for Child during his incarceration See Charleston Cty Dep't of Soc Servs v Marccuci, 396 S.C. 218, 22, 721 S.E.2d 768, 773 (2011) ("Where there is 'substantial evidence that much of the delay is attributable to the acts of others, ' a...