South Carolina Dept. of Social Services v. Brown, 2293

• Decision Date: 07 December 1994
• Docket Number: No. 2293,2293
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. James BROWN, Appellant, and Mattie Mae Brown, Respondent-Appellant, and Jenea Brown, a Minor, Respondent. . Heard

Page 335

454 S.E.2d 335

317 S.C. 332

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. James BROWN, Appellant and Mattie Mae Brown, Respondent-Appellant and Jenea Brown, a Minor, Respondent.

No. 2293.

Court of Appeals of South Carolina.

Heard Dec. 7, 1994.

Decided Jan. 23, 1995.

C. Bradley Hutto of Williams & Williams, Orangeburg, for appellant.

Zipporah O. Mapp, Orangeburg, for respondent-appellant.

Elizabeth K. Stricklin of S.C. Dept. of Social Services, Columbia, for respondent.

Cynthia B. Berry, Orangeburg, guardian ad litem.

PER CURIAM:

This is an appeal from a Family Court order terminating the parental rights of James and Mattie Mae Brown to their daughter Jenea Brown based on a finding that Jenea's sibling was harmed as defined in § 20-7-490(C), ¹ and because of the severity of the abuse and denial of wrongdoing, it is not reasonably likely that the home can be made safe within twelve months. Both parents appeal. We affirm as to the father James Brown and reverse and remand as to the mother Mattie Mae Brown.

Jenea Brown was taken into emergency protective custody by the Department of Social Services (DSS) on February 18, 1993 after her only sibling, Janella, died in the family home at age three months. ² The autopsy performed on Janella indicated multiple new and old healing fractures, bruises, and wounds, and concluded that Janella died due to "battered child syndrome." ³ As a result, the Orangeburg County Department of Social Services immediately took Jenea into protective custody and placed her in a foster home to protect her from any risk of suffering similar injuries or death. Both Mr. and Mrs. Brown were criminally charged for the death of Janella the week prior to the family court hearing concerning the termination of their parental rights, which was over five months after her death.

At the time of Janella's death, the family lived with Mrs. Brown's mother, Louise Morton, in Eutawville, S.C. Mrs. Brown worked at American Yard Products in Orangeburg as a seasonal part-time employee. She was at work at the time of Janella's death. Mr. Brown was unemployed and the primary caretaker of the children. When interviewed after Janella's death, he told the DSS caseworker that he put Janella on his lap on a pillow and patted her on the back to get her to sleep. One of her arms then fell limp. He checked for a pulse and could not find one. He then called his mother-in-law, put Janella in a bassinet, and went to the store to call EMS. While waiting for EMS to arrive, Mr. Brown stated he attempted mouth-to-mouth resuscitation and a cousin, who smelled of alcohol, attempted CPR. EMS transported Janella to MUSC by medivac helicopter. Janella was pronounced dead at MUSC.

During the interview with DSS, ⁴ Mr. Brown denied that Janella's death could have been a homicide. He denied ever hitting the baby or doing anything to harm her. Furthermore, he denied ever seeing scars or bruises on Janella, even though he said he bathed Janella during the week while his wife worked. In fact, he could give no explanation for Janella's injuries except that maybe EMS had caused her death by administering CPR.

Mrs. Brown also denied seeing any scars on Janella except a small scar on her back which she claims she thought was a birthmark. Mrs. Brown did, however, engage in a regular pattern of taking her children to the doctor. She took Janella to her pediatrician, Dr. Way, on December 15th, 1992 for a rash and on January 8th, 1993 because she was crying excessively. Dr. Way's records do not indicate any suspicions of abuse at that time. In fact, Dr. Way attributed the excessive crying to constipation. Mrs. Brown testified she never suspected the crying could be from someone beating Janella. Dr. Way requested that Janella come back to his office one to two weeks after her December 15th visit, but the Browns failed to keep the appointment. Dr. Way again asked that Janella be rechecked two weeks after her January 8th visit. Mrs. Brown blamed Mr. Brown for not taking her back as scheduled. Therefore, January 8th, 1993 was the last time a doctor saw Janella before her death on February 17, 1993. When asked if Janella cried out in pain when picked up or handled after the second doctor visit, Mrs. Brown said no.

At the family court hearing, Mrs. Brown presented witnesses who testified as to her good character and fitness as a mother. None of them had ever seen her act abusively towards either girl. In particular, Johnnie Louise Shuler, an R.N. from Family Health Center who works with pregnant women, testified Mrs. Brown had been very receptive to prenatal care with both daughters. Ms. Shuler terminated her case with Janella in December because "I did some home visits to make sure everything was going fine ... [a]nd things were looking good."

The guardian ad litem provided additional information about the Brown family. The guardian, like Mrs. Brown, described the Browns' marriage as on-again/off-again due to Mr. Brown's unemployment and habit of staying out all night. On inspection of the home, she found no evidence of children's toys; however, some were stored in a trailer behind the house. Mr. Brown admitted drinking beer and using marijuana at least as recently as January, 1993. He had a nervous condition and served two and a half years for robbery. The guardian reported both Mrs. Brown and Mrs. Morton told her they were afraid of Mr. Brown, and that he had stolen money from them. The guardian described Mr. Brown as the dominating person in the household.

Mrs. Brown told the guardian many times, as she did in court, that she was unaware of who caused the death of Janella. Mrs. Morton told the guardian she had seen Mr. Brown hit Janella too hard on the back while burping her and asked him to stop. Significantly, Mrs. Morton, not Mrs. Brown, demanded that Mr. Brown leave the home. According to Mrs. Brown, she separated from Mr. Brown after he lamented that "he's sorry to put me and my mother through these changes." However, she testified at the hearing that she was not afraid of her husband and would not be afraid for him to be around Jenea. In fact, though they had separated, Mrs. Brown said she still loved Mr. Brown, and does not believe that he harmed Janella.

The guardian stated in her report that although a physical examination had not revealed any signs of abuse to Jenea, she, as well as the Foster Mother, had observed Jenea's fear of any adult male. ⁵ The guardian concluded that Jenea's behavior patterns demonstrated some sort of emotional and/or physical abuse. However, the guardian went on to state that due to Mrs. Brown's willingness to attend counseling, her continued financial support and visits to Jenea while in foster care, and the lack of evidence that she abused either child, it was premature to terminate Mrs. Brown's parental rights. ⁶ The trial court, nevertheless, granted the termination of parental rights of both Mr. and Mrs. Brown, finding the parents "either singly [sic] or both, inflicted severe injuries upon Janella Brown ... eventually resulting in her death ... [and] because of the severity of the abuse and ... denials [of wrongdoing], the home cannot be made safe within twelve (12) months."

On appeal, the mother contends the evidence was insufficient to support a termination of her parental rights. She argues there was no direct evidence to link her to any abuse, and DSS inadequately investigated this case. We agree that the termination of Mrs. Brown's parental rights was premature and we find that the family court erred in terminating her parental rights because the record lacks clear and convincing evidence to support the termination.

Mrs. Brown's parental rights were terminated pursuant to S.C.Code Ann. § 20-7-1572(1) (1985) which provides for termination when:

(1) The child or another child in the home has been harmed ... and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent's previous abuse or neglect of the child or another child in the home may be considered ...

A ground for termination of parental rights must be proved by clear and convincing evidence. Greenville County Dep't of Social Services v. Bowes, --- S.C. ----, ----, 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 Services 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 reviewing a termination of parental rights, the...