Wilson v. Higgins, 1067

• Decision Date: 10 November 1987
• Docket Number: No. 1067,1067
• Court: South Carolina Court of Appeals
• Parties: Barbara Nix WILSON, Respondent, v. Michele Michael HIGGINS, f/k/a Michele Michael Wilson, Robert Edwin Wilson and Dargin Ann Wilson, a minor under the age of eighteen (18) years, of whom Michele Michael Higgins, f/k/a Michele Michael Wilson, is Appellant. . Heard

Page 911

363 S.E.2d 911

294 S.C. 300

Barbara Nix WILSON, Respondent, v. Michele Michael HIGGINS, f/k/a Michele Michael Wilson, Robert Edwin Wilson and Dargin Ann Wilson, a minor

under the age of eighteen (18) years,

of whom Michele Michael Higgins, f/k/a Michele Michael

Wilson, is Appellant.

No. 1067.

Court of Appeals of South Carolina.

Heard Nov. 10, 1987.

Decided Dec. 14, 1987.

Walter B. Todd, Jr., Columbia, for appellant.

Kenneth M. Mathews and H. Bruce Williams, Columbia, for respondent.

GOOLSBY, Judge:

Barbara Nix Wilson commenced this action against Michele Michael Higgins, Robert Edwin Wilson, and Dargin Ann Wilson to terminate Mrs. Higgins' parental rights to Dargin and to adopt the child. Mrs. Wilson is Dargin's step-mother. Mrs. Higgins, the natural mother of Dargin, cross-claimed for change of custody and child support and, in the alternative, for structured visitation. The trial court, finding that Mrs. Higgins had "wilfully failed to visit the child," terminated her parental rights and ordered the adoption. Mrs. Higgins appeals. We reverse and remand.

In cases involving termination of parental rights, the Court of Appeals has jurisdiction to determine the facts based on its own "view of the weight of the evidence." S.C. Department of Social Services v. Martell, 279 S.C. 289, 290, 307 S.E.2d 601, 602 (1983). Indeed, we may make our own findings regarding whether "clear and convincing evidence supports termination." S.C. Department of Social Services v. O'Banner, 291 S.C. 253, 254, 353 S.E.2d 151 (Ct.App.1987).

Mr. Wilson and Mrs. Higgins were once married. Dargin, who was born in 1979 shortly after their marriage, has lived with Mr. Wilson since July 1982 when Mrs. Higgins, after being separated from Mr. Wilson for six months, left South Carolina with Joey Lee Higgins. The latter is now her husband.

In February 1983, the trial court granted Mr. Wilson a divorce on the ground of adultery. It also gave Mr. Wilson full custody of Dargin; however, the order provided that Mrs. Higgins would have "reasonable visitation rights" with regard to the child.

Mrs. Higgins returned to South Carolina not long after the divorce and, with Mr. Wilson's permission, visited with Dargin.

Mrs. Higgins' initial visits with Dargin took place at the home of Mr. Wilson's parents. Mr. Wilson later allowed Mrs. Higgins to visit with Dargin in her own home but he refused her requests to keep the child overnight. He also refused requests from Mrs. Higgins and her husband for regular scheduled visits with Dargin.

Every time Mrs. Higgins visited with her daughter, Mr. Wilson required her to have his express permission beforehand. Throughout, Mr. Wilson insisted on Mrs. Higgins rigorously adhering to the hours of visitation that he set. Whenever he did allow visitation, he usually let Mrs. Higgins pick Dargin up on Saturdays no earlier than 10:00 a.m. and he required her to return Dargin by no later than 6:00 p.m.

Although Mrs. Higgins when exercising her visitation rights always followed to the letter the rules established by Mr. Wilson, he refused her requests for extended visitation with the child and denied Mrs. Higgins' pleas for additional opportunities to visit more frequently with Dargin.

In October 1983, Mr. Wilson married Mrs. Wilson.

Mr. Wilson kept meticulous charts regarding the visits Mrs. Higgins had with Dargin prior to the initiation of this action. These charts show that Mrs. Higgins visited Dargin twelve times in 1983 for a total of seventy-two hours, nine times in 1984 for a total of fifty-four hours, and four times in 1985 for a total of twenty hours.

Mrs. Higgins last visited with Dargin on April 13, 1985. She thereafter broke off visiting with Dargin because she felt that she had to "beg" her former husband for the right.

Mrs. Wilson brought the instant action a little more than six months after Mrs. Higgins' last visit with Dargin. The petition is dated October 31, 1985.

A guardian ad litem appointed by the trial court recommended that the court not terminate Mrs. Higgins' parental rights and that it prescribe a structured visitation schedule for Mrs. Higgins. The trial court, however, chose to disregard these recommendations and terminated Mrs. Higgins' parental rights.

Mrs. Higgins argues that clear and convincing evidence does not support the termination of her parental rights on the ground that she wilfully failed to visit her child.

Section 20-7-1572(3) of the South Carolina Code (1976) allows the family court to order the termination of a parent's parental rights upon a finding that "[t]he child has lived outside the home of [the] parent for a period of six months, and during that time the parent has wilfully failed to visit the child." In determining the question of whether to terminate parental rights for failure to visit, "it must be shown that the parent was not prevented from visiting by the party having custody...." S.C.Code of Laws § 20-7-1572(3) (1976).

Statutes that provide for the termination of parental rights of natural parents must be strictly construed in favor of the parent and the preservation of...