Stasi v. Sweigart ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Lukas Stasi and Brittney L. Stasi, Petitioners,
v.
Mallory Sweigart and Matthew Kidwell, Defendants,
Of whom Mallory Sweigart is the Respondent,
In the interest of a minor under the age of eighteen.
Appellate Case No. 2020-000677
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from York County
Thomas Henry White IV, Family Court Judge
Opinion No. 28058
Heard June 16, 2021 – Filed September 22, 2021
REVERSED
Thomas Franklin McDow IV and Erin K Urquhart,
McDow and Urquhart, LLC; Barrett Wesley Martin,
Barrett W. Martin, P.A., all of Rock Hill, for Petitioners.
Stephen D. Schusterman, Schusterman Law Firm, of Rock
Hill, for Respondent.
JUSTICE FEW: This is an appeal from an order of the family court terminating
Mallory Sweigart's parental rights to her nine-year-old daughter. The court of
appeals reversed, finding Mallory had not "wilfully failed to visit the child," the
statutory ground for termination alleged in this case. We granted certiorari to review
the court of appeals' decision. We reverse the court of appeals.
I. Facts and Procedural History
The Child was born on September 3, 2012. Mallory Sweigart—the Child's
biological mother1—was twenty-five years old when the Child was born. Brittney
Stasi is Mallory's sister, and Lukas Stasi is Brittney's husband.
Mallory suffered from severe mental illness since at least the age of fourteen. In
June 2014, while living in her grandmother's home in Ohio with the Child, Mallory
attempted suicide for the first time. Mallory was hospitalized following the suicide
attempt, and her doctors diagnosed her with borderline personality disorder. Within
days, she left Ohio to attend an in-patient rehabilitation center in Florida for thirty
days, after which she returned to Ohio to recover. The Child stayed with the Stasis
in Fort Mill, South Carolina, from June 2014 until August 2014. The Child then
returned to Ohio, where she lived with Mallory in a rental home. On December 1,
2014, Mallory attempted suicide again. The next day, the Stasis brought the Child
back to Fort Mill. Mallory moved to Florida and began out-patient treatment for her
borderline personality disorder.
In January 2015, the Stasis filed an action in family court seeking custody of the
Child. The family court promptly granted the Stasis temporary custody. Mallory
and the Stasis mediated the case and entered into a custody agreement in October
2015, which the family court approved and incorporated into a final custody order.
The custody order provided Mallory visitation with the Child on the second Saturday
of every month in Fort Mill, with a specific visit for the Child's birthday party in
September and an additional visit for Christmas in December. The order placed
conditions on visitation, including that Mallory submit to a fingernail drug screen
1
The Child's biological father is Matthew Kidwell. Although properly served with
the Stasis' Summons and Complaint in this termination proceeding, Matthew did not
file responsive pleadings. At the time of the trial, Matthew lived in Ohio and had
seen the Child only one time in her entire life. The family court terminated
Matthew's parental rights, and that ruling was not appealed.
twice a year, attend weekly borderline personality disorder therapy sessions, and not
be involved in any "critical event" such as another suicide attempt.
From December 2014 until September 2017—almost three years—Mallory saw the
Child only four times. Two of those occurred in August and October 2015 while
Mallory was in Fort Mill for court hearings. After the family court signed the final
custody order in October 2015 setting monthly visitation, Mallory made only two of
the monthly visits—in August and October 2016—until September 2017. During
those twenty-two months, Mallory missed twenty-two of the twenty-four
opportunities the final custody order gave her to visit the Child. She did not visit the
Child for her birthday in 2015 or 2016 and missed the Christmas visits both of those
years. There were three lengthy periods during which Mallory did not see the Child
at all: from December 2, 2014, until August 7, 2015—eight months; from October
7, 2015, until August 13, 2016—ten months; and from October 1, 2016, until
September 9, 2017—eleven months.
When the Stasis first started taking care of the Child, Brittney and Mallory had a
strong and loving relationship. While in Florida after her first suicide attempt,
Mallory emailed Brittney on July 3, 2014, stating, "I know that we both have a love
for each other than cannot be described." She wrote, "Thank you is not even enough
to say. I wouldn't want her anywhere else, and I know you all are loving her -- are
loving her so much." She concluded the email asking Brittany to "tell Luke, also, I
appreciate him loving her and doing all that he does," and, "I love you all."
Beginning in December 2014, however, their relationship began to deteriorate.
When Mallory was served with the Stasis' January 2015 complaint seeking custody,
she attempted suicide a third time and could not attend the hearing in January 2015
because she was hospitalized. The relationship continued to deteriorate after the
final custody order in October 2015, when Mallory claimed the Stasis coerced her
into signing the custody agreement. In February 2016, Mallory created a
GoFundMe2 page to raise funds for an attorney. In the description for why she
needed the money, Mallory publicly claimed Brittney "has taken illegal custody of
my daughter" after "my family bullied me into signing custody papers." She wrote,
"I know now that my family lied to me, coerced me, and took my daughter while
pretending they wanted to help me." She asked for money because "with proper
legal representation, I can quite easily win my daughter's life back."
2
"GoFundMe" is an online crowdfunding resource that allows people to raise money
for an individual cause across multiple electronic and social media platforms.
In April 2016—represented by counsel for the first time—Mallory filed an action
seeking to have custody of the Child returned to her. Mallory filed an affidavit in
support of the claim and made extreme allegations against Brittney. Mallory wrote
that Brittney "had a plot to steal my daughter from me at my worst and darkest time"
and accused Brittney of "sexually abusing me at a young age." At the hearing on
the claim, Mallory's attorney described the relationship as "very poisoned." The
family court dismissed Mallory's action.
In May 2016, someone called the Department of Social Services in York County and
accused Brittney of physically and sexually abusing the Child and allowing
"predators" in the home. Brittney claims Mallory did it, but Mallory claims she did
not.3 DSS investigated the allegations and concluded they were baseless. At this
point, Brittney and Mallory's relationship was outright hostile, and the two
completely stopped communicating with each other. Lukas took over all
communications with Mallory regarding the Child.
In April 2017, the Stasis filed this action for termination of Mallory's parental rights
and adoption of the Child. In November 2018, the family court terminated Mallory's
parental rights and granted the adoption. In its order, the family court noted that in
the twenty-nine months the Child lived with the Stasis before this proceeding was
filed, Mallory visited the Child only four times, including two incidental visits while
she was in town for hearings. The family court found by clear and convincing
evidence Mallory willfully failed to visit the Child and termination of Mallory's
parental rights was in the Child's best interests.
The court of appeals considered the case without oral argument. The court of appeals
found the Stasis "did not prove by clear and convincing evidence that [Mallory's]
failure to visit was willful" and reversed the termination of Mallory's parental rights
in an unpublished opinion. Stasi v. Sweigart, Op. No. 2018-002149 (S.C. Ct. App.
filed Dec. 10, 2019). We granted the Stasis' petition for a writ of certiorari to review
the court of appeals' opinion.
3
At trial in September 2018, Mallory claimed her friend and employer in Florida is
the person who made the call and the accusations.
II. Termination of Parental Rights
The South Carolina Children's Code addresses termination of parental rights in
Chapter 7, Article 7. See S.C. Code Ann. §§ 63-7-2510 to -2620 (2010 & Supp.
2020). Section 63-7-2510 of the South Carolina Code (2010) provides,
The purpose of this article is to establish procedures for
the reasonable and compassionate termination of parental
rights where children are abused, neglected, or abandoned
in order to protect the health and welfare of these children
and make them eligible for adoption by persons who will
provide a suitable home environment and the love and care
necessary for a happy, healthful, and productive life.
Section 63-7-2570 of the South Carolina Code (Supp. 2020) provides, "The family
court may order the termination of parental rights upon a finding of one or more of
the following grounds and a finding that termination is in the best interest of the
child." The statutory ground at issue in this case is, "The 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." § 63-7-2570(3).
A. Willful Failure to Visit
The events that took place—or more importantly, those that did not take place—are
not in dispute. There is no question the Child has not lived with Mallory since
December 2, 2014. There is no question Mallory did not visit the Child on twenty-
two of her twenty-four court-ordered visitation dates from October 2015 until
September 2017. There is no question Mallory did not visit the Child for multiple
lengthy periods of time, three of which lasted at least eight months. There is no
question Mallory did not visit the Child for her birthday or for Christmas in 2015 or
2016.
The circumstances surrounding these failures are not much in dispute either.
Mallory lived in Florida for the legitimate purpose of pursuing treatment for severe
mental illness. Mallory had limited funds and arranging travel to South Carolina
was not easy. The relationship between Mallory and Brittney—a loving one as late
as July 2014—deteriorated from January 2015 when the Stasis filed the custody
action until May 2016 when Mallory accused Brittney of molesting the Child. After
that incident, Mallory and Brittney did not speak to each other.
From these undisputed failures by Mallory to visit the Child and the circumstances
in which the visits did not occur, we turn to the key question—hotly disputed in this
case—whether Mallory "wilfully failed to visit" her daughter. Willfulness "is a
question of intent." S.C. Dep't of Soc. Servs. v. Smith, 423 S.C. 60, 81, 814 S.E.2d
148, 159 (2018) (quoting S.C. Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413
S.E.2d 835, 838 (1992)). As is always the case, such a question of a parent's intent
in the life of a child is difficult to answer. As in all family court appeals, we review
substantive decisions like this de novo. Lewis v. Lewis, 392 S.C. 381, 386, 709
S.E.2d 650, 652 (2011).
When events or circumstances are in dispute in a proceeding for termination of
parental rights, we require the facts supporting termination be proven by clear and
convincing evidence. Broom v. Jennifer J., 403 S.C. 96, 111, 742 S.E.2d 382, 389
(2013) (citing Richberg v. Dawson, 278 S.C. 356, 357, 296 S.E.2d 338, 339 (1982)).
This standard of proof is required by the Due Process Clause of the Fourteenth
Amendment. See Richberg, 278 S.C. at 357, 296 S.E.2d at 339 ("It is now
established that, before parental rights may be completely and irrevocably severed,
the State must show conditions warranting such action by clear and convincing
evidence." (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-
92, 71 L. Ed. 2d 599, 603 (1982))); Santosky, 455 U.S. at 747-48, 102 S. Ct. at 1391-
92, 71 L. Ed. 2d at 603 ("Before 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."). Answering the question of
a mother's intent in failing to visit her child, especially when considering the many
difficult circumstances Mallory faced, is more of a judgment call than a finding of
specific facts, such as events or circumstances. Nevertheless, due process requires
no less of this Court just because the answer to the question is a difficult exercise in
judgment. The evidence must be clear and we must be convinced that Mallory
"wilfully failed to visit" her daughter and that termination is in her daughter's best
interest before we may terminate Mallory's parental rights.
"Our appellate courts have defined 'willful' in a variety of contexts. In each instance,
the court has required a showing of a consciousness of wrongdoing in order to prove
willfulness." State v. Garrard, 390 S.C. 146, 149, 700 S.E.2d 269, 271 (Ct. App.
2010) (citing Broome, 307 S.C. at 53, 413 S.E.2d at 839). A parent has the moral
and legal duty to care for and act in the best interests of his or her children. The
satisfaction of this parental duty can be difficult under the best of circumstances. It
becomes all the more difficult when—as addressed by subsections 63-7-2570(3) and
(4)—children "live[] outside the home of either parent." The law, therefore, requires
such a parent to provide financial support, § 63-7-2570(4), and to "visit the child"
when "not prevented" from doing so, § 63-7-2570(3).
When a parent cannot comply with these duties—depending on the circumstances—
the failure may be understandable, even unavoidable, and thus not willful. However,
when a parent chooses not to comply with either of these duties, the intention of that
choice may render the failure willful. Thus we have said, "Conduct of the parent
which evinces a settled purpose to forego parental duties may fairly be characterized
as 'willful' because it manifests a conscious indifference to the rights of the child to
receive support and consortium from the parent." Broome, 307 S.C. at 53, 413
S.E.2d at 839; see also Garrard, 390 S.C. at 149, 700 S.E.2d at 271 (stating
willfulness requires "a consciousness of wrongdoing").
We readily acknowledge there is considerable mitigating evidence indicating
Mallory's failures were understandable, at times unavoidable. Mallory faced
logistical, financial, and personal challenges in visiting the Child. Logistically,
Mallory lived in Saint Petersburg, Florida, and the Stasis lived in Fort Mill, South
Carolina. The cities are 584 miles apart. Subsection 63-7-2570(3) provides, in the
context of willfulness, "The distance of the child's placement from the parent's home
must be taken into consideration when determining the ability to visit." We have
considered that—at times—it was difficult for Mallory to arrange travel for
visitation because of the distance.
Financially, Mallory struggled. Although her family helped with finances when she
initially moved to Florida, they withdrew financial support sometime in 2015.
Mallory was then forced to support herself for the first time. At various times, she
worked up to three jobs to support herself and attempt to comply with the conditions
on visitation. The "dialectical behavior therapy" sessions for borderline personality
disorder cost between $1,600 and $2,000 per month. The drug tests cost
approximately $400 each, totaling $800 per year. After paying her bills and the
therapy and testing costs, as Mallory testified, she had "Very little [money left].
Some months, none."
Personally, Mallory suffered—certainly still suffers—from borderline personality
disorder and other mental health issues. We understand some of Mallory's bad
decisions regarding the Child were attributable to her mental health. During oral
argument to this Court, Mallory's attorney focused particularly on Mallory's mental
health issues, detailing how her illness affected her behavior throughout this time
period. Mallory apparently thought she "graduated" from dialectical behavior
therapy in April 2016, and she even testified she believed she was "cured" of
borderline personality disorder. At trial, Mallory stated that committing to weekly
therapy sessions "changed [her] whole life." When she was better able to cope with
her mental illness in 2017, she began to visit the Child more often.
Mallory did not miss every visit in the years leading up to the termination
proceeding. She did make two of the court-ordered visits between October 2015 and
September 2017. She also made two "incidental visits" with the Child while she was
in South Carolina for hearings in August and October 2015. We have considered
the fact Mallory made these visits. However, the incidental visits lasted no more
than two hours each. Also, Mallory did not make the intentional decision to come
to Fort Mill to visit her daughter she had not seen in eight months. Instead, Mallory
came to Fort Mill to participate in a status meeting and mediation for the case. See
§ 63-7-2570(3) (providing the family court "may attach little or no weight to
incidental visitations"); Horton v. Vaughn, 309 S.C. 383, 387, 423 S.E.2d 543, 545
(Ct. App. 1992) ("As used in a TPR statute, 'incidental visitation' means that a parent
may not rely upon fortuitous meetings between the parent and a child . . . ."),
overruled on other grounds by Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 536 S.E.2d
372 (2000).
We also acknowledge Mallory began to exercise her court-ordered visitation in
September 2017—five months after the Stasis filed this action—and did so
consistently from December 2017 until the trial in September 2018. But see Smith,
423 S.C. at 83, 814 S.E.2d at 160 (holding the parent's actions to cure his willful
failure to visit "were judicially motivated"); S.C. Dep't of Soc. Servs. v. Cummings,
345 S.C. 288, 296, 547 S.E.2d 506, 510-11 (Ct. App. 2001) ("A parent's curative
conduct after the initiation of TPR proceedings may be considered by the court on
the issue of intent; however, it must be considered in light of the timeliness in which
it occurred.").
In addition, as the court of appeals discussed, there were several months when the
Stasis prevented4 Mallory from visiting because they believed her non-participation
in dialectical behavior therapy violated the family court's order, and thus the order
required them to prevent visitation. The family court later clarified, however, that
Mallory still attended some therapy for her mental health, so her non-participation
4
Subsection 63-7-2570(3) provides before a court can terminate parental rights
based on a willful failure to visit, "it must be shown that the parent was not prevented
from visiting by the party having custody or by court order."
in "dialectical behavior therapy" specifically was not a violation of the order.5 The
Stasis also prevented her from visiting from November 2016 to February 2017
because Mallory did not get the drug test due in November. While the Stasis did
this because Mallory clearly had not complied with the family court's order, Mallory
claimed she could not afford the test. There were, therefore, individual opportunities
to visit the child that Mallory missed that were understandable, even unavoidable.
Despite this considerable mitigating evidence, we find the record as a whole clearly
and convincingly demonstrates Mallory made one conscious and intentional
decision after another to not visit the Child on her court-ordered visitation dates. We
find Mallory made these decisions knowing she was violating her duties to the Child
and with conscious disregard for the rights of the Child. See Broome, 307 S.C. at
53, 413 S.E.2d at 839; Garrard, 390 S.C. at 149, 700 S.E.2d at 271.
One of the three lengthy periods during which Mallory failed to visit the Child began
on December 2, 2014, and lasted until August 7, 2015. During this time, Mallory
moved from Ohio to Florida and began therapy for her borderline personality
disorder. Although arranging travel to Fort Mill was difficult, multiple family
members testified they offered to help Mallory pay for visitation costs. Mallory's
grandmother offered to drive Mallory from Florida to Fort Mill and buy her a hotel
room so Mallory could see the Child. Mallory told her she "didn't want to do it."
The grandmother even bought Mallory a plane ticket from Florida to Fort Mill so
Mallory could visit the Child for her birthday in September 2015. Mallory did not
visit in September 2015 for the Child's birthday, and Mallory's grandmother testified
she does not think Mallory ever used the ticket.
Mallory also did not visit the Child for ten months from October 7, 2015, to August
13, 2016. Mallory testified she had a vehicle she could have driven to Fort Mill as
early as November 2015, but Mallory still missed her scheduled December visit and
her extra visit for Christmas in 2015. In February 2016, Mallory created a
GoFundMe page which raised almost $8,000. Mallory claimed she used $5,000 of
the funds to pay the attorney who represented her in the April 2016 action. However,
the attorney told the family court he represented Mallory for free. Mallory testified
she used the rest of the money from the GoFundMe page to pay for therapy, travel
5
The family court held the Stasis in contempt of court for preventing visitation on
this basis in October and November 2017. In a separate appeal, the court of appeals
held the Stasis did not violate the final custody order and reversed. See Stasi v.
Sweigart, Op. No. 2018-000044 (S.C. Ct. App. filed Dec. 10, 2019).
expenses, and a drug test. However, despite having these funds, she did not visit the
Child. In May 2016, Mallory traveled to Ohio to visit her brother instead of
attending the Child's dance recital, which the Stasis specifically invited Mallory to
attend. During this trip, Mallory became so intoxicated one night she walked onto
the porch of the wrong house and threw up, prompting the homeowner to call the
police. Mallory's mother testified, as to this period of time and others, "Multiple
times I offered to drive her, give her money, whatever it was she needed to go and
see [the Child]." Clearly, Mallory had the ability to visit the Child during this period,
but instead, she chose to prioritize other things over the needs of her daughter.
The third lengthy period in which Mallory did not visit the Child was from October
1, 2016, to September 9, 2017. She missed the scheduled visit for Christmas in
December 2016. During this period, Mallory bought a calendar to give to the Child.
On the space for the second Saturday of each month—the court-ordered visitation
dates—Mallory wrote "Mommy and [daughter]" with hearts surrounding the day.
Mallory showed the calendar to the Child during a FaceTime call at the beginning
of 2017, thus promising the Child she would visit on these dates. Mallory
nevertheless still did not visit the Child until her birthday in September 2017.
Mallory gave the Child hope she would visit, and then crushed the hope by not doing
so for seven more months.
Initially, it was not Mallory's choice to live so far away from the Child. The family
court considered this distance in the final custody order and in its decision not to
order child support. The court stated, Mallory "shall not be required to pay child
support at this time as [she] will be responsible for the costs associated with her
transportation for visitation as well as the cost of her ongoing therapy/treatment."
At the termination trial in November 2018, however, the Child's guardian ad litem
testified that in 2015 she found a therapist in Charlotte, North Carolina, similar to
Mallory's therapist in Florida. Mallory's mother testified she offered to "get her an
apartment there," but Mallory declined. Instead of moving to Charlotte—located
less than thirty minutes from her daughter—Mallory told the guardian she chose to
stay in Florida. It does not appear anything other than Mallory's own conscious and
intentional decisions kept her from moving closer to the Child. See S.C. Dep't of
Soc. Servs. v. Headden, 354 S.C. 602, 611, 582 S.E.2d 419, 424 (2003) (noting "The
distance between Mother and Child in this case was by the Mother's own making").
The court of appeals suggested the Stasis should have forgiven Mallory's non-
compliance with the conditions on visitation because she could not afford the costs
of compliance. However, the final custody order stated the parties "shall operate
under and be bound by the attached Parenting Schedule and Guidelines (Exhibit A)."
The guidelines stated Mallory's visitation "shall be suspended" if she did not comply
with the conditions. This mandatory language left the Stasis with no discretion.
Only the family court—not the Stasis—could "forgive" Mallory's non-compliance.
When conditions on visitation cannot reasonably be met, it is not acceptable to
ignore the conditions and fail to visit for a longer period of time than it would
reasonably take to ask the family court to modify the conditions. Instead of asking
for understanding when she chose—for whatever reason—to ignore the conditions,
Mallory should have sought to change the conditions. Mallory's actions—or more
importantly, her inactions—demonstrate she made repeated conscious and
intentional decisions to forego her parental duty to visit the Child.
Further, the conditions in the family court's custody order were reasonable. Enabling
a parent to visit under reasonable conditions is quite different from preventing a
parent from visiting. See Matter of M., 312 S.C. 248, 250, 439 S.E.2d 857, 859 (Ct.
App. 1993) (holding the order requiring the father to participate in psychotherapy as
a pre-requisite to visitation did not prevent visitation, "Rather, it outlined a
mechanism through which visitation could resume. The father's defiant refusal to
meet the reasonable conditions placed on his right to visitation was tantamount to an
election not to visit [the child] unless he could do it on his own terms").
Finally, we think it is important to consider the extent to which FaceTime contact
should impact our decision. The October 2015 final custody order provided Mallory
was "entitled to FaceTime/telephone contact on Tuesdays of each week at 4:00 p.m.
for a maximum of thirty minutes." In her brief to the court of appeals, Mallory
argued her FaceTime calls with the Child should be considered as visitation under
subsection 63-7-2570(3). The court of appeals acknowledged this argument but
noted the argument missed the point of the subsection. The court of appeals wrote,
"The question of whether phone calls constitute visitation misses the primary
question raised here, which is whether Mother's failure to visit was willful. Attempts
to communicate with a child when a parent cannot otherwise visit are always relevant
when considering whether the failure to visit was willful."
We agree with the court of appeals. Whether a parent consistently pursues—or often
chooses not to pursue—FaceTime or telephone contact can be important evidence
on the difficult question of whether the failure to make court-ordered visitation was
understandable, or willful. However, FaceTime or telephone contact is not
visitation.6 As the family court judge aptly stated in the November 2018 order, "A
parent cannot hug a child or dry a crying child's tears via FaceTime."
Here, Mallory did exercise 50-60% of her scheduled FaceTime calls, which means—
of course—she missed 40-50% of them. One would hope a parent who claims she
suffers difficulties that keep her from visiting her child, but who nevertheless desires
to do so, would exercise all of her permitted FaceTime calls. Mallory, however,
offered excuses. She claimed she was not able to call every Tuesday at the scheduled
time because she had to work some of those days. This is unpersuasive. Mallory
could have arranged a break time with her employer to ensure she could at least
speak with the Child every week. She also could have asked the Stasis—or the
family court if necessary—to change the scheduled time for the calls to ensure she
would not have to interrupt her work schedule. She chose not to do either. She also
did not exercise her scheduled FaceTime contact for twelve consecutive weeks from
March 15, 2017, to May 31, 2017, even after the Stasis filed this termination
proceeding in April 2017.
The fact Mallory missed any of the FaceTime calls is difficult to understand. The
fact she missed almost half of them is convincing evidence her failure to visit was
willful. See Smith, 423 S.C. at 83, 814 S.E.2d at 160 ("Nevertheless, Father's failure
to even attempt to make contact with Child for almost an entire year constitutes clear
and convincing evidence that Father willfully failed to visit Child."); Headden, 354
S.C. at 611, 582 S.E.2d at 424 (noting "the Mother made little to no effort to maintain
a relationship with the Child with letters or phone calls when physical visits were
not possible").
As we stated in Smith, "Willfulness does not mean that the parent must have some
ill-intent towards the child or a conscious desire not to visit; it only means that the
parent must not have visited due to [her] own decisions, rather than being prevented
from doing so by someone else." 423 S.C. at 81, 814 S.E.2d at 159 (quoting Broom,
403 S.C. at 114, 742 S.E.2d at 391). However, a parent who intentionally fails to
make one opportunity—even several opportunities—for court-ordered visitation has
not necessarily "wilfully failed to visit the child" under subsection 63-7-2570(3),
even though one or several failures were intentional. For example, if we consider in
isolation Mallory's intentional choice to go to Ohio in May 2016 instead of making
6
There may, of course, be circumstances in which in-person visitation is simply not
possible, in which case the family court may order virtual visitation such as by
FaceTime because it may be the only option.
her court-ordered visit with the Child and attending the Child's dance recital, and
even if we consider Mallory's shocking and drunken behavior while she was in Ohio,
that one incident—though clearly purposeful—was not necessarily "willful" under
subsection 63-7-2570(3). Willfulness requires real-time consciousness that the
failure to visit is wrong, Garrard, 390 S.C. at 149, 700 S.E.2d at 271, and "a
conscious indifference to the rights of the child to receive support and consortium
from the parent," Broome, 307 S.C. at 53, 413 S.E.2d at 839.
As we have discussed at length, Mallory's difficult circumstances make some of her
failures understandable. No circumstances, however, can change the fact that on
most of the occasions Mallory's failure to visit the Child was the result of her own
conscious choice made with knowledge she was wrong and knowledge she acted
against the interests of her daughter. On most of the occasions, Mallory's failure to
visit did not result from the difficulty of her circumstances or the Stasis' effort to
comply with the conditions of visitation set forth in the family court's custody order.
Rather, on most of the occasions when Mallory failed to visit the child, she acted
willfully as the term is used in subsection 63-7-2570(3). See Broom, 403 S.C. at
114, 742 S.E.2d at 391 (noting the mother's explanation for the lack of visits—
difficulties in scheduling visits—"does not alter the fact that she missed numerous
months of visitation when it was clearly possible to schedule at least one visit per
month").
Therefore, we hold Mallory's failure to visit the Child was willful.
B. Best Interest of the Child
When a statutory ground for termination—here, willful failure to visit—is
established by clear and convincing evidence, we must determine whether
termination is in the best interest of the child. "In a TPR case, the best interest of
the child is the paramount consideration." Smith, 423 S.C. at 85, 814 S.E.2d at 161
(citing S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287
(Ct. App. 2000)).
At the time of the trial in 2018, the Child was six years old and had lived with the
Stasis since she was two years old. The Stasis' home, including the love and care
they gave her, is essentially the only environment the Child has ever known. See §
63-7-2510. The Child refers to the Stasis as "mom" and "dad" and to their other
children as her brothers and sisters. The Stasis provide the Child with stability. Dr.
Cheryl Fortner-Wood, an expert in child development and attachment, testified the
Child has developed a secure-attachment relationship with the Stasis in the years the
Child has lived with them.
On the contrary, Mallory's role in the Child's life is inconsistent at best, nonexistent
at worst, and certainly not stable. Dr. Fortner-Wood testified attachment with others
is "based on [the] history of interaction" with the other person. She also stated an
eight-hour visitation once a month and weekly phone calls of thirty minutes—much
more contact than Mallory and the Child actually had—would not be enough to
facilitate a secure-attachment relationship. In fact, we know the Child and Mallory's
relationship was very strained. The guardian testified the Child constantly begged
the Stasis and the guardian before visits and FaceTime calls not to make her see or
talk to Mallory. Dr. Fortner-Wood testified that forcing a child to do something she
adamantly does not want to do can "actually have a negative impact on the
relationship between the child and the attachment figure." Thus, every time the
Child is forced to see or talk to Mallory when she outwardly states she does not want
to may hurt her secure relationship with the Stasis. See Smith, 423 S.C. at 85, 814
S.E.2d at 161 (considering the lack of bonding between the father and the child in
determining the best interest of the child).
It is also notable the Child referred to Mallory as a "liar" on multiple occasions and
asked the Stasis and the guardian why Mallory lies to her. The Child's therapist
testified the Child expressed concerns about Mallory taking her away from the
Stasis. During one of their sessions, the Child told the therapist she was scared to
leave the Stasis and that she would run away if she had to leave them. Resuming
visits between Mallory and the Child after three years would only deepen this fear.
Most importantly as to Mallory's relationship with the Child—as the guardian
testified—Mallory has not "placed [the Child] as a priority" in her life.
We are also concerned about Mallory's continuing mental health issues. During oral
argument to this Court, Mallory's attorney confirmed Mallory still suffers from
"significant mental health issues." We certainly do not fault Mallory for her mental
health issues, and we commend her efforts in seeking professional help. However,
Mallory rarely visited the Child when her mental health was at its best, and even
then, her relationship with the Child was poor. If Mallory's mental illness is still a
problem—or worse is deteriorating—then resuming visits is not in the Child's best
interest.
"Appellate courts must consider the child's perspective, and not the parent's, as the
primary concern when determining whether TPR is appropriate." Smith, 423 S.C. at
85, 814 S.E.2d at 161 (quoting S.C. Dep't of Soc. Servs. v. Sarah W., 402 S.C. 324,
343, 741 S.E.2d 739, 749-50 (2013)). The Child is now nine years old. She has
lived with the Stasis since 2014 and has not seen or spoken to Mallory since the
family court terminated Mallory's rights in 2018. We hold it is in the Child's best
interest to terminate Mallory's parental rights.
We pause here to comment on oral argument. Technically, neither due process nor
any other provision of law requires oral argument in a given case. Each judge or
appellate panel is entitled to make the decision in each case whether oral argument
would be helpful. See Rule 215, SCACR ("The appellate court may decide any case
without oral argument if it determines that oral argument would not aid the court in
resolving the issues."). In this case, counsel for the Stasis filed a written request for
oral argument at the court of appeals. The court denied the request. On certiorari in
this case, this Court—individually and collectively—found oral argument to be very
helpful. The question whether Mallory's repeated failures to visit the Child were
understandable, even unavoidable, or whether they were willful, has not been an
easy judgment call. From our perspective, oral argument was warranted in this
complicated and difficult case.
III. Conclusion
We find by the required clear and convincing standard of proof that Mallory's failure
to visit the Child was willful and that termination of Mallory's parental rights is in
the Child's best interest. Therefore, we reverse the court of appeals and reinstate the
family court's order terminating Mallory's parental rights and granting the Stasis'
adoption of the Child.
REVERSED.
BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.