SCDSS v. Evangelica H. ( 2012 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
South Carolina Department of Social Services,
Respondent,
v.
Evangelica H., Anthony P., Kedar S., John Doe, whose
true name is unknown, and James Doe, whose true name
is unknown, Defendants,
Of whom Kedar S. is the Appellant.
In the interest of two minor children.
Appellate Case No. 2011-185826
Appeal From Jasper County
Peter L. Fuge, Family Court Judge
Unpublished Opinion No. 2012-UP-539
Submitted September 4, 2012 – Filed September 25, 2012
AFFIRMED
H. Fred Kuhn, Jr., of Moss Kuhn & Fleming, PA , of
Beaufort, for Appellant.
Tracy O'Kelly Klatt, of S.C. Department of Social
Services, of Beaufort, and Daniel W. Luginbill, of
Wilson, Luginbill & Kirkland, LLC, of Bamberg, for
Respondent.
Heather Jones Galvin, of Bluffton, for Guardian ad
Litem.
PER CURIAM: Kedar S. (Father) appeals the family court's order terminating his
parental rights to his minor child (Child). The family court found clear and
convincing evidence supported termination of parental rights (TPR) on the
following grounds: (1) Child has lived outside his home for a period of at least six
months and Father has willfully failed to visit Child; (2) Child has lived outside the
home for a period of at least six months and Father has willfully failed to support
Child or make a material contribution to his care; and (3) Child was in foster care
for fifteen of the most recent twenty-two months. Additionally, the family court
found TPR was in Child's best interest.
Father contends the family court erred in terminating his parental rights, arguing:
(1) clear and convincing evidence did not show Father willfully failed to visit
Child; (2) clear and convincing evidence did not show Father failed to support
Child; (3) the family court erred in concluding that proof TPR was in Child's best
interest was within the family court's discretion and did not require proof by clear
and convincing evidence; (4) the family court erred in failing to make findings of
fact in support of its determination TPR was in Child's best interest; and (5) the
family court erred in refusing to grant a mistrial or continuance when Evangelica
H. (Mother) disappeared between her direct examination and her cross-
examination. We affirm.
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); see
also 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. The burden is upon the
appellant to convince this court that the family court erred in its findings. Id. at
385, 709 S.E.2d at 652.
"In appeals from the family court, the appellate court has the authority to find the
facts in accordance with its view of the preponderance of the evidence." Ex parte
Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006). "This broad scope of review
does not, however, require the appellate court to disregard the findings of the
family court." Id. "This degree of deference is especially true in cases involving
the welfare and best interests of a minor child." Id. at 62, 624 S.E.2d at 652.
The family court may order TPR upon finding one or more of eleven statutory
grounds is satisfied and also finding TPR is in the best interest of the child. S.C.
Code Ann. § 63-7-2570 (Supp. 2011). Father failed to appeal the statutory TPR
ground that Child was in foster care for fifteen of the previous twenty-two months
and, thus, this is the law of the case. See Morris, 367 S.C. at 65, 624 S.E.2d at
653-54 (holding an unappealed ruling of the family court to be the law of the case
and required affirmance). Regardless, the fifteen of twenty-two months ground is
supported by clear and convincing evidence in the record because Child was in
foster care for thirty-seven months at the time of the TPR hearing. As only one
ground needs to be proven to terminate parental rights, we decline to address the
other statutory grounds for TPR or any alleged error by the family court. See Loe
v. Mother, Father, & Berkeley Cnty. Dep't of Soc. Servs., 382 S.C. 457, 469, 675
S.E.2d 807, 813 (Ct. App. 2009) ("In South Carolina, when a child has resided in
foster care for fifteen of the most recent twenty-two months, this ground alone is
sufficient to satisfy a statutory ground for TPR.").
In regard to the best interest issues, any purported error made by the family court
regarding the standard for review or factual findings was harmless because this
court can make its own findings from the record as to whether clear and
convincing evidence supports the termination of parental rights. See S.C. Dep't of
Soc. Servs. v. Janice C., 383 S.C. 221, 226, 678 S.E.2d 463, 466 (Ct. App. 2009).
We find TPR to be in Child's best interest. Here, there is no doubt Father desires to
be part of Child's life, but the determination hinges on what is best for Child. S.C.
Code Ann. § 63-7-2620 (2010) ("The interests of the child shall prevail if the
child's interest and the parental rights conflict."). Child is currently placed with his
brother in a non-adoptive foster home. While Child is thriving in this placement,
the Guardian ad Litem (GAL) specifically commented on the need for a father
figure and stability in Child's life. The GAL also testified TPR was in Child's best
interest. Moreover, while the DSS case worker did not make a specific statement
on the best interest of Child, she did explicitly recommend Father's rights be
terminated. Furthermore, while there are no current pending adoptive resources for
Child, both the GAL and the DSS case worker testified at least two couples had
previously been interested in adopting Child and his brother, but were deterred
based on the extended TPR litigation. Child has been in foster care for the vast
majority of his life and was removed before his first birthday. Accordingly, we
find the best interest of Child is served by achieving stability and permanence,
which is best accomplished by freeing Child for potential adoption.
Finally, Father contends the family court erred in denying his motions for a
continuance or mistrial based on Mother's absence on the second day of the TPR
hearing. The grant or denial of a continuance is within the discretion of the family
court and will not be disturbed on appeal absent an abuse of that discretion. S.C.
Dep't of Soc. Servs. v. Broome, 307 S.C. 48, 52, 413 S.E.2d 835, 838 (1992). The
rules of civil procedure allow that a court may grant a continuance "[i]f good and
sufficient cause . . . is shown." Rule 40(i)(1), SCRCP. The Fourteenth
Amendment guarantees a fundamental right to freedom from State interference
with a parent's relationship with his child. See Santosky v. Kramer, 455 U.S. 745,
753 (1982) ("[F]reedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment."). TPR
clearly interferes with a fundamental liberty interest and invokes due process
protections. S.C. Dep't of Soc. Servs. v. Wilson, 352 S.C. 445, 453, 574 S.E.2d
730, 734 (2002). "Where important decisions turn on questions of fact, due
process requires an opportunity to confront and cross-examine adverse witnesses."
Brown v. S.C. State Bd. of Educ., 301 S.C. 326, 329, 391 S.E.2d 866, 867 (1990);
see S.C. Dep't of Soc. Servs. v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846, 849
(1995) (stating the right to confrontation has been applied in civil context). Due
process is not violated where a party is not given the opportunity to confront
witnesses so long as there has been a meaningful opportunity to be heard. Holden,
319 S.C. at 78, 459 S.E.2d at 80-81.
Father moved for a continuance or a mistrial based on Mother's absence, arguing
she was a necessary witness who he expected to testify that Father was a good and
supportive parent. Even if Mother testified as Father posits, this is essentially the
same testimony Father offered in his deposition. Moreover, Mother did not testify
against Father and instead only testified in her own defense. Father received a
meaningful opportunity to be heard on these issues, and his due process rights were
not violated by his inability to cross-examine Mother. Accordingly, the ruling of
the family court is affirmed.
AFFIRMED.1
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
FEW, C.J., and WILLIAMS and PIEPER, JJ., concur.