SCDSS v. Moore ( 2020 )

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.
Connie Marie Moore and John Elton Lacey, Defendants,
Of whom Connie Marie Moore is the Appellant.
In the interest of a minor under the age of eighteen.
Appellate Case No. 2019-001472
Appeal From Chesterfield County
Cely Anne Brigman, Family Court Judge
Unpublished Opinion No. 2020-UP-110
Submitted April 3, 2020 – Filed April 22, 2020
AFFIRMED
Harry A. Hancock, of Columbia, for Appellant.
Sarah Crawford Campbell, of Cockrell & Campbell,
P.C., of Chesterfield, as Guardian ad Litem for
Appellant.
Delton W. Powers, Jr., of Powers Law Firm, PC, of
Bennettsville, for Respondent.
C. Heath Ruffner, of McLeod & Ruffner, of Cheraw, for
the Guardian ad Litem for the minor child.
PER CURIAM: Connie Marie Moore (Mother) appeals an order terminating her
parental rights (TPR) to her minor child (Child). On appeal, Mother argues clear
and convincing evidence does not show Child remained in foster care for fifteen of
the most recent twenty-two months due to Mother's actions. 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); 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, which 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 family court may order TPR upon finding a statutory ground for TPR is met
and TPR is in the child's best interest. S.C. Code Ann. § 63-7-2570 (Supp. 2019).
The grounds for TPR must be proved by clear and convincing evidence. S.C. Dep't
of Soc. Servs. v. Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999).
Here, the undisputed evidence showed Child remained in foster care for more than
fifteen of the most recent twenty-two months. See S.C. Code Ann. § 63-7-2570(8)
(providing a statutory ground for TPR exists when "[t]he child has been in foster
care under the responsibility of the State for fifteen of the most recent twenty-two
months"). On appeal, Mother contends the family court erred in applying this
ground based on its finding that she failed to take "proactive measures" to counter
procedural delays by the Department of Social Services (DSS). Mother also
contends parents do not have a duty to take proactive measures in order to argue
this ground should not apply.
In Charleston County Department of Social Services v. Marccuci, 396 S.C. 218,
229, 721 S.E.2d 768, 774 (2011), our supreme court reversed the application of
this statutory ground against the father. In doing so, the court described the
"procedural morass" of that case:
The action began in a timely manner on January 28,
2008, with the probable cause hearing. The merits
hearing was scheduled for February 28, but the court
continued it upon the motion of [the father's] guardian ad
litem once it was clear the case was contested. At some
point, the merits hearing was set for June 4. However, a
pre-trial hearing scheduled for May 13 was continued
until June 18 because no judge was available; the June 4
merits hearing accordingly was rescheduled for October
1. For some reason not apparent in the record, this
hearing was continued again. Frustrated at the lack of
progress in this case, the [child's g]randparents moved for
an expedited placement hearing, but that too was
continued on December 8 for unknown reasons. On
January 22, 2009, the hearing on the expedited motion
was again continued. The merits hearing was then
scheduled for April 30, nearly fifteen months after the
minor child was removed by DSS, to no avail: it was
continued for lack of notice. The hearing was again
continued on May 4 for the same reason. It was not until
July 10—far beyond the thirty-day limit provided for by
statute—that the merits hearing was held, and the final
order was not issued until August 3, over one-and-a-half
years after the child was placed in protective custody.
The final order authorized DSS to forego efforts at
reunification and pursue TPR. By the time the removal
action was complete, the child had lived in seven
different foster homes and no less than seven different
family court judges had been involved.
Id. at 223-24, 721 S.E.2d at 771-72 (footnotes omitted). In reversing, our supreme
court held, "Where there is 'substantial evidence that much of the delay . . . is
attributable to the acts of others,' a parent's rights should not be terminated based
solely on the fact that the child has spent greater than fifteen months in foster
care." Id. at 227, 721 S.E.2d at 773 (alteration in original) (quoting S.C. Dep't of
Soc. Servs. v. Cochran, 356 S.C. 413, 420, 589 S.E.2d 753, 756 (2003) (Pleicones,
J., concurring)). Our supreme court reiterated this holding in South Carolina
Department of Social Services v. Sarah W., 402 S.C. 324, 336, 741 S.E.2d 739,
746 (2013), where it held:
[S]ection 63-7-2570(8) may not be used to sever parental
rights based solely on the fact that the child has spent
fifteen of the past twenty-two months in foster care. The
family court must find that severance is in the best
interests of the child, and that the delay in reunification
of the family unit is attributable not to mistakes by the
government, but to the parent's inability to provide an
environment where the child will be nourished and
protected.
Based on our de novo review of the record, this case does not embody the
"procedural morass" of Marccuci. Child was removed July 29, 2016, and the
merits removal hearing was timely scheduled for August 11, 2016. See S.C. Code
Ann. § 63-7-710(E) (2010) ("The hearing on the merits to determine whether
removal of custody is needed . . . must be held within thirty-five days of the date of
receipt of the removal petition."). The family court found exceptional
circumstances existed to continue that hearing, and it was held on September 8,
2016, in compliance with the statutory timeframe. See id. ("A party may request a
continuance that would result in the hearing being held more than thirty-five days
after the petition was filed, and the court may grant the request for continuance
only if exceptional circumstances exist. If a continuance is granted, the hearing on
the merits must be completed within sixty-five days following receipt of the
removal petition."). Thereafter, the first permanency planning hearing was timely
held on May 11, 2017—less than a year after Child entered foster care. See S.C.
Code Ann. § 63-7-1700(A) (Supp. 2019) ("The permanency planning hearing must
be held no later than one year after the date the child was first placed in foster
care."). Admittedly, the next permanency hearing, which was not held until May
3, 2018, was not timely. See S.C. Code Ann. § 63-7-1700(I)(2) (Supp. 2019) ("If
the court ordered extended foster care for the purpose of reunification with the
parent, the . . . next permanency planning hearing . . . must be held on or before the
date specified in the plan for expected completion of the plan; in no case may the
hearing be held any later than six months from the date of the last court order.").
However, that single delay does not suggest this ground should not apply,
especially when that hearing was timely scheduled for November 2, 2017, but
continued at Mother's request, and continued again on January 11, 2018, by
agreement between the parties. At each permanency planning hearing the family
court reviewed this case and determined Mother's home was not safe for
reunification.
Further, the testimony of the DSS caseworker at the TPR hearing showed Mother's
home was not safe for reunification. Although Mother completed several
components of her placement plan, she continued to live with John Elton Lacey
(Father)—who tested positive for cocaine several times throughout this case—until
September 28, 2018, when she moved out after an incident of domestic violence.
The DSS caseworker testified about Father's anger management issues and her
concerns with Mother's safety while living with him. Thus, Mother's home was
not safe for Child while she lived with Father. Although there was evidence
Mother obtained an apartment separate from Father for a short period of time, the
DSS caseworker testified Mother never allowed her to visit that apartment and
assess its safety. Thus, DSS could not begin transitional visits or consider
reunification with Mother during that time. On June 25, 2019, Mother informed
DSS she was living with Father again, making her home unequivocally unsafe for
Child. Based on the foregoing, DSS presented clear and convincing evidence that
Child remained in foster care due to Mother's inability to provide a safe and
suitable home for Child rather than dilatory actions by DSS, and the family court
properly applied this ground.
Finally, viewed from Child's perspective, TPR is in her best interest.1 See S.C.
Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App.
2000) ("In a [TPR] case, the best interests of the children are the paramount
consideration."); Sarah W., 402 S.C. at 343, 741 S.E.2d at 749-50 ("Appellate
courts must consider the child's perspective, and not the parent's, as the primary
concern when determining whether TPR is appropriate."). At the time of the TPR
hearing, Mother lived with Father, who tested positive for cocaine several times
throughout this case. The DSS caseworker expressed concern about Mother's
safety in Father's home. Because Mother continued to live with Father, she did not
have a suitable home for Child, and based on the length of time Child remained in
foster care, it does not appear Mother will take the necessary steps to provide a
suitable home for Child in the foreseeable future. The evidence showed Child was
doing well in her foster home and her foster parents wished to adopt her. Due to
Child's need for permanency and stability in a safe and suitable home, TPR is in
her best interest.
1
Although Mother does not raise this issue on appeal, we address it because it
concerns the rights of a minor child. See Ex parte Roper, 254 S.C. 558, 563, 176
S.E.2d 175, 177 (1970) ("[W]here the rights and best interests of a minor child are
concerned, the court may appropriately raise, ex mero motu, issues not raised by
the parties.").
AFFIRMED.2
HUFF, THOMAS, and MCDONALD, JJ., concur.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.