SCDSS v. Nicholle ( 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, Michelle
and Sam S., and John and Jane Doe, Respondents,
v.
Kelly Nicholle D. and Dakota D., Defendants,
Of whom Kelly Nicholle D. is the Appellant.
In the interest of minors under the age of eighteen.
Appellate Case No. 2019-000325
Appeal From Spartanburg County
James F. Fraley, Jr., Family Court Judge
Unpublished Opinion No. 2020-UP-107
Submitted March 17, 2020 – Filed April 9, 2020
AFFIRMED
Andrew Richard Havran, of Greer, for Appellant.
Robert C. Rhoden, III, of South Carolina Department of
Social Services, of Spartanburg, for Respondent South
Carolina Department of Social Services.
James Fletcher Thompson, of James Fletcher Thompson,
LLC, of Spartanburg, for Respondents Michelle and Sam
S.
Vanessa Hartman Kormylo, of Vanessa Hartman
Kormylo, P.A., of Greenville, for Respondents John and
Jane Doe.
Wendy Nicole Griffith, of Talley Law Firm, P.A., of
Spartanburg, for the Guardian ad Litem in the
Department of Social Services action.
Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of
Spartanburg, as Guardian ad Litem in the private action.
PER CURIAM: Kelly Nicholle D. (Mother) appeals an order terminating her
parental rights to Child 1, Child 2, and Child 3. On appeal, Mother argues the
family court erred in (1) abdicating its judicial responsibility by having opposing
counsel draft the final order; (2) finding clear and convincing evidence supported
four statutory grounds for termination of parental rights (TPR), and (3) finding
TPR was in the children's best interest. 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.
Initially, Mother's argument that the family court violated her due process rights by
abdicating its judicial responsibility and having opposing counsel draft the final
order is not preserved. Mother never objected to the procedure employed by the
family court or filed a motion raising this issue with the family court; thus, it is not
preserved. See Broom v. Jennifer J., 403 S.C. 96, 111 n.8, 742 S.E.2d 382, 389 n.8
(2013) (finding an issue not presented to the family court was not preserved for
review); Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654 (2006)
(acknowledging appellate courts can overlook procedural rules when the rights of
minors are concerned but declining to exercise its discretion to do so).
Further, clear and convincing evidence showed Mother failed to remedy the
conditions causing removal. See S.C. Code Ann. § 63-7-2570 (Supp. 2019)
(providing 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. Dep't of Soc. Servs. v.
Parker, 336 S.C. 248, 254, 519 S.E.2d 351, 354 (Ct. App. 1999) (providing the
grounds for TPR must be proved by clear and convincing evidence);
§ 63-7-2570(2) (providing a statutory ground for TPR is met when "[t]he child has
been removed from the parent . . . and has been out of the home for a period of six
months following the adoption of a placement plan by court order or by agreement
between [DSS] and the parent[,] and the parent has not remedied the conditions
which caused the removal"). We acknowledge Mother completed drug treatment,
and no evidence showed she used drugs thereafter. Additionally, the children's
guardian ad litem visited Mother's home the week before the TPR hearing and
believed it was appropriate. Finally, Mother had a job earning $17.50 per hour
where she had worked eight or nine months. Thus, she complied with several
components of her placement plan.
However, the placement plan, which Mother agreed to at the August 11, 2016
merits removal hearing, also required Mother to maintain a drug-free home.
Mother admitted Dakota D. (Father) remained in her home until April 2017.
Father refused to take a drug screen when the children were removed, relapsed in
December 2016 and March 2017, and did not complete drug treatment. Because
Father remained in the home, Mother's home was not drug-free until April 2017—
more than six months after she received the placement plan. Thus, under the plain
language of this statue, clear and convincing evidence supports TPR on this
ground.1 See § 63-7-2570(2) (providing a statutory ground is met when "[t]he
child has been removed from the parent . . . and has been out of the home for a
period of six months following the adoption of a placement plan . . . and the parent
has not remedied the conditions which caused the removal" (emphasis added));
S.C. Code Ann. § 63-7-2620 (2010) (providing TPR statutes "must be liberally
construed in order to ensure prompt judicial procedures for freeing minor children
1
Because clear and convincing evidence supports this statutory ground, we decline
to address Mother's arguments pertaining to the remaining statutory grounds. See
S.C. Dep't of Soc. Servs. v. Robin Headden, 354 S.C. 602, 613, 582 S.E.2d 419,
425 (2003) (declining to address a statutory ground for TPR when clear and
convincing evidence proved another ground).
from the custody and control of their parents by terminating the parent-child
relationship").2
Additionally, Mother failed to fully understand and appreciate the medical needs of
the children. This concern was raised at a family conference in June 2017 and
addressed by the family court in the September 22, 2017 permanency planning
order. Although Mother attended some of the children's doctor appointments
thereafter, Dr. Jane Gwinn, a pediatric pulmonologist who treated the children, did
not believe Mother understood the significance of their medical issues. Dr. Gwinn
lacked confidence in Mother's ability to monitor and treat the children's medical
issues and had concerns about their well-being with Mother. Due to the severity of
some of these medical issues, we find Mother's failure to appreciate and understand
their significance provides further support for this statutory ground.
Finally, viewed from the children's perspective, we find TPR is in their best
interest. 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."); § 63-7-2620 ("The interests of the child shall prevail if
the child's interest and the parental rights conflict."). Initially, we are concerned
about testimony regarding Mother's ongoing relationship with Father. Although
Mother claimed the relationship had ended, she admitted she visited Father in
North Carolina and had intimate relations with him four times between July 2017
and January 2018. Mother admitted to visiting Father only after being confronted
with the fact a private investigator caught her visiting him, and she also admitted
she had previously lied when she said the relationship was over. Thus, her
credibility concerning her relationship with Father is questionable. Mother also
admitted she gave Father money after he moved out, including in April 2018.
Finally, she acknowledged that during a prior North Carolina DSS action, she
separated from Father and moved in with her mother, only to return to Father when
2
Mother argues this ground should not apply in part because the merits removal
order was not filed until November 30, 2016. However, Mother testified she
received the placement plan and began working on it before it was court-ordered,
and she had completed drug treatment by September 2016. According to the
merits removal order, the parties agreed to the placement plan. Thus, we find
Mother had the placement plan by the time of the August 11, 2016 hearing, and
any delay by the family court in filing the merits removal order does not affect the
application of this ground. See § 63-7-2570(2) (providing the placement plan may
be adopted "by court order or by agreement between [DSS] and the parent"
(emphasis added)).
that case closed. Thus, although Mother accomplished much during this case, it
does not appear she will keep the children from Father if they are returned to her
care. That concern, coupled with concerns about Mother's ability to monitor and
treat the children's medical conditions, shows Mother cannot provide a safe and
suitable home for the children.
Child 1 was removed from Mother's home a few months before turning four years
old, Child 2 was removed before turning two years old, and Child 3 was removed
at less than a year old. At the time of the TPR hearing, the children had been in
foster care for almost twenty-eight months, and they were bonded with their
respective foster families, who wished to adopt them. Because the children are in
stable pre-adoptive homes and it is unclear whether Mother will keep them from
Father, we find TPR is in their best interest.
AFFIRMED.3
HUFF, THOMAS, and MCDONALD, JJ., concur.
3
We decide this case without oral argument pursuant to Rule 215, SCACR.