SCDSS v. Grace W. ( 2010 )

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.

Grace W. and Robert S. W., Jr., Defendants,

Of whom Grace W., is the Appellant.

In the interest of two minor children. 

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Appeal From Greenwood County
Joseph W. McGowan, III, Family Court Judge

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Unpublished Opinion No. 2010-UP-549
Submitted December 1, 2010 – Filed December 17, 2010   

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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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Bryan Christopher Able, of Laurens, for Appellant.

Scarlet Bell Moore, of Greenville, for Respondent.

Carson McCurry Henderson, of Greenwood, for Guardian ad Litem.

PER CURIAM: Grace W. (Mother) appeals from the family court's order terminating her parental rights to her two minor children (Son and Daughter, collectively Children).  The family court concluded clear and convincing evidence supported termination of Mother's parental rights pursuant to section 63-7-2870(1) of the South Carolina Code (2010).  Additionally, the family court found termination of parental rights (TPR) was in Children's best interests.  We affirm in part, reverse in part, and remand.

The grounds for TPR must be proven 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).  "Upon review, the appellate court may make its own finding from the record as to whether clear and convincing evidence supports the termination [of parental rights]."  S.C. Dep't of Soc. Servs. v. Headden, 354 S.C. 602, 609, 582 S.E.2d 419, 423 (2003).  The family court may order TPR upon finding one or more of the eleven statutory grounds is satisfied and also finding TPR is in the best interest of the child.  S.C. Code Ann. § 63-7-2570 (2010).  In a TPR case, the best interests of the child are the paramount consideration.  S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000).  "The interests of the child shall prevail if the child's interest and the parental rights conflict."  S.C. Code Ann. § 63-7-2620 (2010).   

Section 63-7-2570(1) of the South Carolina Code (2010) provides for TPR if:

The child or another child in the home has been harmed as defined in Section 63-7-20, and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent's previous abuse or neglect of the child or another child in the home may be considered.

Section 63-7-20(4) of the South Carolina Code (2010) states "child abuse or neglect or harm" occurs when the parent "inflicts or allows to be inflicted upon the child physical or mental injury or engages in acts or omissions which present a substantial risk of physical or mental injury to the child . . . ."

We agree with the family court's findings that Daughter was harmed.  However, regarding whether it is not reasonably likely the home can be made safe within twelve months, we find the record is insufficient to determine whether it is reasonably likely Mother's home could be made safe.  The original complaints for removal requested the family court approve a treatment plan for Mother; however, the Department of Social Services (DSS) testimony indicated that based on the severity of Daughter's injuries, it did not offer Mother services.  However, Mother requested DSS assistance in regaining custody of Children, and Mother completed a psychological evaluation and attended parenting classes.  Mother also filed for separation and divorce from her husband (Father), stating the only way she could ensure the safety of Children was to be on her own.  Nonetheless, we are concerned Mother admitted only she and Father cared for Daughter during the weeks surrounding the time the injuries could have occurred.  Additionally, prior to the abuse inflicted on Daughter, Son was removed from Mother's custody after law enforcement received a report he was unattended in a highway.  Furthermore, in its order, the family court did not provide any factual evidence in support of its finding it was not reasonably likely Mother's home could be made safe within twelve months as required by Rule 26, SCRFC.  See Rule 26(a), SCRFC ("An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the [family] court's decision."). 

Additionally, we find the record is insufficient to determine whether termination of Mother's parental rights was in Children's best interests.  At the TPR hearing, the DSS foster care worker assigned to Daughter admitted Mother supported and visited Children.  Additionally, the case worker believed Children were bonded with Mother.  Daughter's foster care worker had not met Daughter's foster parents but believed Daughter was bonded with them. Without explanation, DSS recommended it was in Daughter's best interests to be separated from Son.  DSS did not present any testimony from Son's foster care worker regarding how Son was adjusting in his current foster care placement or Son's future prospects for permanent placement.  Additionally, the guardian ad litem did not believe TPR was in Children's best interests.  Moreover, in its order, the family court did not provide any factual evidence in support of its finding TPR was in the best interests of Children as required by Rule 26, SCRFC. 

Accordingly, we affirm the family court's order as to its findings Daughter was harmed pursuant to section 63-7-20(4).  However, we reverse the family court's order as to its findings on whether it is not reasonably likely Mother's home could be made safe within twelve months and best interests.  We remand the matter in order for the family court to make sufficient findings of fact as to whether it is not reasonably likely Mother's home could be made safe within twelve months and best interests.  The family court may order a hearing to further clarify the issues surrounding whether Mother's home could be made safe, Children's current foster care placements, Children's future prospects for permanent placement, and any other relevant issues related to Children's best interests.    

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FEW, C.J., KONDUROS, J., and CURETON, A.J., concur.