Rabuck v. Wilomvsky ( 2011 )

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

Tara Ingram Rabuck and Andrew Rabuck, Appellants,

v.

Robert Michael Wilomvsky, Respondent.

In the interest of a minor child.

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Appeal From Darlington County
James A. Spruill, III, Family Court Judge

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Unpublished Opinion No. 2011-UP-459
Heard September 12, 2011 – Filed October 13, 2011   

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AFFIRMED IN PART AND REMANDED IN PART

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John S. Nichols, of Columbia, and John M. Ervin, III, of Darlington, for Appellants.

James D. Dotson, of Lake City, for Respondent.

PER CURIAM:  Tara Rabuck (Mother) and Andrew Rabuck (Stepfather) (collectively, Appellants) appeal the family court's order declining to terminate Robert Wilomovsky's (Father's) parental rights, arguing the family court erred in: (1) failing to find Father willfully failed to visit Child for a period of six months prior to the entry of the temporary order in 2008; (2) failing to find Father had a diagnosable condition, which he failed to remedy and prevented him from providing minimally acceptable care of Child; (3) failing to find it was in Child's best interest to terminate Father's rights and grant Stepfather's request to adopt Child; and (4) granting Father's counterclaim for regular weekend visitation with Child without requiring his visits be supervised at all times, he undergo regular and random drug testing, and attend counseling sessions.  We affirm and remand the case to the trial court for a hearing on visitation.

1.  Appellants argue the family court erred in failing to find Father willfully failed to visit Child for a period of six months prior to the entry of the temporary order in 2008.  Appellants moved to Texas in 2001, and Mother testified Father was very involved in Child's life up until that time. Mother stated Father even regularly visited with Child while they were living in Texas.  After Appellants moved back to North Carolina in 2005, Child visited with Father every other weekend until Mother told Father he could only visit Child at Mother's house.  Father testified that when he called, Mother told him Child did not want to talk to him, or Mother did not take his calls at all. Father contends that these rebuffs from Mother regarding visitation explain his neglect.  Furthermore, Father was barred from visiting Child by court order from July 2008 to November 2010.  "Whether a parent's failure to visit or support a child is 'willful' within the meaning of the statute is a question of intent to be determined from all the facts and circumstances in each case, and the trial judge is given wide discretion in making this determination."  S.C. Dep't of Soc. Servs. v. M.R.C.L., 393 S.C. 387, ___, 712 S.E.2d 452, 455 (2011).  "While the trial judge is given wide discretion in making this determination, the element of willfulness must be established by clear and convincing evidence."  S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 137, 538 S.E.2d 285, 289 (Ct. App. 2000).  In Wilson v. Higgins, 294 S.C. 300, 304-05, 363 S.E.2d 911, 914 (Ct. App. 1987), rev'd in part on other grounds, Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 536 S.E.2d 372 (2000), this court determined the mother did not willfully fail to visit her child when her visitation was discouraged by the custodial parent's placing strict limitations on her rights to visit her child. Additionally, in Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 2003), this court held it was improper to find a father willfully failed to visit his children when visitation was prohibited by court order.  Therefore, based on the family court's superior position to evaluate the witnesses' credibility and assign comparative weight to their testimony, and our review of the evidence, we find the evidence supports the family court's determination that Father did not willfully fail to visit Child. 

2. Appellants argue the family court erred in failing to find Father had a diagnosable condition that he failed to remedy and prevented him from providing minimally acceptable care of Child.  However, Father testified he has been clean of drugs since leaving a rehabilitation center and has maintained the same job since he returned from the center, which requires him to take random drug testing.  Mother testified she did not know if Father had cured his drug addiction, and she did not have any proof that Father was still using drugs. Therefore, because Mother has not proven by clear and convincing evidence that Father has not been rehabilitated, we find the evidence supports the family court's determination.  See Doe v. Roe, 386 S.C. 624, 630, 690 S.E.2d 573, 577 (2010) ("Grounds for termination of parental rights must be proven by clear and convincing evidence.").

3. Appellants argue the family court erred in failing to find it was in Child's best interests to terminate Father's rights and grant Stepfather's request to adopt Child.  However, the family court need only reach the question of the best interests of the child if it finds a statutory ground for termination of parental rights exists.  Loe v. Mother, 382 S.C. 457, 471, 675 S.E.2d 807, 815 (Ct. App. 2009).

4. Appellants argue the family court erred in granting Father's counterclaim for regular weekend visitation with Child without requiring his visits be supervised at all times, he undergo regular and random drug testing, and he attend counseling sessions.  Prior to the entry of the temporary order in 2008, Child's counselor recommended that Father participate in counseling first by himself and then with Child before any visitation began.  Also, in 2010, Child's counselor stated that because Father and Child had not had any contact for four years, it was "imperative for [Child's] mental health that contact be started slowly and with the help of a mediator, with whom [Child] feels comfortable."  Therefore, we remand this issue to the family court to set up a visitation schedule that will be increased gradually and monitored by the guardian ad litem and counselor.

AFFIRMED IN PART AND REMANDED IN PART.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.