SCDSS v. Riemann ( 2017 )

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.
Destiny McDade and Jonathan Riemann, Defendants,
Of whom Jonathan Riemann is the Appellant.
In the interest of a minor under the age of eighteen.
Appellate Case No. 2016-001506
Appeal From Spartanburg County
Phillip K. Sinclair, Family Court Judge
Unpublished Opinion No. 2017-UP-468
Submitted December 1, 2017 – Filed December 20, 2017
AFFIRMED
Melinda Inman Butler, of The Butler Law Firm, of
Union, for Appellant.
Deborah Murdock Gentry, of Murdock Law Firm, LLC,
of Mauldin; and Robert C. Rhoden, III, of South Carolina
Department of Social Services, of Spartanburg, both for
Respondent.
Wendy Nicole Griffith, of Talley Law Firm, P.A., of
Spartanburg, for the Guardian ad Litem.
PER CURIAM: Jonathan Riemann (Father) appeals the family court's final order
terminating his parental rights to his minor child (Child). On appeal, Father argues
the family court erred in finding (1) his rights should be terminated based on his
failure to remedy the conditions causing removal when the removal was based on
Destiny McDade's (Mother's) drug use and Father's actions did not cause the
removal, (2) the Department of Social Services (DSS) proved by clear and
convincing evidence Father failed to support Child, and (3) termination of parental
rights (TPR) was in Child's best interest when there is a fit parent Child can be
reunited with. 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.
We find clear and convincing evidence shows Father failed to remedy the
conditions causing Child's removal. See S.C. Code Ann. § 63-7-2570(2) (Supp.
2017) (providing a statutory ground for TPR is met when "[t]he child has been
removed from the parent pursuant to subarticle 3 or [s]ection 63-7-1660 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").
Initially, we disagree with Father that this ground cannot apply to him because
Child was removed from Mother. Although the plain language of the statute could
support his interpretation, we find doing so would contradict the General
Assembly's mandate to construe TPR statutes liberally "to ensure prompt judicial
procedures for freeing minor children from the custody and control of their parents
by terminating the parent-child relationship." See § 63-7-2570(2) (providing a
statutory ground for TPR is met when "[t]he child has been removed from the
parent . . . ."); S.C. Code Ann. § 63-7-2620 (2010) ("This article must be liberally
construed in order to ensure prompt judicial procedures for freeing minor children
from the custody and control of their parents by terminating the parent-child
relationship. The interests of the child shall prevail if the child's interest and the
parental rights conflict."). This was not a situation when DSS removed a child
from one parent and arbitrarily decided not to place him with the other parent.
Rather, DSS could not initially place Child with Father because he was
incarcerated, and we find Father's incarceration was a collateral reason for Child's
removal. When Father was released from incarceration, DSS could not reasonably
place Child with Father until further investigating why he was on the sex offender
registry. The family court ordered a placement plan in May 2015 that required
Father to submit to a psychosexual evaluation. Based on the fact Father was on the
sex offender registry, it was reasonable for DSS to request and the family court to
order a psychosexual evaluation prior to placing Child in Father's home. Although
Father completed a psychosexual evaluation as part of his criminal case, he did not
submit it to DSS or the family court; thus, the family court had no way to
determine how—and whether—Father's registry affected his ability to parent
Child.
We also find Father did not maintain stable housing, as required by the May 2015
placement plan. Cindy Britton, a DSS foster care worker, explained Mother and
Father did not have stable housing prior to DSS initiating the removal action, and
DSS had trouble locating Mother, Father, and Child prior to Father's incarceration
because the addresses they provided were incorrect. Britton also testified Father
refused to provide his address to DSS after he was released from prison. Thus, we
find lack of stable housing was one of the conditions that had to be remedied
before Child could be placed with Father, and Father's failure to obtain appropriate
housing prior to six weeks before the TPR hearing supports this ground. Overall,
Father's failure to obtain stable housing and submit to a psychosexual evaluation or
provide the results to DSS constitutes clear and convincing evidence to support this
ground.1
Finally, viewed from Child's perspective, we find TPR is in Child's 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) (providing the best interest of the child is the paramount consideration
in a TPR action); § 63-7-2620 ("The interests of the child shall prevail if the child's
interest and the parental rights conflict."); S.C. Dep't of Soc. Servs. v. Sarah W.,
402 S.C. 324, 343, 741 S.E.2d 739, 749-50 (2013) ("Appellate courts must
1
We decline to address the remaining TPR ground. See S.C. Dep't of Soc. Servs. v.
Headden, 354 S.C. 602, 613, 582 S.E.2d 419, 425 (2003) (declining to address
additional grounds for TPR when clear and convincing evidence justified TPR on
another ground).
consider the child's perspective, and not the parent's, as the primary concern when
determining whether TPR is appropriate."). Although Father regularly visited
Child and the testimony showed Child was bonding with him, we find it was
unlikely Father could provide a suitable home for Child. Although Father's
registry on the Sex Offender Registry may not in and of itself preclude his ability
to provide for Child and parent him, we find it was necessary for Father to submit
to and disclose to DSS and the family court the results of a psychosexual
evaluation before Child could safely be placed with Father. Father had eleven
months between the May 2015 placement plan and the April 2016 TPR hearing,
and he did not do so. Further, Father's failure to maintain stable housing is
problematic, and it is questionable whether he could maintain stable housing if
Child were returned to his custody. Finally, the undisputed evidence showed Child
was bonded with his foster family and they were willing to adopt him; thus, it
appears Child will achieve stability through adoption if TPR is affirmed. Based on
Child's need for permanency and viewed from Child's perspective, we find TPR is
in his best interest.
AFFIRMED.2
SHORT, KONDUROS, and GEATHERS, JJ., concur.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.