SC Department of Social Services v. Mathews ( 2004 )

THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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South Carolina Department of Social Services, Respondent,

v.

Debra Mathews and John Doe the unknown father of Letisha Mathews, and Letisha Mathews DOB 4/19/93,        Defendants,

of whom Debra Mathews is Appellant.

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Appeal From Marion County
Mary E. Buchan, Family Court Judge

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Unpublished Opinion No. 2004-UP-331
Submitted May 12, 2004 – Filed May 17, 2004

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AFFIRMED

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Mary Jaques Ryan, of Loris, for Appellant.

Timothy H. Pogue, of Marion, for Respondent.

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PER CURIAM:  Debra Mathews appeals the termination of her parental rights. [1]   We affirm.

FACTS

The South Carolina Department of Social Services (“DSS”) commenced this action after taking emergency protective custody of Letisha Mathews.  Letisha, a minor child born on April 19, 1993, suffers from cerebral palsy.  Letisha has special needs, illustrated by the fact that she walks with a limp, has a speech deficiency, and requires special medical care.      

On February 21, 2001, following a hearing pursuant to section 20-7-610 of the South Carolina Code, the family court issued an order granting DSS custody of Letisha.  The court based its ruling primarily on the fact that on several occasions, no one was present to care for Letisha when she returned home from school. [2]   The order also mentions that Ms. Mathews was informed of her right to have an attorney and the procedure by which she could have one appointed.

On February 23, 2001, after a merits hearing and pursuant to an agreement between the parties, the court affirmed its award of custody to DSS, and ruled that a treatment plan presented to Ms. Mathews by DSS was fair, equitable, and in the best interests of Letisha.  This order reflects that prior to the hearing, Ms. Mathews was properly served with notice of her right to counsel. 

The parties attended a permanency planning hearing on January 29, 2002.  On February 8, 2002, the court issued an order finding it would be in Letisha’s best interest to remain in the custody of DSS, that DSS should seek termination of Ms. Mathews’ parental rights, and that DSS continue the treatment plan it presented at the merits hearing.  The order notes that per her request, Ms. Mathews was allowed to represent herself.  

On April 3, 2002, DSS filed a complaint seeking termination of Ms. Mathews’ parental rights.  The complaint alleged, among other things, that Letisha had been removed from her home for at least six months and Ms. Mathews had failed to remedy the conditions that caused her removal. [3]   The parties met for a hearing on July 23, 2002.  Deciding her rights should be terminated, the family court relied in part on the testimony of Dr. Neely, who performed psychological evaluations of Ms. Mathews.  In Dr. Neely’s opinion, Ms. Mathews is unable to properly care for Letisha without having someone present to provide assistance.  The court issued its order terminating Ms. Mathews’ parental rights on September 4, 2002.  Ms. Mathews was represented by counsel at the final hearing.           

ISSUES

1. Did the family court err in ruling DSS proved by clear and convincing evidence that Ms. Mathews failed to remedy the conditions leading up to the removal of her child?
   

2. Did the family court err in allowing Ms. Mathews to represent herself at all hearings other than the final termination of parental rights hearing?

STANDARD OF REVIEW

“In a termination of parental rights (TPR) case, the best interests of the children are the paramount consideration.” Doe v. Baby Boy Roe, 353 S.C. 576, 579, 578 S.E.2d 733, 735 (Ct. App. 2003) (citing South Carolina Dep’t of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct.App.2000)).  Before a parent’s rights may be terminated, the alleged grounds for termination must be proven by clear and convincing evidence.  Dep’t of Soc. Servs. v. Mrs. H, 346 S.C. 329, 333, 550 S.E.2d 898, 901 (Ct. App. 2001). 

On appeal, this court may review the record and make its own determination of whether the grounds for termination are supported by clear and convincing evidence.  Id.; see also South Carolina Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 509 (Ct. App. 2001).  However, despite this broad scope of review, this court is not required to disregard the findings of the family court nor ignore the fact that the trial judge was in a better position to evaluate the credibility of the witnesses.  Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996). 

DISCUSSION

I.       Clear and Convincing Evidence

Ms. Mathews first argues the family court erred in ordering termination of her parental rights because DSS failed to prove by clear and convincing evidence that she failed to remedy the conditions leading up to her child’s removal.   Specifically, Ms. Mathews attacks the quality of Dr. Joe Neely’s investigation and makes a concomitant allegation that certain witnesses merely adopted the doctor’s position.   The evidence in the record, however, belies this argument.

Dr. Neely had an adequate opportunity to examine Ms. Mathews and arrive at his conclusions.  The family court judge assigned weight to Dr. Neely’s testimony, and we concur with this assessment. In fact, Ms. Mathews’ objective living of life falls in line with his opinion that she is a “very impulsive woman who does not make really good decisions.”

Ms. Mathews’ lifestyle reflects a pattern of placing her own interests above Letisha’s interest.  In 1998, for example, Ms. Mathews placed Letisha with some friends while she went on “vacation” with a truck driver.  Ms. Mathews informed her friends that she would return for Letisha in a week.  After several weeks with no word from Ms. Mathews, these friends notified DSS.  DSS took custody of Letisha.  Similarly, since Letisha was first removed from Ms. Mathews’ home at the start of the current action, Ms. Mathews has moved seven different times.  She also has had many different boyfriends during this period.

There are also Ms. Mathews’ repeated failures to meet Letisha when she arrives home from school, or to make arrangements for someone else to meet Letisha at the bus stop.  This resulted on many occasions the school bus driver having to return Letisha to school.  In fact, the current action began after the fifth such incident.  On another occasion, an earlier investigation revealed that Donald Green, one of Ms. Mathews’ male friends and the person supposedly taking care of Letisha, smelled of alcohol.  Although the treatment plan proposed by DSS mandated that Ms. Mathews attend anger management classes, she openly admitted she still has problems controlling her temper.

Considering this history, there is more than enough evidence in the record to support Dr. Neely’s testimony, and particularly his opinion that if Letisha were returned to Ms. Mathews “there should be an extremely high level of supervision.” 

As for Ms. Mathews’ allegation that DSS’s other witnesses merely “rubber stamped” Dr. Neely’s opinions, the record does not support this contention.  It is clear from the record each of these witness had an independent history of dealing with Ms. Mathews, and each had the opportunity to arrive at their own conclusions regarding her fitness as a parent and, significantly, the likelihood Ms. Mathews would remedy the conditions which necessitated removal.

For instance, Peggy Bryant testified to much of the behavior outlined above.  She further testified to being present at times when she felt Ms. Mathews’ behavior towards Letisha was inappropriate. Finally, Ms. Bryant testified that DSS sought to terminate Ms. Mathews’ parental rights based on her failure to rehabilitate.  According to Ms. Bryant, as of January 2002, Ms. Mathews failed to complete a number of objectives outlined in the treatment plan.  Of particular importance was Ms. Mathews’ failure to understand the importance of providing appropriate supervision and stable housing for Letisha.  Although Ms. Bryant did testify that DSS relied in part on Dr. Neely’s opinion in making its determination that Ms. Mathews would be unable to complete her rehabilitation, it is clear Ms. Bryant arrived at her own conclusions regarding Ms. Mathews’ fitness as a parent.

Similarly, Mrs. Marley, the guardian ad litem, testified about her experiences with Ms. Mathews.  Although Mrs. Marley testified she agreed with Dr. Neely’s opinion that Ms. Mathews repeatedly makes poor decisions, she provided specific examples which gave rise to her independent conclusions.  Specifically, Mrs. Marley stated, “I have observed mom in many different homes with different relationships.  And I – and that’s my opinion. It happens to be the doctor’s.”  As such, it is clear Mrs. Marley did not merely adopt Dr. Neely’s opinion as her own.    

In an attempt to bolster her position that the conditions leading up to removal of Letisha have been remedied, Ms. Mathews mentions that her mother, Mrs. Robinson, agreed to move into her home to provide Letisha with after-school care.  However, as DSS correctly points out, this is not exactly a true assertion.  Mrs. Robinson testified that while she would be willing to watch Letisha after school, she would not be able to live with them because she had her “own home to run, too.”    Mrs. Robinson also testified that Ms. Mathews never asks for her help when there is a man in her house.  The limitations Mrs. Robinson places on her ability to care for Letisha are significant when one considers Ms. Mathews’ history of frequent moves and her habit of dating a number of men for short periods of time. 

Because we find the evidence supports the family court’s findings, findings with which we concur, we conclude DSS established that Ms. Mathews’ parental rights should be terminated by clear and convincing evidence.

II.      Counsel

Ms. Mathews argues on appeal that the family court erred in allowing her to represent herself at all hearings other than the final termination of parental rights hearing.  As an initial matter, this issue was not properly preserved for our review.  From the record it does not appear any challenges were made to the family court raising this issue. At the very least, there was no specific assignment of error, although the record does contain testimony related to the absence of an attorney. 

In addition, the family court’s final order is completely silent as to this issue.  If it were an issue as Ms. Mathews now asserts, appellate preservation rules would have required a Rule 59(e), SCRCP motion.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (stating that an issue cannot be raised for the first time on appeal, the issue must have been raised to and ruled upon by the trial court). In this case, such a motion was not made.  Therefore, technically this argument is not preserved for our review.

However, because we understand the importance of thoroughly reviewing matters where termination of parental rights is at stake, we have examined this alleged point of error even though it was not properly preserved.  See Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000) (holding that it is not error to rule on an issue raised to but not ruled on by the family court because “procedural rules are subservient to the court’s duty to zealously guard the rights of minors”).

Ms. Mathews would have us assign weight to the absence of an attorney in all hearings other than the final termination of parental rights hearing.  This position is heightened by an effort on appeal to cast herself in a more deficient light mentally than the record actually supports. Ms. Mathews, in this court, seeks to draw an inconsistency between Dr. Neely’s opinion that she possesses a “borderline to low average range intelligence,” and the trial court’s determination that she was able to waive her right to counsel and represent herself.  We find no reversible error.

While we do have concerns with Ms. Mathews’ mental state, it is clear from the record she is able to function in society.  It may be true that she does function in the low to average range of intelligence, but this alone is not dispositive of the question before us.  Many good parents fall within this category and are still able to care for their children. 

Our review convinces us that Ms. Mathews possesses the necessary level of mental functioning to competently waive her right to counsel and should she choose to, act as a fit parent.  However, we agree with the family court and arrive at the conclusion that Ms. Mathews’ parental rights were properly terminated.  This determination does not arise from her purported deficient mental status, but from the lack of stability in her life and her consistent pattern of exercising poor judgment as far as the care of her daughter is concerned. 

As noted previously, Ms. Mathews has a history of following her own interests in lieu of Letisha’s.  In 1998, DSS exercised protective custody of Letisha after Ms. Mathews failed to return from a vacation. On five occasions, Ms. Mathews has failed to ensure someone was home to care for Letisha after school.  Although she asserts her mother will move in to help her take care of Letisha, her mother admits she has her own house to run and Ms. Mathews does not ask for help when there is a man in her life.  To this end, Ms. Mathews has a history of dating men, but not for significant periods of time.  She has moved seven times since the current action began.  Ms. Mathews has repeatedly made poor decisions and admits she does not always think before she acts.  She also admitted to having problems controlling her temper. 

It is the type of behavior outlined above which triggered the treatment plans promulgated by DSS.  It is also clear from the record she had the ability to comply with the plans, as she did in part.  However, it is the cumulative effect of this history that persuades us of the correctness of the trial court’s ruling and that termination of Ms. Mathews’ parental rights is in Letisha’s best interest. 

CONCLUSION

The family court’s decision to terminate the parental rights of Ms. Mathews is

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur. 

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[1]        Although the case originally included John Doe, Letisha’s unknown father, only Ms. Mathews appeals from the family court’s ruling.

[2]        Specifically, the order states the complained of incident was the fifth time Letisha returned home during the school year without proper supervision. 

[3]        See S.C. Code Ann. § 20-7-1572(2) (Supp. 2003).