CHARLESTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Christine MARCCUCI, Sean Taylor and John Doe, Defendants, of whom Sean Taylor is the Appellant and Sean Taylor, Appellant, v. Helen Taylor and Donald Shappell, Respondents.
No. 27049.
Supreme Court of South Carolina.
Decided Oct. 3, 2011.
Heard May 5, 2011.
721 S.E.2d 768 | 396 S.C. 218
Frampton Durban, Jr., Chief Counsel Charleston County Department of Social Services, of N. Charleston, and Ms. Helen Taylor, of Alpha, New Jersey, for Respondents.
Sean Frеdrick Keefer, of Charleston, and Virginia Cravens Ravenel, of Columbia, for Guardian ad Litem.
Justice HEARN.
Sean Taylor appeals from an order which terminated his parental rights to his six-year-old daughter on three grounds: willful failure to visit, willful failure to support, and the child had been in foster care for fifteen out of the previous twenty-two months. Following a review of the record, we hold that the Charleston County Department of Social Services (DSS) did not meet its burden with respect to the first two grounds and the child‘s placement in foster care for at least fifteen of the last twenty-two months is not a sufficient ground for termination of Taylor‘s rights under the facts of this case. Accordingly, we reverse.
FACTUAL/PROCEDURAL BACKGROUND
The minor child who is the subject of this action was born on September 16, 2005, to Taylor and Christine Marccuci. In February 2006, she was removed from her parents’ custody by the New Jersey Social Sеrvices Agency when Taylor was arrested for excessively disciplining Marccuci‘s older child1 and Marccuci could not be located. During this removal period, which lasted approximately five months, his daughter
Taylor moved in with Marccuci and his daughter at the Value Inn Hotel in North Charleston in October, planning to stay until he earned enough money to return to New Jersey with his child. On January 23, 2008, poliсe came to the hotel looking for Marccuci after she failed to show up at her job.4 Following a background check on Taylor, the police inexplicably and erroneously reported he had an outstanding warrant for rape in New Jersey.5 Consequently, Taylor was arrested and taken away in chains, and his daughter, then two years old, was placed in DSS protective custody.
Taylor‘s travel to South Carоlina was a violation of his probation, which ultimately resulted in his incarceration in New Jersey for five months. However, Taylor was still in jail in South Carolina at the time of the probable cause hearing concerning the child‘s removal held on January 28, 2008, and appeared pro se.6 The Grandparents traveled to South Car
Taylor was released from jail on June 3, 2008. However, he remained subject to the order restraining him from having contact with his daughter and admittedly made no motion to rescind that order, relying instead on his belief that the plan was still for the child to be placed with his parents in New Jersey after the interstate compact study had been completed. Following completion of that home study in August 2008, no transfer of custody occurred so the Grandparents movеd for an expedited hearing to have it done. On December 16, 2008, that hearing was held and the family court, by order dated March 9, 2009, mandated a two-week transition period with Ms. Taylor7 in Charleston where she would “participate in a therapeutic clarification” with her granddaughter. It is noteworthy that by this point in time, the minor child had been in seven foster placements, none of which had apparently involved a transition pеriod for “therapeutic clarification.”
The Grandparents attempted to obtain relief from the twoweek transition period, but were unsuccessful and ultimately traveled to South Carolina for the transition at their own expense and began visits with the child, which were taped at
From the time this little girl was taken into custody until the issuance of the merits order on the removal, this case can best be described as a procedural morass. The action began in a timely manner on January 28, 2008, with the probable cause hearing.8 The merits hearing was schеduled for February 28, but the court continued it upon the motion of Taylor‘s guardian ad litem once it was clear the case was contested. At some point, the merits hearing was set for June 4. However, a pre-trial hearing scheduled for May 13 was continued until June 18 because no judge was available; the June 4 merits hearing accordingly was rescheduled for October 1. For some reason not apparent in the record, this heаring was continued again. Frustrated at the lack of progress in this case, the Grandparents moved for an expedited placement hearing, but that too was continued on December 8 for unknown reasons. On January 22, 2009, the hearing on the expedited motion was again continued.9 The merits hearing
Before the removal action had been resolved, however, DSS had already initiated this TPR action against Taylor and Marccuci alleging willful failure to visit, willful failure to support, and the fact that the minor child had been in foster care for at least fifteen of the last twenty-two months. On August 10, 2010, the family court issued a final order terminating Taylor and Marccuci‘s rights оn all of the alleged grounds. This appeal followed.
LAW/ANALYSIS
It is well settled that before parental rights can be forever terminated, the alleged grounds for the termination must be established by clear and convincing evidence. Richberg v. Dawson, 278 S.C. 356, 357, 296 S.E.2d 338, 339 (1982); Charleston Cnty. Dep‘t of Soc. Servs. v. Jackson, 368 S.C. 87, 95, 627 S.E.2d 765, 770 (Ct.App.2006). Moreover, on appeal,
(3) The child has lived outside the home of either parent for a period of six months, and during that time the parent has willfully failed to visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child‘s placement from the parent‘s home must be taken into consideration when determining the ability to visit.
(4) The child has lived outside the home of either parent for a period of six months, and during that time the parent has willfully failed to support the child.
While Taylor cannot be excused for violating his probation by coming to South Carolina in search of Marccuci and the minor child, it appears that DSS‘s case against him was initially fueled by the erroneous information supplied by the police that he had an outstanding warrant for rape in New Jersey. He was thеn enjoined from visiting with his daughter at the probable cause hearing, which presumably would not have been warranted but for the erroneous information about the pending New Jersey charge. Thereafter, Taylor was extradited to New Jersey where he served a five month prison sentence for violating his probation, during which it was impossible for him to visit his daughter. Afterwards, he was
Additionally, we disagree that there was clear and convincing evidence that Taylor willfully failed to support the minor child. Taylor testified that he had no income while incarcerated, had no job for some time when released, and that he tried to support the child once he did have gainful employment but was unaware of the location of the child or even how to pay any support to DSS. Once a court order was in place for Taylor to pay support for the child, he immediately paid on time and was never in arrears. This conduct certainly does not evince a settled purpose to forego his obligation to support his child, and we therefore hold the family court erred in terminating Taylor‘s rights on this ground.
The family court also terminated Taylоr‘s parental rights on the ground that the minor child had been in foster care for at least fifteen out of the last twenty-two months, per
Here, there is substantial evidence that this little girl languished unduly in foster care not because of any actions, or inactions, by Taylor, but because the delays generated and road blocks erected in the removal action made it impossible for the parties to regain legal custody of her prior to the expiration of the fifteen month period. Several continuances of the removal action were ordered, only one of which was requested by Taylor through his guardian. Taylor continued to contest his daughter being in the custody of DSS throughout the entire process, despite not being able to appear himself in many instances because he was incarcerated and subject to his probation. In fact, DSS initiated the TPR proceedings while the removal action—the very action that would determine whether the child was properly placed into foster care in the first place—was still pending and contested. Taking our own view of the evidence, we find that Taylor did not sit idly by while his child was in foster care, but rather he was stymied by the system chаrged with the responsibility of protecting this child and reuniting her with her father if possible. The various continuances requested by other parties were largely the reason the child had remained in foster care for fifteen months at the time the TPR action was filed, and under these circumstances, we hold that this ground should not serve as the basis for terminating this father‘s parental rights.
As a final matter, we turn briefly to the purpose behind the TPR statute itself:
[T]o establish procedures for the reasonable and compassionate termination of parental rights where children are abused, neglected, or abandoned in order to protect the health and welfare of these children and make them eligible for adoption by persons who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.
However, this child was neither abused, neglected, nor abandoned11 by Taylor. Indeed, it is undisputed that at the time she was taken into protective custody, she was healthy, clean, and neatly dressed. Moreover, there is no indication in the record that she had any behavioral problems at the time she was removed from her father. In fact, Dr. Elsey testified that when he saw her on March 7, 2008, “[s]he was a verbal, very pleasant little two year old.” Although he stated she had symptoms of Reactive Attachment Disorder, he also testified that this disorder arises in children who have been separated from their parents.
We also express our concern аbout the numerous unexplained delays in the removal action, as well as DSS‘s apparent reluctance to return this little girl to the Grandparents despite the fact that they previously had served as foster parents. Moreover, DSS‘s insistence on a two-week “therapeutic clarification” period for the Grandparents even after the interstate compact had been complied with seems esрecially inexplicable, particularly given the child‘s placement with seven sets of strangers where no transition period was required. While removing this little girl from her father‘s care and custody in the face of his probation violation may have been warranted, the sole basis for probable cause contained in the caseworker‘s affidavit was the outstanding rape warrant, not the probation violation. Moreover, the continued procedural road blocks which prevented the expeditious return of this child had tragic consequences for this family, especially for this little girl who has been deprived of the opportunity to develop a relationship with her father over the past three and half years.
Accordingly, we hold that Taylor‘s parental rights should not be terminated based on willful failure to support, willful failure tо visit, or that the minor child has been in foster care for more than fifteen months. The order of the family court is therefore reversed,12 and we direct DSS to immediately implement a plan for the reunification of Taylor and his daughter or, in the alternative, for placement of the minor child with the Grandparents in New Jersey until that reunification can be achieved, effective immediately upon the filing of this opinion.
TOAL, C.J., BEATTY, and KITTREDGE, JJ., concur.
PLEICONES, J., dissenting in a separate opinion.
Justice PLEICONES.
I respectfully dissent and would affirm the order terminating appellant‘s parental rights as I find clear and convincing evidence supports the family court‘s decision. Richland County Dep‘t of Soc. Servs. v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998). Appellant‘s remaining issues are not properly before the Court. Robinson v. Estate of Harris, 391 S.C. 114, 705 S.E.2d 41 (2011) (unchallenged ruling, whether correct or not, is law of the case); S.C. Dep‘t of Transp. v. Horry County, 391 S.C. 76, 705 S.E.2d 21 (2011) (issue must be raised and ruled upon to be preserved for appellate review).