Hopkins v. South Carolina Department of Social Services

Toal, Justice,

dissenting:

I agree that the facts of this case are tragic; however, I must respectfully dissent. The majority opinion, in affirming *331the family court, completely ignores the best interests of the child as well as a critical piece of legislation which governs the termination of parental rights.

The minor child, who will be nine years old in July, and his sister, who is almost eleven, have suffered repeated abuse and turmoil. This abuse was a product of the natural mother’s itinerant behavior which began with her separation from the legal father. During her separation, she met and participated in a liaison with the minor child’s natural father. The natural mother lived with the natural father from September to November 1983, when she left to return to the legal father. In the following July of 1984, the minor child was born.

The natural mother finally obtained a divorce from the legal father and started a nomadic lifestyle leading her and the children through different towns and different men. Throughout this time, the natural mother had contact with the natural father. During these initial contacts, the natural mother was evasive and contradictory about the actual paternity of the child. This ambiguity, however, did not completely assuage the natural father’s suspicions about his relationship to the child. The record reflects that the natural father was aware that the minor child was born, and further that he “always knew” the minor child was his son.

In 1985, the natural mother called the natural father from Kansas City to ask for help because the man she was currently living with had been assaulting her and her children. The natural father’s parents went to Kansas City and returned with the natural mother and her children. The natural father had recently married another woman and was very concerned about becoming too involved with the natural mother or her children. This concern for his marriage continued to outweigh the minor child’s distress. The facts show that during the period of greatest abuse, the natural father, out of fear for his marriage, was unwilling to pursue any option to provide support, or to retrieve the child from a known detrimental situation. The natural father ignored the minor child’s dilemma leaving his son to face his plight without parental support.

The children’s situation continued to deteriorate until finally, in November of 1987, they were found living in an *332apartment with no heat. The children’s clothing reeked of gasoline from sleeping in a car, and they had not eaten for two (2) days. The natural mother and her current husband had no money and were without any legal means of support. To compound the squalid living conditions, it soon became apparent that the minor child’s half-sister had been repeatedly sexually molested by her stepfather, with her natural mother’s knowledge. The effects of this abuse remained with the children in foster care where both children exhibited grossly inappropriate sexually imitative behavior and language.

The children were taken into emergency protective custody by the S.C.D.S.S. and placed in the physical custody of the foster parents in December of 1987. From that date forward, the foster parents began the difficult healing process to return the children to some semblance of a normal life. The children have received psychological counseling where the psychologist in his report acknowledges that a significant bond exists between the minor child and his sister. At the time of the original hearing, the children would not sleep apart, fearing any type of separation. To this day, the horror of their shared experiences has created a strong interdependence between the siblings.

After being taken into protective custody over five years ago, both children have bonded with their foster parents. The sister was adopted by the foster parents, and contrary to what the majority would have us believe, cannot be adopted or placed into the custody of the minor child’s natural father. The attempt to repair the emotional damage continues, but the efforts are severely handicapped by the repeated battles surrounding the minor child’s custody.

Today, with the Court’s decision, the minor child is threatened with relocation and another traumatic split from the few sources of support which he has come to rely on through these troubled years. The treating psychologist and the Guardian ad Litem both agree that the separation from his sister will do significant harm to the minor. Additionally, it must be recognized that this separation will also cause significant emotional harm to the minor child’s sister. The relocation from the foster parents, especially at this late date, is further recognized as a source of harm to the minor child. The very people in the *333minor child’s life who are responsible for his long-term recovery will now be shut out from the child.

The natural father, who now has several children from a different marriage, appears to be distinctly unqualified to heal any emotional scars borne by the minor child. Consistently, the natural father has placed his own needs over those of the minor child. The record is replete with excuses for not visiting the child or for sending any support. When given an opportunity to assist in either sending gifts or child support, the natural father is quick to proffer reasons for noncompliance; yet, when the child was suffering the horrible abuse leading to his protective custody, the natural father was nowhere to be found.

The true dilemma is that the natural father has “slept on his rights,” and now after many years, for whatever motivation, he has chosen to disrupt the lives of two innocent children. In 1988, the natural father was subpoenaed and appeared in court over the possibility of paying child support. His response was to demand a paternity test prior to making any payment. In 1989, the court recognized the natural father’s paternity, and the repeated procrastination came to an end. It was at this same hearing that the natural father was ordered to pay support within his means. The S.C.D.S.S. was ordered to begin a treatment plan which would place permanent custody of the minor child with the natural father.

Despite the court’s ruling, more disruptive events were ahead for the children. The horror continued even during the pendency of this action when the minor child and his sister were kidnapped. The kidnapping, which was reported publicly and resulted in a federal criminal charge, was perpetrated by the natural mother who was terminated in an earlier family court proceeding. The children were transported to Missouri, coincidentally the home of the natural father, where they were met by the natural father. This turn of events spawns several lingering questions which remain unanswered, at least in the record before the Court. Although the children were met by police officials, there has been no satisfactory explanation proffered for the natural father’s involvement.

Now, almost nine years from the child’s birth, the natural father is on the verge of receiving custody. This may seem a *334triumph for the natural father, but the simple reality is that two children’s lives will be forever affected. The majority speaks to the issue of visitation in their opinion, but strangely absent is the law which clearly applies to these facts.

The General Assembly has provided statutory direction on the termination on parental rights. S.C. Code Ann. § 20-7-1572 (1985), provides that “[t]he Family Court may order the termination of parental rights upon a finding of one or more of the following grounds.” Subparagraph (4) of the same section is relevant to the case at bar. It provides:

The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to support the child. Failure to support means that the parent has failed to make a material contribution to the child’s care when contribution has been requested by the custodian of the child. A material contribution consists of either financial contributions according to the parent’s means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent’s means_Id.

Of more than passing interest is the 1992 amendment to this subparagraph which eliminated the requirement for a requested contribution, and instead made this merely a factor to be considered. S.C. Code Ann. § 20-7-1572(4) (Supp. 1992). This amendment further liberalizes the impact of the statute and is indicative of the legislature’s intent that the best interests of the child should prevail.

S.C. Code Ann. § 20-7-1578 (1985) delineates how the termination of parental rights statutes are to be construed. It provides that:

[the statutes] 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.

Id.

We had the opportunity to look briefly and rely on this *335statute in our earlier case of S.C. Dept. of Social Services v. Vanderhorst, 287 S.C. 554, 340 S.E. (2d) 149 (1986). Vander-horst involved an unrelated issue (right to counsel at a termination of parental rights hearing), but in the instructions for remand, we reiterated the statutes’ mandate that, “the best interests of the children shall, of course, continue to be the paramount consideration.”

In a termination of parental rights action, it is necessary for the court to continually look towards a child’s best interest. On the facts before us, it is clear that the minor child’s interests would not be best served by preserving the natural father’s parental rights.

The S.C.D.S.S. requested a material contribution from the natural father, and he has failed to comply. The court ordered the amount of support to be paid in reliance on the income statement provided by the natural father. The established support amount of $20 a week was not excessive and, by his own admission, well within the natural father’s ability to pay. The only conclusion which can be drawn from the facts is that the natural father wilfully failed to provide the requested support. This inaction places the natural father squarely within the provisions of § 20-7-1572(4).

The natural father, in conjunction with the court and D.S.S., determined the amount of child support to be paid. If the natural father is having difficulty meeting his parental and legal obligations to financially support his minor child, then an attempt should be made to have the amount amended. Here the natural father, after freely negotiating his financial commitment, stopped paying child support completely without asking for any modification. This fact is clear and convincing evidence that the natural father has not complied with his court-ordered support obligation.

Moreover, there is no evidence that the natural father has ever had a bond or relationship with the minor child. Regardless of the reasons, the unfortunate truth is the minor child has not developed the close connection with the natural father that is necessary to overcome the child’s past history of abuse. On the other hand, the minor child has two very distinct and deeply rooted bonds with his foster parents and his half-sister. The foster parents are providing the guidance, love, and *336direction that are so critical to a child with this complicated past. The bond between brother and sister is even more compelling. The siblings were in effect traumatized together and the strong bond that ensued was of the character that only grows from a shared adversity.

The Guardian ad Litem and the child psychologist assigned by the S.C.D.S.S. to the case both recognize the strong emotional bond the minor child has with his half-sister. Their opinions strongly point to the need for minimum disruptions in the child’s life. For the best interests of the child, it is imperative for the child to remain with his half-sister, and to begin a new life unencumbered by conflicting emotions and parental claims.

I feel that the family court erred in not terminating the natural father’s parental rights. The evidence demonstrates clearly why the minor child must take precedence over the parent. The natural father has wilfully ignored the support obligation which he helped establish. Further, the potential psychological harm the minor child will suffer from being separated from his sister and his foster parents far exceeds the benefit of maintaining a parent/child relationship which never really existed.

The natural father chose to wait several years before any attempt was made to acknowledge what he “knew in his heart.” The minor child could not, unfortunately, wait that long. The pattern of abuse and neglect continued to increase until it finally attracted the attention of the state. A basic fact of life, which the majority chooses to ignore, is that children grow and develop regardless of the situation surrounding them.

The natural father, by waiting until it was convenient for him, did nothing to prevent the child’s suffering. In Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed. (2d) 297 (1979), the Supreme Court rejected a due process challenge to a termination of parental rights action by noting that, “[pjarental rights do not spring fullblown from the biological connection between parent and child. They require relationships more enduring.” 441 U.S. at 397, 99 S.Ct. at 1770. In Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed. (2d) 614 (1983), the Supreme Court held that the state was not *337compelled to accept a natural father’s opinion as to the best interest of the child where the natural father failed to accept the responsibility and make contributions to the child’s development. A reading of these cases points to the simple rule that children cannot wait.

If true concern for the child was ever in the natural father’s thoughts, it would have resulted in a report to the appropriate authorities years before the child was discovered freezing in a car. The natural father consistently placed his own desires ahead of the minor child and continues to demonstrate his disinterest by not paying the ordered child support. While the natural father slept on his rights, the minor child suffered. When asked to accept responsibility for the child, the natural father delayed, and when finally asked to contribute, the natural father responded with excuses. Children cannot wait on a parent to do the right thing, nor can a child place his life on hold while a parent learns responsibility.

It must also be noted that during the length of time that this case has been pending, almost four years, several rather significant events have occurred which are not developed in the record before us. In Georgetown County Department of Social Services v. Phipps, 278 S.C. 64, 292 S.E. (2d) 184 (1982), we stated that the best interests of the children could not be determined because of the considerable time which elapsed after the granting of custody. Acknowledging the staleness of the record, we remanded for a trial de novo based on a shorter time period than presented here. Id. Stare decisis and basic fairness to this child dictate that at a minimum, a remand for trial de novo is required; however, I maintain that the record before us provides clear and convincing proof which supports the termination of the natural father’s parental rights.

For these reasons, I would reverse the family court and terminate the natural father’s parental rights, or in the alternative, grant a remand for a trial de novo.

Littlejohn, Acting Associate Justice, concurs.