Joiner ex rel. Rivas v. Rivas

HUFF, Judge,

dissenting:

I.

On appeal, the mother argues that clear and convincing evidence does not support termination of her parental rights pursuant to S.C.Code Ann. § 20-7-1572(2) because Alex had not lived outside her home for a period of six consecutive months immediately proceeding the termination. Because this issue was neither raised to nor ruled upon by the trial court, it may not be considered on appeal. See South Carolina Department of Social Services v. Father and Mother, 294 S.C. 518, 366 S.E.2d 40 (Ct.App.1988) (issue which was not raised below cannot be considered on appeal); Wilder Corporation v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998) (issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review).

II.

The mother also asserts the family court erred in determining she had not remedied the conditions which caused Alex’s removal pursuant to § 20-7-1572(2). I disagree.

S.C.Code Ann. § 20-7-1572(2) (1985) provided at the time of the hearing that the family court may order termination of parental rights where:

The child has been removed from the parent pursuant to § 20-7-736, has been out of the home for a period of six months, and despite a reasonable and meaningful effort by the agency to offer appropriate rehabilitative services, the *656parent has not remedied the conditions which caused the removal.

It is well established that grounds for termination of parental rights must be proved by clear and convincing evidence. Richland County Department of Social Services v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998). In reviewing a termination of parental rights, this court has authority to review the record and make our own findings of whether clear and convincing evidence supports the termination. Id.

The mother would have this court hold that she has “remedied” her drug addiction problem because she has “been drug-free since June 8, 1996.” Although the record shows a short period of progress by the mother in her latest treatment, the mother has a history of relapses and failure to follow through with treatment. It is undisputed the mother tested positive for cocaine in April, May, and June of 1996, while she was undergoing drug rehabilitation treatment. The record further reveals the mother has a history of failing to follow through with treatment programs, as evidenced by her failure to attend LRADAC sessions when Alex was returned to her, and her failure to follow through with the Lancaster Recovery intensive step program after the May 1996 positive drug test. I find clear and convincing evidence the mother has not remedied the conditions which caused removal.

III.

Next, the mother asserts the family court erred in finding clear and convincing evidence that termination of her parental rights was appropriate under § 20-7-1572(6). Specifically, she argues the evidence shows there has already been a change in her “diagnosable condition.” I disagree.

S.C.Code Ann. § 20-7-1572(6) (1985) provides in part that the family court may order termination of parental rights upon a finding that:

The parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction ... and the condition makes the parent unlikely to provide minimally acceptable care for the child.

*657In determining the mother’s drug addiction was unlikely to change within a reasonable time, the family court considered the testimony of Penny Thorne, a certified addictions counsel- or with the dual diagnosis program. Thorne testified the program was designed to move along carefully and slowly so as to avoid a setback. Because the program was new, no one had yet completed it, but she anticipated client participation in the program to be from six to nine months. The mother started the program in June 1996 and therefore would not be expected to complete the program until sometime between December of 1996 and March of 1997. Further, Thorne admitted that even if the mother successfully completed the program, there was no guarantee she would, at that time, be able to provide proper parental care for Alex. Thorne also admitted that the projected success rate of the dual diagnosis program was far less than 30%. In addition to Thorne’s testimony, the family court considered evidence of the mothers’s failure to respond to previous drug rehabilitation efforts. I agree with the family court that these considerations, together with Alex’s young age and the level of care and responsibility commensurate with providing care for a young child, constitute clear and convincing evidence that the mother’s drug addiction is unlikely to change within a reasonable amount of time such that she can be expected to provide the child with minimally acceptable care.

IV.

The mother next asserts this court should reverse and vacate the termination order because the family court refused to allow her sufficient time to complete the dual diagnosis program in which she was enrolled at the time of trial. In support of this contention, the mother directs this court’s attention to the holding in South Carolina Department of Social Services v. Smith, 311 S.C. 426, 429 S.E.2d 807 (1993).

In Smith, the family court terminated the parental rights of two mildly retarded parents pursuant to § 20-7-1572(6). The Supreme Court reversed, holding that clear and convincing evidence did not support termination of parental rights under § 20-7-1572(6) where (1) the parents had been accepted into a program designed to educate mentally retarded persons in parenting skills, family planning, and sexuality, and (2) DSS’s *658own witness, a clinical psychologist, testified the parents could benefit from the program and should be given the opportunity to do so.

The facts of this case are clearly distinguishable from those before the Court in Smith. In Smith, due to the parents’ mental retardation, no treatment plan or rehabilitation plan was proposed by DSS. In the instant case, however, the mother had already been offered and participated in drug rehabilitative services and had established a history of relapsing into drug use despite treatment. Moreover, the potential benefit of the dual diagnosis program is questionable given the low projected rate of success as established at trial. Finally, the Smith court established a “reasonable time” limit of no more than one year from the date the parents were accepted into the program, for the family court to reconsider termination of parental rights. Here, after learning of the mother’s positive drug test in August 1995, DSS implemented a new treatment plan, which included treatment for drug and alcohol problems. Thus, the mother had already been in drug rehabilitation treatment for approximately one year at the time of the September 1996 trial of this case. My reading of Smith does not convince me that the Supreme Court intended that every parent facing termination of parental rights pursuant to § 20-7-1572(6), regardless of that parent’s treatment history, be granted time to complete every treatment program the parent enters. Such a reading would lead to absurd results. Indeed, a parent could avoid termination indefinitely by simply enrolling in one treatment program after another.

V.

Finally, the mother asserts the family court erred in failing to appoint an independent guardian ad litem for Alex in the termination proceedings. As with the first issue, this argument is made for the first time on appeal. It was neither raised to nor ruled upon by the trial court and therefore is not preserved for our review. See South Carolina Department of Social Services v. Father and Mother, 294 S.C. 518, 366 S.E.2d 40 (Ct.App.1988) (issue which was not raised below cannot be considered on appeal); Wilder Corporation v. Wilke, 330 S.C. 71, 497 S.E.2d 731 (1998) (issue cannot be raised for the first time on appeal, but must have been raised *659to and ruled upon by the trial judge to be preserved for appellate review).

Accordingly, I would affirm the order of the family court.