On September 22, 2021, a unanimous South Carolina Supreme Court reversed the Court of Appeals and reinstated a family court’s granting of a termination of parental rights (TPR)/adoption in the case of Stasi v. Sweigart, 434 S.C. 239, 863 S.E.2d 669 (2021).
The primary issue in dispute was whether the Mother’s infrequent visitation between December 2014 and September 2017 was “willful”–a threshold requirement under S.C. Code § 63-7-2570(3) to terminate parental rights. That code subsection authorizes termination of parental rights if:
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 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.
Stasi presented multiple issues of interpretation within this subsection. Was the Mother’s failure to visit “willful” or were the circumstances in which she failed to exercise visitation “understandable, even unavoidable”? Were the chance visits when she came to South Carolina for court and her electronic visitation “incidental”? Did the adoptive couple/custodial parties prevent her from visiting? Ultimately the Supreme Court found Mother’s failure to visit was willful and reinstated the TPR/adoption.
In reaching this decision the Supreme Court credited Mother with only two visits during the 33 months time frame at issue. It did not credit her with two short visits when she came to South Carolina for court, finding them incidental. It did not credit her with Facetime visits, finding:
Whether a parent consistently pursues—or often chooses not to pursue—FaceTime or telephone contact can be important evidence on the difficult question of whether the failure to make court-ordered visitation was understandable, or willful. However, FaceTime or telephone contact is not visitation. As the family court judge aptly stated in the November 2018 order, “A parent cannot hug a child or dry a crying child’s tears via FaceTime.”
The Supreme Court noted Mother missed almost 50% of her FaceTime calls including twelve consecutive weeks that ran over a month after she was served with the TPR action. It found her failure to exercise this FaceTime visitation–especially during periods when she was unable to exercise physical visitation, was evidence of willfulness. It further found her more regular exercise of visitation beginning five months after this action was filed was “judicially motivated,” and therefore not a mitigation of her prior failure to visit.
In finding Mother’s failure to visit was willful, the Supreme Court noted she had sometimes promised the child to visit but failed to do so, had three eight-month periods in which she exercised no visitation, and did not visit the Child on twenty-two of her twenty-four court-ordered visitation dates from October 2015 until September 2017. During some of this time, Mother was undergoing intensive mental health treatment in Florida. However the Supreme Court noted she had the option of doing this treatment in Charlotte, North Carolina–thirty minutes from where the child lived–and that her own mother offered to get her an apartment there. However she chose to remain in Florida. The Supreme Court found this undermined her claim that financial and logistical considerations mitigated a lack of willfulness in her failure to visit.
The Supreme Court also found that language in the parties’ prior custody order that Mother’s visitation “shall be suspended” if she did not comply with the conditions in that order (which included provisions for drug testing and counseling) meant that the Stasis could not “forgive” her non-compliance. Thus their refusal to allow her visitation when she failed to obtain drug tests or attend therapy was not evidence that the Stasis prevented her from visiting. The Supreme Court held that if Mother could not meet the conditions the custody order imposed, it was incumbent upon her to ask the family court to modify those conditions.
In concluding Mother’s [Mallory’s] failure to visit was willful, the Supreme Court held:
Mallory’s difficult circumstances make some of her failures understandable. No circumstances, however, can change the fact that on most of the occasions Mallory’s failure to visit the Child was the result of her own conscious choice made with knowledge she was wrong and knowledge she acted against the interests of her daughter. On most of the occasions, Mallory’s failure to visit did not result from the difficulty of her circumstances or the Stasis’ effort to comply with the conditions of visitation set forth in the family court’s custody order. Rather, on most of the occasions when Mallory failed to visit the child, she acted willfully as the term is used in subsection 63-7-2570(3).
Finally, the Supreme Court concluded that TPR and adoption was in the child’s best interests. In contrast to the issue of Mother’s wilfulness, the best interest determination did not appear to be close. The child, who was six years old at the time of the 2018 trial, had lived with the Statis since age two. Their home was essentially the only environment the child had ever known. The child referred to the Stasis as “mom” and “dad” and to their other children as her brothers and sisters. The expert in child development and attachment, testified the child has developed a secure-attachment relationship with the Stasis in the years the child has lived with them.
The Supreme Court noted, in contrast, the Mother’s role in the child’s life was inconsistent at best, nonexistent at worst, and certainly not stable. The same expert testified that Mother’s limited contact was not enough to facilitate a secure-attachment relationship and that forcing a child to do something she adamantly does not want to do can “actually have a negative impact on the relationship between the child and the attachment figure.” The expert further noted that every time the child is forced to see or talk to her mother when she outwardly states she does not want to may hurt her secure relationship with the Stasis. The guardian testified the child constantly begged the Stasis and the guardian before visits and FaceTime calls not to make her see or talk to her mother.
Further, the child referred to Mother as a “liar” on multiple occasions and asked the Stasis and the guardian why her mother lied to her. The child’s therapist testified the child expressed concerns about her mother taking her away from the Stasis. During one of their sessions, the child told the therapist she was scared to leave the Stasis and that she would run away if she had to leave them. The Supreme Court believed resuming visits between Mother and the child after three years would only deepen this fear. As the guardian testified, Mother had not placed the child as a priority in her life. The Supreme Court was further also concerned about Mother’s continuing mental health issues, which, during oral argument, her attorney confirmed remained “significant.” If Mother’s mental illness was still a problem—or worse wass deteriorating—then resuming visits was not in the child’s best interest.
Finally the Supreme Court noted, the child is now nine years old. She has lived with the Stasis since 2014 and has not seen or spoken to Mother since the family court terminated her rights in 2018. It held it was in the child’s best interest to terminate Mother’s parental rights.
Before concluding, the Supreme Court complemented the Statis’ attorneys for seeking oral argument:
We pause here to comment on oral argument. Technically, neither due process nor any other provision of law requires oral argument in a given case. Each judge or appellate panel is entitled to make the decision in each case whether oral argument would be helpful. See Rule 215, SCACR (“The appellate court may decide any case without oral argument if it determines that oral argument would not aid the court in resolving the issues.”). In this case, counsel for the Stasis filed a written request for oral argument at the court of appeals. The court denied the request. On certiorari in this case, this Court—individually and collectively—found oral argument to be very helpful. The question whether Mallory’s repeated failures to visit the Child were understandable, even unavoidable, or whether they were willful, has not been an easy judgment call. From our perspective, oral argument was warranted in this complicated and difficult case.
The attorney who handle the Statis’ initial oral argument, Thomas McDow, is a friend of mine. The Supreme Court’s “pause[d]” comment above is a tremendous complement for an attorney whose appellate advocacy I truly admire.
