South Carolina Termination of Parental Rights: Essential Lessons from Stasi v. Sweigart on Willful Failure to Visit

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South Carolina Termination of Parental Rights: Essential Lessons from Stasi v. Sweigart on Willful Failure to Visit

Understanding Termination of Parental Rights in South Carolina Family Court
The South Carolina Supreme Court’s 2021 decision in Stasi v. Sweigart, 434 S.C. 239, provides critical guidance for family law attorneys handling termination of parental rights (TPR) cases involving willful failure to visit. This landmark ruling reversed the Court of Appeals and reinstated the family court’s termination order, establishing important precedents for evaluating parental intent and the child’s best interests.

Case Background: Complex Family Dynamics and Mental Health Challenges
The Parties and Initial Custody Arrangement
In this emotionally charged case, Mallory Sweigart’s parental rights to her nine-year-old daughter were at stake. The child had lived with her maternal aunt and uncle, Brittney and Lukas Stasi, since December 2014, when the child was just two years old.

The case arose from Mallory’s severe mental health struggles, including:

Borderline personality disorder diagnosis
Multiple suicide attempts beginning in June 2014
Ongoing dialectical behavior therapy requirements
Financial constraints affecting treatment compliance

Court-Ordered Visitation Schedule
The October 2015 custody order established specific visitation parameters:

Monthly visits on the second Saturday
Additional visits for the child’s birthday and Christmas
Required drug testing twice annually
Mandatory weekly therapy sessions
FaceTime contact every Tuesday for 30 minutes

The Legal Standard: Proving Willful Failure to Visit Under S.C. Code § 63-7-2570(3)
Statutory Requirements for Termination
South Carolina law permits termination of parental rights when:

1. The child has lived outside the parent’s home for six months
2. The parent has willfully failed to visit during that time
3. Termination serves the child’s best interests

Defining “Willful” in South Carolina Family Law
The Supreme Court emphasized that willfulness requires:

Conscious wrongdoing – awareness that the failure to visit is wrong
Intentional choice – decisions made by the parent, not circumstances beyond control
Conscious indifference – disregard for the child’s rights to parental consortium

Critical Facts: Pattern of Missed Visitations
Shocking Statistics of Non-Compliance
Between October 2015 and September 2017, Mallory:

Missed 22 of 24 court-ordered monthly visits
Failed to visit for three extended periods:

Eight months (December 2014 – August 2015)
Ten months (October 2015 – August 2016)
Eleven months (October 2016 – September 2017)

Skipped birthday and Christmas visits in 2015 and 2016
Missed 40-50% of scheduled FaceTime calls

Financial Resources and Choices
Despite claiming financial hardship, evidence showed:

Mallory raised $8,000 through GoFundMe
Multiple family members offered financial assistance
Her grandmother purchased unused plane tickets
She chose to visit Ohio instead of attending her daughter’s dance recital

The Court’s Analysis: Distinguishing Unavoidable from Willful Conduct
Factors Supporting Mitigation
The Supreme Court acknowledged legitimate challenges:

584-mile distance between Florida and South Carolina
Monthly therapy costs of $1,600-$2,000
Drug testing expenses of $800 annually
Mental health treatment needs

Evidence of Willful Failure
However, the Court found clear and convincing evidence of willfulness based on:

Rejected assistance – declining multiple offers of help from family
Poor prioritization – choosing other activities over visitation
Location choices – refusing to relocate closer despite available options
Broken promises – showing the child a calendar marking future visits, then not appearing
Inconsistent FaceTime – missing nearly half of virtual contact opportunities

Best Interests Analysis: The Child’s Perspective Takes Priority
Attachment and Stability Considerations
Expert testimony from Dr. Cheryl Fortner-Wood established:

The child developed secure attachment with the Stasis
Monthly eight-hour visits insufficient for parent-child bonding
Forced visitation could harm the child’s primary attachments
The child actively resisted contact with Mallory

The Child’s Expressed Fears
Compelling evidence of the child’s perspective included:

Calling Mallory a “liar” repeatedly
Begging not to have visits or calls
Expressing fear of being taken from the Stasis
Threatening to run away if removed from her home

Key Takeaways for South Carolina Family Law Practitioners
For Parents Facing Visitation Challenges

1. Document all efforts to visit and maintain contact
2. Accept offered assistance from family and friends
3. Seek court modification when conditions become impossible
4. Prioritize consistency in whatever contact is possible
5. Maintain all permitted virtual contact without exception

For Attorneys Representing Parents

Request oral argument in complex TPR cases
Present comprehensive mitigation evidence early and often
Distinguish unavoidable circumstances from conscious choices
Challenge prevention claims when custodians exceed court orders
Emphasize any pattern of improvement before litigation commenced

For Guardians ad Litem

Investigate actual capacity to visit versus claimed limitations
Document the child’s statements about parental relationships
Assess attachment quality with expert assistance when possible
Consider long-term stability over biological connections

Virtual Visitation: FaceTime Is Not Enough
The Supreme Court definitively stated that virtual contact cannot replace in-person visitation. As the family court judge noted: “A parent cannot hug a child or dry a crying child’s tears via FaceTime.”

However, consistent virtual contact demonstrates:

Ongoing interest in the child
Effort despite obstacles
Priority given to parental relationship

Missing 40-50% of scheduled FaceTime calls undermined claims of involuntary absence.

Mental Health Considerations in TPR Cases
The Double-Edged Sword of Mental Illness
While mental health issues may explain certain behaviors, they don’t automatically excuse willful failure to visit. The Court noted:

Treatment availability doesn’t guarantee visitation compliance
Mental health struggles affect but don’t eliminate parental obligations
Ongoing mental health issues factor into best interests analysis
Improvement must occur before, not after, TPR proceedings begin

Procedural Lessons: The Value of Oral Argument
The Supreme Court’s pointed commentary about the Court of Appeals’ denial of oral argument sends a clear message:

Complex family law cases benefit from oral advocacy
Written briefs may not fully convey nuanced circumstances
Judges need opportunities to probe difficult judgment calls
Counsel should persistently request oral argument in TPR appeals

Practical Implications for South Carolina Family Courts
Burden of Proof Considerations
The clear and convincing evidence standard requires:

Detailed documentation of all visitation attempts
Careful tracking of offered and rejected assistance
Comprehensive evidence of the child’s needs and preferences
Expert testimony on attachment and developmental impacts

Conditions on Visitation
When imposing visitation conditions, courts should:

Ensure requirements are realistically achievable
Build in modification mechanisms for changed circumstances
Avoid creating impossible barriers to parent-child contact
Consider geographic and financial realities

Conclusion: Balancing Parental Rights with Children’s Needs
Stasi v. Sweigart reinforces that while South Carolina law strongly protects parental rights, those rights yield to children’s welfare when parents make conscious choices to abandon their parental duties. The decision provides crucial guidance for evaluating willfulness in the context of real-world challenges like mental illness, financial hardship, and geographic distance.
For family law practitioners, this case underscores the importance of counseling clients to:

Maintain consistent contact regardless of circumstances
Document all efforts and obstacles
Seek judicial relief rather than unilateral non-compliance
Prioritize the child’s needs over adult conflicts

The Supreme Court’s reversal reminds us that termination of parental rights remains an extraordinary remedy, but one that courts will enforce when clear and convincing evidence establishes both willful failure to visit and the child’s best interests demand permanency and stability.

Practice Note: This case should be required reading for any attorney handling contested TPR matters in South Carolina. Consider requesting oral argument in all TPR appeals, as the Supreme Court’s criticism of the Court of Appeals’ denial suggests appellate courts should liberally grant such requests in these consequential cases.

Case Citation: Stasi v. Sweigart, 434 S.C. 239, 863 S.E.2d 669 (2021)

Related Statutes:

S.C. Code Ann. § 63-7-2570 (Grounds for TPR)
S.C. Code Ann. § 63-7-2510 (Purpose of TPR statutes)

Key Precedents Applied:

S.C. Dep’t of Soc. Servs. v. Smith, 423 S.C. 60 (2018)
S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48 (1992)
Broom v. Jennifer J., 403 S.C. 96 (2013)

By Suzanne Klok|2025-11-12T17:11:11+00:00August 15th, 2023|best interest of the child, Termination of Parental Rights|Comments Off on South Carolina Termination of Parental Rights: Essential Lessons from Stasi v. Sweigart on Willful Failure to Visit

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About the Author: Suzanne Klok

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Understanding Termination of Parental Rights in South Carolina Family Court
The South Carolina Supreme Court’s 2021 decision in Stasi v. Sweigart, 434 S.C. 239, provides critical guidance for family law attorneys handling termination of parental rights (TPR) cases involving willful failure to visit. This landmark ruling reversed the Court of Appeals and reinstated the family court’s termination order, establishing important precedents for evaluating parental intent and the child’s best interests.

Case Background: Complex Family Dynamics and Mental Health Challenges
The Parties and Initial Custody Arrangement
In this emotionally charged case, Mallory Sweigart’s parental rights to her nine-year-old daughter were at stake. The child had lived with her maternal aunt and uncle, Brittney and Lukas Stasi, since December 2014, when the child was just two years old.

The case arose from Mallory’s severe mental health struggles, including:

Borderline personality disorder diagnosis
Multiple suicide attempts beginning in June 2014
Ongoing dialectical behavior therapy requirements
Financial constraints affecting treatment compliance

Court-Ordered Visitation Schedule
The October 2015 custody order established specific visitation parameters:

Monthly visits on the second Saturday
Additional visits for the child’s birthday and Christmas
Required drug testing twice annually
Mandatory weekly therapy sessions
FaceTime contact every Tuesday for 30 minutes

The Legal Standard: Proving Willful Failure to Visit Under S.C. Code § 63-7-2570(3)
Statutory Requirements for Termination
South Carolina law permits termination of parental rights when:

1. The child has lived outside the parent’s home for six months
2. The parent has willfully failed to visit during that time
3. Termination serves the child’s best interests

Defining “Willful” in South Carolina Family Law
The Supreme Court emphasized that willfulness requires:

Conscious wrongdoing – awareness that the failure to visit is wrong
Intentional choice – decisions made by the parent, not circumstances beyond control
Conscious indifference – disregard for the child’s rights to parental consortium

Critical Facts: Pattern of Missed Visitations
Shocking Statistics of Non-Compliance
Between October 2015 and September 2017, Mallory:

Missed 22 of 24 court-ordered monthly visits
Failed to visit for three extended periods:

Eight months (December 2014 – August 2015)
Ten months (October 2015 – August 2016)
Eleven months (October 2016 – September 2017)

Skipped birthday and Christmas visits in 2015 and 2016
Missed 40-50% of scheduled FaceTime calls

Financial Resources and Choices
Despite claiming financial hardship, evidence showed:

Mallory raised $8,000 through GoFundMe
Multiple family members offered financial assistance
Her grandmother purchased unused plane tickets
She chose to visit Ohio instead of attending her daughter’s dance recital

The Court’s Analysis: Distinguishing Unavoidable from Willful Conduct
Factors Supporting Mitigation
The Supreme Court acknowledged legitimate challenges:

584-mile distance between Florida and South Carolina
Monthly therapy costs of $1,600-$2,000
Drug testing expenses of $800 annually
Mental health treatment needs

Evidence of Willful Failure
However, the Court found clear and convincing evidence of willfulness based on:

Rejected assistance – declining multiple offers of help from family
Poor prioritization – choosing other activities over visitation
Location choices – refusing to relocate closer despite available options
Broken promises – showing the child a calendar marking future visits, then not appearing
Inconsistent FaceTime – missing nearly half of virtual contact opportunities

Best Interests Analysis: The Child’s Perspective Takes Priority
Attachment and Stability Considerations
Expert testimony from Dr. Cheryl Fortner-Wood established:

The child developed secure attachment with the Stasis
Monthly eight-hour visits insufficient for parent-child bonding
Forced visitation could harm the child’s primary attachments
The child actively resisted contact with Mallory

The Child’s Expressed Fears
Compelling evidence of the child’s perspective included:

Calling Mallory a “liar” repeatedly
Begging not to have visits or calls
Expressing fear of being taken from the Stasis
Threatening to run away if removed from her home

Key Takeaways for South Carolina Family Law Practitioners
For Parents Facing Visitation Challenges

1. Document all efforts to visit and maintain contact
2. Accept offered assistance from family and friends
3. Seek court modification when conditions become impossible
4. Prioritize consistency in whatever contact is possible
5. Maintain all permitted virtual contact without exception

For Attorneys Representing Parents

Request oral argument in complex TPR cases
Present comprehensive mitigation evidence early and often
Distinguish unavoidable circumstances from conscious choices
Challenge prevention claims when custodians exceed court orders
Emphasize any pattern of improvement before litigation commenced

For Guardians ad Litem

Investigate actual capacity to visit versus claimed limitations
Document the child’s statements about parental relationships
Assess attachment quality with expert assistance when possible
Consider long-term stability over biological connections

Virtual Visitation: FaceTime Is Not Enough
The Supreme Court definitively stated that virtual contact cannot replace in-person visitation. As the family court judge noted: “A parent cannot hug a child or dry a crying child’s tears via FaceTime.”

However, consistent virtual contact demonstrates:

Ongoing interest in the child
Effort despite obstacles
Priority given to parental relationship

Missing 40-50% of scheduled FaceTime calls undermined claims of involuntary absence.

Mental Health Considerations in TPR Cases
The Double-Edged Sword of Mental Illness
While mental health issues may explain certain behaviors, they don’t automatically excuse willful failure to visit. The Court noted:

Treatment availability doesn’t guarantee visitation compliance
Mental health struggles affect but don’t eliminate parental obligations
Ongoing mental health issues factor into best interests analysis
Improvement must occur before, not after, TPR proceedings begin

Procedural Lessons: The Value of Oral Argument
The Supreme Court’s pointed commentary about the Court of Appeals’ denial of oral argument sends a clear message:

Complex family law cases benefit from oral advocacy
Written briefs may not fully convey nuanced circumstances
Judges need opportunities to probe difficult judgment calls
Counsel should persistently request oral argument in TPR appeals

Practical Implications for South Carolina Family Courts
Burden of Proof Considerations
The clear and convincing evidence standard requires:

Detailed documentation of all visitation attempts
Careful tracking of offered and rejected assistance
Comprehensive evidence of the child’s needs and preferences
Expert testimony on attachment and developmental impacts

Conditions on Visitation
When imposing visitation conditions, courts should:

Ensure requirements are realistically achievable
Build in modification mechanisms for changed circumstances
Avoid creating impossible barriers to parent-child contact
Consider geographic and financial realities

Conclusion: Balancing Parental Rights with Children’s Needs
Stasi v. Sweigart reinforces that while South Carolina law strongly protects parental rights, those rights yield to children’s welfare when parents make conscious choices to abandon their parental duties. The decision provides crucial guidance for evaluating willfulness in the context of real-world challenges like mental illness, financial hardship, and geographic distance.
For family law practitioners, this case underscores the importance of counseling clients to:

Maintain consistent contact regardless of circumstances
Document all efforts and obstacles
Seek judicial relief rather than unilateral non-compliance
Prioritize the child’s needs over adult conflicts

The Supreme Court’s reversal reminds us that termination of parental rights remains an extraordinary remedy, but one that courts will enforce when clear and convincing evidence establishes both willful failure to visit and the child’s best interests demand permanency and stability.

Practice Note: This case should be required reading for any attorney handling contested TPR matters in South Carolina. Consider requesting oral argument in all TPR appeals, as the Supreme Court’s criticism of the Court of Appeals’ denial suggests appellate courts should liberally grant such requests in these consequential cases.

Case Citation: Stasi v. Sweigart, 434 S.C. 239, 863 S.E.2d 669 (2021)

Related Statutes:

S.C. Code Ann. § 63-7-2570 (Grounds for TPR)
S.C. Code Ann. § 63-7-2510 (Purpose of TPR statutes)

Key Precedents Applied:

S.C. Dep’t of Soc. Servs. v. Smith, 423 S.C. 60 (2018)
S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48 (1992)
Broom v. Jennifer J., 403 S.C. 96 (2013)