Gerika Clay v. SCDSS

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Gerika Clay, Appellant,

v.

South Carolina Department of Social Services,
Respondent.

Appellate Case No. 2020-001457

Appeal From Greenville County
Katherine H. Tiffany, Family Court Judge

Unpublished Opinion No. 2023-UP-233
Submitted February 1, 2023 – Filed June 14, 2023

AFFIRMED

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., of
Spartanburg, for Appellant.

Laura J. Drew, of Columbia, for Respondent.

PER CURIAM: This is a family court action filed by Gerika Clay for judicial
review of the finding against her for physical neglect of a foster child by the South
Carolina Department of Social Services (DSS). Clay appeals, arguing the family
court erred in (1) failing to find error by the DSS hearing officer for considering
evidence not considered in DSS's initial findings and (2) finding her constitutional
argument was not preserved for review. We affirm pursuant to Rule 220(b),
SCACR.

1. As to Clay's argument that the family court erred in failing to reverse DSS's
finding of physical neglect because the DSS hearing officer considered evidence
not considered in DSS's initial findings, we affirm. In investigating a case of abuse
or neglect in a foster home, the "[i]ndicated reports must be based upon a finding
that abuse or neglect is supported by a preponderance of the evidence . . . ." S.C.
Code Ann. § 63-7-1210(B) (2010). We find the governing regulations clearly
contemplate additional evidence may be presented at the hearing. For instance,
discovery is permitted. S.C. Code Ann. Regs. 114-130(G)(5) (2012). In addition,
the hearing officer may rule on the admissibility of evidence, permit depositions to
be taken, and examine witnesses. S.C. Code Ann. Regs. § 114-130(E)(2)(d),(f) &
(j) (2012). Furthermore, "[e]ach party shall have the opportunity to present
documentary evidence and witnesses . . . ." S.C. Code Ann. Regs. 114-
130(I)(3)(b) (2012). Like the family court, we find no merit to Clay's argument
that the hearing officer was restricted solely to evidence related to the initial
finding of physical neglect. In addition, under our own view of the preponderance
of the evidence, we likewise find physical neglect. See Lewis v. Lewis, 392 S.C.
381, 386, 709 S.E.2d 650, 652 (2011) (explaining this court reviews family court
matters de novo); id. (explaining under our de novo review, the "appellate court
may take its own view of the preponderance of the evidence"). We find this
standard of review applies to us when the family court sits in an appellate capacity.
See generally In re. Est. of Kay, 423 S.C. 476, 481, 816 S.E.2d 542, 545 (2018)
(holding that when "the circuit court, sitting in a purely appellate capacity, . . .
affirms the findings of a lower tribunal[,] . . . the applicable standard of review is
the same as in other equity matters, and the appellate courts of this state may take
their own view of the preponderance of the evidence").

2. As to Clay's argument that section 63-7-1230 of the South Carolina Code
(2010) violates the Equal Protection Clauses of the United States and South
Carolina Constitutions, we affirm. The family court found this argument was not
preserved for its review because Clay raised the argument for the first time to the
family court, which was sitting in its appellate capacity. We find no error. A
challenge to the constitutionality of a statute must be raised to be preserved for
appellate review. See Dorman v. S.C. Dep't of Health & Env't Control, 350 S.C.
159, 170–71, 565 S.E.2d 119, 125 (Ct. App. 2002) (finding constitutional issues
not raised to the administrative law court were not preserved for appellate review);
State v. Powers, 331 S.C. 37, 42–43, 501 S.E.2d 116, 118 (1998) (finding
constitutional arguments are no exception to the error preservation rule); Hill v.
S.C. Dep't of Health & Env't Control, 389 S.C. 1, 19, 698 S.E.2d 612, 622 (2010)
(finding an equal protection issue not preserved for review by the circuit court
sitting in an appellate capacity because the appellant had not shown the issue was
raised to and ruled upon by the administrative law court); Bazen v. Badger R.
Bazen Co., 388 S.C. 58, 65, 693 S.E.2d 436, 440 (Ct. App. 2010) (finding an issue
not raised to the workers' compensation commission was not preserved for the
circuit court's appellate review).

AFFIRMED. 1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.