SCDSS v. Johnson

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

South Carolina Department of Social Services,
Respondent,

v.

Amber Johnson and David Johnson, Jr., Respondents,

and

Danielle Gay and Samuel Ogg, Intervenors/Appellants.

In the interest of minors under the age of eighteen.

Appellate Case No. 2022-000904

Appeal From Anderson County
M. Scott McElhannon, Family Court Judge

Unpublished Opinion No. 2023-UP-273
Submitted July 14, 2023 – Filed July 19, 2023

AFFIRMED

Heather Vry Scalzo, of Offit Kurman, of Spartanburg, for
Intervenors/Appellants.

James Victor McDade, of Doyle Tate & McDade, PA,
and Andrew Troy Potter, both of Anderson, for
Respondent South Carolina Department of Social
Services.

Thomas Harper Collins, of Harper Collins LLC, of
Anderson, for Respondent David Johnson, Jr.

Nima Fiuzat, of Clemson, for Respondent Amber
Johnson.

John Marshall Swails, Jr., of Greenville, for the Guardian
ad Litem.

PER CURIAM: Danielle Gay (Foster Mother) and Samuel Ogg (Foster Father;
collectively, Foster Parents) appeal a family court order returning custody of
Amber Johnson's (Mother's) minor children (collectively, Children) to her. On
appeal, Foster Parents argue the family court erred in finding a preponderance of
the evidence showed (1) it was in Children's best interests to be reunited with
Mother; (2) reunification between Mother and Children was delayed due to
COVID-19 and Foster Parents' motion to intervene; and (3) Mother demonstrated
due diligence and a commitment to remedying the causes that lead to Children's
removal from her home. We affirm.

We hold a preponderance of the evidence supports the family court's finding that
reunification with Mother was in Children's best interest. See Stoney v. Stoney,
425 S.C. 47, 62, 819 S.E.2d 201, 209 (Ct. App. 2018) ("In appeals from the family
court, the appellate court reviews factual and legal issues de novo."); Stone v.
Thompson, 428 S.C. 79, 91-92, 833 S.E.2d 266, 272 (2019) ("Even under de novo
review, the longstanding principles that [family court] judges are in superior
positions to assess witness credibility and that appellants must show the [family
court] judge erred by ruling against the preponderance of the evidence remain
applicable."); Stoney, 425 S.C. at 62, 819 S.E.2d at 209 ("Accordingly, [appellate
courts] will affirm the decision of the family court unless its decision is controlled
by some error of law or the appellant satisfies the burden of showing the
preponderance of the evidence actually supports contrary factual findings by th[e
appellate] court."); Shake v. Darlington Cnty. Dep't of Soc. Servs., 306 S.C. 216,
221-22, 410 S.E.2d 923, 926 (Ct. App. 1991) ("[T]he best interest of the child is
the primary and controlling consideration in all child custody controversies.").
Although Foster Parents presented expert testimony that returning Children to
Mother would cause trauma for Children due to their bond with Foster Parents, the
experts did not evaluate Children's bond with Mother, and both the Department of
Social Services (DSS) case worker and Children's guardian ad litem (GAL)
believed Children were bonded to Mother and returning Children to her custody
was in Children's best interest. See S.C. Code Ann. § 63-7-1680(G) (Supp. 2022)
("Before the court orders return of the child, the court must find that the changes in
the home and family situation specified in . . . the [placement] plan have occurred
and that the child can be safely returned to the home."); S.C. Code Ann.
§ 63-7-1700(D) (Supp. 2022) ("If the court determines . . . that the child may be
safely maintained in the home in that the parent has remedied the conditions that
caused the removal and the return of the child . . . would not cause an unreasonable
risk of harm to the child's life, physical health, safety, or mental well-being, the
court shall order the child returned to the child's parent." (emphasis added)); S.C.
Code Ann. § 63-1-20(D) (2010) ("It is the policy of this State to reunite [a] child
with his family in a timely manner, whether or not the child has been placed in the
care of the State voluntarily.").

We hold a preponderance of the evidence supports the family court's findings that
Mother demonstrated due diligence in remedying the conditions that led to
Children's removal and that Foster Parents' intervention and the COVID-19
pandemic caused the delay in reunification. See Stoney, 425 S.C. at 62, 819 S.E.2d
at 209 (stating appellate courts "will affirm the decision of the family court unless
its decision is controlled by some error of law or the appellant satisfies the burden
of showing the preponderance of the evidence actually supports contrary factual
findings by th[e appellate] court"). Although DSS did not recommend
reunification of any children with Mother until July 2021—twenty months after
Children entered foster care—it never recommended extending reunification past
eighteen months; rather, DSS recommended immediate reunification at the initial
permanency planning hearing for Children. See S.C. Code Ann. § 63-7-1700(F)
(Supp. 2022) ("[I]n no case may the extension for reunification continue beyond
eighteen months after the child was placed in foster care." (emphasis added)).
Notably, Children's siblings, who were placed in a different foster home, returned
to Mother's custody in July 2021. However, the portion of that hearing regarding
Children's permanent plan was held in abeyance because Foster Parents' attorney
had court protection, and the hearing could not be rescheduled until April 2022 due
to the time needed for a contested hearing. Additionally, Mother testified the
COVID-19 pandemic prevented her from completing her plan more quickly
because the pandemic made it difficult for her to find housing. Therefore, we
affirm.
AFFIRMED.1

KONDUROS and VINSON, JJ., and LOCKEMY, A.J., concur.

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