SCDSS v. John Doe and Jane Doe

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.

John Doe, Jane Doe, and Mary Roe, Defendants,

Of whom John Doe and Jane Doe are the Appellants,

and

Mary Roe is a Respondent.

In the interest of minors under the age of eighteen.

Appellate Case No. 2019-001804

Appeal From Lexington County
Thomas T. Hodges, Family Court Judge,
W. Greg Seigler, Family Court Judge

Unpublished Opinion No. 2021-UP-194
Submitted May 1, 2021 – Filed June 9, 2021

AFFIRMED IN PART, DISMISSED IN PART

Deborah J Butcher and Robert J. Butcher, both of The
Camden Law Firm, PA, of Camden, for Appellants.
John D. Elliott, of Columbia, for Respondent Mary Roe.

Scarlet Bell Moore, of Greenville, for Respondent South
Carolina Department of Social Services.

Robin Page, of Law Office of Robin Page, LLC, of
Columbia, for the Guardian ad Litem.

PER CURIAM: John Doe and Jane Doe appeal a probable cause order finding
probable cause existed for law enforcement to place Child in emergency protective
custody after Jane refused to pick him up from a residential treatment facility when
he was discharged. They also appeal an order dismissing a removal action against
them filed by the Department of Social Services (DSS). On appeal, the Does argue
(1) the family court erred in dismissing this matter without allowing the Does to
conduct discovery; (2) the Does are entitled to services from DSS without a finding
of harm by the family court; (3) the family court may issue an order with no
finding of probable cause of harm by a parent solely on the basis that a child is a
threat of harm to himself or others and require DSS to provide services; and (4)
court information sheets submitted to the family court by DSS (a) are ex parte
filings, (b) lack procedural and statutory basis, and (c) violate the Rules of
Professional Conduct and the Canons of Judicial Conduct. We affirm in part and
dismiss in part.

On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis
v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this court
reviews the family court's findings de novo, we are not required to ignore the fact
that the family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony. Lewis,
392 S.C. at 385, 709 S.E.2d at 651-52.

"Before any action can be maintained, there must exist a justiciable controversy."
Byrd v. Irmo High Sch., 321 S.C. 426, 430, 468 S.E.2d 861, 864 (1996). "A
justiciable controversy is a real and substantial controversy which is appropriate
for judicial determination, as distinguished from a dispute or difference of a
contingent, hypothetical or abstract character." Id. at 430-31, 468 S.E.2d at 864.
"This Court will not pass on moot and academic questions or make an adjudication
where there remains no actual controversy." Id. at 431, 468 S.E.2d at 864. "A case
becomes moot when judgment, if rendered, will have no practical legal effect upon
existing controversy. This is true when some event occurs making it impossible
for [the] reviewing Court to grant effectual relief." Mathis v. S.C. State Highway
Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973).

The family court properly granted DSS's motion to dismiss its removal action after
DSS determined the allegations of harm were unfounded. See S.C. Code Ann.
§ 63-7-1660(A) (2010) ("[DSS] may petition the family court to remove the child
from custody of the parent, guardian, or other person legally responsible for the
child's welfare if [DSS] determines by a preponderance of evidence that the child is
an abused or neglected child . . . ."); S.C. Code Ann. § 63-7-1660(E) (2010) ("The
court shall not order that a child be removed from the custody of the parent or
guardian unless the court finds that the allegations of the petition are supported by
a preponderance of evidence including a finding that the child is an abused or
neglected child as defined in Section 63-7-20 . . . ."). Further, the issue of whether
the family court erred in dismissing the Does' counterclaims is moot because those
same counterclaims are pending before the family court in a new removal action.1
Even if the family court erred in dismissing the counterclaims, the only effective
relief this court could provide would be to reinstate the counterclaims, which are
currently pending in the family court. See Jernigan v. King, 312 S.C. 331, 335,
440 S.E.2d 379, 382 (Ct. App. 1993) ("[W]here reversal on an issue would not
change the result, the issue is moot, and the Court of Appeals need not reach it.").
The remaining issues the Does ask this court to decide are not ripe because a
record has not been made, the family court has not addressed those issues, and
whether the Does are aggrieved by the family court's decision is contingent upon
what the family court decides in the action currently pending before it. See Sloan
v. Greenville Cty., 356 S.C. 531, 547, 590 S.E.2d 338, 346 (Ct. App. 2003) ("The
concept of justiciability encompasses the doctrines of ripeness, mootness, and
standing."); Jowers v. S.C. Dep't of Health & Env't Control, 423 S.C. 343, 353, 815
S.E.2d 446, 451 (2018) ("We have explained ripeness by defining what is not ripe,
stating 'an issue that is contingent, hypothetical, or abstract is not ripe for judicial
review.'" (quoting Colleton Cty. Taxpayers Ass'n v. Sch. Dist. of Colleton Cty., 371
S.C. 224, 242, 638 S.E.2d 685, 694 (2006))); Rule 201(b), SCACR ("Only a party
aggrieved by an order, judgment, or sentence may appeal."); cf. Kurshner v. City of

1
We decline to apply an exception to the mootness doctrine. See Sloan v.
Greenville Cty., 380 S.C. 528, 535, 670 S.E.2d 663, 667 (Ct. App. 2009) ("The
utilization of an exception under the mootness doctrine is flexible and discretionary
pursuant to South Carolina jurisprudence, not a mechanical rule that is
automatically invoked.").
Camden Planning Comm'n, 376 S.C. 165, 175, 656 S.E.2d 346, 352 (2008)
(declining to consider whether a planning commission's denial of an application to
subdivide property "constituted a taking without just compensation" because such
issues "would not be ripe for judicial review at this stage, and those issues should
be litigated in a separate action").

AFFIRMED IN PART, DISMISSED IN PART.2

WILLIAMS, THOMAS, and HILL, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.