Kaci May v. Dorchester School District Two

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kaci May and Kaci May as guardian ad litem for
A.R.M., J.H.M., J.T.M., C.B.M., J.R.M., and J.W.M.,
Appellants,

v.

Dorchester School District Two, South Carolina
Department of Social Services, Michael Leach, and
Jasmine Flemister, Respondents.

Appellate Case No. 2020-001352

Appeal From Dorchester County
Maite Murphy, Circuit Court Judge

Opinion No. 6053
Heard June 7, 2023 – Filed March 13, 2024

AFFIRMED

Deborah J. Butcher and Robert J. Butcher, both of The
Camden Law Firm, PA, of Camden, for Appellant.

Kenneth P. Woodington and William H. Davidson, II,
both of Davidson, Wren & DeMasters, of Columbia, for
Respondents South Carolina Department of Social
Services, Michael Leach, and Jasmine Flemister; and
Thomas Kennedy Barlow, Susan Marie Fittipaldi, and
Dwayne Traynor Mazyck, all of Halligan, Mahoney, &
Williams, of Columbia, for Respondent Dorchester
School District Two.
MCDONALD, J.: Kaci May filed this circuit court action seeking to enjoin the
South Carolina Department of Social Services (DSS) from interviewing her
children at school and to prevent Dorchester School District Two (School District)
from facilitating such interviews without a court order, warrant, subpoena, or new
allegation of abuse or neglect. May appeals the order denying injunctive relief and
challenges the circuit court's finding that because Respondents acted within their
express statutory authority, their efforts to interview the children did not implicate
the Fourth Amendment. We affirm the well-reasoned order of the circuit court.

Facts and Procedural History

Kaci and Warren May (collectively, the Mays) 1 were the parents of seven children:
four biological children (J.T.M., C.B.M., A.R.M., and J.W.M.) and an adopted
sibling group (J.H.M., J.R.M., and L.C.M.). 2 One or more of the adopted children
suffered severe sexual abuse while with their biological family.

On March 27, 2017, the Mays attended a daylong meeting with School District
personnel at Sand Hill Elementary School to discuss four of the children. At this
meeting, May alleged in graphic detail that one of the adopted children had
brutally raped one or more children in the May home. May called this child, who
was present at the meeting, a rapist and made other concerning statements.

The School District reported May's statements to DSS, which opened an
investigation. As a part of the investigation, DSS conducted—or attempted to
conduct—interviews with the five school-aged children at Sand Hill Elementary
School on March 29 and March 30. On March 31, two DSS caseworkers went to
the family home in an effort to contact May and see the children they were unable
to interview at school, but May would not allow the caseworkers to enter the home
and did not allow them to interview the children. DSS continued to investigate,
and caseworkers conducted a combined school interview of three of the children

1
Warren May passed away in 2020.
2
The Mays adopted J.H.M., J.R.M., and L.C.M. from foster care in June 2015. At
the time of the circuit court's bench trial, the three adopted children had been
moved from the May home to residential facilities.
on May 12. 3 Later that day, DSS indicated a case of physical neglect against May;
the Mays subsequently filed an administrative appeal of that determination.

On June 15, 2017, Dorchester County DSS Director John Dunne advised the Mays
that he had conducted an interim review of the case and "concluded that the
decision to indicate the case for Neglect is supported by a preponderance of the
evidence." Dunne also informed the Mays that DSS would seek intervention in
family court. On June 23, DSS stayed the administrative appeal pending the
outcome of the family court case.

Despite the serious safety concerns she had raised, May resisted all DSS efforts to
contact the children or visit their home during June, July, and August 2017.
Instead, she referred the caseworkers to her attorney. 4 At the start of the new
school year, May instructed the School District that no further interviews with her
children were to occur without someone first contacting May or her counsel.5 On
September 13 and 14, 2017, May withdrew J.H.M. and J.R.M. (two of the adopted
children) from Sand Hill Elementary and Gregg Middle School and transferred
them to Connections Academy, South Carolina's virtual charter school.

DSS filed a family court case seeking non-emergency removal of the children from
the May home on September 14, 2017. May counterclaimed, seeking, among other
things, an order restraining DSS caseworkers from speaking with the Mays about
legal issues in the case. She also filed a motion seeking an order restraining DSS
from "interrogating [her] children at school."

3
DSS was later able to interview two of the children on May 25. May conceded
she did not object to DSS interviewing the children at school while the case was
still within the investigative period.
4
DSS's concerns are reflected in the caseworker's September 22, 2017 notes: "Kaci
and Warren May have not allowed the department in their home. No assessments
have been made for this family. The [Mays] have not been in direct contact with
the department. The family's attorney is not responding to emails to schedule
visits. . . . The department is concerned about the allegations and the inability to
get in the home. The department is unable to properly assess for the safety and
wellbeing of the minor children."
5
The Sand Hill Elementary principal disregarded these instructions because the
School District needed "a court order signed by a judge to make this happen."
DSS conducted additional in-school interviews in the fall of 2017. Three of the
children were interviewed on September 18, one child was interviewed on
September 22, and DSS conducted a brief, combined interview with three of the
children on November 20.6

On December 7, 2017, May, individually and as guardian ad litem for the seven
children, filed this circuit court action seeking preliminary and permanent
injunctive relief to prevent DSS from interviewing her children at school. She also
sought to enjoin the School District from facilitating such interviews unless DSS
presented a court order, warrant, subpoena, or new allegation of abuse or neglect.

On June 14, 2018, the family court action was dismissed by voluntary stipulation.
DSS agreed the "investigation beginning on or about March 28, 2017[,] resulting in
a finding of abuse and/or neglect on or about May 12, 2017[,] is hereby
overturned." DSS closed its case on June 21.

Following a hearing, the circuit court denied May's motion for a temporary
restraining order, finding May failed to establish irreparable harm or the lack of an
adequate remedy at law. The School District and DSS then moved to dismiss. The
circuit court granted these motions in part and dismissed the individual School
District defendants. The remaining governmental defendants answered May's
complaint and denied she was entitled to permanent injunctive relief. At the
subsequent August 2020 bench trial, the circuit court directed a verdict for the
School District and DSS. May timely appealed.

Analysis

"To obtain an injunction, a party must demonstrate irreparable harm, a likelihood
of success on the merits, and the absence of an adequate remedy at law." Richland
County v. S.C. Dep't of Revenue, 422 S.C. 292, 310, 811 S.E.2d 758, 767 (2018)
(quoting Denman v. City of Columbia, 387 S.C. 131, 140, 691 S.E.2d 465, 470
(2010)). "An injunction is a drastic equitable remedy courts may use in their
discretion in order to prevent irreparable harm to a party . . . . and only where no
adequate remedy exists at law." Hampton v. Haley, 403 S.C. 395, 409, 743 S.E.2d
258, 265 (2013). Although an order granting or denying a request for injunctive
relief is generally reviewed for abuse of discretion, "where the decision turns on
statutory interpretation . . . this presents a question of law." Lambries v. Saluda
Cnty. Council, 409 S.C. 1, 8, 760 S.E.2d 785, 788 (2014). An appellate court

6
DSS did not seek to interview the May children after November 20, 2017.
"reviews questions of law de novo." Id. at 7, 760 S.E.2d at 788 (quoting Town of
Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41
(2008)).
I. Irreparable Harm

May argues the circuit court erred in finding she failed to demonstrate irreparable
harm. We disagree.

Initially, we note it is undisputed that DSS's last interview with any of the May
children occurred in November 2017, and DSS closed its family court case in June
2018. Before both the family and circuit courts, May failed to offer any evidence
of threatened or pending DSS investigations or of further DSS plans to interview
her children at a school. The three adopted children no longer live with the
biological May family.

Significantly, May has not identified any injury aside from inconvenience or mild
upset at the prospect of DSS returning to interview her children. The children
testified that they knew they did not have talk to DSS, and some exercised their
right not to answer questions. There is no evidence in the record that any of the
children's grades suffered or that any of the children were harmed, much less to an
extent that might have outweighed DSS's need to interview them regarding May's
own report that one or more of her children had suffered sexual abuse by another
child in the May home. Although May testified the children were upset by the
DSS interviews, there is simply no evidence to support a claim that any of the May
children have been harmed or would suffer harm in the absence of injunctive relief.

The adopted children had significant prior physical and psychological challenges,
including but not limited to the horrific sexual abuse they suffered while with their
biological family. These prior experiences caused stress and emotional harm far
beyond any issue raised in the current matter. Thus, it is difficult to comprehend
how the emotional difficulty alleged could be attributed to the DSS interviews
which, as discussed below, were appropriate and authorized by statute. Notably,
May failed to demonstrate that DSS returning to a school to interview her children
was anything more than a hypothetical possibility insufficient to support her claim
for injunctive relief. 7 Accordingly, the circuit court properly found May failed to
show the required irreparable harm.

7
We decline to dismiss May's appeal as moot because her case presents an issue
that is capable of repetition but usually becomes moot before it may be reviewed.
II. Likelihood of Success on the Merits

May next argues the circuit court erred in finding she failed to establish a
likelihood of success on the merits and in ruling section 63-7-920 of the South
Carolina Code (2010) "was not limited by her constitutional protections." But the
circuit court made no such ruling. As to May's constitutional claims, the circuit
court recognized the United States Supreme Court "has never held that a social
worker's warrantless in-school interview of a child pursuant to a child abuse
investigation violates the Fourth Amendment." See, e.g., Camreta v. Greene, 563
U.S. 692, 710–14 (2011) (examining in-school interviews in Fourth Amendment
context but ultimately leaving the issue undecided and disposing of the case on
mootness grounds). The circuit court then noted the DSS interviews here were
authorized by statute and that May failed to show either DSS or the School District
acted unreasonably by interviewing the children or permitting the interviews.8 We
agree with the circuit court.

Within twenty-four hours of receiving a report of suspected child abuse or neglect,
DSS "must begin an appropriate and thorough investigation to decide whether the

See Wardlaw v. S.C. Dep't of Soc. Servs., 427 S.C. 197, 204, 829 S.E.2d 718, 721
(Ct. App. 2019) (finding that an appellate court may address a matter despite
mootness where it raises an issue capable of repetition that "usually becomes moot
before it may be reviewed" (citing S.C. Dep't of Mental Health v. State, 301 S.C.
75, 76, 390 S.E.2d 185, 185 (1990)). The interviews May challenges occur early
in the process of abuse and neglect investigations, and a family court's review in
such cases would be complete before any related civil action could be considered.
See, e.g., Rainey v. S.C. Dep't of Soc. Servs., 434 S.C. 342, 351, 863 S.E.2d 470,
475 (Ct. App. 2021) (noting statutorily mandated timelines for investigation once
DSS receives a report of possible abuse or neglect).

8
The Fourth Amendment to the United States Constitution provides: "The right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized." U.S.
Const. Amend IV. The Fourteenth Amendment extends this constitutional
guarantee to searches and seizures by state officers, Elkins v. United States, 364
U.S. 206, 223–24 (1960), including public school officials, New Jersey v. T.L.O.,
469 U.S. 325, 336–37 (1985).
report should be 'indicated' or 'unfounded.'" See S.C. Code Ann. § 63-7-920(A)(1)
(2010); see also Jensen v. S.C. Dep't of Soc. Servs., 297 S.C. 323, 331–32, 377
S.E.2d 102, 106–07 (Ct. App. 1988) (holding South Carolina Child Protection Act
mandating "an 'appropriate and thorough' investigation," of an allegation of child
abuse imposed a ministerial duty of care on county officials). Regarding
investigations and case determinations, section 63-7-920(C) provides:

The department or law enforcement, or both, may interview the child
alleged to have been abused or neglected and any other child in the
household during the investigation. The interviews may be conducted
on school premises, at childcare facilities, at the child's home or at
other suitable locations and in the discretion of the department or law
enforcement, or both, may be conducted outside the presence of the
parents. To the extent reasonably possible, the needs and interests of
the child must be accommodated in making arrangements for
interviews, including time, place, method of obtaining the child's
presence, and conduct of the interview. The department or law
enforcement, or both, shall provide notification of the interview to the
parents as soon as reasonably possible during the investigation if
notice will not jeopardize the safety of the child or the course of the
investigation. All state, law enforcement, and community agencies
providing child welfare intervention into a child's life should
coordinate their services to minimize the number of interviews of the
child to reduce potential emotional trauma to the child.

In our view, the language of § 63-7-920(C) establishes the circuit court correctly
found May failed to demonstrate a likelihood of success on the merits. However,
we must also address May's arguments that (1) the probable cause standard for
warrants issued under § 63-7-920(B) applies to interviews conducted pursuant to
§ 63-7-920(C) and (2) the interviews here violated the Fourth Amendment.

Section 63-7-920(B) provides:

The department may file with the family court an affidavit and a
petition to support issuance of a warrant at any time after receipt of a
report. The family court must issue the warrant if the affidavit and
petition establish probable cause to believe the child is an abused or
neglected child and that the investigation cannot be completed without
issuance of the warrant. The warrant may authorize the department to
interview the child, to inspect the condition of the child, to inspect the
premises where the child may be located or may reside, and to obtain
copies of medical, school, or other records concerning the child.

May's assertion that the probable cause standard for warrants issued under
subsection (B) applies to interviews conducted under subsection (C) is foreclosed
by the plain language of subsection (C), pursuant to which DSS conducted the
in-school interviews of the May children. While subsection (B) does contain a
warrant provision, its terms apply only when "the investigation cannot be
completed without issuance of the warrant." § 63-7-920(B). Among other things,
subsection (B) authorizes DSS to inspect the premises where an abused or
neglected child may be located or may reside. Id. In other words, DSS may seek a
warrant when other authorized means, such as in-school interviews, are
unavailable.9 Moreover, subsection (C) states DSS "may interview the child
alleged to have been abused or neglected and any other child in the household
during the investigation" and such interviews "may be conducted on school
premises, at childcare facilities, at the child's home or at other suitable locations
and in the discretion of the department or law enforcement, or both, may be
conducted outside the presence of the parents." § 63-7-920(C).

In her appellate brief, May arguably concedes subsection (B) is inapplicable to
in-school interviews conducted under subsection (C) by stating "schools are often
the only places SCDSS and/or law enforcement may have contact with a child
without the undue influence of an abusive or neglectful caregiver." In either case,
we find the plain language of subsection (C) permits DSS to interview children at
school and—in the discretion of DSS or law enforcement—such interviews may be
conducted "outside the presence of the parents." § 63-7-920(C).10

With respect to May's Fourth Amendment argument, "[i]n determining whether a
search and seizure is reasonable, we must balance the government's need to search
with the invasion endured by the plaintiff." Wildauer v. Frederick County, 993
F.2d 369, 372 (4th Cir. 1993); see also, State v. Houey, 375 S.C. 106, 111, 651

9
In practice, and as referenced by May's counsel at trial, such warrants are referred
to as "inspection warrants."
10
This might be a different case had the governmental defendants even arguably
abused their statutory discretion in investigating the actions May reported at her
initial meeting with the School District. There simply are no facts here to support
such a claim.
S.E.2d 314, 316–17 (2007) (finding "the State's need to search must be balanced
against the invasion occasioned by the search, and the search will be reasonable if
the State's interest outweighs the interest of the individual" in cases involving the
"health and safety of victims."). Like the circuit court, we have found no case in
which our supreme court has determined a social worker's warrantless in-school
interview of a child for purposes of a statutorily mandated investigation following
a report of abuse or neglect violates the Fourth Amendment.

In sum, May failed to show either that DSS acted unreasonably by interviewing her
children at school or that the School District unreasonably permitted the in-school
interviews expressly authorized by statute.11 Based on the largely undisputed
testimony, we agree with the circuit court that the interviews here were reasonable
in inception and scope following May's own report of sexual abuse; her subsequent
refusal to allow DSS to interview the children in their home necessitated that they
be interviewed at school. And, May admits legitimate circumstances may exist in
some cases for DSS to interview a child at school without a court order or a
warrant. Concessions aside, we find § 63-7-920(C) expressly authorizes DSS to
interview children at school without a warrant when conducting an investigation
mandated by § 63-7-920(A)(1). Additionally, we find meritless May's claim that
the either the School District or DSS unreasonably "seized" her children, or
otherwise violated their constitutional rights by calling them from class and asking
limited, basic questions for a short period of time. In light of the state's significant
interest in interviewing the children following May's report, the circuit court
properly found the in-school interviews did not violate the family's constitutional
rights. It follows that the circuit court correctly denied May's request for injunctive
relief in light of her inability to show a likelihood of success on the merits.

III. Adequate Remedy at Law

May next argues the circuit court erred in finding she would have an adequate
remedy at law to address any harm she or the children might suffer from future
"interrogations." Again, we disagree.

Although May was required to offer evidence demonstrating that at some point in
the future, DSS is likely to again interview her children at school in direct

11
Although May's appellate brief cites several cases containing broad statements of
general legal principles, she fails to cite any case actually finding the kind of
interviews DSS conducted here might violate a child's (or parent's) Fourth
Amendment rights.
contravention of her wishes, she failed to do so. While it is always possible that
future events could lead to another DSS investigation, it is speculative to assume
such will actually take place. In the event another DSS investigation does take
place, May agreed she would "not [be] opposed to DSS interviewing the children
that may be subject to a report of abuse and neglect. . . ." Nor would she object to
additional interviews in a case "still in the investigation period." However, May
would object to interviews conducted after the conclusion of an investigation
resulting in an indication.

We find May has failed to establish the lack of an adequate remedy at law to
address future harm that might result from subsequent DSS interviews. May's
decision to forgo a state law damages claim and pursue only injunctive relief does
not render the remedy at law inadequate for a case that might merit relief. Here,
the circuit court properly found May failed to show she lacked an adequate remedy
at law for harm that might result from "future interrogations."

Conclusion

Certainly, there may be—and have been—situations in which state actors
overreach or otherwise act in a manner requiring constitutional scrutiny. There
may be—and have been—cases in which the actions of DSS caseworkers or other
agents or employees rise to the level necessary for injunctive relief in the
constitutional context. This is not such a case. For these reasons, the circuit
court's order denying injunctive relief is

AFFIRMED. 12

THOMAS and HEWITT, JJ., concur.

12
As our findings here are dispositive, we decline to address Respondents'
additional sustaining grounds. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (declining to address
remaining issues when a prior issue was dispositive).