SCDSS v. Chastain

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.

Lauren Chastain, Appellant.

In the interest of minors under the age of eighteen.

Appellate Case No. 2017-001507

Appeal From Greenville County
Tarita A. Dunbar, Family Court Judge

Unpublished Opinion No. 2018-UP-152
Submitted March 9, 2018 – Filed April 9, 2018

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

John D. Elliott, of Law Offices of John D. Elliott P.A., of
Columbia, for Appellant.

Dottie C. Ingram and Samuel Weldon, both of
Greenville, for Respondent.

Don J. Stevenson, of Don J. Stevenson, Attorney at Law,
of Greenville, for the Guardian ad Litem.
PER CURIAM: Lauren Chastain (Mother) appeals the family court's order,
leaving custody of her two minor children, A.C. and D.B., with their respective
paternal grandparents and closing the South Carolina Department of Social
Services' (DSS's) case against her. On appeal, Mother argues the family court
erred by failing to return her children to her when it dismissed DSS's action. We
affirm in part, reverse in part, and remand to the family court for a permanency
planning hearing.

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, 651-52 (2011). Although this court
reviews the family court's findings de novo, this court is 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.

Initially, we find the family court did not err by failing to return Mother's children
to her when it dismissed DSS's case against her. See S.C. Dep't of Soc. Servs. v.
Randy S., 390 S.C. 100, 104, 700 S.E.2d 250, 252 (Ct. App. 2010) ("The family
court shall not order that a child be removed from the custody of the parent unless
the allegations in 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 of the South Carolina Code (Supp. 2017)] and 'that retention of the
child in or return of the child to the home would place the child at unreasonable
risk of harm affecting the child's life, physical health or safety, or mental well-
being and the child cannot reasonably be protected from this harm without being
removed.'" (quoting S.C. Code Ann. § 63-7-1660(E) (2010))); S.C. Code Ann.
§ 63-7-20(6)(a) (Supp. 2017) (providing child abuse or neglect occurs when a
parent "inflicts or allows to be inflicted upon the child physical or mental injury or
engages in acts or omissions which present a substantial risk of physical or mental
injury to the child . . . ."). Here, we find a preponderance of the evidence shows
that D.B. was neglected as defined in section 63-7-20 because her father tested
positive for drugs, her father had illegal drug paraphernalia and evidence of
marijuana growth in his home, and D.B. tested positive for methamphetamine.
Additionally, in two prior orders removing A.C. and D.B. from the custody of their
respective fathers, the family court found A.C. and D.B. were both abused and
neglected as defined in section 63-7-20.
Moreover, we find the preponderance of the evidence shows returning D.B. and
A.C. to Mother's custody would have placed them at an unreasonable risk of harm.
See § 63-7-1660(E) ("The [family] court shall not order that a child be removed
from the custody of the parent . . . unless the court finds that the allegations of the
petition are supported by a preponderance of evidence including a finding that . . .
retention of the child in or return of the child to the home would place the child at
unreasonable risk of harm affecting the child's life, physical health or safety, or
mental well-being and the child cannot reasonably be protected from this harm
without being removed."). Here, DSS received information that Mother used
methamphetamine in the past, and it referred her to a drug screen. Mother's drug
screen came back negative. Mother's father then alleged he found a bag of
methamphetamine in Mother's purse, and DSS referred Mother to have a hair
follicle drug screen and a urine drug screen. Mother failed to timely take the drug
screens requested by DSS, waiting three weeks to take the hair follicle drug screen
and five weeks to take the urine drug screen. Although the hair follicle drug screen
came back negative, DSS received information that Mother may have stripped her
hair, so it referred Mother for a nail drug screen. Mother failed to take the nail
drug screen requested by DSS. Moreover, at the time of the merits removal
hearing, Mother lived at Foundation House, a rehabilitation center. Additionally,
D.B.'s grandfather testified Mother and D.B. lived with D.B.'s father up until his
arrest. Thus, we find the preponderance of the evidence showed returning D.B.
and A.C. to Mother's custody would have placed them at an unreasonable risk of
harm, and the family court acted properly by not returning the children to Mother.

However, we find the family court erred by failing to follow the proper statutory
procedure for removal. This court may raise issues concerning the best interest of
a child sua sponte. See Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d
372, 374 (2000) ("[P]rocedural rules are subservient to the court's duty to zealously
guard the rights of minors."); Ex parte Roper, 254 S.C. 558, 563, 176 S.E.2d 175,
177 (1970) ("[W]here the rights and best interests of a minor child are concerned,
the court may appropriately raise, ex mero motu, issues not raised by the parties.");
Galloway v. Galloway, 249 S.C. 157, 160, 153 S.E.2d 326, 327 (1967) ("The duty
to protect the rights of minors has precedence over procedural rules otherwise
limiting the scope of review and matters affecting the rights of minors can be
considered by this court [e]x mero motu.").

Here, the family court removed Mother's children, ordered custody of the children
would remain with their respective paternal grandparents, and closed DSS's case
against Mother without approving the placement plan provided to it by DSS and
despite testimony that DSS sought reunification and wished for Mother's case to
remain open to give Mother time to comply with the placement plan. See S.C.
Code Ann. § 63-7-1680(A) (2010 & Supp. 2017) ("If the court orders that a child
be removed from the custody of the parent or guardian, the court must approve a
placement plan."); Randy S., 390 S.C. at 106, 700 S.E.2d at 253 ("DSS must
submit [the placement plan] in writing to the family court at the removal hearing or
within ten days after the removal hearing."). Thus, we find the family court erred
by failing to follow the statutory procedure for removal, and we remand the case to
the family court for a permanency planning hearing. At the hearing, the family
court shall make findings consistent with sections 63-7-1660 and 63-7-1700 of the
South Carolina Code (2010 & Supp. 2017). Further, if the family court determines
the children cannot be safely returned to Mother's custody, it shall order a
placement plan.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.1

SHORT, THOMAS, and HILL, JJ., concur.

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