SCDSS v. James

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.

Savilla James, Mary Duncan, and Jerome Duncan,
Defendants,

Of whom Savilla James is the Appellant.

In the interest of minors under the age of eighteen.

Appellate Case No. 2016-002211

Appeal From Lancaster County
W. Thomas Sprott, Jr., Family Court Judge

Unpublished Opinion No. 2017-UP-253
Submitted May 24, 2017 – Filed June 20, 2017

AFFIRMED

Melinda Inman Butler, of The Butler Law Firm, of
Union, for Appellant.

Shannon Lee Felder, of the South Carolina Department
of Social Services, of Lancaster, for Respondent.
Susan Margaret Johnston, of Columbia, for the Guardian
ad Litem.

PER CURIAM: Savilla James (Mother) appeals the family court's order, which
awarded custody of her two minor children to their kinship caregivers and allowed
DSS to close the case. We affirm.1

"In appeals from the family court, the appellate court has jurisdiction to find facts
in accordance with its view of the preponderance of the evidence." Lewis v. Lewis,
392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011) (quoting Eason v. Eason, 384 S.C.
473, 479, 682 S.E.2d 804, 807 (2009)). However, this court is "not required to
ignore the fact that the [family] court, who saw and heard the witnesses, was in a
better position to evaluate their credibility and assign comparative weight to their
testimony." Fiddie v. Fiddie, 384 S.C. 120, 124, 681 S.E.2d 42, 44 (Ct. App.
2009). Accordingly, "an appellant is not relieved of [the] burden to demonstrate
error in the family court's findings of fact." Lewis, 392 S.C. at 392, 709 S.E.2d at
655. This court will affirm the family court's findings unless the appellant shows
the family court's findings are not supported by the preponderance of the evidence.
Id.

We find Mother failed to show the preponderance of the evidence was against the
family court's finding that a permanent plan of relative placement was in the best
interest of the children. The permanency planning statute allows the family court
to award custody to "a suitable, fit, and willing relative" if it is in the best interest
of the child. S.C. Code Ann. § 63-7-1700(G) (Supp. 2016).2 During the hearing,
the DSS caseworker testified Mother did not provide adequate supervision for the
children despite DSS's efforts to assist her in doing so. Further, the DSS
caseworker testified Mother failed to consistently visit the children. Additionally,
the Guardian ad Litem (GAL) testified the children were prospering in their
placements. She explained Mother's ten-year-old son stated he wanted to remain
with his uncle, where he had lived for seventeen months. The GAL also expressed
concerns about returning Mother's two-year-old son to her care because she was

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
2
We construe this judicial review hearing as a permanency planning hearing
because the family court effectively set the permanent plan for the children as
relative placement when it closed the case. See S.C. Code Ann. § 63-7-1700(C)
("At the permanency planning hearing, the court shall approve a plan for achieving
permanence for the child.").
not sure if he really knew Mother. We find the foregoing supports the family
court's finding that a permanent plan of relative placement was in the children's
best interest, and Mother has failed to show the family court's findings were
against the preponderance of the evidence. See Lewis, 392 S.C. at 389, 709 S.E.2d
at 654 (providing the appellate court will affirm the family court's findings unless
the appellant satisfies his burden of showing the preponderance of the evidence is
against the family court's findings). 3

AFFIRMED.

GEATHERS, MCDONALD, and HILL, JJ., concur.

3
Mother's argument that the private custody factors from Moore v. Moore, 300
S.C. 75, 79, 386 S.E.2d 456, 458 (1989), should apply to DSS removal actions was
not raised to the family court; therefore, it is not preserved. See Charleston Cty.
Dep't of Soc. Servs. v. Jackson, 368 S.C. 87, 105, 627 S.E.2d 765, 775 (Ct. App.
2006) (providing an issue not raised to and ruled upon by the family court is not
preserved for review); Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 654
(2006) (noting "procedural rules are subservient to the court's duty" to protect the
rights of minors but "declin[ing] to exercise [its] discretion to avoid application of
[a] procedural bar" (quoting Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536
S.E.2d 372, 374 (2000))). Further, unlike Moore, the permanency planning
hearing was governed by a statute. Cf. Charleston Cty. Dep't of Soc. Servs v. King,
369 S.C. 96, 103-04, 631 S.E.2d 239, 243 (2006) (declining to apply the Moore
factors to a termination of parental rights because termination of parental rights is
governed by statute).