SCDSS v. Levine

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.

Cynthia G. Levine, Appellant.

In the interests of minors under the age of eighteen.

Appellate Case No. 2023-000238

Appeal From Horry County
Holly H. Wall, Family Court Judge

Unpublished Opinion No. 2024-UP-157
Submitted April 30, 2024 – Filed May 1, 2024

AFFIRMED

Nancy Carol Fennell, of Irmo, for Appellant.

William Evan Reynolds, of Kingstree, for Respondent.

Michael Julius Schwartz, of Russell B. Long, PA, of
Myrtle Beach, for the Guardian ad Litem.
PER CURIAM: In this abuse and neglect action, Mother appeals a merits
removal order. On appeal, she argues the family court erred in (1) finding she
neglected her child (Child 1), who turned eighteen before the removal hearing, and
her two minor children (Child 2 and Child 3; collectively, Children); (2) granting
custody of Children to the Department of Social Services (DSS); (3) authorizing
DSS to forego reasonable efforts at reunification; and (4) ordering a permanent
plan of termination of parental rights (TPR) and adoption. We affirm.

"[T]he proper standard of review in family court matters is de novo . . . ." Stoney
v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018). "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)). Despite this standard of review, we are mindful that the
family court, which saw and heard the witnesses, was in a better position to
evaluate the credibility of the witnesses and assign comparative weight to their
testimony. Id. at 385, 709 S.E.2d at 651-52. Moreover, the appellant has the
burden of showing this court the greater weight of the evidence is against the
family court's findings. Id. at 392, 709 S.E.2d at 655.

We hold the family court properly found Mother neglected Child 1 and Children
and granted custody of Children to DSS because the preponderance of the evidence
showed Mother left Child 1 at a fire station after being cautioned not to do so and
subsequently failed to provide alternate caregivers for Children when she was
arrested. See S.C. Code Ann. § 63-7-1660(E) (2010) ("The [family] court shall not
order that a child be removed from the custody of the parent . . . unless the court
finds the allegations of the petition are supported by a preponderance of evidence
including a finding that . . . 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."); S.C. Code Ann. § 63-7-20(6)(a)(i) (Supp. 2023)
(explaining "child abuse or neglect" or "harm" occurs when a parent has
"engage[d] in acts or omissions which present a substantial risk of physical or
mental injury to the child"). Moreover, DSS's expert testified Children could not
be returned to Mother's care without "major" behavioral changes Mother had not
undertaken at the time of the hearing.

Further, we hold the family court did not err in allowing DSS to forego reasonable
efforts at reuniting Mother and Children and approving a permanent plan of TPR
and adoption. See S.C. Code Ann. § 63-7-1640(C)(1)(b) (Supp. 2023) (explaining
the family court may authorize DSS to forego reasonable efforts at reunification
when it determines the parent has subjected a child to severe or repeated neglect);
S.C. Code Ann. § 63-7-1640(F) (Supp. 2023) ("In determining whether to
authorize [DSS] to terminate or forego reasonable efforts to preserve or reunify a
family, the court must consider whether initiation or continuation of reasonable
efforts to preserve or reunify the family is in the best interests of the child."). At
the time of the removal hearing, Mother had undertaken recommended services for
approximately ten months, including parenting classes, drug and alcohol education,
and mental health counseling; however, her service providers uniformly testified
she had not been able to identify any changes she could make in her parenting style
outside of improving her communication skills. Dr. Melissa Muse, Child 2's
therapist and an expert in child therapy, testified she stopped providing family
therapy to Mother and Child 2 because Mother, while technically cooperative, did
not believe she needed to make any changes; Dr. Muse disagreed and opined
Mother would need to make significant changes in order to resume care of Child 2,
who suffered from extensive mental health issues. Mother's visitation had ceased
the month before the hearing due to Mother's failure to make behavioral changes—
despite repeated suggestions—and concern that the visits were not beneficial to
Children. We find a preponderance of the evidence showed Mother subjected
Children to severe or repeated neglect by failing to provide alternative caregivers
when she was arrested and continually refusing to accept responsibility or make
behavioral changes. See S.C. Code Ann. § 63-7-20(22) (Supp. 2023)
("'Preponderance of evidence' means evidence which, when fairly considered, is
more convincing as to its truth than the evidence in opposition."). Accordingly, the
family court did not err in authorizing DSS to forego reasonable efforts at
reunification and in adopting a permanent plan of TPR and adoption.

AFFIRMED.1

GEATHERS, HEWITT, and VINSON, JJ., concur.

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