Dain v. Horry County Department of Social Services
| Decision Date | 08 August 2018 |
| Docket Number | 2018-UP-351 |
| Parties | Rachael Dain and Jason Dain, Appellants, v. Horry County Department of Social Services and Jami Smith, Respondents. In the interest of minors under the age of eighteen. |
| Court | South Carolina Court of Appeals |
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.
Submitted May 1, 2018
Rachael Ashley Dain, of Attorney Dain, LLC, of Columbia, for Appellants.
Carolyn R. Hills and Jennifer Darrow Hills, both of Hills & Hills, PC, of Myrtle Beach; and Megan Catherine Hunt Dell, of Dell Family Law, P.C., of Charleston, for Respondent Jami Smith.
Scarlet Bell Moore, of Greenville, for Respondent Horry County Department of Social Services.
Rachael Dain (Grandmother) and her son, Jason Dain (Father)[1]appeal the family court's dismissal of their action against Jami Smith (Mother) and Horry County Department of Social Services (DSS). We affirm.[2]
Father and Mother together have two children (collectively, Children) born in 2007 and 2009. On March 14, 2012, other motorists stopped Mother while she was driving and reported her to police for driving erratically and at a high rate of speed with Children in the car. She was ultimately charged with driving under the influence, child endangerment, and possession of narcotics. Father was given custody of Children, and Children visited Grandmother one weekend a month. In December of 2012, Grandmother went to California for medical treatment for two months. When she returned to South Carolina, she was confined to bedrest until April of 2013. During most of that time, she could not reach Father by telephone. When Grandmother was able to travel, she went to Horry County to visit Father and Children and discovered they had moved. At some point, Grandmother learned Father's wife, Ekaterina Dain, had alleged he committed criminal domestic violence (CDV) and as a result, Children were placed in the care of Father's half-sister. Police later dropped the CDV charge, and DSS determined the case was unfounded. In June of 2013, DSS received custody of Children and placed them in foster care. Father failed drug tests performed after Children's removal. Around October of 2013, DSS returned Children to Mother.
On December 27, 2013, Grandmother filed a motion to intervene in the DSS action against Mother and Father and an amended third-party complaint, both requesting visitation with Children. On January 31, 2014, the family court consolidated Grandmother's action with the DSS action. The family court stated it would not rule on visitation and left it to "the discretion of the person with placement of [Children] at the time." The court ordered the matter be scheduled for mediation on April 4, 2014.
On January 21, 2015, Grandmother orally withdrew her request for relief and moved to have her complaint dismissed prior to the start of a hearing. The family court granted her request. Mother and Father informed the court prior to the hearing they had reached an agreement for Mother to receive legal and physical custody and Father to have reasonable visitation.
On March 3, 2015, DSS became reinvolved with Children following an incident in which one of Children alleged Mother cut the child's stomach with a knife. Mother was arrested for unlawful conduct towards a child. Children were not taken into emergency protective custody but were placed with a protector, Mother's sister, via a safety plan.
On April 6, 2015, the family court issued the order for the January 21, 2015 hearing, finding DSS had made reasonable efforts to assist Mother and Father in remedying the condition that resulted in Children entering foster care. The family court approved Mother and Father's agreement that Mother receive legal and physical custody and Father have reasonable visitation. Additionally, the family court found Mother and Father "agree[d] that if ever there are issues with visitation that they cannot resolve between them[, ] they shall participate in mediation prior to filing an action with the [c]ourt" and ordered them to participate in at least one three-hour mediation session prior to filing an action with the court "[i]n the event there are issues regarding visitation between" them they cannot resolve.
DSS offered treatment services in August of 2015, Mother complied with those services, and Children were returned to her.
On March 23, 2016, Appellants filed a complaint in the family court against Mother and Horry County DSS. Appellants requested the case be transferred to a DSS office in a county other than Horry County, asserting Horry County DSS had been grossly negligent and engaged in misconduct. Appellants also alleged Mother was unfit to have physical or legal custody of Children. They contended Mother abused and neglected Children and was currently facing felony child abuse charges. Appellants asserted Grandmother was the best placement for Children at the time. On May 20, 2016, Mother filed a motion to dismiss Appellants' complaint.
DSS removed the safety plan and closed treatment services on May 26, 2016. DSS found Mother had acted appropriately. The family court held a hearing on May 31, 2016. On September 6, 2016, the family court issued an order granting Mother's motion to dismiss Appellants' complaint. The family court found Grandmother failed to plead Father was an unfit parent but noted Appellants' attorney had admitted during the hearing Father was not in a position to have custody. The court determined Grandmother lacked standing to request relief. The court further found Grandmother failed to state a prima facie case she is Children's psychological parent or de facto custodian. The family court also concluded Father failed to comply with the mandate of the court he must "seek mediation prior to filing an action against [Mother]." Appellants filed a motion for reconsideration, which the family court denied. This appeal followed.
An appellate court reviews decisions of the family court de novo. Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Appellate courts generally recognize the superior position the family court is in to make credibility determinations. Id. at 392, 709 S.E.2d at 655. The party contesting the family court's decision bears the burden of demonstrating the family court's factual findings are not supported by the preponderance of the evidence. Id.
Initially, Mother contends because Grandmother did not appeal the family court's finding she lacked standing, that ruling is the law of the case and requires affirming Grandmother's appeal. Appellants argue in their reply brief the family court's finding regarding standing does not affect Father's appeal. Further, in their reply brief, they contend Grandmother does have standing.
"An appellant may not use . . . the reply brief as a vehicle to argue issues not argued in the appellant's brief." Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477 (Ct. App. 1989). "[An] unappealed ruling is the law of the case and requires affirmance." Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 653-54 (2006). "The appellate court may affirm any ruling, order, decision[, ] or judgment upon any ground(s) appearing in the Record on Appeal." Rule 220(c), SCACR. "Standing refers to a party's right to make a legal claim or seek judicial enforcement of a duty or right." S.C. Dep't of Soc. Servs. v. Boulware, 422 S.C. 1, 7, 809 S.E.2d 223, 226 (2018) (quoting Michael P. v. Greenville Cty. Dep't of Soc. Servs., 385 S.C. 407, 415, 684 S.E.2d 211, 215 (Ct. App. 2009)). "Prior to commencing an action, a party must possess standing either 'by statute, through the principles of constitutional standing, or through the public importance exception.'" Id. (quoting Youngblood v. S.C. Dep't of Soc. Servs., 402 S.C. 311, 317, 741 S.E.2d 515, 518 (2013)). "Statutory standing exists 'when a statute confers a right to sue on a party, and determining whether a statute confers standing is an exercise in statutory interpretation.'" Id. (quoting Youngblood, 402 S.C. at 317, 741 S.E.2d at 518).
Appellants' failure to raise until the reply brief the family court's ruling Grandmother lacked standing renders the family court's ruling on that matter the law of the case and thus bars us from considering any issues on appeal relating to Grandmother. However, Appellants are correct the failure to appeal Grandmother's lack of standing does not affect any of the issues raised on appeal in regards to Father. Accordingly, we will consider Father's issues.
Appellants maintain the family court erred in finding the prior order deciding custody required Father to mediate before bringing this action. They contend because the prior order only required Father to mediate issues about visitation and custody is different from visitation, he was not required to meditate. We agree but affirm the family court's decision on other grounds.
Custody is defined as "[t]he care, control, and maintenance of a child awarded by a court to a responsible adult." Custody, Black's Law Dictionary (10th ed. 2014). Visitation is defined as "[a] relative's, esp[ecially] a noncustodial parent's, period of access to a child." Visitation, Black's Law Dictionary (10th ed. 2014). "Under the penumbra of custody is the lesser included right to visitation." Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006).
The family court erred in finding the prior family court order required Father to meditate prior to filing an action for...
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