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2011-UP-375 - SCDSS v. C.E.

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, Respondents,

v.

C.E., R.E., C.E., B.D.,  R.D., Defendants,

Of whom C.E., R.E., and C.E. are Respondents,

and B.D. and R.D. are Appellants.

In the interest of a minor child under the age of 18.


Appeal From Lexington County
Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No. 2011-UP-375
Submitted July 1, 2011 – Filed July 21, 2011   


AFFIRMED


Michelle M. Dickerson, of West Columbia, for Appellants.

Kenneth C. Hanson, of Columbia, and Rose Mary McGregor, of Lexington, for Respondents.

Jeremy C. Martin, of Chapin, for Guardian ad Litem.

PER CURIAM: B.D. and R.D. (Foster Parents) appeal from the family court's permanency planning order placing custody of Child with R.E. and C.E. (Grandparents).  Specifically, Foster Parents argue the family court erred in (1) making conclusory findings of fact in the permanency planning order that were not supported by the evidence and were contrary to the family court's oral ruling; (2) making a conclusory finding in the permanency planning order that it was in the best interest of Child to be transferred to Grandparents when the evidence did not support such a finding; (3) failing to comply with section 63-7-1700(G) of the South Carolina Code (Supp. 2010); and (4) excluding the testimony of Foster Parents' expert witness and failing to consider the expert's testimony in its ruling.  We affirm.[1]   

On appeal from the family court, this court reviews factual and legal issues de novo.  Simmons v. Simmons, __ S.C. __, 709 S.E.2d 666, 667 (2011); see Lewis v. Lewis, __ S.C. __, 709 S.E.2d 650, 651 (2011).  Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Lewis, __ S.C. at __, 709 S.E.2d at 651.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id.         

"In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence."  Ex parte Morris, 367 S.C. 56, 61, 624 S.E.2d 649, 652 (2006).  "This broad scope of review does not, however, require the appellate court to disregard the findings of the family court."  Id.  "This degree of deference is especially true in cases involving the welfare and best interests of a minor child."  Id. at 62, 624 S.E.2d at 652.

1. Foster Parents' first argument is without merit because the family court's findings of fact in its permanency planning order were supported by evidence in the record.   Additionally, in South Carolina, "[i]t is well settled that [the court] is not bound by a prior oral ruling and may issue a written order which is in conflict with the oral ruling."  Corbin v. Kohler Co., 351 S.C. 613, 621, 571 S.E.2d 92, 97 (Ct. App. 2002).  Accordingly, the argument that the oral ruling and the order conflict is also without merit.

2. "In custody matters, the court's paramount concern is the welfare and best interest of the child."  Hartley v. Hartley, 292 S.C. 245, 248, 355 S.E.2d 869, 872 (Ct. App. 1987).  We hold the family court correctly found custody with the Grandparents was in the Child's best interest.  Specifically, a homestudy conducted through the Interstate Compact on the Placement of Children approved Grandparents, finding Grandparents fit and willing relatives.  Additionally, Child will reside with two siblings who live with Grandparents and are doing well.  Moreover, Child will continue to have a relationship with Child's biological family in a stable environment.  Finally, DSS recommended Child be awarded to Grandparents.  Although Foster Parents provided good care for Child and were making preparations to adopt Child, because DSS's permanency plan is "custody or guardianship with a fit and willing relative," the family court properly assessed the viability of Grandparents as appropriate custodians under the applicable statute and found Grandparents satisfied the best interests of Child.  See S.C. Code Ann. § 63-7-1700(C) (Supp. 2010). 

3. Foster Parents' third argument is without merit because the family court was not operating under section 63-7-1700(G), but rather under section 63-7-1700(C) of the South Carolina Code (Supp. 2010).  Section 63-7-1700(C) is appropriate when the family court is approving a permanency plan, and it provides "[i]f the [family] court approves a plan that is not reunification with the parents, custody or guardianship with a fit and willing relative, or termination of parental rights, the [family] court must find compelling reasons for approval of the plan and that the plan is in the child's best interests."  Alternatively, section 63-7-1700(G) provides:

If after assessing the viability of adoption, the department demonstrates that termination of parental rights is not in the child's best interests, the court may award custody or legal guardianship, or both, to a suitable, fit, and willing relative or nonrelative if the court finds this to be in the best interest of the child; however, a home study on the individual whom the department is recommending for custody of the child must be submitted to the court for consideration before custody or legal guardianship, or both, are awarded.  The court may order a specified period of supervision and services not to exceed twelve months, and the court may authorize a period of visitation or trial placement prior to receiving a home study. 

Here, the family court was not assessing the viability of adoption but, rather, was approving a permanency plan.  Accordingly, because section 63-7-1700(G) was inapplicable, the family court was not required to meet those requirements.

4. Foster Parents' fourth argument is without merit.  After reviewing the testimony of Foster Parents' expert witness under this court's broad scope of review, we find the exclusion of the expert's testimony was harmless because the testimony was merely cumulative to other evidence presented at the hearing.  See State v. Pipkin, 359 S.C. 322, 328, 597 S.E.2d 831, 834 (Ct. App. 2004) ("Even if excluded in error, the exclusion of evidence which would be merely cumulative to other evidence . . . is harmless.").  Accordingly, any error resulting from the exclusion of the expert's testimony was harmless because of its cumulative nature. 

AFFIRMED.

WILLIAMS, KONDUROS, and GEATHERS, JJ., concur.


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