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2012-MO-002 - Wells v. SCDSS

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 Supreme Court


Ex parte:

Pamela Wells and Adrian Wells, Appellants,

In re:

South Carolina Department of Social Services, Plaintiff,

v.

Mother and Father,  Defendants,

Of which

South Carolina Department of Social Services is Respondent.


Appeal from Aiken County
Dale Moore Gable, Family Court Judge


Memorandum Opinion No. 2012-MO-002
Heard January 10, 2012 – Filed March 7, 2012  


AFFIRMED


Bradford M. Owensby and Marsha M. Banks, both of Aiken; and Robert Rutland Thuss, of Swansea, for Appellants.

Amanda Frances Whittle, of Aiken, and Attorney General Alan Wilson, of Columbia, for Respondent.

Amy Patterson Shumpert, of Aiken, for Guardian Ad Litem.


PER CURIAM:  The South Carolina Department of Social Services (DSS) obtained custody of three children (Grandchildren) following their mother's (Mother) arrest.  The Grandchildren lived with Mother while their father had left the state.  DSS initiated this abuse and neglect action against Mother.  Appellants are the Grandchildren's paternal grandmother (Grandmother) and step-grandfather who have appealed an order denying their request to intervene in the abuse and neglect action.[1]  We affirm.

FACTS

In 1994, Grandmother had four children removed from her custody, one of whom is the father of the three Grandchildren.  In that matter, the family court found reason to believe that Grandmother had physically neglected her only daughter, and ordered that finding be entered in the statewide Central Registry of Child Abuse and Neglect (CR).  The three boys were returned to Grandmother's custody, while the daughter remained in DSS custody. 

After Mother's arrest, the Grandchildren were placed in foster care.  Appellants’ request for custody of the Grandchildren was denied by DSS, apparently relying on S.C. Code Ann. § 63-7-650 (2010) as well as DSS Policy 928.02.[2]  Section 63-7-650 requires DSS investigate a relative seeking temporary placement of a child who has been taken into emergency protective custody.  The statute states that if the review of records, including the CR, "reveals information indicating there is a significant risk that the child would be threatened with abuse or neglect in the home of the relative," then DSS "must not agree to or acquiesce in [that] placement."  Id. 

At the hearing on appellants' Motion to Intervene, DSS indicated that if a person is found to be on the CR, then DSS absolutely will not place the child with that individual.  The DSS attorney went on to say that, while DSS took the position that if a person is listed on the CR then DSS is prevented from acquiescing, perhaps the family court could nonetheless order placement with that individual.  DSS also indicated that the presence in the appellants' home of the Grandchildren's father, who returned to South Carolina after Mother's arrest, would cause it not to place the Grandchildren there since father was  facing charges of criminal domestic violence, second offense.   

After DSS denied appellants' custody request, they filed this motion to intervene in the DSS child abuse and neglect action against Mother.  DSS opposed appellants' request to intervene because the matter was in a confidential posture, and it would be inappropriate for appellants to have access to the confidential materials that were part of the case.  See S.C. Code Ann. §§ 63-7-930; -940 (2010) (confidentiality of abuse/neglect information).  Mother also opposed permitting appellants to intervene. 

The family court denied appellants' request to intervene and this appeal follows.

ISSUE

Did the family court commit reversible error in denying appellants' motion to intervene?

ANALYSIS

The family court denied appellants' request to intervene in Mother's abuse and neglect action for five reasons:

1)  S.C. Code Ann. §§ 63-7-1700 et seq. (2010), upon which appellants relied, concerns permanency planning and does not create a right to intervene in this abuse and neglect action;

2)  DSS has a statutory obligation to review the CR;

3)  Appellants do not have an interest compelling intervention;

4)  Appellants seek to intervene in this confidential DSS matter in order to gain an advantage in a contemplated custody action against Mother; and

5)  Appellants should bring a separate private action to obtain custody. 

On appeal, appellants do not challenge all five grounds upon which the family court rested its decision.  Accordingly, those unchallenged rulings, whether correct or not, are the law of the case.  E.g., SCDSS v. M.R.C.L., 393 S.C. 387, 712 S.E.2d 452 (2011).  Moreover, appellants have raised a number of issues for the first time on appeal.  Issues must be raised and ruled on by the trial court in order to be preserved for appellate review.  E.g., In re McCracken, 346 S.C. 87, 551 S.E.2d 235 (2001).  We decline to address any issue which is not preserved.

It appears that the heart of appellants' argument is that Grandmother should not be on the CR, and tangentially the correctness of DSS's apparent policy of automatically refusing to place a child in the custody of a person whose name is on that registry.  The only issue we can decide today, however, is whether appellants have demonstrated an abuse of discretion in the family court's denial of their motion to intervene in Mother's abuse and neglect action.  E.g., Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 581 S.E.2d 161 (2003).  Appellants have not met their burden of demonstrating reversible error here, and we therefore affirm.  This affirmance is without prejudice to appellants' rights, in a different proceeding, to challenge Grandmother's continuing placement on the CR and/or DSS's policy of automatically denying such persons custody.

CONCLUSION

The appealed order is

AFFIRMED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.


[1] DSS erroneously argues that the denial of appellants' motion to intervene is not directly appealable.  Ex parte Johnson, 63 S.C. 205, 41 S.E. 308 (1902).  

[2] This policy is not in the record.