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2012-UP-073 - SCDSS v. J.W.

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.

J.W., J.F., John Doe, Defendants,

Of whom J.W. is the Appellant.

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


Appeal From Oconee County
Timothy M. Cain, Family Court Judge


Unpublished Opinion No. 2012-UP-073
Submitted February 1, 2012 – Filed February 8, 2012   


REVERSED AS MODIFIED


William Cory Hughes, of Greenville, for Appellant.

Kimberly Renae Welchel, of Walhalla, for Respondent.

John Frederic Prescott, Jr., of Walhalla, for Guardians ad Litem.

PER CURIAM:  J.W. appeals the family court's permanency planning order, arguing the family court erred in refusing to return her twelve-year-old grandson (Child) to her custody and in adopting a concurrent permanency plan of termination of parental rights.  We agree and reverse.[1]

On appeal from the family court, this court reviews factual and legal issues de novo.  Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).  "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).  "If the court determines at the permanency planning hearing that the child may be safely maintained in the home in that the parent has remedied the conditions that caused the removal and the return of the child to the child's parent would not cause an unreasonable risk of harm to the child's life, physical health, safety, or mental well-being, the court shall order the child returned to the child's parent."  S.C. Code Ann. § 63-7-1700(D) (Supp. 2010). 

We find the preponderance of the evidence supports returning Child to J.W.'s custody as there is no unreasonable risk of harm.  The examining psychologist and the Guardians ad Litem testified they believe it is unsafe for Child to return to J.W.'s custody primarily because of the potential for an incident in which she becomes disabled due to her health concerns and is unable to care for Child.  We find these concerns to be speculative and based on J.W.'s general condition and one unique incident involving an adverse medication reaction.  The potential for any such incident is further reduced by the fact that several members of J.W.'s family live nearby, J.W. has a home health aide who is at her home approximately forty-eight hours a week, and J.W. has a lifeline alert device linking her to the hospital.  The psychologist testified J.W. was able to care for Child's daily needs and, furthermore, Child has regularly spent extended periods of time at J.W.'s home without incident.  Moreover, no one involved has doubted that J.W. provides a loving home for Child and any threat of harm to Child is speculative and not unreasonable.  Furthermore, in our view, returning Child to J.W.'s custody is in Child's best interest and would achieve permanence in Child's life.  See S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 133, 538 S.E.2d 285, 287 (Ct. App. 2000) (holding the best interests of the child are the paramount consideration).  In sum, we believe the preponderance of the evidence supports returning Child to J.W.'s home and order the Department of Social Services to continue providing supervision and services for six months from the date of filing of this opinion.  In addition, the Guardians ad Litem shall continue to monitor the situation for six months from the date of filing of this opinion.

Our determination on the initial issue is dispositive; thus, we decline to address any remaining issues.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding this court need not review remaining issues on appeal when its determination of a prior issue is dispositive).

REVERSED AS MODIFIED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


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