SCDSS v. Galvin ( 2016 )

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.
Jessica Galvin, Joseph Orr, Trevier Johnson, Jennifer
Parker, and Sherri Housey, Defendants,
Of whom Jessica Galvin is the Appellant.
In the interest of minors under the age of eighteen.
Appellate Case No. 2015-001768
Appeal From Jasper County
Gordon B. Jenkinson, Family Court Judge
Unpublished Opinion No. 2016-UP-396
Submitted May 24, 2016 – Filed July 29, 2016
AFFIRMED
Marshall L. Horton and Lindsay Yoas Goodman, both of
Horton & Goodman, LLC, of Bluffton, for Appellant.
Scarlet Bell Moore, of Greenville, and Tracy O'Kelly
Klatt, of the South Carolina Department of Social
Services, of Beaufort, for Respondent.
Gregory Michael Galvin, of Galvin Law Group, of
Bluffton, for the Guardian ad Litem.
PER CURIAM: Jessica Galvin (Mother) appeals the family court's order granting
legal and physical custody and guardianship of Minors 1, 2, and 3 (collectively
"Minor Children") to two alternate caregivers and allowing DSS to close its case
against her. On appeal, Mother argues the family court erred because the facts do
not support the decision to grant custody to the alternate caregivers and the family
court did not have the statutory authority to finalize custody in a judicial review
hearing. We affirm.
"In appeals from the family court, [an appellate court] reviews factual and legal
issues de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667
(2011). "[An] appellate court has jurisdiction to find facts in accordance with its
view of the preponderance of the evidence. However, this broad scope of review
does not require [the appellate court] to disregard the findings of the family court."
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)). "[W]hile retaining the
authority to make our own findings of fact, [appellate courts] recognize the
superior position of the family court . . . in making credibility determinations." Id.
at 392, 709 S.E.2d at 655. Therefore, "an appellant is not relieved of his burden to
demonstrate error in the family court's findings of fact." Id. "Consequently, the
family court's factual findings will be affirmed unless [the] 'appellant satisfies this
court that the preponderance of the evidence is against the finding of the [family]
court.'" Id. (alteration in original) (quoting Finley v. Cartwright, 55 S.C. 198, 202,
33 S.E. 359, 360-61 (1899)).
First, we find Mother has failed to show that the preponderance of the evidence is
against the family court's findings. Mother denied using drugs and averred the
positive drug tests were caused by her sexual relationship with Johnson. We
acknowledge Mother's prescheduled urine tests were negative for cocaine and an
expert in forensic toxicology opined cocaine could enter a person's system through
unprotected sexual intercourse. However, the forensic toxicologist also testified
urine tests only indicate cocaine usage within the previous 24-36 hours. In
contrast, the hair follicle tests show drug usage within the previous three months.
The family court was in a better position to judge Mother's demeanor and
credibility to determine whether she was telling the truth. Because we find the
issue of Mother's positive drug tests hinged on Mother's credibility, we defer to the
family court. See Lewis, 392 S.C. at 392, 709 S.E.2d at 655 ("[W]hile retaining the
authority to make our own findings of fact, [appellate courts] recognize the
superior position of the family court . . . in making credibility determinations.").
To that end, we find Mother had significant credibility issues. Mother was not
candid with the family court regarding her relationship with Trevier Johnson, an
admitted drug abuser and the father of two of Mother's children. While Mother
initially testified she dated Johnson for one year prior to the hearing, she later
acknowledged she had dated Johnson "off and on" for the last ten years. Mother
also testified she had "cut all relationships" with individuals using drugs after she
continued to test positive for cocaine. However, Johnson testified he had seen
Mother the day before the hearing and they had an intimate relationship one week
prior to the hearing.
Therefore, we find Mother's positive hair follicle tests, combined with her
credibility issues regarding her continued relationship with a known cocaine user,
supports the family court's decision that it is in the best interests of the Minor
Children to place custody with the alternate caregivers.
Last, we find Mother's second argument is unpreserved. See McComb v. Conard,
394 S.C. 416, 426, 715 S.E.2d 662, 667 (Ct. App. 2011) ("[W]hen an appellant
neither raises an issue at trial nor through a Rule 59(e), SCRCP, motion, the issue
is not preserved for appellate review." (alteration in original) (quoting Doe v. Doe,
370 S.C. 206, 212, 634 S.E.2d 51, 55 (Ct. App. 2006))). Mother did not raise this
issue after the family court's ruling from the bench at the conclusion of the hearing
or in a Rule 59(e), SCRCP, motion following the court's written order. Therefore,
we decline to address this issue. See Ex parte Morris, 367 S.C. 56, 65, 624 S.E.2d
649, 654 (2006) (noting "'procedural rules are subservient to the court's duty'" to
protect the rights of minors but "declin[ing] to exercise [its] discretion to avoid
application of the procedural bar" (quoting Joiner ex rel. Rivas v. Rivas, 342 S.C.
102, 107, 536 S.E.2d 372, 374 (2000))).
AFFIRMED.1
LOCKEMY, C.J., and WILLIAMS and MCDONALD, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.