Heard July 23, 2014.
Appeal from Charleston County. Appellate Case No. 2013-001751. Daniel E. Martin, Jr., Family Court Judge.
Phyllis Walker Ewing and Trudy Hartzog Robertson, both of Moore & Van Allen, PLLC, of Charleston, for Appellant.
Wolfgang Louis Kelly, of South Carolina Department of Social Services, of North Charleston, for Respondent.
Joshua Keith Roten, of Charleston, for the Guardian ad Litem.
WILLIAMS, KONDUROS, and LOCKEMY, JJ., concur.
[410 S.C. 122] PER CURIAM:
In this permanency planning appeal, we hold the family court erred in finding it lacked jurisdiction to order reunification when no merits hearing was ever held to determine whether the children were abused or neglected. We also find the family court erred in dismissing the oldest son from the action when he was removed pursuant to a removal action and custody was never permanently awarded to a third party. We reverse and remand with instructions for the family court to hold a merits hearing on the underlying removal action.
This removal action began November 10, 2010. At the December 13, 2010 merits hearing, Katrina Massey (Mother) and Michael Jackson (Father) agreed the South Carolina Department of Social Services (DSS) should retain legal and physical custody of their children (Daughter and Son) and
Mother and Father would complete treatment plans. However, Mother and Father contested findings of abuse and neglect, and the family court scheduled mediation. Following [410 S.C. 123] mediation, Mother and Father agreed DSS should retain legal and physical custody of Daughter, and Denise Hogan, a relative, should have legal and physical custody of Son. The family court approved the agreement on January 24, 2011, finding the parties stipulated the order was being issued without an affirmative finding of fact on the existence of harm or threat of harm to the minor children. The order stated, " [DSS] specifically reserves the right to pursue such a finding of fact at any subsequent [h]earing in this matter, and the rights of all parties to present evidence in support of or in defense against such a finding is likewise reserved."
Mother gave birth to another son (Baby) on February 16, 2011, and the family court issued an ex parte order removing Baby and placing him in DSS's custody. The family court scheduled a merits hearing in Baby's case for April 14, 2011, but it was continued at DSS's request. On May 16, 2011, the family court held a merits hearing in Baby's case, and it issued a final order regarding Father. The family court continued the issues regarding Mother so she could obtain counsel.
The family court scheduled a merits hearing for Baby's case on June 20, 2011, but it was continued because some of the parties were not served. The case was continued again on August 3, 2011, because it was contested. The family court scheduled mandatory mediation for September 9, 2011, but it was continued because there were not enough ...