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Jobst v. Jobst

Court of Appeals of South Carolina

June 6, 2018

Karl and Lisa Jobst, Respondents,
Bryan Jobst, Brittany Martin, and South Carolina Department of Social Services, Of whom Brittany Martin is the Appellant and South Carolina Department of Social Services is the Respondent. In the interest of a minor under the age of eighteen. Appellate Case No. 2016-002439

          Heard March 14, 2018

          Appeal From Spartanburg County Monét S. Pincus, Family Court Judge.

          Melinda Inman Butler, of The Butler Law Firm, of Union, for Appellant.

          George Brandt, III, of Henderson Brandt & Vieth, PA, of Spartanburg, for Respondents Karl and Lisa Jobst; and Robert C. Rhoden, III, of Spartanburg, for Respondent South Carolina Department of Social Services.

          KONDUROS, J.

         Brittany Martin (Mother) appeals an order awarding custody of her minor child (Child) to Karl (Grandfather) and Lisa Jobst (Grandmother, collectively Grandparents). On appeal, Mother argues the family court erred in (1) finding Grandparents had standing to seek custody, (2) dismissing the South Carolina Department of Social Services (DSS) from the action, and (3) holding Mother in contempt for failing to attend mediation. We affirm.


         Child was born in 2013. Mother and Brian Jobst (Father) are Child's parents, and Grandparents are Child's paternal grandparents. On June 5, 2015, Mother was arrested for driving under the influence (DUI), possession of marijuana, and child endangerment because Child was in the car with Mother at the time of her arrest. The following day Mother and Father signed a Safety Plan with DSS agreeing Father would act as Child's protector and not allow Mother to have unsupervised contact with Child during DSS's investigation. Because of Father's work schedule, Mother and Father asked Grandmother, who lived in Texas, to come to South Carolina and care for Child. Grandmother came to South Carolina, and on June 11, 2015, Grandparents filed this action alleging Mother and Father were unfit, Grandparents were Child's de facto custodians or psychological parents, and custody with Grandparents was in Child's best interest. On June 15, 2015, the family court issued an order granting Grandparents temporary custody of Child and requiring them to remain in South Carolina. On August 17, 2015, the family court issued a second order granting Grandparents temporary custody of Child and allowing Child to move to Texas, where Grandparents lived.

         On October 4, 2016, the family court held a final hearing. Grandmother testified Mother and Father previously lived with Grandparents in South Carolina while Mother was pregnant, and Mother, Father, and Child lived with Grandparents until Child was about one year old. She stated everyone got along well during that time and testified, "We took care of the baby. [Father] took care of the baby. [Mother] at times took care of the baby." However, she believed Mother was not always attentive to Child. She explained, "[Mother] would get up at two o'clock [p.m.] and take a shower, smoke a couple of cigarettes[, ] and get dressed and go off to work, and we wouldn't see her until two, three, four in the morning, whenever she came home . . . ." Grandmother added "Sometimes she would do the two o'clock feeding before she went to work and sometimes she wouldn't. She didn't say much. She just went on her way."

         Grandmother stated Father worked full-time and attended school, and he "was a little disappointed that [Mother] wasn't . . . doing more with [Child]." She stated she and Grandfather were able to help care for Child in part because Grandmother worked two days per week and Grandfather had been laid off from his job. Grandmother testified she and Grandfather moved to Texas in July 2014.

         When Grandmother arrived in South Carolina following Mother's arrest, the DSS caseworker told her "if Father and Mother did not pass their drug test, that either [Grandmother] could get custody of [Child] or she would go to a foster home, . . . and that if [Grandmother] wanted [custody], [she] needed to get an attorney."

         Grandmother testified Father visited Child "every night after work" when she lived in South Carolina with Child under the temporary custody order. She testified, "[Child] was happy to see him, glad to see him." Grandmother testified Mother had scheduled visitation on Wednesdays, Saturdays, and Sundays and "[s]ometimes she would come for the visitation. Sometimes she wouldn't." Grandmother described Mother's behavior during that time as "weird." She stated Mother had "[j]erking movements, tremors. She had facial expressions. Sometimes . . . her pupils were really dilated." Grandmother stated she asked Mother whether she had entered drug treatment or done anything required by the court; Mother replied, "[W]hat are you talking about? No one told me I had to do anything."

         Grandmother testified the modified temporary order allowing Grandparents to take Child to Texas required Grandparents to pay Mother's travel expenses for monthly visits. The order also required Mother to pay child support, which she generally failed to do with the exception of August of 2015 and January 2016.

         Regarding Mother's visits to Texas, Grandmother testified Mother generally acted bizarre-exhibiting tremors, making odd facial expressions, staying up late, and going outside frequently. Grandmother further testified Mother had limited engagement with Child, argued with Child on several occasions over trivial matters, like tea sets, water guns, and coloring. Grandmother estimated Mother spent about twenty to forty minutes with Child during visits and the visits were largely unproductive. She stated Mother "call[ed Child] here and there, not on a regular basis, " but Child "usually didn't want to talk to her."

         Grandmother testified Child attended preschool, did not have special needs or concerns, and was thriving in Grandparents' custody. She stated Father had moved to Texas to live with them and helped pay household expenses. She further stated Texas Child Protective Services (CPS) visited their home monthly at DSS's request, she was not aware of any negative reports, and CPS's last visit was in June 2016. Grandmother testified she and Grandfather had driven to South Carolina for court-ordered mediation with Mother, but Mother did not attend. Grandmother stated she spent $400 for the mediator, $300 per hour for her attorney, and around $1, 000 in travel expenses. She requested Mother be held in contempt for not appearing at mediation or paying child support.

         On cross-examination, Grandmother acknowledged the visits between Child and Mother had "gotten a little bit better" but maintained the visits were still "not good." Grandmother stated Child did not appear upset when Mother left, and Mother's ability to interact with Child had not improved. Grandmother also acknowledged DSS planned to file a removal action against Mother and Father in 2014 after Father failed a drug test, but tesitifed DSS allowed Father to have unsupervised contact with Child after he passed a drug test in May 2016. She stated DSS "was still directing this case" at that time.

         Grandfather testified he was married to Grandmother and earned $120, 000 per year in Texas. He described Child as "a great joy, " believed Child was doing "wonderful[ly], " and believed it would be in Child's best interest to remain in Grandparents' custody. Grandfather stated he and Grandmother tried to encourage a relationship between Mother and Child during visits. He stated he never saw any indication Mother had stopped using drugs; however, he "was quite convinced [Father] stopped using them." Grandfather noted Father's job required a drug test.

         Dana Lyles, a human services specialist for DSS, testified she became involved with this family when DSS received a report on June 5, 2015, that Child may have been abused or neglected. She testified Mother and Child were living with Angela Ivey, Mother's mother. Lyles visited them at Ivey's house on June 6. Lyles stated DSS determined Child "would need a kinship caregiver, " but Ivey could not "serve in that position because she was listed in the central registry, and her husband Ronald . . . was the perpetrator on a past indicated child abuse and neglect case." Lyles indicated DSS agreed to a safety plan "allowing [Father] to be the protector of [Child] and [providing] he would supervise all contact between Child [and Mother]." She testified DSS requested Father submit to a drug screen; while they were awaiting the results of that test, DSS learned "[Grandmother] was flying in and that she wanted to be the protector of [Child] because [Father] was working." Lyles clarified she "didn't place [C]hild with [Grandparents]. [She] placed ...

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