Full Opinion

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 Abby Bishop, Appellant, v. South Carolina Department of Social Services, Respondent. Appellate Case No. 2024-000973 Appeal from Beaufort County Randall E. McGee, Family Court Judge Unpublished Opinion No. 2026-UP-484 Submitted September 1, 2026 – Filed November 12, 2026 AFFIRMED IN PART, VACATED IN PART Abby Bishop, pro se. Gregory L. Hyland, of the South Carolina Department of Social Services, of Walterboro, for Respondent. PER CURIAM: Appellant Abby Bishop challenges an order from the Office of Administrative Hearings (OAH) upholding Respondent South Carolina Department of Social Services' (SCDSS') removal of T.J., a foster child, from her care. Abby appealed to the family court. The family court denied Abby's appeal. We vacate the family court's order and affirm OAH's order. FACTS AND PROCEDURAL HISTORY On August 5, 2023, Ryan Bishop, Abby's husband, had a physical altercation in the Bishops' home with the Bishops' intoxicated, belligerent fifteen-year-old son, B.B., after B.B. became aggressive towards Abby and was threatening to leave the home. At the time of the incident, the Bishops' three other children and two foster children, T.J. and Y., were in the home. T.J., the subject of the removal in this case, was two years old and had been in the Bishops' care since birth. She was asleep in her room during the incident and seemingly was not aware of what was happening. Abby, T.J.'s foster mother, called the police to report the incident. One of the responding officers completed an Out-of-Home Abuse and Neglect (OHAN) report.1 Beaufort County Department of Social Services (DSS), the office of DSS with authority over the county in which the Bishops resided, began investigating the incident the following day and declined to remove any of the Bishops' children from the home because Ryan had left the home.2 Beaufort County DSS screened out the OHAN report, determining there was no legal reason why the foster children needed to be removed. Though Beaufort County DSS declined to remove the foster children, shortly thereafter, there was an unrelated, separate, non-violent incident involving another one of the Bishops' foster children, Y. This second incident led Abby to request Beaufort County DSS remove Y. from the home. Y. left the Bishops' home on September 7, 2023. A family preservation case worker from Beaufort County DSS created a safety plan for the Bishops in early September 2023. Beaufort County DSS again declined to remove any of the Bishops' children at that time because Ryan remained out of the home. The plan explicitly provided that Ryan was not to have contact with the children, including T.J. 1 An OHAN report is a screening tool used when there are concerns of abuse and neglect in foster care facilities and homes. It assesses the child's risk while living in the facility or home. 2 Ryan left the home with the intent of returning once Beaufort County DSS approved his return. From the record, it appears Ryan was fully cooperative with Beaufort County DSS and was working towards returning to the home at all times. On August 30, 2023, Beaufort County DSS filed an indicated report 3 against Ryan for physical abuse of B.B. stemming from the initial incident. Around September 14, 2023, Jasper County DSS, the office of DSS that had custody of T.J. and was responsible for supervising T.J.'s foster care placement, became aware of the indication report against Ryan. Wesley Scott, a Foster Care Supervisor at Jasper County DSS, later testified that following the notification about the indication, he, along with several other DSS employees—including T.J.'s case manager, the regional director, the county director, the program coordinator, and an agency attorney—determined T.J. was not safe in the home and the post-incident safety plan did not mitigate the risk to T.J.'s health and safety. Scott testified Jasper County DSS' decision to remove T.J. was because of the indicated report against Ryan and concerns about the Bishops' supervision of the children given B.B.'s intoxication and aggressive behavior the night of the incident. Scott did concede that the OHAN report had initially been screened out but he was unsure why it had been screened out. Additionally, Jasper County DSS determined Abby's new status as the sole parent handling B.B—who Jasper County DSS deemed to be aggressive—warranted T.J.'s immediate removal from the home. Jasper County DSS sent Abby a letter that notified her that T.J. would be removed in ten days and provided that the removal decision was made based on the indicated report against Ryan and the family preservation case SCDSS opened following the incident. See S.C. Code Ann. Regs. 114-140(B)(2) (2012) (providing that "[w]hen [DSS] intends to remove a foster child, [DSS] shall provide the foster parent(s) written notice ten (10) days in advance of the removal of the child. In all cases when [DSS] intends to remove a foster child, [DSS] shall give written notice to foster parent(s); however, the 10-day advance notice period shall not apply to those cases where [DSS] determines there are emergency circumstances warranting immediate removal of the child . . ."). The letter was dated September 20, 2023. Despite the letter purporting to provide ten days' notice of removal, on September 21, 2023, six weeks after the incident and one day after the letter's date, Jasper County DSS removed T.J. from the Bishops' home. Because the emergency circumstances were related to T.J.'s health and safety, T.J. was not permitted to remain in the Bishops' home during the hearing process. See S.C. Code. Ann. Regs. 114-140(B)(1) (providing that if a foster parent appeals the removal of a child and 3 "'Indicated report' means a report of child abuse or neglect supported by facts which warrant a finding by a preponderance of evidence that abuse or neglect is more likely than not to have occurred." S.C. Code Ann. § 63-7-20(14) (2010 & Supp. 2025). the child has resided in the foster home for more than 120 days, the child remains in the foster home during the appeals hearing process; however, a child who has resided in the foster home for more than 120 days will not remain in the home during the hearing process if DSS finds "good cause to believe that the health or safety of the child is threatened by the child's continued presence in the foster home"). Abby appealed T.J.'s removal to OAH 4 because SCDSS failed to adhere to "DSS policy/procedure outlined in the foster parent handbook." Abby requested that she be returned guardianship over T.J. Following a hearing on the matter, OAH issued an order that affirmed SCDSS' removal of T.J. Abby did not file a motion to reconsider. This appeal came before this court after a procedural detour, which we discuss below. STANDARD OF REVIEW An appellate court "may reverse or modify the [administrative agency's] decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. S.C. Code Ann. § 1-23-380(5) (2005 & Supp. 2025). "[S]ubstantial evidence is 'something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'" In re Blue Granite Water Co., 434 S.C. 180, 188, 862 S.E.2d 887, 891 (2021) (quoting Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981)). LAW AND ANALYSIS 4 OAH, an office within SCDSS that hears contested cases, handles foster child removal appeals. I. Jurisdictional Irregularity Before reaching the merits, we first address the winding path this case took to this court. A letter accompanying OAH's final administrative order instructed Abby to file an appeal with the family court. Following the letter's guidance, Abby timely filed her notice of appeal with the family court and served the notice on SCDSS. Unfortunately, the parties recognized several months after the notice of appeal was served and filed with the family court that the proper court in which to file an appeal of OAH's decision was this court and not the family court. The family court entered a final order by consent of the parties that provided the following: (1) the family court was not the proper court for the appeal; (2) SCDSS specifically directed Abby to file the appeal in family court; (3) SCDSS' instructions "ostensibly created an administrative procedure for remedy," and (4) Abby had complied with the administrative remedy procedure thereby exhausting it. The family court then denied the appeal and Abby timely filed and served a notice of appeal with this court. We agree that the family court was not the proper court for the appeal because appeals from OAH must be filed in this court. See § 1-23-310(2) (defining "agency" under the APA to include state departments); see also S.C. Code Ann. § 43-1-10 (2015 & Supp. 2025) (creating SCDSS as a state department); S.C. Code Ann. Regs. 114-140(C)(5) (2026) (providing that OAH hears contested cases about removals of foster children); see also § 1-23-380 ("Except as otherwise provided by law, an appeal [of a final decision by an agency in a contested case] is to the court of appeals."). Rule 204(a), SCACR, provides that when a notice of appeal is filed at the wrong appellate court, that court must issue an order transferring the case to the correct appellate court. Rule 204(a), SCACR ("In the event that the notice of appeal is filed in the wrong appellate court, the appellate court in which the matter is filed shall issue an order transferring the case to the appropriate appellate court."). That did not occur here. However, in the interest of judicial economy, and because the notice of appeal was timely served, albeit filed with the wrong court, this court may assume jurisdiction over this case. See Rule 203(b)(6), SCACR (providing that the time for service of the notice of appeal from administrative tribunal decisions is thirty days after receipt of the decision). But we must vacate the family court's order because the family court did not have the authority to issue any order beyond a transfer to this court in the matter. See In re Nov. 4, 2008 Bluffton Town Council, 385 S.C. 632, 641, 686 S.E.2d 683, 688 (2009) (invoking Rule 204, SCACR, and transferring the appeal to the proper appellate forum after recognizing the ambiguity in determining the proper appellate tribunal and that the respondents timely filed their notice of appeal); id. ("In invoking Rule 204(a), we are guided by the principle that courts should not interpret procedural rules to create a trap for unwary lawyers. Vacating the judgment of the [improper appellate tribunal] and transferring this case to the [proper appellate tribunal] will serve the ends of justice by ensuring that the [appeal] is heard in the proper appellate forum."). Therefore, we vacate the family court's order and transfer the notice of appeal that was filed with the family court to this court. II. Mootness In addition to the jurisdictional irregularity, we must address whether Abby's appeal is moot because the relief she seeks on appeal is unavailable. Specifically, the OAH order stated that only the family court could provide the relief sought— placing T.J. back in the Bishops' home—because the family court had exclusive jurisdiction over "adoption and custody matters." Because the requested relief is unavailable, this issue is moot. See Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001) ("An appellate court will not pass on moot and academic questions or make an adjudication where there remains no actual controversy."); see also Seabrook v. City of Folly Beach, 337 S.C. 304, 306, 523 S.E.2d 462, 463 (1999) ("A case becomes moot when judgment, if rendered, will have no practical effect upon [an] existing controversy.") (quoting Mathis v. S.C. State Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973))). However, the issue is capable of repetition yet evading review and thus, we reach the merits. S.C. Pub. Interest Found. v. S.C. Dep't of Transp., 421 S.C. 110, 121, 804 S.E.2d 854, 860 (2017) ("[I]f the issue raised is capable of repetition but generally will evade review, the appellate court can take jurisdiction." (quoting Sloan v. Greenville County., 380 S.C. 528, 535, 670 S.E.2d 663, 667 (Ct. App. 2009))). The issue here has to do with the removal of a foster child in emergency circumstances such that the child was not permitted to stay in the home during the hearing process. Accordingly, OAH's review of the emergency circumstances cannot remedy the emergency removal that had already occurred. See Byrd v. Irmo High Sch., 321 S.C. 426, 432, 468 S.E.2d 861, 864 (1996) (holding the review of a challenge to a short-term student suspension was capable of repetition, yet evading review because suspensions, by their nature, are completed long before an appellate court can review the issues they implicate). Therefore, if the matter were dismissed as moot, a foster parent could never challenge an emergency removal before the emergency removal is rendered moot. Consequently, we review the emergency removal. III. Res Judicata In a separate action, on August 20, 2024, the family court dismissed the indication against Ryan. 5 Abby argues that because the family court in that case found that the indication of physical abuse against Ryan was "without merit or basis," this case must be decided in favor of Abby. According to Abby, the family court's determination reflects that the indication was "so entirely arbitrary and devoid of factual basis" that "SCDSS' reliance on that finding is equally unjust." We disagree. "Res judicata may apply if (1) the identities of the parties are the same as in the prior litigation, (2) the subject matter is the same as in the prior litigation, and (3) there was a prior adjudication of the action by a court of competent jurisdiction." Hughes ex rel. Est. of Hughes v. Bank of Am. Nat'l Ass'n, 442 S.C. 113, 130–31, 898 S.E.2d 102, 111 (2024). Res judicata does not apply in this case for the following reasons: (1) the subject matter of the cases was not the same because this case is about the removal of the foster child while the family court case concerned whether the indication of physical abuse against Ryan was proper; (2) OAH's order preceded the family court's order by seven months; and (3) OAH had the power to review the foster child removal in this case, not the family court. See S.C. Code Ann. Regs. 114-140(A)(1)(c) (2012) (providing that OAH hears contested cases about removals of foster children). Accordingly, res judicata did not bar OAH from reaching whether SCDSS' removal of T.J. was proper. IV. OAH's Legal Analysis Abby asserts that OAH's order contained a litany of errors, including (1) an assertion that SCDSS did not need to comply with policy and procedure; (2) reliance 5 The family court did have jurisdiction to review Ryan's appeal of the indication report. See S.C. Code Ann. § 63-7-1440 (2010) (providing that the family court reviews indications for abuse or neglect of a child); see also § 63-7-1410 (holding section 63-7-1440 "is available only to the person determined to have abused or neglected the child"). on repealed statutory language; (3) reliance on incorrect interpretations of case law; (4) exclusion of meaningful citations; and (5) inclusion of factual findings that were unsupported by the evidence. Abby did not file a motion to reconsider in this case, nor were any of these errors first raised to OAH during the hearing. Thus, these arguments are not preserved. See Foster v. Foster, 393 S.C. 95, 99, 711 S.E.2d 878, 880 (2011) ("In order to preserve an issue for appellate review, a party must both raise that issue to the trial court and obtain a ruling."). V. Whether OAH's Finding that the Emergency Circumstances Warranted Removal Was Clearly Erroneous in View of the Substantial Evidence in the Record Abby argues substantial evidence in the record does not support the finding that emergency circumstances existed to justify T.J.'s immediate removal. We agree. Before we begin our analysis, we highlight that the decision challenged under this issue is only the emergency circumstances warranting immediate removal, not the permanent removal. Abby does not challenge the decision to permanently remove T.J., only that emergency circumstances did not warrant T.J. being removed before the ten-day notice period lapsed and remaining out of the home during the hearing process. Thus, we review only whether OAH's finding that emergency circumstances existed that allowed SCDSS to remove T.J. without ten-day notice and for T.J. to remain out of the home during the hearing process is clearly erroneous. § 1-23-380(5). On the emergency removal, we hold that OAH erred by finding emergency circumstances existed that required the immediate removal of T.J. and prevented T.J. from remaining in the Bishops' home during the pendency of the hearing process. SCDSS screened out the initial OHAN report, which did not find any concerns about T.J.'s health and safety. SCDSS did not receive notice of the indication until September 14. However, Ryan had already left the home and was barred from returning. Additionally, there was no evidence that B.B. had been violent toward the other children in the home nor was there any evidence B.B. had been violent with either parent prior to or after the incident. While the incident is concerning, we conclude that this did not rise to the level of an emergency circumstance, particularly in light of the six weeks between the incident and removal. Further, it would be puzzling to conclude emergency circumstances existed given that Jasper County DSS took over a week to determine whether to remove T.J. and sent Abby a letter giving her ten-day notice. SCDSS made no effort to explain what emergent circumstances arose in between the decision to send a ten-day removal notice and the decision to immediately remove T.J. From what testimony was offered, there were no emergent circumstances. Thus, as to the emergency removal specifically, there was not any evidence in the record that reflected that emergency circumstances were present such that removing T.J. for the pendency of the appeal process was justified. For the reasons above, we hold OAH erred by finding there were emergency circumstances warranting T.J.'s immediate removal and that finding must be vacated in light of the substantial evidence in the record. However, OAH's ultimate conclusion affirming SCDSS' decision to permanently remove T.J. from the Bishops' home stands. We recognize our conclusion may at first blush seem a bit paradoxical— vacating the finding that emergency circumstances justified T.J.'s immediate removal but affirming the permanent removal. However, our decision on SCDSS' error in determining there were emergency circumstances does not render the permanent removal decision improper for two reasons. First, as discussed above, Abby does not appeal the decision to permanently remove T.J. Second, our review regarding whether emergency circumstances existed focuses on whether SCDSS was arbitrary, capricious, or unreasonable in determining there were emergent threats to T.J's health and safety. A permanent removal analysis would simply review whether SCDSS acted reasonably and without caprice when determining to remove T.J. from the home. That no emergency circumstances underpinned the emergency removal does not mean that the reasoning underpinning the permanent removal decision was unreasonable, arbitrary, or capricious. Accordingly, our review of the emergency removal does not weigh on whether permanent removal was proper. VI. Substantive and Procedural Due Process Abby raises a number of arguments that her procedural due process rights were violated. These arguments have been abandoned or were not preserved. Abby cites no authority to support her arguments that her procedural due process rights were violated because OAH presumed guilt when it decided whether the removal was appropriate before the appeal of Ryan's indication had been resolved, and SCDSS did not turn over all the documents required during discovery in violation of her procedural due process rights. Further, though the heading of this issue refers to substantive due process, Abby makes no argument related to substantive due process. As such, we consider these arguments abandoned. Bryson v. Bryson, 378 S.C. 502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority."). Additionally, Abby did not raise her arguments regarding OAH's reliance on "unreliable" testimony and whether cumulative errors warrant reversal to OAH. Thus, these issues are not preserved. Foster, 393 S.C. at 99, 711 S.E.2d at 880 ("In order to preserve an issue for appellate review, a party must both raise that issue to the trial court and obtain a ruling."). Finally, Abby asserts that the sustained objections to Scott's testimony about emergency circumstances and an unrelated removal of another foster child, Y., from the Bishops' home impeded her ability to develop an argument about whether emergency circumstances existed. The transcript does not reflect that there were any objections about Scott's testimony related to Y. Accordingly, there was no objection related to testimony about Y. and the argument is unpreserved. Id. ("In order to preserve an issue for appellate review, a party must both raise that issue to the trial court and obtain a ruling."). CONCLUSION In summary, we (1) vacate the family court's order, (2) transfer the notice of appeal from the family court to this court, (3) vacate the finding that emergency circumstances justified removing T.J. during the pendency of the appeal below without the ten-day notice window, and (4) affirm OAH's ultimate conclusion that SCDSS was justified in removing T.J. from the Bishops' care. AFFIRMED IN PART, VACATED IN PART.6 GEATHERS, HEWITT, and VINSON, JJ., concur. 6 We decide this case without oral argument pursuant to Rule 215, SCACR.