SCDSS v. Kathy C.

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.

Kathy C., Matthew H., Michael E., Linda H., Defendants,

Of Whom Matthew H. is the Appellant,

In the interest of minor under the age of 18.

Appellate Case No. 2011-200926

Appeal From Cherokee County
Phillip K. Sinclair, Family Court Judge

Unpublished Opinion No. 2012-UP-606
Submitted October 26, 2012 – Filed November 7, 2012

AFFIRMED

Paul C. MacPhail, of MacPhail Law Firm, LLC, of
Spartanburg, for Appellant.

N. Beth Ramsey Faulkner, of Brice Law Firm, LLC, of
York, for Respondent.
PER CURIAM: Matthew H. (Boyfriend) appeals the family court's order, finding
he sexually abused his girlfriend's minor child (Child) and directing placement of
his name on the Department of Social Services (DSS) Central Registry of Child
Abuse and Neglect (Central Registry). We affirm.1

"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). "This broad scope of review
does not, however, require the appellate court to disregard the findings of the
family court." Id. "This degree of deference is especially true in cases involving
the welfare and best interests of a minor child." Id. at 62, 624 S.E.2d at 652.

1. Boyfriend argues the family court erred in finding he sexually abused Child.
We disagree.

Under section 63-7-20(4)(b) of the South Carolina Code (2010),

"[c]hild abuse or neglect" or "harm" occurs when the
parent . . . or other person responsible for the child's
welfare:

commits or allows to be committed against the child a
sexual offense as defined by the laws of this State or
engages in acts or omissions that present a substantial
risk that a sexual offense as defined in the laws of this
State would be committed against the child[.]

A person is guilty of criminal sexual conduct with a minor if they engage in sexual
battery with a victim less than eleven years old. S.C. Code Ann. § 16-3-655(A)(1)
(Supp. 2011). "Sexual battery" is defined as "sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's
body or of any object into the genital or anal openings of another person's body,
except when such intrusion is accomplished for medically recognized treatment or
diagnostic purposes." S.C. Code Ann. § 16-3-651(h) (2003).

In the instant case, the forensic evaluator's (Evaluator) testimony and report about
Child's statements made to her during interviews indicate Child was sexually
abused. Further, the guardian ad litem's report containing Child's spontaneous

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
statements to Cherokee Children's Home staff during bath time further substantiate
Evaluator's finding of sexual abuse. Additionally, Child's great-grandmother
(Grandmother) testified Child told her about the sexual abuse, and the family court
found Grandmother's testimony was credible. See Lewis v. Lewis, 392 S.C. 381,
385, 709 S.E.2d 650, 652 (2011) (holding although the appellate courts review the
family court's findings de novo, they are not required to ignore the fact that the
family court, which saw and heard the witnesses, was in a better position to
evaluate their credibility and assign comparative weight to their testimony).

Accordingly, we affirm the family court's finding that Boyfriend sexually abused
Child.

2. Boyfriend argues the family court erred in ordering placement of his name
on the Central Registry because it failed to make sufficient factual findings to
support such placement. We disagree.

Section 63-7-1920(A) of the South Carolina Code (2010) requires DSS to
"maintain a Central Registry of Child Abuse and Neglect," and providing "[e]ach
entry in the registry must be accompanied by information . . . identifying the
[perpetrator of child abuse or neglect] . . . and describing the abuse or neglect
committed by the [perpetrator]." Section 63-7-1940(A)(1) details the means by
which a person is entered in the Central Registry and provides as follows:

At a hearing pursuant to [s]ection 63-7-1650 or 63-7-
1660, at which the court orders that a child be taken or
retained in custody or finds that the child was abused or
neglected, the court:

must order that a person's name be entered in the Central
Registry of Child Abuse and Neglect if the court finds
that there is a preponderance of evidence that the person
physically or sexually abused . . . the child. Placement
on the Central Registry cannot be waived by any party or
by the court.

Because we find the family court did not err in finding Boyfriend sexually abused
Child, we also find the family court did not err in ordering Boyfriend's name be
placed on the Central Registry pursuant to section 63-7-1940.
3. Boyfriend argues the family court erred in finding a preponderance of the
evidence supported DSS's "indication" that Boyfriend sexually abused Child. We
disagree.

Section 63-7-920 of the South Carolina Code (2010) provides guidelines to DSS
for investigating reports of suspected child abuse or neglect. DSS has a duty to
begin a thorough investigation within twenty-four hours of receiving a report of
suspected child abuse or neglect and must classify the report as either "indicated"
or "unfounded" within sixty days. §§ 63-7-920(A)(1), 63-7-930(A). "Indicated
findings" of abuse or neglect by DSS "must be based upon a finding of the facts
available to the department that there is a preponderance of evidence that the child
is an abused or neglected child." § 63-7-930(B)(1). A "[p]reponderance of
evidence" is "evidence which, when fairly considered, is more convincing as to its
truth than the evidence in opposition." § 63-7-20(19). Furthermore, DSS has the
responsibility to bring meritorious allegations of child abuse and neglect before the
family court. S.C. Dep't of Soc. Servs. v. Scott K., 380 S.C. 140, 147, 668 S.E.2d
425, 429 (Ct. App. 2008).

Once DSS has classified a report as "indicated," it may then petition the family
court to remove the child from the custody of the parent if it determines (1) by a
preponderance of the evidence, the child has been abused or neglected and (2) the
child cannot be safely maintained in the home. See id. at 148, 668 S.E.2d at 429;
see also § 63-7-1660(A). The family court can order removal only after it finds the
allegations of the DSS petition are "supported by a preponderance of evidence
including a finding that the child is an abused or neglected child as defined in
[s]ection 63-7-20[,]" and "the child cannot reasonably be protected from . . . harm
without being removed." § 63-7-1660(E).

In this case, DSS presented evidence to support the reported allegation of sexual
abuse. The DSS worker testified her investigation included: interviews of Child
and of biological father and mother; a letter from Grandmother; information from
the Children's Home, which were indicative of possible sexual abuse; and
information she obtained from Evaluator regarding statements Child made to her
during interviews. The DSS worker testified the "basis for making our case
decision was based on [Child's] disclosures during her forensic assessment," and
also on "the statements of everybody involved including all the defendants."
Therefore, Boyfriend's argument that DSS had no evidence, other than
Grandmother's report of sexual abuse, to substantiate its "indication" is without
merit. Further, although Boyfriend is correct in asserting Evaluator's forensic
report had not yet been completed at the time DSS found this case was "indicated,"
the DSS worker testified Evaluator called her after the interviews to inform her of
statements Child made during the interviews.

Moreover, the family court considered all the testimony and evidence, including
evidence concerning Grandmother's motive and mother's denial of sexual abuse,
and determined there was a preponderance of evidence to support DSS's allegation
of sexual abuse. In its order, the family court found Grandmother's testimony was
credible and Evaluator's testimony as to Child's statements "compelling," and we
lend credence to this finding. See Lewis, 392 S.C. at 385, 709 S.E.2d at 652.

Accordingly, we hold the family court did not err in finding a preponderance of the
evidence supported DSS's allegation that Boyfriend sexually abused Child.

4. Boyfriend argues the family court erred in allowing Grandmother's
testimony as to Child's out-of-court statement. We disagree.

Testimony of the out-of-court statement of a child who is under the age of twelve
will be admitted in a family court proceeding where abuse or neglect is alleged if
the family court finds the child is unavailable to testify for one of five statutory
reasons, and the child's out-of-court statement possesses particularized guarantees
of trustworthiness. S.C. Code Ann. § 19-1-180 (Supp. 2011). A child may be
classified as "unavailable" to testify when the child is incompetent, which includes
the child's inability to communicate about the offense because of fear, or there is a
substantial likelihood the child will suffer severe emotional trauma from testifying
at the proceeding, on videotape, or on closed-circuit television. § 19-1-
180(2)(a)(iv)-(v). Section 19-1-180(D) sets out ten factors the family court may
consider in determining whether a child's out-of-court statement contains
particularized guarantees of trustworthiness. Furthermore, the appellate courts
"give great deference to the family court's determination on the issue of
trustworthiness." Richland Cnty. Dep't of Soc. Servs. v. Earles, 330 S.C. 24, 32,
496 S.E.2d 864, 868 (1998).

The evidence in the record supports the admissibility of Grandmother's testimony
as to Child's out-of-court statement. The family court found Child was unavailable
to testify for two reasons. First, Child was unavailable because she was
incompetent, in that she was unable to communicate about the abuse due to fear.
Second, Child was unavailable because there was a substantial likelihood she
would suffer severe emotional trauma from testifying at the proceeding, on
videotape, or on closed-circuit television. As to the statement's trustworthiness, the
family court stated in its order:

[C]hild's out-of-court statements were shown to possess
particularized guarantees of trustworthiness in that the
child's young age made it unlikely that she fabricated
statements such as those she described. Further, the
statements were heard by more than one person. There
was no apparent motive for the child to falsify or distort
the event. The child obviously had personal knowledge
of this event.

See § 19-1-180(D)(1), (4), (5), & (8) (providing the family court considers factors
such as "the child's personal knowledge of the event[,] any apparent motive the
child may have to falsify or distort the event, whether more than one person heard
the statement[,] and whether the child's young age makes it unlikely that the child
fabricated a statement"). Additionally, the family court found Grandmother's
testimony was credible. See § 19-1-180(D)(3) (maintaining the credibility of the
person testifying about the statement is a factor the family court considers in
determining whether the child's statement is trustworthy).

Accordingly, we affirm the trial court's decision to allow Grandmother's testimony
as to Child's out-of-court statement because Child was "unavailable" and the
statement was trustworthy.

AFFIRMED.

FEW, C.J., WILLIAMS, J., AND PIEPER, J.