SC Department of Social Services v. Gathings

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina Department of Social Services,       
Respondent,

v.

Devri Lynn Gathings, Ross Keith
Gathings, Delores Claudette Coughlin

IN RE:

Vincent Gathings,       
Defendants,

of whom Delores Claudette Gathings is,       
Appellant.

Appeal From Darlington County

Roger E. Henderson, Family Court Judge

Unpublished Opinion No. 2003-UP-664

Submitted September 17, 2003 – Filed
November 17, 2003

AFFIRMED

Glenn F. Givens, of Florence, for Appellant.

Newton I. Howle, Jr., of Darlington, for Respondent.

PER CURIAM:   Judge Roger E. Henderson held a merits
hearing on July 31, 2002 on the issues of child abuse concerning Vincent Gathings. 
S.C. Code Ann. § 20-7-736 (Supp.  2001).  Removal occurred as the result of
this hearing.   

FACTS / PROCEDURAL HISTORY

Coughlin is the maternal grandmother of Vincent Gathings.  Ms. Coughlin
received legal and physical custody of the child New York. Since she gained
custody, Coughlin has moved frequently; the child attended seven schools in
seven years. 

The child was placed in foster care as a result of emergency protective custody
as the result of a DSS investigation. He was in placement at the time of the
merits hearing. DSS reported that Coughlin used profanity towards the child
and calling him names such as “cock-sucking s.o.b.,” “motherfucker,” “bastard,”
and “little pussy.”  Additionally, there were allegations that Coughlin shook
Vincent. 

Dr. Noelker, A clinical psychologist, testified on behalf of DSS. 
He testified regarding his evaluations of the parties involved.  Particularly,
Noelker testified the child confirmed Coughlin’s physical and verbal abuse and
“made it very clear” that Vincent did not wish to be returned to Coughlin’s
care. 

Coughlin admitted to grabbing Vincent to deter him from running
away from her.  She also admitted to cursing around Vincent, but never
directing her comments at him.  Coughlin denied shaking Vincent.

Coughlin’s daughter, Devri Gathings testified to witnessing her mother
curse Vincent.  She also testified to regularly seeing Coughlin physically abuse
and strike Vincent.

The court found that “[r]etention of the child in Ms. Coughlin’s
home, … would place the child at an unreasonable risk of harm affecting the
child’s life, physical health or safety, and/or mental well-being…”  The court
authorized DSS to terminate or forego reasonable efforts to reunite Vincent
and Coughlin because of Coughlin’s repeated and severe abuse.  Coughlin appeals.

ISSUE

Did the family court err in finding child abuse occurred because
the court failed to apply and incorporate the corporal punishment or physical
discipline exclusion to the case as revealed by the record?

STANDARD OF REVIEW

In appeals from the family court, the
appellate court has the authority to find the facts in accordance with its own
view of the preponderance of the evidence. However, because the family court
is in a better position to judge the witnesses’ demeanor and credibility, its
findings should be given broad discretion. Scott v. Scott, 354 S.C. 118,
124, 579 S.E.2d 620, 623 (2003).

LAW/ANALYSIS

S. C. Code Ann. § 20-7-490(2)(a) states that child abuses occurs
when the parent, guardian, or other person responsible for the child's welfare
inflicts “upon the child physical or mental injury or engages in acts or omissions
which present a substantial risk of physical or mental injury to the child,
including injuries sustained as a result of excessive corporal punishment.” 
The statute excludes corporal punishment or physical discipline which:

(i) is administered by a parent or person in loco parentis;

(ii) is perpetrated for the sole purpose of restraining or correcting the child;

(iii) is reasonable in manner and moderate in degree;

(iv) has not brought about permanent or lasting damage to the child; and

(v) is not reckless or grossly negligent behavior by the parents.

Id.

Coughlin argues that the statute excludes qualified
corporal punishment or physical discipline.  She asserts that, although she
cursed in the presence of Vincent and grabbed him to deter running away, the
record lacks evidence showing her behavior constitutes abuse.  Her behavior,
she argues is more akin to punishment or discipline.  We disagree.

Gathings testified to witnessing Coughlin cursing and physically abusing and
striking the child.  Gathings personally witnessed Coughlin say “you don’t fucking
know anything, you fucking cock sucker.”  This language, coupled with “grabbing”
Vincent, clearly amounts to physical abuse within the meaning of the statute.

We are not convinced that Coughlin’s grabbing was for the purpose of restraint,
but believe the grabbing amounted to physical abuse.  Additionally, the described
behavior was not moderate, but was severe enough in nature to warrant DSS intervention. 
Finally, the expert testified Coughlin’s reckless and grossly negligent behavior
has caused lasting damage to the minor child.  Accordingly, we find that the
family court did not err in finding child abuse occurred because the Coughlin’s
behavior did does not satisfy any criteria set forth in the exceptions to the
physical abuse statute.

AFFIRMED.
[1]

HUFF, STILWELL, and BEATTY, JJ., concur.

[1]
We decide this case without oral argument pursuant to Rule 215, SCACR.