SCDSS v. Hudgins

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.

Leianne Ruth Hudgins, Robert Eveland, and Amber
Echerd, Defendants,

Of whom Leianne Ruth Hudgins and Robert Eveland are
Appellants.

Appellate Case No. 2019-001942

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

Unpublished Opinion No. 2021-UP-356
Submitted March 1, 2021 – Filed October 20, 2021

AFFIRMED

S. Schusterman, of Schusterman Law Firm, of Rock Hill,
for Appellants.

Scarlet Bell Moore, of Greenville, for Respondent.
Donae Alecia Minor, of Minor Law Offices LLC, of Fort
Mill, for the Guardian ad Litem.

PER CURIAM: Leianne Hudgins and Robert Eveland appeal a merits removal
order finding Hudgins physically neglected her niece (Child), of whom Hudgins
had custody, and Eveland sexually abused Child. On appeal, Eveland argues the
family court erred in admitting Child's deposition in lieu of in-court testimony
under Rule 32 of the South Carolina Rules of Civil Procedure (SCRCP), and the
admission of the deposition violated his rights under the Confrontation Clause of
the United States Constitution. Eveland also asserts that without the deposition,
the Department of Social Services (DSS) failed to submit a preponderance of
evidence showing he sexually abused Child. Hudgins argues the family court erred
in finding a preponderance of evidence showed she physically neglected Child.
We affirm.1

1. We find the family court did not violate Eveland's rights to confrontation. First,
the Sixth Amendment of the United States Constitution only applies to criminal
proceedings and thus does not apply to this proceeding. See U.S. Const. amend. VI
(guaranteeing that "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him"); Austin v. United
States, 509 U.S. 602, 608 (1993) ("The protections provided by the Sixth
Amendment are explicitly confined to 'criminal prosecutions.'"); S.C. Dep't of Soc.
Servs. v. Wilson, 352 S.C. 445, 452, 574 S.E.2d 730, 733 (2002) (stating a family
court intervention proceeding is "a civil action aimed at protection of a child, not a
criminal action geared toward punishing a defendant" (quoting Beaufort Cnty.
Dep't of Soc. Servs. v. Strahan, 310 S.C. 553, 554, 426 S.E.2d 331, 332 (Ct. App.
1992))); In re Adoption/Guardianship No. 6Z980001, 748 A.2d 1020, 1022-23
(Md. Ct. Spec. App. 2000) (explaining "as a general principle, the [S]ixth
[A]mendment right of a criminal defendant to be present at trial is inapposite in" a
civil termination of parental rights proceeding).

While procedural due process may provide the right of confrontation in a civil
context, Eveland's rights were not violated by the admission of the deposition. See
S.C. Dep't of Soc. Servs. ex rel. Tex. v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846,
849 (1995) ("The right to confrontation, although historically limited to criminal
prosecutions, has been applied in the civil context."); Seabrook v. Knox, 369 S.C.
191, 197, 631 S.E.2d 907, 910 (2006) ("Procedural due process imposes

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
constraints on governmental decisions which deprive individuals of 'liberty' or
'property' interests within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment." (quoting Mathews v. Eldridge, 424 U.S. 319, 332
(1976))); Kurschner v. City of Camden Planning Comm'n, 376 S.C. 165, 171, 656
S.E.2d 346, 350 (2008) ("The fundamental requirements of due process include
notice, an opportunity to be heard in a meaningful way, and judicial review.");
Wilson, 352 S.C. at 452, 574 S.E.2d at 733 ("[D]ue process is flexible and calls for
such procedural protections as the particular situation demands." (alteration in
original) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))); id. at 452, 574
S.E.2d at 734 ("Where important decisions turn on questions of fact, due process
often requires an opportunity to confront and cross-examine adverse witnesses."
(quoting Brown v. S.C. State Bd. of Educ., 301 S.C. 326, 329, 391 S.E.2d 866, 867
(1990))); id. at 453, 574 S.E.2d at 734 ("Confrontation includes the right to be
physically present during the presentation of testimony."); id. ("Due process is not
violated where a party is not given the opportunity to confront witnesses so long as
there has been a meaningful opportunity to be heard."); id. at 455, 574 S.E.2d at
735 ("Like criminal matters, an important liberty interest is also at issue in an
intervention proceeding. Accordingly, in an intervention proceeding, the child
witness'[s] testimony should be given in the presence of the parent/defendant.");
Holden, 319 S.C. at 78, 459 S.E.2d at 850 (holding the father's due process rights
were not violated by the admission of the mother's affidavit when the father "made
no showing that he attempted, via deposition or otherwise, to cross-examine [the
m]other concerning her affidavit" and "he was given a full opportunity to present
his side of the case and dispute [the m]other's affidavits"). Here, Eveland was
present at Child's deposition, was provided an opportunity to cross-examine Child,
and was given a full opportunity to be heard at the family court's hearing.
Accordingly, we find no violation of his due process rights.

2. The family court did not abuse its discretion by admitting Child's deposition
under Rule 32, SCRCP. See Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d
486, 486 n.2 (2018) (providing the appellate court reviews a family court's
evidentiary and procedural rulings for an abuse of discretion); Rule 32(a)(3)(B),
SCRCP ("The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the court finds . . . that the witness is at a greater distance
than 100 miles from the place of trial or hearing, or is out of the State, unless it
appears that the absence of the witness was procured by the party offering the
deposition."). Here, DSS Child Protective Specialist Annette Dye and Hudgins
both testified Child lived out of the state at the time of the final hearing. In
addition, Eveland presented no evidence showing DSS procured Child's absence.
Thus, the family court did not abuse its discretion in admitting Child's deposition
under Rule 32(a)(3)(B), SCRCP.2 See Visual Graphics Leasing Corp. v. Lucia,
311 S.C. 484, 489, 429 S.E.2d 839, 841-42 (Ct. App. 1993) (finding an affidavit
stating the deponent was more than 100 miles from the place of trial was sufficient
to admit the deposition under Rule 32(a)(3)(B), SCRCP). Further, Child's
deposition testimony, along with the other evidence presented at the hearing, was
sufficient to show, by a preponderance of the evidence, that Eveland sexually
abused Child. See S.C. Code Ann. § 63-7-20(6)(a)(ii) (Supp. 2020) (stating a child
is harmed when the child's guardian commits a sexual offense against the child).

3. A preponderance of the evidence shows Hudgins physically neglected Child.
See Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011) (stating this
court reviews the family court's factual findings and legal conclusions de novo);
§ 63-7-20(6)(a)(iv) (providing a child is neglected when the child's guardian
"abandons the child"); § 63-7-20(1) (providing "[a]bandonment of a child" occurs
when a guardian "wilfully surrenders physical possession of a child without
making adequate arrangements for the child's needs or the continuing care of the
child"). At the hearing, DSS caseworker Rosalyn Dougherty, DSS investigator
Shamara Henderson, and Hudgins testified that Hudgins refused to allow Child to
return to her home. Dye testified Hudgins maintained this position during an
October 2018 family group conference. Thus, a preponderance of the evidence
shows Hudgins wilfully surrendered physical possession of Child. See § 63-7-
20(1) (stating abandonment occurs when a guardian "wilfully surrenders physical
possession of a child"). Although Hudgins asserts she did not abandon Child
because she informed Dougherty that Child's mother was a possible relative
placement, Hudgins did not present evidence showing she contacted Child's mother
to make arrangements for Child. Thus, a preponderance of the evidence also
shows Hudgins failed to make adequate arrangements for Child's needs or the
continuing care of her." See id. (stating abandonment occurs when a guardian fails
to "mak[e] adequate arrangements for the child's needs or the continuing care of
the child").

AFFIRMED.

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

2
We decline to consider Eveland's remaining arguments because this finding is
dispositive. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (finding an appellate court need not address
remaining issues on appeal when a prior issue is dispositive).