DSS v. Sherri D.

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

Department of
Social Services, Respondent,

v.

Sherri D.,
Robert D., Sherry D., Larry B., and Betty B., Defendants,

Of Whom Robert
D. is Appellant.

In the
Interests of: C.D., M.D., and L.D., all minor children under the age of 18.

Appeal From Anderson County

Tommy B. Edwards, Family Court Judge

Unpublished Opinion No.   2010-UP-178

Heard February 2, 2010 -  Filed March 1,
2010

AFFIRMED

William Norman Epps, III, of Anderson, for
Appellant.

M.J. Goodwin, of Anderson, for Respondent.

Hugh W. Welborn, of Anderson, Guardian Ad
Litem.

PER CURIAM: Robert D. (Father) appeals the family court's order finding (1) he abused
and/or neglected his three minor children, C.D., M.D., and L.D. (collectively
Children), pursuant to section 63-7-20 of the South Carolina Code (2008); (2)
he used excessive corporal punishment on C.D.; and (3) the Department of Social
Services (DSS) made reasonable efforts to prevent or eliminate the need for
removal.  We affirm.  

FACTS

DSS first became involved in
this case on March 30, 2007, when allegations arose that Father excessively
bruised C.D.'s buttocks as a result of a spanking.  Thereafter, Children were
taken into emergency protective custody and DSS placed Children with Helping
Hands.  After a probable cause hearing, the family court issued an order
instructing DSS to retain custody of Children.    

On June 25, 2007, July 11,
2007, and July 25, 2007, the family court conducted a merits hearing.  At the
hearing, Angela Holtzclaw, C.D.'s school nurse, testified that when C.D. came
to school on March 30, 2007, C.D. complained she was unable to sit.  According
to Holtzclaw, C.D. told her she could not sit down because "her daddy had
given her a really bad spanking."  When Holtzclaw asked if this had
happened before, C.D. responded, "yes, but it had been a while." 
Holtzclaw then requested Assistant Principal Valerie Anna Neal's presence when
she examined C.D.  The school librarian then took pictures of the bruises on
C.D.'s buttocks and Neal contacted DSS and law enforcement. 

Holtzclaw opined C.D.'s
bruises were not the result of "a bad spanking," but rather "a
beating."  According to Neal, once DSS arrived, C.D. "was trembling. 
And I asked her why she was trembling, and she said she was afraid to go home .
. . because my dad is going to kill me if I go home today."  Neal
testified "it was obvious that [C.D.] had been hurt terribly by a parent. 
And I can't say she told me that, but I know that this occurred." 
According to Neal, C.D.'s buttocks were "purple and black and blue, [and] C.D.
was in terrible pain and could not sit."  According to Neal, C.D.
expressed concern over M.D.'s safety. 

When DSS employee Susan
Leverette arrived at the school, C.D. told her the bruises were the result of a
spanking.  According to Leverette, M.D. was relieved when he learned he was not
going home.  Leverette testified Father denied bruising C.D.; however, he later
admitted he spanked C.D.  Leverette acknowledged both Father and C.D. stated C.D.
had been in a bike accident the previous day, but Leverette did not believe the
bruising was consistent with a bike accident.  Rather, Leverette believed C.D.'s
bruises were the result of excessive corporal punishment and, as a result, DSS
sought a finding that Father physically abused C.D.  Additionally, Charie
Jenkins, a child protective services investigator, believed C.D.'s bruises were
the result of excessive corporal punishment. 

Brent Simpson of the Anderson
County Sheriff's Department decided to place Children into emergency protective
custody based on C.D.'s statements and bruises.  Simpson believed M.D. and L.D.
were also in danger. 

Father admitted he spanked
Children as a form of discipline; however, he did not believe a spanking caused
C.D.'s bruises.  According to Father, on March 29, 2007, C.D. and a friend were
riding bikes and C.D. had an accident.  That same evening, Father spoke to C.D.
about deceiving him regarding permission to have a friend over.  Based on her
deception, Father spanked C.D.  According to Father, he gave C.D. "three
licks with a paddle."   Father opined "there is no way I put them
bruises on her, and if by any chance I caused any of those bruises I'm
sorry." 

On March 1, 2008, the family
court issued a removal order transferring custody of Children to DSS.  Specifically,
the family court found (1) Father abused and/or neglected Children pursuant to
section 63-7-20 of the South Carolina Code (2008); (2) Father used excessive
corporal punishment on C.D.; and (3) DSS made reasonable efforts to prevent or
eliminate the need for removal.  Father filed a Rule 59(e), SCRCP, motion,
which the family court denied.  This appeal followed. 

STANDARD OF REVIEW

In appeals from the family
court, this court may find facts in accordance with its own view of the
preponderance of the evidence.  Nasser-Moghaddassi v. Moghaddassi, 364
S.C. 182, 189-90, 612 S.E.2d 707, 711 (Ct. App. 2005); see also Florence
County Dep't of Soc. Servs. v. Ward,  310 S.C. 69, 71, 425 S.E.2d 61,
62 (Ct. App. 1992) ("When physical abuse of a child is alleged, this
[c]ourt is free to find facts based on its own view of the preponderance of
evidence.").  However, this broad scope of review does not require us to
disregard the family court's findings.  Bowers v.
Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).  Nor must we
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. Cherry v. Thomasson, 276 S.C. 524, 526, 280
S.E.2d 541, 542 (1981). 

LAW/ANALYSIS

I.  Excessive
Corporal Punishment

Father contends the family
court erred in finding Father used excessive corporal punishment on C.D. and as
a result erred in removing C.D. from Father's custody.  We disagree. 

Child abuse
occurs when a parent "inflicts or allows to be inflicted upon the child
physical . . . injury . . . sustained as result of excessive corporal
punishment."  S.C. Code Ann. § 63-7-20(4)(a)
(2008).  However, physical discipline is not corporal punishment if it (1) is administered by a parent; (2) is perpetrated
for the sole purpose of restraining or correcting the child; (3) is reasonable
in manner and moderate in degree; (4) has not brought about permanent or
lasting damage to the child; and (5) is not reckless or grossly negligent
behavior by the parents.  § 63-7-20(4)(a)(i)-(v). 

Evidence presented at the
merits hearing indicated Father's use of physical discipline was not reasonable
in manner or moderate in degree.   Neal, Holtzclaw, Leverette, Jenkins, and
Simpkins all testified the bruising on C.D.'s buttocks was excessive. 
Additionally, C.D. informed school personnel she was unable to sit because of
the spanking.  Further, the photographs entered into evidence revealed numerous
and significant bruises, and the bruises were inconsistent with bruising from
the bike accident.  Accordingly, we find the evidence supports the family
court's conclusion Father used excessive corporal punishment on C.D.[1] 

II.  Failure
to Return M.D. and L.D.

Father argues the family
court erred in failing to return M.D. and L.D. to Father's custody.  We
disagree. 

In cases involving excessive
corporal punishment, if one child is taken into emergency protective custody and
the only injury to the child is "external lesions or minor bruises,"
other children in the home shall not be taken into emergency protective custody. 
S.C. Code Ann. § 63-7-620(A)(1) (2008). 
However, this statute only prohibits law enforcement from removing other
children in a home if the bruises on one child are minor.  Based on the evidence
presented to the family court, C.D.'s bruises were not minor.   Rather,
evidence indicated C.D. had numerous and significant bruises.  Accordingly, we
find the family court did not err in concluding M.D. and L.D. should not be
returned to Father's custody.  

III.  Efforts
to Prevent or Eliminate Removal

Father contends the family
court erred in finding DSS made reasonable efforts to prevent or eliminate the
need for removal of Children.  We disagree.

When a family court removes a
child, the family court's order "shall contain a finding by the court of
whether reasonable efforts were made by [DSS] to prevent removal of the child
and a finding of whether continuation of the child in the home would be
contrary to the welfare of the child."  S.C. Code Ann. § 63-7-1660(G)
(2008).  When DSS's first contact with a child occurs "under such
circumstances that reasonable services would not have allowed the child to
remain safely in the home, the court shall find that removal of the child without
services or without further services was reasonable."  S.C. Code Ann. § 63-7-1660(G)(4) (2008).    

DSS's first contact with Children
occurred when C.D. told school personnel Father spanked her.  Based upon the
severity of the bruising and C.D.'s statements, law enforcement took Children
into emergency protective custody because law enforcement did not believe
Children could remain safely in the home. Because probable cause existed to
place Children in emergency protective custody, the family court did not err in
concluding Children could not remain safely in the home.[2] 

CONCLUSION

Based on the foregoing, we
find the family court did not err in finding (1) Father abused and/or neglected
Children pursuant to section 63-7-20 of the South Carolina Code (2008); (2) Father
used excessive corporal punishment on C.D.; and (3) DSS made reasonable efforts
to prevent or eliminate the need for removal.  Accordingly, the family court
order is

AFFIRMED.

WILLIAMS, KONDUROS,
JJ., and CURETON, A.J., concur. 

[1] Because Father's conduct did not meet the third
guideline of section 63-7-20(4), we need not address the remaining guidelines.  See S.C. Dep't of Soc. Servs. v. Father and Mother, 294 S.C. 518,
521, 366 S.E.2d 40, 42 (Ct. App. 1988) (holding this court does not need
to address a parent's argument as to each of the guidelines when the conduct clearly
does not meet at least one of them).

[2] Father also argues the family court erred in refusing
to admonish DSS; however, based on the facts of this case, we decline to
address this issue.