DSS v. Nancy N.

THIS OPINION
HAS NO PRECEDENTIAL VALUE.   IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT
IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Department of
Social Services, Respondent,

v.

Nancy N., Don N.,
James B., and Heath S., Defendants, 

of whom Nancy N.
and Don N. are Appellants.

In the interests of: K.G. (DOB: 09/06/94) and J.G. (DOB: 2/12/97),
minors under the age of 18.

Appeal From Anderson County

 Timothy M. Cain, Family Court Judge

Unpublished Opinion No. 2007-UP-558

Submitted December 1, 2007 – Filed
December 14, 2007

AFFIRMED

William E. Phillips, of Anderson, for
Appellants.

Dottie C. Ingram, of Anderson, for
Respondent.

PER CURIAM: Nancy
N. (Mother) and Don N. (Stepfather) appeal an order of the family court which,
among other things, refused to allow the minor children K.G. and J.G. to return
to Mother’s custody and permanently restrained Stepfather from contact with either
child.  Specifically, Mother and Stepfather argue the family court erred in
admitting J.G.’s out-of-court statements alleging sexual abuse by Stepfather.  We
affirm.[1]

FACTS

K.G. and J.G. were
placed in emergency protective custody on August 18, 2005 when the children
were ages ten and eight, respectively.  When the children were removed from
their home, J.G had a black eye and bruises on his neck.  Stepfather told law
enforcement that he had lifted J.G. by his neck.   At the probable cause
hearing, the family court found Stepfather had physically abused J.G. and
Mother failed to protect her children from abuse and neglect.  DSS was given
legal custody of the children, and they were placed in foster care.  Soon after
J.G.’s placement, he attempted a sexual act on another child in the foster
home.  J.G.’s disruptive behavior resulted in his relocation in seven foster
care settings before being transferred to York Place, a residential treatment
facility for emotionally disturbed children.

Prior
to the merits hearing, DSS gave Mother and Stepfather notice of its intent to
present testimony of J.G.’s out-of-court statements alleging sexual abuse by
Stepfather.  At the hearing, Mother and Stepfather objected to these
out-of-court statements, but the family court allowed them pursuant to section
19-1-180 of the South Carolina Code (Supp. 2006).

Nicholas
Godfrey, J.G.’s former case manager, testified that he had asked J.G. about his
sexual behavior toward the other child in foster care.  J.G. said Stepfather
had engaged in the same sexual behavior with him.  Godfrey found the report to
be credible because J.G. cried uncontrollably and appeared traumatized as they
discussed the alleged sexual abuse by Stepfather.  Trinity Sands, a forensic
interviewer, testified she conducted an assessment of J.G. the week following
J.G’s disclosure to Godfrey.  Sands considered J.G.’s statements alleging
sexual abuse by Stepfather to be credible based on the level of detail J.G.
provided.

After
his transfer to York Place in February 2006, J.G. received daily behavior
management therapy sessions with licensed social worker, Catherine Jones.  Jones
stated J.G. initially exhibited aggressive behaviors with adults, sexual acting
out with children, and self-harming behaviors.  However, after a year of
intensive individual counseling, group therapy, and medication for a mood
disorder, J.G. had progressed greatly.  He had recently returned to public
school and would soon be moved to a therapeutic foster home.  According to Jones,
J.G. would be severely traumatized if required to testify in any setting about
the alleged sexual abuse, and he could potentially regress.  Additionally, she
testified that J.G. associated everything about the court with talking to a
judge, and he had told her “he did not want to talk to the Judge.”

DSS
foster care manager, Dani Lawson, testified that Mother still did not believe
Stepfather had sexually abused J.G.  Although Mother stated she believed
something had happened to J.G., she did not think Stepfather had done anything
inappropriate.  Stepfather, who had moved out of the home two weeks
prior to the hearing, attended but did not testify.

Following
the review hearing, the family court ordered Stepfather to have no further
contact with K.G. or J.G. It required DSS to enter Stepfather’s name into the Central
Registry of Child Abuse and Neglect based on the court’s finding that he had
sexually abused J.G.[2]  DSS was ordered to retain custody of J.G. and to transfer custody of K.G. to her biological father, allowing Mother
supervised visitation with K.G.  Stepfather
and Mother appeal the order, contending the court erred in admitting J.G.’s out-of-court
statements of his alleged sexual abuse by Stepfather.

STANDARD OF REVIEW

“On appeal from an
order of the family court, the Court of Appeals has jurisdiction to find facts
in accordance with its view of the preponderance of the evidence.”  Calcutt
v. Calcutt, 282 S.C. 565, 568, 320 S.E.2d 55, 57 (Ct. App. 1984).  Even
under this broad scope of review, the appellant must convince us that the trial
judge erred.  Id. 

LAW/ANALYSIS

Mother and
Stepfather argue the family court erred by allowing the admission of J.G.’s out-of-court
statements to Godfrey and Sands.  We disagree.  

Testimony
of the out-of-court statements of a child under the age of twelve will be
admitted in a family court proceeding where abuse or neglect is alleged if the
court finds the child is unavailable to testify for one of five statutory
reasons, and the child’s out-of-court statements possess particularized
guarantees of trustworthiness.  S.C. Code Ann. § 19-1-180 (Supp. 2006).  The
first requirement for admission of J.G.’s out-of-court statements was clearly
met.  Here, J.G. was eight years old in 2005 when he told Godfrey and Sands of
his alleged sexual abuse by Stepfather and was age ten at the time they
testified to his statements.  

As
to the requirement of unavailability, Mother and Stepfather contend the court
erred by relying on Jones’s testimony in finding that J.G. was unavailable to
testify.  We disagree. 

A
child is unavailable to testify when there is a substantial likelihood he will suffer
severe emotional trauma from testifying at the proceeding, on videotape, or on
closed-circuit television.  S.C. Code Ann § 19-1-180(B)(2)(a)(v).  Jones, who
testified regarding the trauma J.G. would suffer if required to testify to the
alleged abuse, is a licensed social worker and led individual and group therapy
sessions that included J.G. for over a year.  She testified to the progress J.G.
made during his year in residential treatment and expressed the opinion that
requiring him to discuss his sexual abuse would cause severe trauma and could
cause him to regress.  Jones’s opinion is bolstered by Godfrey’s testimony regarding
J.G.’s severe reaction when he disclosed the alleged abuse to Godfrey in
October 2005.  Additionally, guardian ad litem, Robert Higgins, agreed that J.G.
should not be required to testify personally or by videotape.  We find the
evidence presented at the hearing was sufficient to support the family court’s
finding that J.G. was unavailable to testify in any manner because there was a
substantial likelihood that he would suffer severe emotional trauma.

In
order to be admissible, South Carolina Code Section 19-1-180(B)(2)(b) requires a
child’s out-of-court statement to possess particularized guarantees of trustworthiness.
 Here, the court went to great lengths to support its finding of these
guarantees by considering (1) J.G.’s personal knowledge of the events he described
to Sands and Godfrey; (2) J.G.’s age and maturity at the time he reported the
sexual abuse to the witnesses; (3) the credibility of Sands’s and Godfrey’s
testimony; (4) the absence of a motive for J.G. to falsify or distort the
information he reported to Sands and Godfrey; (5) the internal consistency and “the
ring of veracity” J.G.’s statements possessed; and (6) the fact that Stepfather
had the opportunity to commit the alleged acts of sexual abuse.  See S.C.
Code Ann. § 19-1-180(D)(1)-(10) (listing factors a court may consider in
determining whether a child’s out-of-court statement contains particularized
guarantees of trustworthiness).  The family court found J.G.’s out-of-court statements
to be trustworthy and “this Court will give great deference to the family
court’s determination on the issue of trustworthiness.”  Richland Co. Dept.
of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 868 (1998).  We
find no error in the family court’s determination that J.G.’s out-of-court
statements possessed particularized guarantees of trustworthiness.

CONCLUSION

For
the foregoing reasons, the order of the family court is

AFFIRMED.

ANDERSON,
SHORT and WILLIAMS, JJ., concur.

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

[2] Stepfather was already listed in the South Carolina
Directory of Sex Offenders based on his 1997 conviction for committing a lewd
act on a child under the age of sixteen.