Dept. of Soc. Ser. v. Lisa C.

669 S.E.2d 647

380 S.C. 406

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. LISA C., Frank C., Frank C., Sr., and Linda C In the Interest of Minor Child I and Minor Child II, of whom Frank C. is Appellant.

No. 4453.

Court of Appeals of South Carolina.

Heard September 16, 2008.

Decided October 30, 2008.

D. Bradley Jordan, of Rock Hill; and John D. Elliott, of Columbia, for Appellant.

David Simpson, of York, for Respondent.

KONDUROS, J.:

Father appeals the family court's admission of various hearsay statements of Child during a Department of Social Services (DSS) intervention case. We reverse and remand for a new trial.¹

FACTS

Mother and Father are parents of twin girls born in 1999. DSS filed an intervention action in 2006 pursuant to section 20-7-738 of the South Carolina Code contending Father posed a threat of abuse or neglect to Children. However, the trial focused primarily on allegations of sexual abuse by Father as to one Child. Mother and Father had been living separate and apart for approximately three years at the time of trial.

Child testified at trial, but did not reveal any sexual abuse by Father at that time. Father elected not to cross-examine Child. Dr. Deborah Reyes testified on behalf of DSS. Dr. Reyes testified she was the Director of Clinical Services for the Dickerson Center for Children, a non-profit child advocacy center. Her qualifications included a Master's degree and Ph.D. in clinical psychology as well as numerous courses in forensic interviewing. She became licensed by the state of South Carolina the Friday prior to the trial of this case. Dr. Reyes testified she conducted a forensic interview with Child after another Dickerson Center staff person reported a "problematic non-disclosure."²

Dr. Reyes testified Child made the following disclosures in response to questioning:

At this point, I asked her if anyone had touched her private. She said yes. When I asked her to tell me about that, she said, "My daddy." I asked her what did her daddy do and then she said ... "that he put a card on there from the cow place³ and that daddy use to bite us on the butt."

Dr. Reyes further testified Child told her Father had touched her with the card "on the inside and that it felt bad on her private part." Finally, Dr. Reyes indicated Child said Father had touched her "hinny" many times, and "Daddy put a car inside."

Father objected to Dr. Reyes' testifying about Child's hearsay statements during the interview. However, the family court allowed the statements relying on section 19-1-180 of the South Carolina Code, which makes hearsay statements by children in abuse and neglect cases admissible under certain circumstances.

Mother also testified concerning a prior hearsay statement by Child regarding alleged sexual abuse. Mother stated Child told her Father "had put his mouth on her private." Father objected to the admission of this testimony, but the family court determined section 19-1-180(G) did not prohibit the admission of such testimony as long as the hearsay statement was made prior to Mother and Father's separation.

Detective Cathryn Bell of the Chester County Sheriff's Office testified Child told her "Daddy rolled up a cow place card, and he put it in my hoochie." Detective Bell understood Child's reference to "hoochie" to mean Child's vaginal area. Detective Bell further testified, over Father's objection there was probable cause to leave the criminal case against Father open.

Dr. Patricia Tonkawitz, Child's pediatrician, conducted a physical exam of Child, which yielded normal findings. Over Father's objection, Dr. Tonkawitz also testified about a portion of her report in which she indicated Mother's history regarding Child was "convincing."

The family court determined Children faced a threat of harm of sexual abuse from Father and ordered visitation between Father and Children be supervised by Father's parents. Furthermore, the court ordered Father to attend parenting classes and undergo mental health and sexual predator evaluations. The case was set for further review in three months. This appeal followed.

STANDARD OF REVIEW

"In appeals from the family court, the appellate court has the authority to correct errors of law and to find facts in accordance with its own view of the preponderance of the evidence. However, this broad scope of review does not require this court to disregard the family court's findings." Mr. T v. Ms. T, 378 S.C. 127, 131-32, 662 S.E.2d 413, 415 (Ct.App.2008) (citations omitted), cert. pending. "The admission or exclusion of evidence is left to the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of discretion." State v. Morris, 376 S.C. 189, 205, 656 S.E.2d 359, 368 (2008). The trial court abuses its discretion when that decision is based upon an error of law or upon factual findings that are without evidentiary support. Id. at 206, 656 S.E.2d at 368.

LAW/ANALYSIS⁴

This appeal concerns the admission of testimonial evidence involving both matters of law and matters that were within the discretion of the family court judge. The controlling statute at issue is section 19-1-180 of the South Carolina Code (Supp.2007). The statute considers how the court will address otherwise inadmissible out-of-court statements by children under twelve in a family court proceeding regarding allegations of abuse and neglect.

An out-of-court statement may be admitted ... if:

(1) the child testifies at the proceeding or testifies by means of videotaped deposition or closed-circuit television, and at the time of the testimony the child is subject to cross-examination about the statement or:

(2)(a) the child is found by the court to be unavailable to testify on any of these grounds:

(i) the child's death;

(ii) the child's physical or mental disability;

(iii) the existence of a privilege involving the child;

(iv) the child's incompetency, including the child's inability to communicate about the offense because of fear;

(v) substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of videotaped deposition or closed-circuit television; and

(b) the child's out-of-court statement is shown to possess particularized guarantees of trustworthiness.

§ 19-1-180(B). The statute also attempts to protect against the admission of a child's accusations that could be motivated by the malice of one parent for the other.

If the parents of the child are separated or divorced, the hearsay statement shall be inadmissible if (1) one of the parents is the alleged perpetrator of the alleged abuse or neglect and (2) the allegation was made after the parties separated or divorced. Notwithstanding this subsection, a statement alleging abuse or neglect made by a child to a law enforcement official, an officer of the court, a licensed family counselor or therapist, a physician or other health care provider, a teacher, a school counselor, a Department of Social Services staff member, or to a child care worker in a regulated child care facility is admissible under this section.

§ 19-1-180(G).

I. Objections to Testimony

A. Dr. Reyes' Testimony

Father contends Dr. Reyes' testimony regarding Child's statements was not admissible under this statute, because Child's testimony was not found to be trustworthy by the family court. We disagree. The admission of Dr. Reyes' testimony appears to be proper under section 19-1-180(B)(1). Child testified at trial and was subject to cross-examination. Therefore, pursuant to section 19-1-180(B)(1), there was no requirement Child be found unavailable or the family court conduct an analysis of the trustworthiness of those statements. See Charleston County Dep't of Soc. Servs. v. Father, Stepmother & Mother, 317 S.C. 283, 289, 454 S.E.2d 307, 310 (1995) (approving admission of child's hearsay statements in absence of trustworthiness analysis when child testified at trial).

Father further argues if Dr. Reyes' testimony regarding Child's statements was admissible under part (B) of the statute, it was excluded under part (G) of the statute because she was not a licensed family counselor or therapist at the time she interviewed Child. We agree. The family court considered this argument and determined Dr. Reyes fell with the ambit of persons covered by the statute as either a health care provider or a therapist. Furthermore, the family court relied upon Dr. Reyes' experience and qualifications and her subsequent licensure to establish the credibility and reliability of her testimony.

"The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature." Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Here, the family court concluded the term therapist was not necessarily modified by licensed in the statute. We disagree with this finding. The intent of the overall statute is to aid in the protection of children from abuse and neglect by permitting the introduction of their hearsay statements. However, the purpose of part (G) is to protect a parent from potentially false accusations instigated by the other parent as part of a contentious divorce or custody battle. To conclude the legislature intended the testimony of unlicensed therapists to be admitted is inconsistent with the intent to limit the admission of hearsay statements.

Additionally, finding Dr. Reyes fell within the category of healthcare providers is again inconsistent with the statute. The legislature placed a licensure requirement on mental health professionals that cannot be disregarded by categorizing Dr. Reyes as both a therapist and a healthcare provider. While mental health is undoubtedly part of a child's overall well-being, the legislature separated the groups in the statute thereby making a distinction between the groups that we cannot ignore.

Even though we disagree with the family court's analysis of...