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2007-UP-403 - SCDSS v. C. H. Doe

THIS OPINION HAS NO PRECEDTIAL VALUE AND 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

South Carolina Department of Social Services, Respondent,

v.

C. H. Doe, W. R. Roe, J. Moe, A. J. Poe, Defendants, of whom C. H. Doe is Appellant.

In the interest of: A. J. Poe, Jr. 09/24/93,
a minor under the age of 18.


Appeal From Charleston County
 Jocelyn B. Cate, Family Court Judge


Unpublished Opinion No. 2007-UP-403
Submitted October 1, 2007 – Filed October 2, 2007   


AFFIRMED


M. Dawes Cooke, Jr, and Alissa DeCarlo, of Charleston, for Appellant.

Paul C. White, of Moncks Corner, for Respondent.

PER CURIAM:  In this family court action, C. H. Doe (Grandfather) appeals the family court’s order removing his grandson, A. J. Poe, Jr. (Grandson), from his custody.  We affirm.[1]

FACTS

The following facts were developed during the contested merits hearing on May 15, 2006.  Grandson was born on September 24, 1993,[2] and resided with Grandfather from that time until March 2004, when officers arrested Grandfather for fondling a neighbor’s child.  At that time, the Department of Social Services (DSS) took Grandson into protective custody.  A report given to Jocelyn Multry, Grandson’s case manager, stated Grandson was molested by Grandfather who touched his genitals and that when Grandson urinated his genitals burned. 

Initially, Grandson did not reveal any of the sexual abuse, and he was referred to Low Country Children’s Center.  It was not until almost a year later that Grandson began to talk about being sexually abused by Grandfather.  By that point in time, Grandson had been sexually abused while in foster care.     

Grandson testified Grandfather put his penis in Grandson’s buttocks and that Grandfather touched him inappropriately.  Grandson also stated Grandfather took pictures of him while he was naked.   

Grandfather denied ever sexually abusing Grandson.  He testified Grandson lied and that DSS coerced him into making false statements.  Grandfather explained the only time he touched Grandson was when he was about five years old because he had issues with wiping himself after going to the bathroom.   As to the allegations regarding the burning sensation while Grandson urinated, Grandfather stated he gave him a bath in diluted bleach and when Grandson urinated in the tub the ammonia and bleach mixed together.[3]  Grandfather also stated that he then put Vaseline on Grandson’s hand and told him to apply it to his burning genital area.   

After the hearing, the family court issued its order.  The order prohibited Grandfather from having any contact with Grandson.  Further, the family court found reunification was not in Grandson’s best interest and, therefore, did not recommend any services be provided to Grandfather.  The family court ordered Grandfather’s name to be placed in the central registry of child abuse and neglect due to his sexual abuse of Grandson.   The family court retained jurisdiction to review the treatment plan with respect to possibly placing Grandson with his biological mother.   The family court noted Grandfather’s objection to the treatment/placement plan.  Although Grandfather’s brief states that his custodial rights “were terminated,” no formal termination of parental rights action has yet occurred.  Grandfather appeals the order of removal.

STANDARD OF REVIEW

The family court shall not order the removal of a child “unless the court finds that the allegations of the petition are supported by a preponderance of evidence including a finding that the child is abused or neglected. . . .” S.C. Code Ann. § 20-7-736 (Supp. 2006).   “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, 612 S.E.2d 707, 711 ( Ct. App. 2005) (citation omitted).  “Our broad scope of review does not require us to disregard the findings below or ignore the fact the trial judge was in a better position to asses the credibility of the witnesses.”  S.C. Dep’t of Soc. Servs. v. Cummings, 345 S.C. 288, 293, 547 S.E.2d 506, 509 (Ct. App. 2001) (citing Dorchester County Dep’t of Soc. Servs. v. Miller, 324 S.C. 445, 452, 477 S.E.2d 476, 480 (Ct. App. 1996)).

LAW/ANALYSIS

Grandfather argues the family court erred in removing Grandson after finding Grandson was abused or neglected under section 20-7-490 of the South Carolina Code (Supp. 2006).  We disagree.  

Initially, Grandfather argues DSS failed to raise allegations of sexual abuse against him prior to the contested merits hearing.  Grandfather contends the complaint only alleged sexual abuse regarding the neighbor’s child rather than sexual abuse against Grandson.  Therefore, he avers his due process rights were violated because he was unaware that sexual abuse regarding Grandson would be an issue at the hearing.    We disagree.

As a threshold matter, this argument is not preserved for our review.  To preserve an issue for appellate review, the issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the family court.  Charleston County Dep’t of Soc. Servs. v. Jackson, 368 S.C. 87, 104-05, 627 S.E.2d 765, 775 (Ct. App. 2006) (citing Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”)).  Grandfather did not raise this issue to the family court.  Therefore, this issue is not preserved for our review.

Even if the issue were properly before us, we find no merit to the argument because Grandfather’s sexual abuse regarding Grandson was tried by consent.  See Woods v. Rabon, 295 S.C. 343, 347, 368 S.E.2d 471, 474 (Ct. App. 1988) (“If neither party timely objects to evidence raising issues not pleaded, each is deemed impliedly to consent to the trial of such issues.”). When Grandson testified regarding Grandfather’s sexual abuse, Grandfather did not object to the testimony on this point.  In addition, during his testimony, Grandfather explicitly denied ever having sexually abused Grandson and addressed the allegations raised during Grandson’s testimony.  Therefore, Grandfather consented to trying the issue of his sexual abuse of Grandson.  Further, the complaint for removal put Grandfather on sufficient notice that allegations of sexual abuse regarding Grandson would be an issue during the hearing.  The complaint alleged Grandfather “sexually abused and physically neglected the minor child . . . .”  The complaint also stated Grandfather “would touch the minor child . . . buttocks once he used the bathroom because of his function level.”   Accordingly, Grandfather was fully apprised of the sexual abuse charges against him and we find no merit to Grandfather’s argument on this point.

Next, Grandfather argues the evidence fails to support the family court’s finding of sexual abuse under section 20-7-490.  He contends the only evidence at trial that he sexually abused Grandson was Grandson’s own testimony during the hearing.  Grandfather maintains because Grandson waited so long after removal before disclosing the abuse that Grandson was somehow coerced into making the allegations.  We disagree.

Section 20-7-490 provides a child is abused or neglected when a person responsible for a child “commits or allows to be committed against the child a sexual offense as defined by laws of this state. . . .”  The evidence presented during the hearing shows that Grandfather did sexually abuse Grandson. Grandson testified at length to the sexual abuse he suffered.  He also testified that initially he was afraid to disclose the abuse because he was afraid of his Grandfather.  Further, Mary Green, Grandson’s therapist, testified that in most sexual abuse cases, children do not reveal the abuse until some time later.  

In addition, the order of the family court shows it considered the fact Grandfather disputed Grandson’s allegations against him.  The order references Grandfather’s belief Grandson was lying and finds Grandson’s testimony “to be extremely credible.”  Therefore, Grandfather’s theory that Grandson was fabricating the sexual abuse allegations was at issue during the hearing.  The family court heard and weighed the testimony, including the fact Grandfather’s own witness testified that he believed Grandson was an honest child.   Accordingly, the preponderance of the evidence supports the family court’s conclusion that Grandfather sexually abused Grandson and the family court properly removed Grandson from Grandfather’s custody. 

Therefore, the order of the family court is

AFFIRMED.

STILWELL, SHORT, and WILLIAMS JJ., concur.


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

[2] On June 8, 1999, the family court awarded Grandfather sole custody of Grandson.   

[3] The record is unclear as to whether Grandfather did this because of red bug bites or because he believed “bleach cures practically anything.”