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2007-UP-558 - 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Unpublished Opinion No. 2007-UP-558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.