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2009-UP-395 - Kenneth W. v. Gretchen 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

Kenneth W., Respondent,

v.

Gretchen D., Appellant.


Appeal From Richland County
Robert S. Armstrong, Family Court Judge


Unpublished Opinion No. 2009-UP-395
Heard April 22, 2009 – Filed July 20, 2009   


AFFIRMED


John Elliott, of Columbia, for Appellant.

C. Cantzon Foster, II, of Columbia, for Respondent.

PER CURIAM: Gretchen D. (Mother) appeals the family court's order terminating her visitation rights with her daughter.  She asserts the court erred in several evidentiary rulings.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Mother and Kenneth W. (Father) were divorced by order filed February 4, 2004.  They had one child together, Daughter, who was born March 24, 1998.  In the divorce decree, the parties agreed Father would have sole custody of Daughter.  Mother was to have supervised visitation initially, then unsupervised day-time visitation, and finally unsupervised visitation for every other weekend, beginning April 9-11, 2004.  In addition, the order set out conditions for visitation that included: no sleeping with Daughter, no nudity around Daughter or by Daughter, no bathing with Daughter, and put appropriate clothing on Daughter.  The order provided Daughter was to continue in therapy with Dr. Samer Touma and the parties were to cooperate with Dr. Touma. 

Dr. Touma counseled Daughter until he developed concerns about Daughter's relationship with Mother.  He referred Daughter to Dr. Elin Berg, who specialized in areas of abuse and neglect, which he did not work with at all. Dr. Touma also contacted the South Carolina Department of Social Services (DSS) concerning Daughter. 

Because Father felt that DSS was not acting quickly enough, his attorney arranged for Daughter to meet with Donna Rudd, a counselor with the Family Resource Center, on November 4, 2004.  Rudd testified that during the interview, Daughter indicated that on more than one occasion while in the shower at the gym, Mother made her touch Mother's breasts.

Daughter next saw Dr. Alicia Benedetto with the Assessment and Resource Center (ARC) on November 10, 2004.  Daughter was referred to Dr. Benedetto by the Richland County Sheriff's Office.  Daughter described the events in the shower similarly to what she had related to Rudd.  Dr. Benedetto concluded Daughter had not made any substantive disclosure of sexual abuse. 

Although Father caused Daughter to miss two scheduled visitations with Mother, Mother was able to have Thanksgiving with Daughter and regular visitation resumed after that.

Father testified that on the weekend before Valentine's Day 2005, he picked Daughter up from McDonald's after her visitation with Mother.  When they returned to the house, Daughter gagged outside and then went into the house, where she vomited.  Father and his new wife (Stepmother) drew Daughter a bath.  Once she was in the bathtub, Daughter began scrubbing herself vigorously and crying.  Believing Daughter had been sexually abused, Father called DSS.  Daughter also reported the incident to the guidance counselor at her school.  Daughter disclosed to the court in an in camera interview Mother "made her lick the dog's private parts and . . . made her allow the dog to lick her private parts."

Mother strongly denied she had sexually abused Daughter. She explained that with the shower incident she and Daughter were taking showers in separate stalls after swimming.  She stated Daughter pulled aside her shower curtain and reached for Mother's breasts.  Mother told her to stop and not do that again and Daughter complied. One of Mother's neighbors testified that during the afternoon of the Sunday before Valentine's Day, she watched Daughter for Mother so that Mother could work out before a date. She stated when Mother picked up Daughter, her hair was wet and she was dressed for her date.  Mother testified that after she picked Daughter up from the neighbor, they went back to her house for just a little while because it was almost time to leave to take Daughter to meet Father.  She asserted there was no time for the alleged incident with the dogs to take place.

When Father became dissatisfied with the inaction of DSS and the Sheriff's Department, he filed a complaint and a motion for pendente lite relief on February 28, 2005 asserting Mother's visitation should be suspended pendente lite and permanently due to a substantial change in circumstances.  Father alleged that Mother sexually abused Daughter with acts involving her dogs.  Father requested an emergency hearing and appointment of a guardian ad litem.  In her answer, Mother denied the allegations of abuse and asserted a counterclaim seeking sole custody of Daughter.  She alleged Father had attempted to sabotage her role as a parent by making "incessant reports and allegations of deviant or prurient behavior," interrogating the child with highly suggestive questioning, and involving counselors and therapists to aid and abet his campaign. 

After an emergency hearing, the family court suspended Mother's visitation.  The court appointed C. Vance Stricklin as guardian ad litem and ordered the guardian to arrange for psychological evaluations of the parties as soon as possible. 

Dr. A. Nicholas DePace, the court-appointed psychologist, reported that in both of his meetings with Daughter, she demonstrated significant responses consistent with being distressed when Mother was the focus of the conversation.  She would become tearful and hesitant to discuss Mother.  She became especially tearful when discussing the incident with the dogs.  However, when Mother was not the subject of the conversation, Daughter appeared very sociable, vibrant, energetic, and intelligent.  Dr. DePace noticed some inconsistencies in Daughter's reports of the incidents with the dogs, saying different names for the dogs involved. 

Because Dr. DePace recommended Daughter have another evaluation, Father took Daughter to Dr. Cynthia Brown in Asheville, North Carolina.  In addition, Daughter received counseling from Dr. Lanette Atkins, who testified as an expert witness in the trial.

Mother presented two expert witnesses, Dr. Jonathan Gould and Dr. Allison DeFelice, who criticized the methods used by the other evaluators and discussed the reliability problems that could be caused by multiple evaluations. 

The final hearing in this case was held the week of March 26, 2007.   The family court found a substantial change in circumstances affecting Daughter had occurred and that Mother's visitation should be terminated based on her acting inappropriately with Daughter in at least two regards: "(1)[Mother] required [Daughter] to touch [Mother's] breasts, and (2) the incident with the dog or dogs."  The court noted that despite Mother's defense contending the investigation and interviews with Daughter were suggestive and repetitive, no evidence was presented Daughter was asked any leading questions about deviant behavior with dogs.  Furthermore, the family court held Mother presented no evidence Daughter was coached or had been exposed to pornography.  The court ordered each party to be responsible for his or her own expert fees and to divide equally the fees for Dr. Touma, Dr. DePace, and the guardian.  In addition, the court ordered Mother to pay $15,000.00 of Father's attorney's fees.  The court subsequently denied Mother's motion to alter or amend.  This appeal followed. 

STANDARD OF REVIEW

In appeals from the family court, this court has the authority to find facts in accordance with its own view of the preponderance of the evidence.  Wooten v. Wooten, 364 S.C. 532, 540, 615 S.E.2d 98, 102 (2005).  This broad scope of review does not, however, require us to disregard the findings of the family court which saw and heard the witnesses and generally is in a better position to determine credibility.  Id.  In a custody dispute, the paramount factor is the welfare and best interest of the child.  Fisher v. Miller, 288 S.C. 576, 578, 344 S.E.2d 149, 150 (1986). 

"The admission of evidence is a matter left to the discretion of the trial judge and, absent clear abuse, will not be disturbed on appeal."  Carlyle v. Tuomey Hosp., 305 S.C. 187, 193, 407 S.E.2d 630, 633 (1991).  "In order for this court to reverse a case based on the erroneous admission or erroneous exclusion of evidence the plaintiff must show error and prejudice."  Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 405, 175 S.E.2d 805, 819 (1970).

LAW/ANALYSIS

A.  Exclusion of evidence of acts occurring prior to divorce

Mother argues the family court erred in excluding evidence of Father's pattern of false accusations of child abuse and involvement of the child in the inquiries occurring prior to the parents' divorce. 

Father argues this issue is not properly before the court because Mother failed to adequately proffer evidence concerning the past allegations that were deemed unfounded. "It is well settled that a reviewing court may not consider error claimed in the exclusion of testimony unless the record on appeal shows fairly what the rejected testimony would have been."  Jamison v. Ford Motor Co., 373 S.C. 248, 260, 644 S.E.2d 755, 761 (Ct. App. 2007), cert. granted (July 10, 2008).  "However, this rule regarding proffers has been relaxed where the appellate court is able [to] determine from the record what the testimony was intended to show and that prejudice clearly exists."  Id.

On Father's motion in limine, the family court ruled that generally the only relevant evidence would be anything that occurred after the date of the divorce.  However, the court stated it would reconsider its ruling if Mother established evidence of events occurring before that time was relevant and encouraged Mother to proffer. 

During Father's testimony, Mother proffered that she had intended to elicit testimony regarding the past reports of abuse by both Father and Mother and Father's history of taking Daughter to therapists. Father took his wife and Daughter to Tom Frisco around the date of the separation.  Father reported Daughter as abused to DSS in August of 2001 and DSS deemed the report unfounded.  Mother next reported Daughter as physically abused in October 4, 2001.  Father reported Daughter as sexually abused on October 12, 2001.  He twice took Daughter to Dr. DeFelice at the ARC in October of 2001 for interviews.  Mother reported Daughter and Stepmother's children as abused on April 25, 2003.  Father took Daughter to another therapist in 2003.  The court then ordered an evaluation of Daughter, after which she saw Dr. Touma between 2003 and 2004. 

At the close of Mother's case, she proffered the reports from DSS concerning the above allegations.  The reports indicate DSS determined the allegations of October 4, 2001 of physical abuse and of October 12, 2001 of sexual abuse by Mother were unfounded.  The August 24, 2001 allegation of verbal abuse and leaving Daughter unsupervised was originally determined to be founded but was later dismissed.

Here the record shows sufficiently what the rejected testimony concerning the prior allegations of abuse and Father's history of taking Daughter to therapists would have been to allow this court to review the matter.  However, we do not believe Mother sufficiently proffered testimony from Dr. DeFelice to support her argument on appeal.  Mother asserts in her brief Dr. DeFelice was prohibited from testifying about her direct involvement with Daughter and Father in the 2001 allegation of sexual abuse.  In her proffered testimony, Dr. DeFelice only stated that past allegations of abuse would be relevant to a forensic evaluator in rendering an opinion.  Thus, as Mother did not establish what Dr. DeFelice would have related, other than the existence of the prior allegations, we cannot review whether the family court erred in limiting Dr. DeFelice's testimony. 

We find even if the family court erred in excluding the evidence, the error was not prejudicial.  To warrant reversal based on the admission or exclusion of evidence, the complaining party must prove both error and resulting prejudice.  Timmons v. S.C. Tricentennial Comm'n, 254 S.C. 378, 405, 175 S.E.2d 805, 819 (1970).  Although the family court did not allow testimony of the allegations prior to the divorce, the temporary order states, "[T]here have been reports to DSS by [Father] concerning [Mother] which were unfounded.  I further find that only one of the reports involved a sexual abuse allegation, which the minor child denied at that time."  In addition, in describing the documents and records he reviewed, Mother's expert, Dr. Gould, listed the DSS reports.  Thus, evidence of the past unfounded reports was before the family court. 

Mother asserts her reason for wanting the evidence admitted:  "The evidence of other instances of unsubstantiated allegations made by the father is relevant to whether he had a motive to make the allegations, whether his intent was to deprive the mother of a relationship with the child, and whether there was a pattern of examinations or interviews affecting the child irrespective of motive or intent."  The family court admitted other testimony into evidence that would similarly support Mother's case.  As to Father's motive and his intent to deprive Mother of her relationship with Daughter, Dr. Touma testified about the acrimony in the relationship of Father and Mother.  He stated "I think these two people hated each other more than they loved [Daughter] sometimes . . . ."  He added that their hostility spilled over onto Daughter at times.  In addition, the record is replete with evidence of the numerous examinations and interviews to which Father took Daughter following the divorce.  Mother presented evidence from both Dr. DeFelice and Dr. Gould that the numerous interviews could have corrupted Daughter's memory and created reliability issues.

Mother also asserts her experts were limited by the ruling.  However, Dr. Benedetto testified that even without considering events that had occurred prior to the divorce, she could still offer the same conclusions as she had stated in her report.  In addition, Dr. Benedetto was allowed to testify that she was concerned for Daughter when she learned that Father had taken her for multiple interviews and exams because that was not the best practice for a child.  Accordingly, Mother suffered no prejudice from the court's ruling as to Dr. Benedetto's testimony. 

As Mother failed to establish prejudice due to the family court's ruling, we find no reversible error on this issue. 

B.  Expert testimony concerning Daughter's credibility

Mother argues the family court erred by allowing Father's experts to comment on whether Daughter was credible or truthful in interviews with them. 

"Generally, '[w]hether a witness has qualified as an expert, and whether his opinion is admissible on a fact in issue, are matters resting largely in the discretion of the trial judge.'"  Altman v. Griffith, 372 S.C. 388, 400, 642 S.E.2d 619, 625 (Ct. App. 2007) (citing Prince v. Associated Petroleum Carriers, 262 S.C. 358, 365, 204 S.E.2d 575, 579 (1974)).  However, an expert may not vouch for the credibility of a child sexual abuse victim.  S.C. Dep't of Soc. Servs. v. Lisa C., 380 S.C. 406, 414, 669 S.E.2d 647, 651-52 (Ct. App. 2008) (finding psychologist improperly commented on child's credibility by saying child "'had no apparent motivation . . . to have a false allegation,'" and gave a "'consistent disclosure'"); see State v. Dawkins, 297 S.C. 386, 393-94, 377 S.E.2d 298, 302 (1989) (finding improper therapist indication he believed victim's allegations were genuine); State v. Dempsey, 340 S.C. 565, 571, 532 S.E.2d 306, 309 (Ct. App. 2000) (finding therapist's testimony children were being truthful in ninety-five percent of instances in which sexual abuse was alleged was improper vouching for child).

The first statement to which Mother objects in her brief was Rudd's testimony that Daughter was emphatic that she was telling the truth, and that no one had told her what to say.  Mother failed to object to this testimony.  Therefore, her objection to this statement is not preserved. 

Mother also asserts the family court committed error in allowing Rudd to testify she saw no evidence Daughter had been coached, she found Daughter's interview compelling, and there were indications of sexual abuse.  Similarly, Mother takes issue with portions of Dr. Atkins' testimony.  Dr. Atkins testified without objection that one of the ways of determining whether a child is lying is to look for inconsistencies, and Daughter had been very consistent.  The family court allowed Dr. Atkins to testify, over Mother's objections, that in her opinion Daughter had been truthful, had not been coached, and was not exaggerating.

However, after this testimony, Father's attorney asked Dr. Atkins whether Daughter could have made up the disclosures.  Dr. Atkins responded, without objection, "Could she make them up?  Sure.  Do I think she did?  No."  She then explained that Daughter's allegations would have been very unusual for a child to make up and Daughter's physiological reactions when discussing the incidents such as flushing and turning red all over would be difficult for a child to make up.  Dr. Atkins also testified without objection that Daughter had post-traumatic stress disorder.

In addition, on cross-examination by Mother, Dr. Atkins explained she had not interviewed Mother because she thought Daughter's reports were very credible.  On cross-examination by the guardian, Dr. Atkins testified without objection it was not likely that Daughter would have stated that at one point during the incident with the dogs it had felt good if she had been coached.  Dr. Atkins also testified without objection she found no evidence Daughter was fabricating these stories to gain approval or positive reinforcement from anyone. 

The court-appointed psychologist, Dr. DePace, stated in his report Daughter had not demonstrated any behavior strongly indicating she was being coached by her parents or anyone else.  Similarly, the guardian reported he had not seen any signs of coaching on the part of Father.  He noted that even Dr. Benedetto, who was convinced sexual abuse had not occurred, did not believe coaching was present.

Rudd and Dr. Atkins both commented on Daughter's credibility.  However, their other statements admitted without objection, and other witnesses' testimony concerning a lack of coaching is cumulative to the improper statements.  Thus we find the family court's admission of the improper statements is not reversible error.  See S.C. Dep't of Soc. Servs. v. Smith, 343 S.C. 129, 140, 538 S.E.2d 285, 290-91 (Ct. App. 2000) (stating when evidence is merely cumulative to other evidence, its admission is harmless and does not constitute reversible error).

C.  In camera interview with Daughter

Mother argues the family court deprived her of the opportunity to confront or challenge Daughter's statements in any meaningful way by utilizing an in camera interview with Daughter.  She asserts the in camera interview violated her due process rights.  

The parties discussed Daughter's testimony and the possibility of an in camera interview.  Both Father's and Mother's attorneys stated they preferred to have Daughter take the stand and testify but Mother's attorney never asserted an in camera interview would be a violation of Mother's due process rights.  Mother's attorney suggested questions for the family court judge to ask.  The guardian accompanied Daughter and the family court judge to chambers.  After the interview, the family court judge reported for the record the conversation he had with Daughter.  The family court judge stated he asked Daughter about the good and bad times she had with each parent.  He related Daughter indicated Mother had made her touch Mother's chest and also disclosed the incident with the dogs.  The guardian confirmed the family court's recollection of the interview. 

The family court judge asked the attorneys if they had anything they wished to put on the record as a result of the interview.  Mother's attorney did not offer any objections at that time.  Not until her motion for a new trial did Mother object to what Daughter told the family court judge in the interview regarding the allegations, asserting she was deprived of the opportunity to confront the allegations in a meaningful way.  In denying the motion, the family court judge found Mother had waived any objection to the interview by failing to object after the court recited for the record what was said in the interview and by failing to request an opportunity to cross-examine Daughter.  Failure to object when evidence is offered constitutes a waiver of the right to object.  Crawford v. Crawford, 321 S.C. 511, 514, 469 S.E.2d 622, 624 (Ct. App. 1996).  We agree with the family court that Mother waived any arguments concerning the in camera interview by failing to make a timely objection.

D.   Testimony of Dr. DeFelice

Mother argues the family court erred in failing to entertain expert testimony from Dr. DeFelice on the likelihood of improper influence on the child's assertions. 

During Dr. DeFelice's testimony, Mother offered the following proffer:

Q. In terms of reliability of out-of-court statements made by [Daughter] to others, can you say, within a reasonable degree of professional certainty, whether [Daughter's] statements, over time, could be considered reliable?

A. My review of the information causes me, personally, as a forensic evaluator, great concern about the reliability of her statements at this time in her development regarding these allegations from the past. 

The family court sustained Father's objection to this testimony because Dr. DeFelice had no personal knowledge concerning the allegations of this case and had not seen Daughter in six years.  Although the court excluded this testimony, it did allow Dr. DeFelice to testify how protocols of forensic interviewing of suspected child abuse victims were deviated from and the effect of that deviation.  She stated these deviations "muddied the waters."  She related children ages three to seven are particularly vulnerable and it creates serious issues of memory and suggestibility.  She testified:

Now, it is my opinion that there very serious deviations in this case –I think the best word I can use would be corrupt –corrupted the capacity of the child to render statements not about just anything but about specific events that she's been interviewed about repeatedly and under multiple irregular circumstances.

In addition, she testified on cross-examination by the guardian: "I rendered the opinion that there is a protocol or that there are protocols and standards for forensic evaluations and that, I believe, that they have not been followed and, I believe, as a result that there is the potential reliability problem."  The family court allowed this testimony. 

Although the family court excluded some testimony from Dr. DeFelice concerning the reliability of Daughter's statements, she was allowed to testify that the deviations from protocol "corrupted the capacity of the child to render statements" and created a "potential reliability problem."  We find no significant difference between the testimony the family court allowed and the testimony it did not allow.  Accordingly, we find no reversible error.  See Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 31, 609 S.E.2d 506, 512 (2005) (stating an error in the exclusion of evidence may be deemed harmless if the equivalent or cumulative testimony or evidence is admitted). 

In addition, Mother asserts in this section of her brief that the family court "admitted all manner of the child's hearsay statements through other witnesses in the father's case."  She fails, however, to call this court's attention to any such statements in the record.  We find that if Mother is attempting to argue the family court erred in admitting these statements, the argument is not properly before this court.  See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set forth in the statement of issues on appeal."); Davis v. Tripp, 338 S.C. 226, 234, 525 S.E.2d 528, 532 (Ct. App. 1999) (stating appellant has the burden of showing both error and prejudice).

E.  Opinion of Dr. Atkins

Mother argues the family court erred in allowing Dr. Atkins to testify that in her opinion Daughter was the victim of child sexual abuse.  She asserts that because Dr. Atkins' assessment of Daughter was one-sided and only presented Father's side of the story, Dr. Atkins' testimony was more prejudicial than probative.  Dr. Atkins did not personally interview Mother but did read Mother's deposition.  Mother's expert, Dr. Gould, testified that when an evaluator has information from only one parent, it biases him or her to generate hypotheses only from the perspective of that one parent.  Dr. Gould also stated that on the issues of judgment and credibility, mental health professionals are no better than the general public at being able to identify who is and who is not telling the truth.

Dr. Atkins acknowledged that in ideal circumstances, she would have interviewed Mother also, but in this case, she relied on records of treating or other evaluating professionals.  She asserted that the fact she did not speak with Mother was not an impediment to her evaluation.  

In Terwilliger v. Terwilliger, the father asserted the family court erred in giving undue consideration to the mother's expert witness, a clinical psychologist, who tested the child, her grandparents, and the mother but did not test the father or communicate with him.  298 S.C. 144, 147, 378 S.E.2d 609, 611 (Ct. App. 1989).  This court found the father's argument concerned the question of credibility and the probative value to be placed upon the testimony of the psychologist.  We held:  "Resolving questions of credibility is a function of the family court judge who heard the testimony.  Similarly, the fact finder determines the weight to be given testimony."  Id.  (citations omitted).  Thus, we concluded the family court did not err in assessing the probative value of the psychologist's testimony.  Id.

Here, the family court was able to consider Mother's experts' criticism of Dr. Atkins' failure to interview Mother as well as Dr. Atkins' explanation that the fact she did not speak with Mother was not an impediment to her evaluation.  We hold, as we did in Terwilliger, the family court did not abuse its discretion in determining the expert's testimony was more probative than prejudicial. 

F.  Exclusion of deposition

Mother argues the family court erred in refusing to admit the deposition testimony of a psychiatrist who examined Daughter and had previously rendered an opinion as to whether she was a victim of child sexual abuse. 

Dr. Elin Berg was the psychiatrist with whom Daughter counseled following the allegations of sexual abuse.  During Dr. Gould's testimony, Mother sought to have admitted the following:

Q. Dr. Berg, in your opinion, did the sexual abuse occur?

A.  I don't know.

The guardian actually quoted the same language from Dr. Berg's deposition in his report.  Accordingly, as we cannot see how Mother was prejudiced by this ruling, we need not address whether the trial court erred in excluding the deposition excerpt during Dr. Gould's testimony.  See Fields, 363 S.C. at 31, 609 S.E.2d at 512 (stating an error in the exclusion of evidence may be deemed harmless if the equivalent or cumulative testimony or evidence is admitted). 

CONCLUSION

For the above stated the reasons, the order of the family court is

AFFIRMED.

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