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2010-UP-178 - DSS v. Sherri 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

Department of Social Services, Respondent,

v.

Sherri D., Robert D., Sherry D., Larry B., and Betty B., Defendants,

Of Whom Robert D. is Appellant.

In the Interests of: C.D., M.D., and L.D., all minor children under the age of 18.


Appeal From Anderson County
Tommy B. Edwards, Family Court Judge


Unpublished Opinion No.   2010-UP-178
Heard February 2, 2010 -  Filed March 1, 2010


AFFIRMED


William Norman Epps, III, of Anderson, for Appellant.

M.J. Goodwin, of Anderson, for Respondent.

Hugh W. Welborn, of Anderson, Guardian Ad Litem.

PER CURIAM: Robert D. (Father) appeals the family court's order finding (1) he abused and/or neglected his three minor children, C.D., M.D., and L.D. (collectively Children), pursuant to section 63-7-20 of the South Carolina Code (2008); (2) he used excessive corporal punishment on C.D.; and (3) the Department of Social Services (DSS) made reasonable efforts to prevent or eliminate the need for removal.  We affirm.  

FACTS

DSS first became involved in this case on March 30, 2007, when allegations arose that Father excessively bruised C.D.'s buttocks as a result of a spanking.  Thereafter, Children were taken into emergency protective custody and DSS placed Children with Helping Hands.  After a probable cause hearing, the family court issued an order instructing DSS to retain custody of Children.    

On June 25, 2007, July 11, 2007, and July 25, 2007, the family court conducted a merits hearing.  At the hearing, Angela Holtzclaw, C.D.'s school nurse, testified that when C.D. came to school on March 30, 2007, C.D. complained she was unable to sit.  According to Holtzclaw, C.D. told her she could not sit down because "her daddy had given her a really bad spanking."  When Holtzclaw asked if this had happened before, C.D. responded, "yes, but it had been a while."  Holtzclaw then requested Assistant Principal Valerie Anna Neal's presence when she examined C.D.  The school librarian then took pictures of the bruises on C.D.'s buttocks and Neal contacted DSS and law enforcement. 

Holtzclaw opined C.D.'s bruises were not the result of "a bad spanking," but rather "a beating."  According to Neal, once DSS arrived, C.D. "was trembling.  And I asked her why she was trembling, and she said she was afraid to go home . . . because my dad is going to kill me if I go home today."  Neal testified "it was obvious that [C.D.] had been hurt terribly by a parent.  And I can't say she told me that, but I know that this occurred."  According to Neal, C.D.'s buttocks were "purple and black and blue, [and] C.D. was in terrible pain and could not sit."  According to Neal, C.D. expressed concern over M.D.'s safety. 

When DSS employee Susan Leverette arrived at the school, C.D. told her the bruises were the result of a spanking.  According to Leverette, M.D. was relieved when he learned he was not going home.  Leverette testified Father denied bruising C.D.; however, he later admitted he spanked C.D.  Leverette acknowledged both Father and C.D. stated C.D. had been in a bike accident the previous day, but Leverette did not believe the bruising was consistent with a bike accident.  Rather, Leverette believed C.D.'s bruises were the result of excessive corporal punishment and, as a result, DSS sought a finding that Father physically abused C.D.  Additionally, Charie Jenkins, a child protective services investigator, believed C.D.'s bruises were the result of excessive corporal punishment. 

Brent Simpson of the Anderson County Sheriff's Department decided to place Children into emergency protective custody based on C.D.'s statements and bruises.  Simpson believed M.D. and L.D. were also in danger. 

Father admitted he spanked Children as a form of discipline; however, he did not believe a spanking caused C.D.'s bruises.  According to Father, on March 29, 2007, C.D. and a friend were riding bikes and C.D. had an accident.  That same evening, Father spoke to C.D. about deceiving him regarding permission to have a friend over.  Based on her deception, Father spanked C.D.  According to Father, he gave C.D. "three licks with a paddle."   Father opined "there is no way I put them bruises on her, and if by any chance I caused any of those bruises I'm sorry." 

On March 1, 2008, the family court issued a removal order transferring custody of Children to DSS.  Specifically, the family court found (1) Father abused and/or neglected Children pursuant to section 63-7-20 of the South Carolina Code (2008); (2) Father used excessive corporal punishment on C.D.; and (3) DSS made reasonable efforts to prevent or eliminate the need for removal.  Father filed a Rule 59(e), SCRCP, motion, which the family court denied.  This appeal followed. 

STANDARD OF REVIEW

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, 189-90, 612 S.E.2d 707, 711 (Ct. App. 2005); see also Florence County Dep't of Soc. Servs. v. Ward,  310 S.C. 69, 71, 425 S.E.2d 61, 62 (Ct. App. 1992) ("When physical abuse of a child is alleged, this [c]ourt is free to find facts based on its own view of the preponderance of evidence.").  However, this broad scope of review does not require us to disregard the family court's findings.  Bowers v. Bowers, 349 S.C. 85, 91, 561 S.E.2d 610, 613 (Ct. App. 2002).  Nor must we ignore the fact that the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Cherry v. Thomasson, 276 S.C. 524, 526, 280 S.E.2d 541, 542 (1981). 

LAW/ANALYSIS

I.  Excessive Corporal Punishment

Father contends the family court erred in finding Father used excessive corporal punishment on C.D. and as a result erred in removing C.D. from Father's custody.  We disagree. 

Child abuse occurs when a parent "inflicts or allows to be inflicted upon the child physical . . . injury . . . sustained as result of excessive corporal punishment."  S.C. Code Ann. § 63-7-20(4)(a) (2008).  However, physical discipline is not corporal punishment if it (1) is administered by a parent; (2) is perpetrated for the sole purpose of restraining or correcting the child; (3) is reasonable in manner and moderate in degree; (4) has not brought about permanent or lasting damage to the child; and (5) is not reckless or grossly negligent behavior by the parents.  § 63-7-20(4)(a)(i)-(v). 

Evidence presented at the merits hearing indicated Father's use of physical discipline was not reasonable in manner or moderate in degree.   Neal, Holtzclaw, Leverette, Jenkins, and Simpkins all testified the bruising on C.D.'s buttocks was excessive.  Additionally, C.D. informed school personnel she was unable to sit because of the spanking.  Further, the photographs entered into evidence revealed numerous and significant bruises, and the bruises were inconsistent with bruising from the bike accident.  Accordingly, we find the evidence supports the family court's conclusion Father used excessive corporal punishment on C.D.[1] 

II.  Failure to Return M.D. and L.D.

Father argues the family court erred in failing to return M.D. and L.D. to Father's custody.  We disagree. 

In cases involving excessive corporal punishment, if one child is taken into emergency protective custody and the only injury to the child is "external lesions or minor bruises," other children in the home shall not be taken into emergency protective custody.  S.C. Code Ann. § 63-7-620(A)(1) (2008).  However, this statute only prohibits law enforcement from removing other children in a home if the bruises on one child are minor.  Based on the evidence presented to the family court, C.D.'s bruises were not minor.   Rather, evidence indicated C.D. had numerous and significant bruises.  Accordingly, we find the family court did not err in concluding M.D. and L.D. should not be returned to Father's custody.  

III.  Efforts to Prevent or Eliminate Removal

Father contends the family court erred in finding DSS made reasonable efforts to prevent or eliminate the need for removal of Children.  We disagree.

When a family court removes a child, the family court's order "shall contain a finding by the court of whether reasonable efforts were made by [DSS] to prevent removal of the child and a finding of whether continuation of the child in the home would be contrary to the welfare of the child."  S.C. Code Ann. § 63-7-1660(G) (2008).  When DSS's first contact with a child occurs "under such circumstances that reasonable services would not have allowed the child to remain safely in the home, the court shall find that removal of the child without services or without further services was reasonable."  S.C. Code Ann. § 63-7-1660(G)(4) (2008).    

DSS's first contact with Children occurred when C.D. told school personnel Father spanked her.  Based upon the severity of the bruising and C.D.'s statements, law enforcement took Children into emergency protective custody because law enforcement did not believe Children could remain safely in the home. Because probable cause existed to place Children in emergency protective custody, the family court did not err in concluding Children could not remain safely in the home.[2] 

CONCLUSION

Based on the foregoing, we find the family court did not err in finding (1) Father abused and/or neglected Children pursuant to section 63-7-20 of the South Carolina Code (2008); (2) Father used excessive corporal punishment on C.D.; and (3) DSS made reasonable efforts to prevent or eliminate the need for removal.  Accordingly, the family court order is

AFFIRMED.

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


[1] Because Father's conduct did not meet the third guideline of section 63-7-20(4), we need not address the remaining guidelines.  See S.C. Dep't of Soc. Servs. v. Father and Mother, 294 S.C. 518, 521, 366 S.E.2d 40, 42 (Ct. App. 1988) (holding this court does not need to address a parent's argument as to each of the guidelines when the conduct clearly does not meet at least one of them).

[2] Father also argues the family court erred in refusing to admonish DSS; however, based on the facts of this case, we decline to address this issue.