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2011-UP-433 - SCDSS v. K.A-C.

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

South Carolina Department of Social Services, Respondent,

v.

K.A-C. and D.C., Defendants,

Of whom D.C. is the Appellant.

In the interest of two minor children under the age of 18.


Appeal From Spartanburg County
James F. Fraley, Jr., Family Court Judge


Unpublished Opinion No.  2011-UP-433
Submitted October 1, 2011 – Filed October 10, 2011


AFFIRMED


Kenneth P. Shabel, of Spartanburg, for Appellant.

Scarlet B. Moore, of Greenville, for Respondent.

Robert M. Holland, of Spartanburg, for Defendant K.A-C.

M. Todd Thigpen, of Spartanburg, for Guardian ad Litem.

PER CURIAM: D.C. (Father) appeals from the family court order, which found Father sexually abused his oldest child (Child) and placed legal and physical custody of Child and her sister with K.A-C. (Mother).  On appeal, Father contends the family court erred in (1) allowing the admission of Child's out-of-court statements pursuant to section 19-1-180 of the South Carolina Code (Supp. 2010) and (2) finding Father committed sexual abuse against Child.  We affirm.[1]   

On appeal from the family court, this court reviews factual and legal issues de novo.  Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).  Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Lewis, 392 S.C. at 385, 709 S.E.2d at 652.  The burden is upon the appellant to convince this court that the family court erred in its findings.  Id.

1.  As to whether the family court erred in admitting the out-of-court statements of Child pursuant to section 19-1-180, we affirm.  Section 19-1-180 provides for the admission of out-of-court statements by certain children.  Specifically, the statute provides:

(A) An out-of-court statement made by a child who is under twelve years of age or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of a family court proceeding brought pursuant to Title 63 concerning an act of alleged abuse or neglect as defined by [s]ection 63-7-20 is admissible in the family court proceeding if the requirements of this section are met regardless of whether the statement would be otherwise inadmissible.

(B) An out-of-court statement may be admitted as provided in subsection (A) if:

(1) the child testifies at the proceeding . . . ; or

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

. . .

(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.

S.C. Code Ann. §§ 19-1-180(A)-(B).  We hold the court properly found Child was unavailable to testify pursuant to section 19-1-180(B)(2)(a)(v) because there existed a "substantial likelihood that [Child] would suffer severe emotional trauma from testifying at the proceeding or by means of videotaped deposition or closed-circuit television."  Specifically, Child's counselor testified Child would not be able to testify "in this type of proceeding" because Child suffered a significant level of trauma related to Father and had not seen Father in nearly a year, which would likely prevent her from being able to have a conversation regarding the allegations of the case.  The counselor also testified there would be a substantial likelihood Child would suffer severe emotional trauma from testifying at the proceeding because of both her history and her original symptoms of trauma displayed in early counseling sessions.  Additionally, the counselor testified Child could not likely endure a deposition or closed-circuit television testimony where she would be subjected to cross-examination "because of her developmental stage and because of the trauma that she's already experienced."  She stated Child does not have the "ego strength or the ability to be able to go through this process."  Accordingly, the family court did not err in admitting Child's out-of-court statements upon finding child was unavailable to testify pursuant to section 19-1-180.

2.  As to whether the family court erred in finding Father committed sexual abuse against Child, we affirm. 

Section 63-7-20(4) of the South Carolina Code (2010) defines "'Child abuse or neglect' or 'harm'" as occurring when:

[T]he parent, guardian, or other person responsible for the child's welfare: . . . (b) commits or allows to be committed against the child a sexual offense as defined by the laws of this State or engages in acts or omissions that present a substantial risk that a sexual offense as defined in the laws of this State would be committed against the child.

First-degree criminal sexual conduct (CSC) with a minor occurs when an individual "engages in sexual battery with a victim who is less than eleven years of age."  S.C. Code Ann. § 16-3-655 (Supp. 2010).  "'Sexual battery' means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes."  S.C. Code Ann. § 16-3-651(h) (2003). 

Testimony supported the family court's finding Father committed first-degree CSC with a minor.  Specifically, Child's Guardian ad Litem, testified Child told her and Child's counselor that Father touched Child inappropriately and hurt her by inserting his finger in her bottom.  Child's counselor also testified Child frequently drew pictures of faces with mouths scratched out and colored in, stating "that was when I was screaming when my daddy hurt my bottom."  Lastly, Child's social worker testified Child made disclosures of sexual abuse against Father by stating "[Child] talked about things happening to her bottom, which again was her buttocks area, and something being inserted inside that."  Accordingly, we affirm the family court's finding Father sexually abused Child. 

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


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