SCDSS v. Brian Frank ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
South Carolina Department of Social Services,
Respondent,
v.
Kristian Scott and Brian Frank, Defendants,
Of whom Brian Frank is the Appellant.
In the interest of minors under the age of eighteen.
Appellate Case No. 2019-001084
Appeal From Kershaw County
Michelle M. Hurley, Family Court Judge
Rosalyn Frierson-Smith, Family Court Judge
Opinion No. 5957
Heard May 25, 2022 – Filed January 4, 2023
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Katherine Carruth Goode and Foster Manly Mathews,
both of Columbia, for Appellant.
Megan Jeanine Katherine Meekins, of the South Carolina
Department of Social Services, of Columbia; and Scarlet
Bell Moore, of Greenville, both for Respondent.
LOCKEMY, A.J.: Brian Frank (Father) appeals two family court orders denying
his motion to dismiss on subject matter jurisdiction grounds, finding he sexually
abused his minor daughter (Child), and ordering his entry onto the Central Registry
of Child Abuse and Neglect (Central Registry). On appeal, Father argues the
family court erred by (1) finding it had subject matter jurisdiction when the alleged
abuse occurred in North Carolina; (2) qualifying a witness as an expert, limiting
evidence, and admitting Child's hearsay statements; and (3) limiting evidence
relevant to the parents' history and ultimately finding Father should be entered on
the Central Registry. We affirm in part, reverse in part, and remand for a new trial.
FACTS/PROCEDURAL HISTORY
Child was born to Father and Kristian Scott (Mother) in 2012. On November 14,
2017, the South Carolina Department of Social Services (DSS) filed a complaint
for removal, alleging Mother and Mother's boyfriend, Robert Connell, abused or
neglected Child and that Father also sexually abused Child while she was visiting
him at his home in North Carolina. By temporary order, Child was placed in the
temporary custody of her paternal grandparents on August 24, 2018.
On September 5, 2018, the parties appeared before Judge Michelle Hurley, and
Father asserted the action should be dismissed because the court lacked subject
matter jurisdiction when the alleged abuse occurred in North Carolina. Judge
Hurley denied Father's motion to dismiss and determined South Carolina had
exclusive and continuing jurisdiction because (1) South Carolina was Child's home
state; (2) Mother and Child continued to reside in South Carolina; (3) Child had
significant connections to South Carolina; (4) a custody order had been issued in
South Carolina; and (5) a private action was pending in South Carolina.
On the merits, the parties appeared before Judge Rosalyn Frierson-Smith 1 in
October 2018. At trial, Father renewed his motion to dismiss for lack of subject
matter jurisdiction, but the family court declined to change Judge Hurley's ruling.
DSS then moved pursuant to section 19-1-180 of the South Carolina Code (2014)
to present Child's out-of-court hearsay statements. DSS asserted that because
Child recently turned six years old, her out-of-court statements should be admitted
to protect her from having to testify about the alleged abuse in front of her claimed
abuser.
In support of their section 19-1-180 motion, DSS presented pre-trial testimony
from Elizabeth Creed. Creed testified she was employed by Firm Foundations
1
We refer to Judge Frierson-Smith as "the family court."
Counseling and Wellness as a licensed professional counselor associate. She
indicated her undergraduate degree was in experimental psychology and her
graduate degree was as an education specialist in counselor education with a
concentration in marriage, family, and couples counseling. According to Creed, in
order to become a licensed professional counselor associate, she underwent 750
hours of supervision and direct counseling. She also stated she received
specialized training in trauma stemming from sexual abuse of children. Creed
acknowledged she personally had not undergone peer review but was under the
direct supervision of a licensed professional counselor who had been peer
reviewed. She also indicated she was required to work under the supervision of a
licensed professional counselor for two years, and she was less than a year into her
supervision. Creed further acknowledged she had never testified in court, been
qualified as an expert, or published any papers. DSS moved to qualify Creed as an
expert in child counseling and trauma, and Father objected. The family court
overruled the objection and qualified Creed as an expert in child trauma.
According to Creed, she began counseling Child on January 5, 2018. She
explained that, in her opinion, she could not say for certain whether testifying in
court would cause Child severe emotional trauma. However, she indicated "it is
possible that she would experience severe emotional trauma from testifying."
Creed clarified she believed "possible" meant "more likely than not." She stated
appearing in a courtroom in front of strangers, family, people she did not know,
and the potential perpetrator could be traumatizing for a child. Creed explained
that based on Child's age, she believed having to relive the trauma in the courtroom
would cause anxiety, excessive worrying, panic attacks, nightmares, and
restlessness. She indicated she believed the same symptoms would arise if Child
were to testify by video because she would be subject to cross-examination and
forced to retell her story to people with whom she does not have a rapport. The
following exchange then occurred:
[DSS]: Okay. All right. So looking at the things that you
said a six year old is likely to experience, do you believe
that [Child] is likely to experience those same type of
distress symptoms, as you put it?
[Creed]: I think so.
[DSS]: Do you think she is substantially likely to
experience those?
[Creed]: I do.
She further indicated that because Child had not seen Father in over a year, facing
him in the courtroom could possibly add to her distress.
On cross-examination, Creed testified she was not aware of the family's
background situation prior to these allegations. Father asked whether Creed was
aware of the divorce proceeding between the parties, and DSS objected on the
basis of relevancy and that the question was outside the scope of her expertise.
Father responded that section 19-1-180(D)(4) includes any motive for Child to
possibly falsify or distort the event. The family court sustained the objection,
finding the questioning should be related to Creed's counseling expertise. The
court further found that Creed already testified the family's background was
outside the scope of her knowledge.
In response to Creed's testimony, Father called Michelle Gworski as a witness.
Gworski testified she was the guardian ad litem appointed to the 2016 divorce
action between Father and Mother. She indicated she sent a letter to the parties in
June 2017 regarding the "deplorable" conditions she observed in Mother's home
and stated Father subsequently filed a motion requesting primary custody of Child.
Gworski explained that the day before the hearing on the motion, Mother told her
Child reported abuse to Mother's sister, and they contacted the police. Gworski
testified she did not talk to Child about the allegations until May of 2018, and she
did not receive the results of the forensic report until a month later. She indicated
Child's statements to her were consistent with the forensic report.
Prior to the family court's ruling on the motion, Father offered to waive his
presence in the courtroom if Child would be allowed to testify. The family court
rejected the offer and granted DSS's motion to admit Child's statements. The court
relied on Child's age, the testimony presented about the substantial likelihood she
would experience emotional trauma, and the testimony regarding the consistency
of Child's statements. The family court further found there was not enough
evidence to show a motive for Child to falsify or distort the event. As to
trustworthiness of the statement, the court indicated the record showed the
statement was based on Child's personal knowledge, more than one person heard
the statement, Child provided a detailed account to Creed and used appropriate
language for her age, and Child consistently recounted the statement to Gworski
months later.
At trial, DSS requested the family court find Father sexually abused Child and
enter him on the Central Registry; however, DSS requested the custody and
visitation orders remain as they were in the private custody action. Mother
expressly stated the "private case is ongoing, and—and active, and would control
the custody and visitation issue, so that would not be before [the family court]
today."
Creed testified Child's foster parent brought her to therapy when she was five years
old. She indicated the foster parent reported Child had issues adjusting to a new
environment and exhibited sexualized behavior in the form of masturbating.
According to Creed, she treated Child by using a trauma narrative to help her make
sense of her adverse experience. Over Father's objection, Creed testified Child
stated, "Brian [Father] licked my butt and my no-no" and appropriately identified
the parts of her body.
Gworski next testified she conducted a home visit of Mother's house in June of
2017, where she found "deplorable" living conditions and observed Mother exhibit
slurred speech. As a result, she wrote a letter expressing her concerns to Mother
and Father's attorneys.
After Gworski learned of Child's abuse allegations, she visited Child at school.
Child told Gworksi that Mother did not want the two speaking to each other, but
Child said, "I'm going to anyway." Over Father's objection, Gworski indicated
Child said "Brian [Father] had licked her no-no" and that she was told by him not
to tell Mother. She testified Child recalled that the abuse occurred in Father's truck
near a shed. Gworski explained Child subsequently asked her, "When can I see
him again?" She stated she replied to Child that if Father hurt her, she could not
see him, and Child said, "Oh, okay."
Mary Beth Camp, a caseworker for DSS, testified that after DSS received
allegations of sexual abuse in this case, she contacted the family and referred Child
for a forensic interview. She explained she did not believe Mother coached Child.
Camp stated that DSS concluded the case by finding an indication of sexual abuse
and substantial risk of sexual abuse against Father based on the disclosure made by
Child during the forensic interview.
On cross-examination, Father asked Camp if, during her review of the case, she
found any previous unfounded allegations of sexual abuse Mother made against
Father. DSS objected, arguing the ability to use unfounded cases should be
limited. Father responded the question went to Mother's motive to coach Child to
make the allegations. However, Father then indicated he was happy to move on.
Melissa Klahre then testified she was a forensic interviewer and therapist at the
CARE House of the Pee Dee. She explained she conducted a forensic interview
with Child in this case, and Child disclosed "oral vaginal and oral anal penetration
by Brian [Father]." She testified Child made appropriate identifications using
anatomical drawings, and Child remained consistent throughout the course of the
interview.
On cross-examination, Klahre admitted Child's disclosure was not in response to a
direct question, but instead after she asked Child, "Do you have any questions for
me?" She testified she believed the statements were made almost immediately;
however, the immediate disclosure did not necessarily raise a red flag for her.
Klahre testified Child made the disclosure after she talked to Child about the room
they were in and discussed introductory matters. She stated it did not strike her as
odd that Child started talking spontaneously because "every child discloses
differently."
Mother testified that prior to the sexual abuse allegations, there was an ongoing
action in family court between her and Father. Father attempted to ask Mother
about interactions between her and Gworski, but Mother's attorney objected to
their relevancy. Father responded that the question was relevant because it went to
Mother's motive to potentially coach Child and the timing of the allegations. The
family court asked Father to repeat the question, and Father responded he would
"move on."
Mother testified she took Child to the police to report the abuse before she received
the papers from Father's attorney about the June custody hearing. She indicated
she previously made allegations against Father for abusing Child when Child was
two years old because "she started acting different[ly]." According to Mother, she
called Child's grandparents to express her concerns about Child's behavior, but the
grandparents responded "it was from her car seat." Father then asked Mother if,
prior to making those allegations, he paid for her car. DSS and Mother objected to
the question on the basis of relevancy. The family court allowed Father "a little
leeway" to continue his questioning. Mother responded she could not remember
how long after Father stopped making the car payments she made the allegations of
abuse.
Father then asked Mother if she had ever accused Douglas Frank, Child's paternal
grandfather, of sexual abuse. DSS objected, and Father again responded the
testimony was relevant to Mother's attempts to use allegations as leverage. The
court stated the question did not have "[a] very strong connection" but allowed
Father to ask one question and instructed him to move on.
Mother testified her children call her boyfriend "Dad" because "he raise[d] them,"
and they call Father, "Brian." Father asked whether he exercised visitation
regularly when it was court ordered. In response to an objection on the basis of
relevancy, the family court stated the question appeared to get into the private
custody action, and custody was not an issue before the court. Father argued
everything was tied together because "if there's a finding against him there's no
way he gets custody." The court sustained the objection. Mother then testified she
recorded a video of Child making the statement and sent it to police in North
Carolina but never heard from an investigator.
Mother testified that prior to Child alleging the abuse, she observed Child's
behavior was different: she did not talk, stared out the window, and experienced
anger. She indicated Child begged her not to force her to visit Father, and during
one visitation exchange, she observed Child hit Father and try to run into the
highway.
Father testified he was thirty-one years old and lived in North Carolina with his
girlfriend and her two children, ages three and one. Father stated he delivered
furniture for work and was in the military for nine years. He further explained he
was medically retired and received an honorable discharge in 2013. According to
Father, he learned of the abuse allegations from Gworksi the day before the
hearing for him to obtain custody. He testified he did not sexually assault Child.
Father testified Mother previously made sexual abuse allegations against him, but
the allegations were unfounded because he did not have contact with children at
the time of the alleged abuse. Father was asked about the timing of the last
allegation, and over DSS objection, Father indicated he stopped making payments
on Mother's vehicle because she was not allowing visitation. He indicated the
allegations in the current case did not arise until two or three days before the
custody hearing, but Mother was served with the hearing documents ten days prior
to the hearing. Father stated that due to the allegations and the outstanding DSS
case, the court did not award him custody at that June 2017 hearing.
Father testified he had not seen Child since June 2017. He explained that after the
allegations, the police contacted him, and he told them the allegations were the
result of "a jealous mother that ha[d] a vendetta" against him. Father testified he
told the police Mother used allegations of sexual assault in the past like "a playing
card." He explained he fully cooperated with police and was not arrested.
At the conclusion of the hearing, DSS requested a finding of sexual abuse against
Father and sought to have him placed on the Central Registry. In response, Father
argued DSS failed to meet its burden of proving the allegations against him. He
asserted that Child was only consistent because she repeated the phrase, "Brian
licked my no-no and my butt," and he questioned Child's immediate disclosure
during the forensic interview. Father also asserted that law enforcement did not
think he was guilty because they never arrested him. Finally, he argued the
statement of a young child did not meet the preponderance of the evidence
standard, and he was limited in presenting his case because he was unable to
cross-examine Child to determine if Mother coached her.
The family court found Father sexually abused Child and should be entered onto
the Central Registry. It further found Child should remain in therapy, and custody
should be resolved by the private custody action. This appeal followed.
ISSUES ON APPEAL
1. Did the family court err in denying the motion to dismiss on jurisdictional
grounds?
2. Did the family court err in qualifying a witness as an expert, in limiting the
evidence, and in granting DSS's motion to admit hearsay statements of the
complaining witness, in lieu of Child testifying in court or by other means?
3. Did the family court err in limiting the evidence relevant to the parents' history
and Mother's motive to influence Child to make false allegations of sexual abuse,
and in ultimately finding that Father sexually abused Child and should be entered
on the Central Registry?
STANDARD OF REVIEW
The appellate court reviews decisions of the family court de novo. Lewis v. Lewis,
392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). The appellate court generally
defers to the findings of the family court regarding credibility because the family
court is in a better position to observe the witness and his or her demeanor. Id. at
385, 391, 709 S.E.2d at 651-52, 655. The party contesting the family court's
decision bears the burden of demonstrating the family court's factual findings are
not supported by the preponderance of the evidence. Id. at 388-89, 709 S.E.2d at
653-54; see also Stoney v. Stoney, 422 S.C. 593, 595, 813 S.E.2d 486, 487 (2018)
("We observed [in Lewis] that de novo review allows an appellate court to make its
own findings of fact; however, this standard does not abrogate two long-standing
principles still recognized by our courts during the de novo review process: (1) a
trial judge is in a superior position to assess witness credibility, and (2) an
appellant has the burden of showing the appellate court that the preponderance of
the evidence is against the finding of the trial judge.").
LAW/ANALYSIS
A. Subject Matter Jurisdiction
Father argues the family court erred by denying his motion to dismiss for lack of
jurisdiction because custody was not at issue and the alleged abuse occurred in
North Carolina. He asserts the family court incorrectly applied the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) 2 in determining the court
had jurisdiction because it analyzed the issue as if the trial was a custody
determination; however, the only issue was whether Father had sexually abused
Child and should be entered on the Central Registry. Father contends the situation
here is analogous to South Carolina Department of Social Services v. Tran, 418
S.C. 308, 792 S.E.2d 254 (Ct. App. 2016), when this court found the family court
properly exercised temporary emergency jurisdiction but was without subject
matter jurisdiction to enter the removal and termination of parental rights orders.
He also argues DSS's own policies and procedures provide a mechanism for
resolving the situation when the alleged abuse occurred outside of South Carolina.
We disagree.
"Subject matter jurisdiction is 'the power to hear and determine cases of the general
class to which the proceedings in question belong.'" Dove v. Gold Kist, Inc., 314
S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) (quoting Bank of Babylon v. Quirk,
472 A.2d 21, 22 (Conn. 1984)). "A court without subject matter jurisdiction does
not have authority to act." Tran, 418 S.C. at 314, 792 S.E.2d at 257.
"The family court is a statutory court created by the legislature and, therefore, is of
limited jurisdiction. Its jurisdiction is limited to that expressly or by necessary
implication conferred by statute." State v. Graham, 340 S.C. 352, 354, 532 S.E.2d
262, 263 (2000). "The family court has exclusive jurisdiction to hear matters
concerning the abuse and neglect of children." S.C. Dep't of Soc. Servs. v. Meek,
352 S.C. 523, 528, 575 S.E.2d 846, 848 (Ct. App. 2002). Moreover, the family
court has exclusive original jurisdiction over abuse and removal proceedings. S.C.
Code Ann. § 63-7-1610(A) (2010).
'Child abuse or neglect' or 'harm' occurs when: (a) the
parent, guardian, or other person responsible for the
child's welfare: (i) inflicts or allows to be inflicted upon
the child physical or mental injury . . . . [or] (ii) commits
or allows to be committed against the child a sexual
2
S.C. Code Ann. §§ 63-15-300 to -394 (2010).
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.
S.C. Code Ann. § 63-7-20(6) (2010 & Supp. 2022).
The UCCJEA defines a child custody proceeding as "a proceeding in which legal
custody, physical custody, or visitation with respect to a child is an issue. The
term includes a proceeding for divorce, separation, neglect, abuse, dependency,
guardianship, paternity, termination of parental rights, and protection from
domestic violence, in which the issue may appear." S.C. Code Ann.
§ 63-15-302(4) (2010).
[A] court of this State which has made a child custody
determination . . . has exclusive, continuing jurisdiction
over the determination until:
(1) a court of this State determines that neither the
child, the child's parents, and any person acting as a
parent do not have a significant connection with this
State and that substantial evidence is no longer available
in this State concerning the child's care, protection,
training, and personal relationships; or
(2) a court of this State or a court of another state
determines that the child, the child's parents, and any
person acting as a parent do not presently reside in this
State.
S.C. Code Ann. § 63-15-332 (2010).
We hold the family court properly determined it had jurisdiction over this abuse
and neglect case. See Lewis, 392 S.C. at 386, 709 S.E.2d at 652 (explaining the
appellate court reviews decisions of the family court de novo). First, the
legislature has conferred jurisdiction over abuse and neglect cases in South
Carolina to family courts. See Graham, 340 S.C. at 354, 532 S.E.2d at 263 ("The
family court is a statutory court created by the legislature and, therefore, is of
limited jurisdiction. Its jurisdiction is limited to that expressly or by necessary
implication conferred by statute."); § 63-7-1610(A) ("The family court has
exclusive jurisdiction over all proceedings held pursuant to this article."); § 63-7-
20(6) ("'Child abuse or neglect' or 'harm' occurs when: (a) the parent, guardian, or
other person responsible for the child's welfare . . . (ii) 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.").
Second, we are not persuaded by Father's argument that the UCCJEA does not
apply because "custody and visitation were not an issue." Although the family
court may not have decided custody and visitation at trial, Father's entry on the
Central Registry will affect Child's future custody and visitation determinations. 3
Moreover, there was a previous custody order over Child in the state of South
Carolina. Thus, we hold the family court properly applied the UCCJEA in this
case and found it had jurisdiction. See § 63-15-302(4) (explaining the UCCJEA
defines a child custody proceeding as "a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an issue. The term includes
a proceeding for divorce, separation, neglect, abuse, dependency, guardianship,
paternity, termination of parental rights, and protection from domestic violence, in
which the issue may appear") (emphasis added).
Additionally, this case is distinguishable from Tran because this court held South
Carolina did not have jurisdiction to make an initial child custody determination or
modify a child custody decree from another state when the child's home state was
Georgia, there was a custody order in Georgia, and the record contained no
evidence to show Georgia declined jurisdiction. 418 S.C. at 317, 792 S.E.2d at
259. Here, Child's home state was South Carolina, there was a custody order in
place in South Carolina, and there is no indication in the record that the state of
South Carolina had declined jurisdiction over Child. See § 63-15-332 (explaining
a South Carolina court which has made a custody determination retains exclusive
and continuing jurisdiction until "(1) a court of this State determines that neither
the child, the child's parents, and any person acting as a parent do not have a
significant connection with this State and that substantial evidence is no longer
available in this State concerning the child's care, protection, training, and personal
relationships; or (2) a court of this State or a court of another state determines that
the child, the child's parents, and any person acting as a parent do not presently
reside in this State"); Anthony H. v. Matthew G., 397 S.C. 447, 451, 725 S.E.2d
132, 134 (Ct. App. 2012) ("The UCCJEA's primary purpose is to provide
3
Father acknowledged this at trial when he argued, "[I]t's all tied together. And if
this—this is left open to divert to the private action and if there's a finding against
him there's no way he gets custody."
uniformity of the law with respect to child custody decrees between courts in
different states."). Moreover, this court is always mindful of a child's best interest,
and the forensic interview, victim statements, and therapy all occurred in South
Carolina. Therefore, the family court properly found it retained continuing and
exclusive jurisdiction over Child and this abuse and neglect action.
B. Evidentiary Arguments
i. Qualifying the Expert Witness
Father argues the family court erred by qualifying Creed as an expert in child
counseling and trauma because she lacked experience. He contends (1) she was
only a licensed professional counselor associate; (2) she had not yet undergone
peer review; (3) she worked under the supervision of a licensed professional
counselor; (4) she had been a licensed professional counselor associate for only
one year; (5) she had not published any papers; and (6) she had never testified in
court or been qualified as an expert. We disagree.
"Generally, the family court has the discretion to determine whether a witness has
qualified as an expert, and whether his opinion is admissible on a fact in issue."
Edwards v. Edwards, 384 S.C. 179, 186, 682 S.E.2d 37, 41 (Ct. App. 2009). "If
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." Rule 702, SCRE.
We find the family court did not err by qualifying Creed as an expert in child
trauma. Creed testified she had an undergraduate degree in experimental
psychology and a graduate degree in counselor education. She also testified that
she underwent 750 hours of supervision and direct counseling. Moreover, she
counseled Child. Therefore, Creed possessed the specialized knowledge to assist
the family court in determining a fact in issue. See Rule 702, SCRE. Although we
acknowledge Creed had not completed her supervised training, testified in court, or
published a paper, these assertions go towards the weight of her testimony and not
the admissibility. See Peterson v. Nat'l R.R. Passenger Corp., 365 S.C. 391, 399,
618 S.E.2d 903, 907 (2005) ("Defects in an expert witness' education and
experience go to the weight, not the admissibility, of the expert's testimony.").
ii. Limiting the Evidence
Father argues the family court improperly limited the evidence during the hearing
on the section 19-1-180 motion. He contends that on cross-examination, he
attempted to ask Creed whether she knew about the divorce proceedings, and the
court sustained DSS's objection on the grounds of relevancy and scope. Father
argues the previous question he asked—whether Creed was aware of the family's
situation going on with the Child—was different from whether the witness had
knowledge of the divorce proceedings. Therefore, he asserts the family court erred
in excluding this line of questioning because it was relevant to the statutory factors
to be considered before ruling on the motion. We agree.
A child's out-of-court hearsay statement may be admitted if the child is found to be
unavailable to testify due to a "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." § 19-1-180(B)(2)(a)(v). The
child's statement also must be "shown to possess particularized guarantees of
trustworthiness." § 19-1-180(B)(2)(b). "In determining whether a statement
possesses particularized guarantees of trustworthiness under subsection (B)(2)(b),
the court may consider . . . (4) any apparent motive the child may have to falsify or
distort the event, including bias, corruption, or coercion . . . ." § 19-1-180(D).
"'Relevant evidence' means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Rule 401, SCRE. "All
relevant evidence is admissible, except as otherwise provided by the Constitution
of the United States, the Constitution of the State of South Carolina, statutes, these
rules, or by other rules promulgated by the Supreme Court of South Carolina."
Rule 402, SCRE.
We find the family court abused its discretion by limiting Father's
cross-examination of Creed because evidence regarding Mother and Father's
divorce was relevant to the trustworthiness of Child's statements. See Stoney, 422
S.C. at 594 n.2, 813 S.E.2d at 486 n.2 (explaining "a family court's evidentiary or
procedural rulings" are reviewed "using an abuse of discretion standard"); Patel v.
Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004) ("An abuse of discretion
occurs either when a court is controlled by some error of law, or where the order is
based upon findings of fact lacking evidentiary support.").
Father's primary defense at the pre-trial hearing was that Mother coached Child to
make the abuse allegations in order to succeed in the custody action. Father
initially asked Creed whether she was aware of the background and the family's
situation with Child prior to the allegations, and she said she was not. He then
asked whether she was aware of the divorce proceedings, and the other parties
objected. The second question was sufficiently different from the first and was
relevant because one of the factors the family court may consider regarding
trustworthiness is "any apparent motive the child may have to falsify or distort the
event, including bias, corruption, or coercion . . . ." § 19-1-180(D)(4). Therefore,
we hold the family court abused its discretion by limiting Father's
cross-examination of Creed regarding the divorce proceedings.
iii. Admitting Child's Hearsay Statements
First, Father argues the family court erred by admitting Child's hearsay statements
because there was insufficient evidence to establish a substantial likelihood Child
would suffer severe emotional trauma from testifying because Creed only testified
that it was "more likely than not" Child would experience severe emotional trauma.
Second, Father asserts he needed to cross-examine Child about who may have
influenced or coached her to make the allegations, and his counsel offered to have
Father out of the room during questioning to allow Child to testify. Third, Father
contends the family court failed to make a specific finding as to the presence or
lack of any apparent motive Child may have had to falsify or distort the event. We
agree.
We hold the family court abused its discretion by admitting Child's hearsay
statements because the testimony elicited at trial was not sufficient to support the
court's finding that Child was unavailable. See Stoney, 422 S.C. at 594 n.2, 813
S.E.2d at 486 n.2 (explaining "a family court's evidentiary or procedural rulings"
are reviewed "using an abuse of discretion standard"). In order to admit an
out-of-court hearsay statement, the family court must find a child was unavailable
to testify due to a "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." § 19-1-180(B)(2)(a)(v).
At the pre-trial hearing, Creed initially testified, "[I]t is possible that [Child] would
experience severe emotional trauma from testifying." When pressed by counsel,
she further explained that possible meant "more likely than not." Creed then
described the different types of distress symptoms a six-year-old might experience
from testifying and opined she thought Child was likely to experience the same
sort of symptoms. Creed was then asked, "Do you think she is substantially likely
to experience those?" and she replied, "I do." We hold this testimony did not
provide evidentiary support for the family court to find there was a substantial
likelihood that Child would suffer severe emotional trauma from testifying.
Therefore, we hold the trial court abused its discretion by finding Child was
unavailable to testify and admitting her hearsay statements based on the testimony
presented at trial.
We are also concerned by the lack of credence given to Father's suggestion to
waive Father's presence in the courtroom to allow Child to testify. We
acknowledge Creed testified the courtroom experience could bring a child anxiety
and it could be traumatizing for Child to appear in a courtroom in front of
strangers, family, people she did not know, and the alleged perpetrator. However,
in requesting the hearsay statements be admitted, DSS expressly argued Father
could question the people he thought Child may have been coached by as a
remedy. To the contrary, Father's situation was not remedied because the family
court limited Father's scope of cross-examination in error.
C. Limiting Evidence Regarding Mother's Motive and Entering Father on
Central Registry
Father argues the family court improperly limited his defense by preventing him
from presenting evidence of Mother's motives and efforts to manipulate the
outcome of the litigation. We agree.
We hold the family court abused its discretion by limiting Father's
cross-examination of Mother because evidence regarding Mother's motive to coach
Child was relevant to facts in issue. See Stoney, 422 S.C. at 594 n.2, 813 S.E.2d at
486 n.2 (explaining "a family court's evidentiary or procedural rulings" are
reviewed "using an abuse of discretion standard"). Here, the evidence against
Father was Child's repeated statements to Gworski, Khlare, and Creed. Father's
primary defense at trial was Mother allegedly coached Child to make the
allegations and that Mother wielded abuse allegations in the past to accomplish her
goals. Father's questions were relevant because the answers could make Father's
defense more or less probable; thus, the family court erred by not allowing him to
question Mother on the relevant evidence. Moreover, this limitation of questioning
was particularly prejudicial because Father was not allowed to cross-examine
Child regarding the allegations.
Father further argues the family court erred by finding he abused Child and
entering him on the Central Registry because (1) the evidence showed Mother's
propensity to make false allegations; (2) the timing of Child's allegation prior to the
custody hearing was suspicious; (3) Child's disclosure of the abuse as soon as the
forensic interview started was also suspicious; (4) Child's consistency in her
statements was indicative of coaching; (5) Mother told Child not to speak with the
GAL; and (6) Child asked the GAL when she could see Father again shortly after
disclosing the abuse.
"If the family court finds there is a preponderance of evidence the defendant
physically or sexually abused or willfully or recklessly neglected the child, it must
order the person be entered in the Central Registry of Child Abuse and Neglect."
S.C. Dep't of Soc. Servs. v. Wilson, 352 S.C. 445, 451-52, 574 S.E.2d 730, 733
(2002). "'Preponderance of evidence' means evidence which, when fairly
considered, is more convincing as to its truth than the evidence in opposition."
S.C. Code Ann. § 63-7-20(22) (2010). The statutory proceeding is "a civil action
aimed at protection of a child, not a criminal action geared toward punishing the
defendant." Beaufort Cnty. Dep't of Social Serv. v. Strahan, 310 S.C. 553, 554,
426 S.E.2d 331, 332 (Ct. App. 1992).
As explained above, because we hold the family court erred by limiting the
testimony on relevant evidence, we reverse the finding that Father sexually abused
Child and his entry on the Central Registry and remand this case for a new trial.4
CONCLUSION
To summarize the foregoing, we affirm the finding that the South Carolina family
court retained jurisdiction over this action and hold the family court did not err by
qualifying Creed as an expert witness. However, we hold the family court abused
its discretion by limiting testimony on relevant evidence and finding Child was
unavailable to testify. Accordingly, we reverse Father's entry onto the Central
Registry and remand for a new trial in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
GEATHERS and HILL, JJ., concur.
4
We acknowledge Child consistently described the alleged abuse and exhibited
issues adjusting to a new environment and sexualized behavior; however, we
decline to address the merits of the issue.