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Supreme Court reverses sexual abuse finding based on improperly admitted forensic child interviews

A split decision in the September 25, 2013 South Carolina Supreme Court opinion in SCDSS v. Pringle, 405 S.C. 608, 749 S.E.2d 301 (2013), reserved a finding that father sexually abused his two daughters, holding the family court erred in permitting the playing of videotape forensic interviews of the non-testifying child victims.

Father’s two daughters were interviewed by a child forensic interviewer with a bachelor’s degree in sociology and a master’s degree in rehabilitative counseling.  That interviewer is not licensed by South Carolina in any field.   At trial, DSS sought to have these videotapes introduced into evidence, pursuant to S.C. Code § 19-1-180, in lieu of the children testifying.  The family court conducted a pre-trial hearing, determined the videotapes were admissible, and, at trial, found that Father had sexually abused his daughters.

Other than the videotape, the only other evidence of sexual abuse was the testimony of a DSS employee, who testified that following a report of abuse he interviewed the children.  After each child related graphic details of Father’s alleged misconduct, the DSS employee determined that a forensic interview of each child was required.  The DSS employee explained that his role was only to take statements to determine whether further investigation was warranted, but that the referral for a forensic interview is to determine “the validity or the truthfulness of these kids.”  DSS did not provide the requisite notice of its intent to introduce the children’s hearsay statements at trial through this employee’s testimony and the family court admitted this testimony “not for their truthfulness, but rather to explain why further investigation was warranted.” In its final order the family court judge did not rely upon this testimony in making her finding of sexual abuse.

All five justices agreed that the testimony of the forensic interviewer was inadmissible pursuant to S.C. Code § 19-1-180(G), which reads:

If the parents of the child are separated or divorced, the hearsay statement shall be inadmissible if (1) one of the parents is the alleged perpetrator of the alleged abuse or neglect and (2) the allegation was made after the parties separated or divorced. Notwithstanding this subsection, a statement alleging abuse or neglect made by a child to a law enforcement official, an officer of the court, a licensed family counselor or therapist, a physician or other health care provider, a teacher, a school counselor, a Department of Social Services staff member, or to a child care worker in a regulated child care facility is admissible under this section.

Since the forensic interviewer did not fall within the criteria of this subsection, her interview of the children was inadmissible.  Finding that “the taped statements were the sole basis for the family court’s finding of abuse against Father,” the majority reversed the finding of abuse.

In dissent, Chief Justice Toal would have affirmed the family court ruling.  She believed the testimony of the DSS employee was not limited in the scope of its admission and therefore would have affirmed based upon this testimony.  Justice Kittredge concurred in part and dissented in part.  He found the DSS employee’s testimony was not limited in the scope of its admission but, unlike Chief Justice Toal, he would have remanded for further fact finding and potentially a new trial:

Because the family court judge’s order relies exclusively on the section 19-1-180(G) testimony, I would remand to the family court judge on the existing record. It may be that the family court judge believed the unchallenged evidence of sexual abuse and merely saw no need to cite to this cumulative evidence. If so, I would have the family court judge issue a supplemental order reaffirming her initial finding of abuse based on the unchallenged evidence, thereby ending this matter. However, if the family court judge (as the fact-finder) was not persuaded by this cumulative evidence, Appellant would be entitled to a new trial.

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