Court of Appeals grants new trial on DSS sexual abuse case based on improperly limited cross-examinations

Posted Tuesday, January 17th, 2023 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

The January 4, 2023, Court of Appeals opinion in SCDSS v. Frank granted a new trial to a father who was found by the family court to have sexually abused his child.  It rejected Father’s claim that South Carolina lacked subject matter jurisdiction because the alleged abuse took place in North Carolina.

The case started when DSS brought a removal action, alleging that Father had sexually abused and Mother and her boyfriend had abused or neglected Child. The child was initially placed with paternal grandparents.  At the time this action commenced there was also a private custody case between the parents.

Father then sought dismissal alleging a lack of subject matter jurisdiction because the alleged abuse occurred in North Carolina. The family court denied that motion finding that South Carolina was the child’s home state and that Mother and Child continued to reside in South Carolina.

At the merits hearing, DSS asked to present the child’s out-of-court hearsay statements pursuant to the authority of S.C. Code § 19-1-180.  In support of this request, DSS presented testimony from a licensed professional counselor associate who had counseled the child. That expert indicated it was more likely than not that the child testifying would cause her severe emotional trauma.

Father’s primary defense at this hearing was that Mother coached Child to make the abuse allegations in order to succeed in the custody action. During cross-examination, Father asked whether the expert was aware of the divorce proceedings between the parties.  DSS objected on the basis of relevancy but Father argued that § 19-1-180(D)(4) includes motive for a child to possibly falsify or distort the event as a factor to consider in deciding whether to allow the child’s hearsay. Despite this, the family court sustained the objection.

Father presented testimony from the guardian in the private custody case. The guardian noted that Mother reported this abuse shortly before a hearing in which Father sought custody based in part on deplorable conditions she found in Mother’s home.  Father also indicated a willingness to not be present in the courtroom if the Child testified.  Despite this, the family court granted DSS’s request to present the Child’s hearsay in lieu of testimony.

During trial, Father attempted to cross-examine witnesses about prior unfounded allegations of sexual abuse Mother had made against him, but the family court limited these examinations.  The family court also limited Father’s cross-examination of Mother on his refusing to continue to pay for her car shortly before the sexual abuse allegation was made and on sexual abuse allegations Mother had made against the paternal grandfather.  At the conclusion of trial, the family court found Father had sexually abused Child and ordered him entered onto the Central Registry. Father appealed.

Father’s first issue on appeal was subject matter jurisdiction.  He argued the UCCJEA did not apply to confer jurisdiction, as the only issue in this case was whether he sexually abused child and should be entered on the Central Registry.  The Court of Appeals rejected this argument, finding that custody was at issue because “Father’s entry on the Central Registry will affect Child’s future custody and visitation determinations” and there were prior South Carolina custody orders.

The Court of Appeals further found the child’s licensed professional counselor associate was properly qualified as an expert in child trauma.  She had a graduate degree in counselor education and had counseled the child. Therefore, she “possessed the specialized knowledge to assist the family court in determining a fact in issue.”

However, the Court of Appeals agreed with Father that the family court had improperly limited his cross-examinations. It found that he should have been entitled to ask the expert whether she was aware of the divorce proceedings. This question was intended to explore whether there could be other reasons for the Child to claim abuse other than Father having abused the Child.  The Court of Appeals held, “evidence regarding Mother and Father’s divorce was relevant to the trustworthiness of Child’s statements.”

The Court of Appeals further held that “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.”  It held the expert’s testimony that Child would “more likely than not” experience severe emotional trauma from testifying was insufficient “to find there was a substantial likelihood that Child would suffer severe emotional trauma from testifying.” 

The Court also expressed concern “by the lack of credence given to Father’s suggestion to waive Father’s presence in the courtroom to allow Child to testify.” It noted DSS had argued Father could question the people he thought Child may have been coached by as a remedy but that the family court then limited Father’s scope of cross-examination.

Finally, the Court of Appeals held the family court erred in limiting Father’s cross-examination of Mother regarding motive “because evidence regarding Mother’s motive to coach Child was relevant to facts in issue.”

Based on these errors, the Court of Appeals reversed the finding that Father sexually abused Child and his entry on the Central Registry and remand the case for a new trial.

A new trial is an uncommon remedy for a family court appeal. I recall only two other published family law opinions (one from November 2022) in my thirty years of practice in which such relief has been granted. However, given the family court’s incorrect limitations on Father’s right to defend the allegations against him through a full cross-examination and the possible failure to have Child testify, it is hard to see what other remedy was appropriate.

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