Charleston County Dept. of Social Services v. Father, Stepmother, and Mother

• Citation: 454 S.E.2d 307,317 S.C. 283
• Decision Date: 19 October 1994
• Docket Number: No. 24184,24184
• Parties: The CHARLESTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. FATHER, STEPMOTHER, AND MOTHER, Defendants, of whom Father and Stepmother are Appellants, and Mother is Respondent. In the Interest of TWO MINORS UNDER THE AGE OF 18 YEARS, By their Guardian ad Litem, J. Gail RAHN, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 307

454 S.E.2d 307

317 S.C. 283

The CHARLESTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. FATHER, STEPMOTHER, AND MOTHER, Defendants,

of whom

Father and Stepmother are Appellants, and Mother is Respondent.

In the Interest of TWO MINORS UNDER THE AGE OF 18 YEARS, By

their Guardian ad Litem, J. Gail RAHN, Appellant.

No. 24184.

Supreme Court of South Carolina.

Heard Oct. 19, 1994.

Decided Jan. 23, 1995.

Margaret D. Fabri, Charleston, for appellants Father and Stepmother.

Frampton Durban, Jr., Asst. Sol., Charleston, for appellant Charleston County Dept. of Social Services.

J. Gail Rahn, Charleston, appellant, guardian ad litem, for minor children.

Coming B. Gibbs, Charleston, and David H. Wilkins, Greenville, for respondent.

MOORE, Justice:

Appellant Charleston County Department of Social Services (DSS) commenced this action to remove two minor children from respondent's (Mother's) custody. Removal was granted. This appeal is from an order of a successor family court judge granting Mother a new trial under Rule 63, SCRCP. ¹ We reverse.

FACTS

Appellant (Father) and Mother divorced in December 1990 and custody of their two sons, aged five and two years, was given to Mother. Father married Stepmother in July 1991.

In October 1991, DSS filed an action seeking removal of the boys alleging Mother took baths with the children during which inappropriate sexual behavior occurred. The children were placed temporarily with Mother's brother and the family began seeing a therapist. When the hearing on the merits was held, DSS moved to dismiss its complaint claiming the children would not testify against Mother. No evidence was presented and, over Father's objections, the case was dismissed. The family court issued an order returning the children to Mother's custody and dismissing the case conditioned upon the continuation of family counselling.

Ten months later, the oldest child (Victim) had a session with Mary Mueller, a therapist at the County Health Department, during which he drew pictures indicating Mother had oral contact with his penis, and "punched" and "pinched" it. ² The children were removed from Mother's custody and placed with DSS.

A hearing on the merits was held before Judge Mendel Rivers. Victim (now aged seven) testified that he had in fact drawn the pictures but that what he had told Ms. Mueller about Mother was not true. He could not explain why he had lied to Ms. Mueller but he denied he was coached by Father or Stepmother.

Dr. Ralston, the child psychologist who had been counselling the family since the first removal action in October 1991, testified she watched Victim's interview with Ms. Mueller through a one-way mirror and it was her opinion he had experienced "inappropriate sexual touching ... that he has made efforts to stop by telling." She also testified a child victim of intrafamilial sexual abuse will often recant the accusations because the child believes the report of abuse was the cause of the removal from the parent.

Dr. Rinaldo, a psychiatrist, testified on Mother's behalf. She began treating the family in December 1991 after the dismissal of the first removal action. She stated she felt there was abuse "in the past" but that it was not "ongoing" since the time she had been treating the family. She also disclosed the following incident which occurred during a therapy session with Victim and Father in May 1992.

He [Victim] also--he also said that something--something had been happening with his penis before but was not happening now. And I asked him about the diaper [Mother put on him at night for bedwetting] and we talked about that a little bit. He said that seemed to be better. I asked him what was happening with his penis. And he went on to say that someone had put their mouth on it. And I asked him who that was, and he spelled out M-O-M. And I asked him about the details of that, you know, where he was, how that happened. He said, he was in his mother's bed and he felt something. I think at some point the words "bite bite bite" were said.

Dr. Rinaldo went on to state that Victim later recanted this accusation.

Dr. Rinaldo discussed this incident with Dr. Ralston who said it was similar to what Victim had told her in October 1991. Dr. Rinaldo also reported the incident to DSS and was told this behavior had been "previously investigated".

Dr. Rinaldo further testified:

A. I was concerned throughout that there could have been abuse. But I--but I could not--I continually felt torn between--by the whole circumstances and really could never reach a permanent conclusion. You know, at different times I would feel that they had not been abused at all. Certainly, on May 19, I felt that there was a good chance that [Victim] had, exactly as he said.

Q. This was the M-O-M meeting?

A. Correct.

Finally, on cross-examination, Dr. Rinaldo conceded Victim's drawings were "stronger evidence" that abuse had occurred. She also admitted it is common for a child Victim of intrafamilial sexual abuse to recant his accusations. ³

Mother testified she had never engaged in any sexual behavior with the children although she admitted bathing with them. She stated the last time she took a bath with the boys was "about two years ago" when Victim would have been about five years old.

Judge Rivers found Victim's drawing and report were credible, his recantation was consistent with abuse, and he was not coached into making the report. He concluded Mother had more likely than not engaged in inappropriate sexual contact with Victim. He ordered temporary custody of the children be given to Father and Stepmother with reasonable visitation to Mother. ⁴ He also ordered family counselling to continue for all parties and Mother to be treated as a sexual abuse perpetrator. Mother was ordered to pay child support of $500 per month. This order was issued February 12, 1993. Judge Rivers resigned from the bench shortly thereafter.

Mother moved for a new trial contesting several of Judge Rivers' factual findings and arguing legal error in the admission of hearsay testimony. Judge Mallard was assigned to the case. On February 10, 1994, he issued an order granting Mother a new trial pursuant to Rule 63 which defines the authority of a successor judge in post-trial matters.

DSS, the guardian ad litem for the children, Father, and Stepmother appealed. This Court granted appellants' petition for supersedeas ⁵ and denied Mother's motion to dismiss the appeal. ⁶

ISSUE

Whether Judge Mallard properly exercised his discretion under Rule 63?

DISCUSSION

Rule 63 provides:

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then [the successor judge] may perform those duties; but if [the successor judge] is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

(Emphasis added). Judge Mallard ruled he could not perform the required post-trial duties under Rule 59 because he did not preside at the trial and therefore a new trial should be granted pursuant to the underscored provision of Rule 63.

The threshold issue in this case is what discretion a successor judge has under Rule 63. There is a long-standing rule in this State that one judge of the same court cannot overrule another. Tisdale v. Amer. Life Ins. Co., 216 S.C. 10, 56 S.E.2d 580 (1950); Dinkins v. Robbins, 203 S.C. 199, 26 S.E.2d 689 (1943). Accordingly, we hold a successor judge may not substitute his own judgment for that of the trial judge; nor may he grant a new trial under Rule 63 unless he articulates a valid reason to grant post-trial relief based on the record before him.

In this case, Judge Mallard gave the following reasons for granting a new trial under Rule 63:

1. He could not determine if Victim's hearsay statements were properly admitted under S.C.Code Ann. § 19-1-180 (Supp.1994);

2. He could not determine if deletion of a finding regarding "testimony about a lock on a child's bedroom door" which should not have been considered would have altered the original judgment;

3. He could not determine if the failure to make specific findings regarding the precise acts of sexual abuse or exactly when they had occurred would have resulted in a new trial;

4. The finding that sexual abuse had occurred was against the greater weight of the evidence.

We find none of these reasons supports granting a new trial under Rule 63 as discussed below.

1. Admission of Victim's hearsay statements under § 19-1-180.

When a child under twelve years of age testifies and is subject to cross-examination, § 19-1-180 provides that his out-of-court statements are admissible in a family court proceeding concerning allegations of abuse or neglect. If, however, the child is found by the court to be unavailable to testify for any of five statutory reasons, ⁷ his out-of-court statements are admissible only if they are shown to have particularized guaranties of trustworthiness.

Mother moved for a new trial under Rule 59 on the ground Victim was unavailable to testify because he denied the truth of his out-of-court statement. She argued the family court therefore erred in considering Victim's out-of-court statements under § 19-1-180 without making the findings of unavailability and trustworthiness required by the statute. Judge Mallard ruled that under State v. Pfirman, 300 S.C. 84, 386 S.E.2d 461 (1989), Victim was unavailable to testify and Mother had asserted a viable ground for relief from judgment. We disagree.

First, none of the statutory grounds for a finding of unavailability applies here. Further, Pfirman does not apply because it is a criminal case based on a criminal defendant's right to confront his accusers. ⁸ The case at hand is a civil...