DEPT. OF SOCIAL SERVICES v. Wilson

• Decision Date: 16 December 2002
• Docket Number: No. 25568.,25568.
• Citation: 574 S.E.2d 730,352 S.C. 445
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. Scott WILSON and Sharon Zimmer, Defendants, of whom Scott Wilson is Respondent. In the interest of a minor under the age of 18.
• Court: South Carolina Supreme Court

352 S.C. 445

574 S.E.2d 730

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. Scott WILSON and Sharon Zimmer, Defendants, of whom Scott Wilson is Respondent.

In the interest of a minor under the age of 18.

No. 25568.

Supreme Court of South Carolina.

Heard June 12, 2002.

Decided December 16, 2002.

Richard B. Ness and Michael C. Tanner, of Early & Ness, of Bamberg, for petitioner.

H. Stanley Feldman, of Charleston, and Kelly M. Braithwaite, of Columbia, and for respondent.

Justice BURNETT:

The Court granted a writ of certiorari to review the decision of the Court of Appeals in South Carolina Dep't of Social Services v. Wilson, 342 S.C. 242, 536 S.E.2d 392 (Ct.App.2000). We affirm as modified.

FACTS

Pursuant to South Carolina Code Ann. § 20-7-738 (Supp. 2001), Petitioner South Carolina Department of Social Services (DSS) brought this child abuse and/or neglect proceeding in the interest of a minor under the age of 18 against her divorced parents. DSS alleged the minor was, among other claims, sexually abused by her father Respondent Scott Wilson (Wilson) and sought 1) an intervention hearing by the family court, 2) inclusion of Wilson's name in the Central Registry of Child Abuse and Neglect pursuant to South Carolina Code Ann. § 20-7-650(K) (Supp.2001), 3) approval of a treatment plan, and 4) any other relief deemed necessary and proper.

At the beginning of the intervention hearing, counsel for DSS moved to allow the seventeen-year-old minor to testify outside the presence of her father. Counsel for DSS stated the minor did not want to testify in her father's presence because the allegations involved sexual abuse. Over Wilson's objection, the family court granted DSS' motion.

While the minor testified in the courtroom, Wilson was sequestered in a conference room. Although he could hear his daughter, Wilson and the minor could not see each other. Wilson's attorney remained in the courtroom. Wilson consulted with his attorney during a two minute break after the minor's direct examination. Cross-examination followed, again outside Wilson's presence.

Ultimately, the family court issued an order finding "DSS has met their burden of proof for threat of harm for sexual abuse perpetrated by [Wilson]." It concluded Wilson "abused or neglected" the minor as defined in South Carolina Code Ann. § 20-7-490 (Supp.2001)¹ and ordered his name be entered in the Central Registry of Child Abuse and Neglect. Additionally, the family court ordered the minor's custody remain with her mother, noted Wilson had agreed to forego visitation, and ordered counseling for Wilson and his daughter.²

Wilson appealed. The Court of Appeals held "the family court's decision to allow [the minor] to testify outside [Wilson's] presence violated due process because it denied him the right of confrontation." Id. 342 S.C. at 244, 536 S.E.2d at 393. The Court granted DSS' petition for a writ of certiorari.

ISSUES

I. Did the Court of Appeals err by determining Wilson has an interest which is protected by due process?

II. Did the Court of Appeals err by adopting the procedures set forth in State v. Murrell, 302 S.C. 77, 393 S.E.2d 919 (1990), for use in intervention proceedings?

III. Did the Court of Appeals fail to consider the effect of its decision on Family Court Rule 22 and South Carolina Code Ann. § 19-1-180 (Supp.2001)?

IV. Did the Court of Appeals err by holding the minor's testimony outside Wilson's presence was insufficient to comport with due process?

ANALYSIS

INTERVENTION PROCEEDINGS

The General Assembly has enacted a comprehensive scheme to administer child welfare services. S.C.Code Ann. § 20-7-480 et seq. (Supp.2001). The stated purpose of the intake provision is to, among other goals, "establish an effective system of services throughout the State to safeguard the wellbeing and development of endangered children and to preserve and stabilize family life, whenever appropriate" and "establish fair and equitable procedures, compatible with due process of law to intervene in family life with due regard to the safety and welfare of all family members." S.C.Code Ann. § 20-7-480(B)(2) and (4) (Supp.2001).

DSS has the statutory duty to investigate all reports of suspected child abuse and neglect. S.C.Code Ann. § 20-7-650. After investigation, DSS "may petition the family court for authority to intervene and provide protective services without removal of custody if the department determines by a preponderance of the evidence that the child is an abused or neglected child and that the child cannot be protected from harm without intervention."³ S.C.Code Ann. § 20-7-738(A).

After the hearing, the family court may order intervention and protective services if it finds the allegations of the petition are supported by a preponderance of the evidence, including a finding that the child is an abused or neglected child as defined in Section 20-7-490 and the child cannot be protected from further harm without intervention. S.C.Code Ann. § 20-7-738(D). 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.Code Ann. § 20-7-650(K)(1).⁴ The statutory proceeding is "a civil action aimed at protection of a child, not a criminal action geared toward punishing a defendant." Beaufort County Dep't of Social Serv. v. Strahan, 310 S.C. 553, 554, 426 S.E.2d 331, 332 (Ct.App.1992).

DUE PROCESS

The Fourteenth Amendment to the United States Constitution provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law ...". "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). The requirements in a particular case are dependent upon the importance of the interest involved and the circumstances under which the deprivation may occur. South Carolina Dep't of Social Serv. v. Beeks, 325 S.C. 243, 481 S.E.2d 703 (1997); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) (in determining the process which is due, court will consider the private interest affected by the proceeding, the risk of error created by the chosen procedure, and the countervailing governmental interest supporting challenged procedure). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. South Carolina Dep't of Social Serv. v. Beeks, supra.

"Where important decisions turn on questions of fact, due process often requires an opportunity to confront and cross-examine adverse witnesses." Brown v. South Carolina State Bd. of Educ., 301 S.C. 326, 329, 391 S.E.2d 866, 867 (1990)citing Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.E.2d 287 (1970); see South Carolina Dep't of Social Serv. v. Holden, 319 S.C. 72, 459 S.E.2d 846 (1995)

(right to confrontation applies in civil context). Confrontation includes the right to be physically present during the presentation of testimony. See State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001). Due process is not violated where a party is not given the opportunity to confront witnesses so long as there has been a meaningful opportunity to be heard. South Carolina Dep't of Social Serv. v. Holden, supra.

I.

DSS claims the Court of Appeals erred by determining Wilson had an interest which was protected by due process because the intervention proceeding did not affect his life, liberty, or property. We disagree.

The Fourteenth Amendment guarantees Wilson a fundamental right to freedom from State interference with his relationship with his daughter. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982)

("[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"); Greenville County Dep't of Social Serv. v. Bowes, 313 S.C. 188, 194, 437 S.E.2d 107, 111 (1993),

quoting Santosky v. Kramer, supra 455 U.S. at 753, 102 S.Ct. at 1394-95, 71 L.Ed.2d at 606 ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents...."). Although DSS' action neither sought to terminate Wilson's parental rights nor remove the minor from Wilson's home, both situations which clearly interfere with a fundamental liberty interest and invoke due process protections,⁵ by initiating this action DSS nonetheless "intervened" in Wilson's relationship with his daughter. Accordingly, the Court of Appeals did not err in finding Wilson has a fundamental liberty interest in his familial relationship which entitles him to some level of due process in an intervention action.

II.

DSS asserts the Court of Appeals erred by adopting the procedures set forth in State v. Murrell, supra,

to determine whether the child witness may testify outside the presence of her parent/defendant.

In State v. Murrell, supra,

the Court established the circumstances under which and procedures by which a child witness may testify outside the presence of the defendant in a criminal trial via videotaped testimony:

First, the trial judge must make a case-specific determination of the need for videotaped testimony. In making this determination, the trial court should consider the testimony of an expert witness, parents or other relatives, other concerned and relevant parties, and the child. Second, the court should place the child in as close to a courtroom setting as possible. Third, the defendant should be able to see and hear the child, should have counsel present both in the courtroom and with him, and communication should be available between counsel and appellant.

Id. 302 S.C. at 80-81, 393 S.E.2d at 921.

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