Jacobs v. Zarcone, Appellate Case No. 2018-000488

CourtCourt of Appeals of South Carolina
Writing for the CourtMCDONALD, J.
Citation436 S.C. 170,871 S.E.2d 211
Parties Allen Lee JACOBS, Meghan Jacobs, Donald L. Jacobs, and Tamila D. Jacobs, Plaintiffs, v. Ashley Nicole ZARCONE, David Zarcone, Joseph Rose, April Rose and South Carolina Department of Social Services, Defendants, Of whom Ashley Nicole Zarcone is the Appellant, and Meghan Jacobs, Donald L. Jacobs, and Tamila D. Jacobs are the Respondents.
Docket NumberAppellate Case No. 2018-000488,Opinion No. 5901
Decision Date16 March 2022

436 S.C. 170
871 S.E.2d 211

Allen Lee JACOBS, Meghan Jacobs, Donald L. Jacobs, and Tamila D. Jacobs, Plaintiffs,
Ashley Nicole ZARCONE, David Zarcone, Joseph Rose, April Rose and South Carolina Department of Social Services, Defendants,

Of whom Ashley Nicole Zarcone is the Appellant,
Meghan Jacobs, Donald L. Jacobs, and Tamila D. Jacobs are the Respondents.

Appellate Case No. 2018-000488
Opinion No. 5901

Court of Appeals of South Carolina.

Heard September 14, 2021
Filed March 16, 2022

Bruce A. Byrholdt and Sarah Ganss Drawdy, both of Byrholdt Drawdy, LLC, of Anderson, and Jeffrey Alton Phillips, of Phillips Law Firm, P.A., of Travelers Rest, all for Appellant.

Bruce Wyche Bannister and Luke Anthony Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, and James D. Calmes, III, of James D. Calmes, III Law Firm, of Greenville, all for Respondent Meghan Jacobs.

Amanda Morris Gallivan, of Christophillis & Gallivan, P.A., of Greenville, and Robert Steve Ingram, III, of Holliday Ingram LLC, of Greenville, both for Respondent Donald L. Jacobs and Respondent Tamila D. Jacobs.


436 S.C. 176

Allen Jacobs (Father) died while seeking sole custody of his two minor children, D.J. and M.J. (Children).1 Following a multi-week trial, the family court awarded custody of the Children to Father's wife, Meghan Jacobs (Stepmother), with supervised visitation granted to the Children's Mother, Ashley Zarcone. Father's parents, Donald Jacobs and Tamila Jacobs (Paternal Grandparents), intervened and were awarded visitation rights. Mother challenges both the custody and visitation awards, arguing the family court erred in declaring her unfit and finding Stepmother was the Children's de facto custodian and psychological parent. We affirm in part and vacate in part.

Facts and Procedural History

The facts of this case are complex and tragic. Mother and Father married in 2006 and separated in 2011. They had two sons, D.J. in 2009 and M.J. in 2010. In 2013, the family court granted Mother and Father a divorce and awarded them joint custody of the Children, with Mother having primary placement and Father having "liberal visitation." The family court noted either party could request in writing that certain standard visitation guidelines be applied.

In late May or early June 2013, Mother met David Zarcone—the couple married the following September. Mother and David had one child together in 2014, L.Z., and David had visitation with one child from a previous relationship.

On August 8, 2014, Father filed an action seeking modification of visitation and child support. By order dated February 3, 2015, the family court approved an agreement between Mother and Father establishing joint custody, with Mother having primary placement and Father having visitation on

436 S.C. 177

alternating weekends, along with overnight Wednesday visits during the weeks he did not have weekend visitation. The agreement also addressed summer visitation and prevented any stepparent from administering corporal punishment. The family court's order included the parties’ agreement that "Linda Hutton, MSW, shall be used to counsel the minor sons and provide family counseling to the extent Ms. Hutton deems appropriate."

A few days after the family court issued the February 2015 order, four-year-old D.J. sustained injuries in Mother's bathroom while Mother was at work and David was the only adult at home. Mother testified David called her at work and told her D.J. woke him up and told him he needed to use the bathroom:

David said, okay, go to the bathroom. David rolled over to go back to sleep. And then he heard [D.J.] crying. [D.J.] came and woke him back up and said, I just fell going to the bathroom.

He—I got on the phone with [D.J.], asked him if he was okay. Calmed him down. He
871 S.E.2d 215
stopped crying. He said he was fine. I got back on the phone with David and David said that he [saw] where he thought there was going to be a knot on his forehead right there where he had hit the tub and that he was going to put some ice on it or put a cold rag on it and that he would stay up and monitor it until I got home.

However, the Children reported to others that David pushed D.J. down in the tub. Mother does not believe David caused D.J.’s bruising that night; she claims D.J. told her he slipped on some clothes on the bathroom floor. Mother did not tell Father about the bathroom incident when they next exchanged custody.

On February 12, 2015, when Stepmother picked the Children up from school for Father's long weekend visitation, she noticed yellowish bruising on D.J.’s face. She described this at trial as "excessive bruising." After Father examined D.J.’s face, Stepmother dropped the Children off to spend the night with Paternal Grandparents because Father had to work and Stepmother had a night class.

Although Stepmother told Paternal Grandparents that D.J. had fallen and hit his head in the bathtub, Paternal Grandmother

436 S.C. 178

became alarmed during D.J.’s bath time when she found the bruising was not just to the child's face or head, but on his back and on one arm as well. Grandmother explained,

I discovered he had all these circle marks on his back. And then right around here on one of his arms. I think it was his left arm. But he had these marks there that looked like three finger marks that someone had grabbed him. And so it wasn't just his head, but then there was these marks all over his back and on his arms.

The next morning, Father, Stepmother, and Paternal Grandmother took D.J. to the emergency room at Greenville Memorial Hospital. Dr. Elizabeth Foxworth, a pediatric emergency room physician, treated D.J. and observed bruising on his arms, face, and back, and behind his ears. Dr. Foxworth testified, "I saw lots of bruises on him in unusual locations." When asked what she meant by "unusual locations," Dr. Foxworth explained, "You rarely get bruises on your back or in particular he had one behind his ear. It was just really unusual places that are suggestive of child abuse."2 Dr. Foxworth ordered lab work to rule out a medical condition as the cause of the bruising and subsequently diagnosed D.J. with bruising consistent with child abuse. Dr. Foxworth then referred D.J. to the Julie Valentine Center3 for an evaluation.

South Carolina Department of Social Services (DSS) Investigator Bailey Thomas responded to Greenville Memorial Hospital after DSS received the report of suspected child abuse. Thomas observed D.J. had an "excessive" number of bruises, which she believed were inconsistent with a fall. During her investigation, Investigator Thomas met with D.J. and M.J. separately. Because of what she learned during these interviews, Thomas opened an investigation.

436 S.C. 179

On February 19, 2015, Mother, David, and Father entered a DSS Safety Plan, which also covered L.Z. (Mother and David's child). The safety plan listed Mother as protector for the three children and specified that Children would not be alone with David. The expected end date for the Safety Plan was set at "no later than ninety days."4

On March 30, 2015, DSS indicated a case against David for "physical abuse and substantial risk of physical abuse." The DSS Determination Fact Sheet reported "[D.J.] was observed to have faint bruising on his back, ribs, scalp and a linear bruise on his face. Bruising appears to be at least a week old." The Fact Sheet further reported "[D.J.]

871 S.E.2d 216

states that he was pushed by David and hit his face on the bathtub. Minor children report being afraid to be alone with David Zarcone because he hurts them." In the "Family Story" portion of the Family Assessment, DSS noted:

Ashley [Mother] states that she divorced Allen Jacobs [Father] due to his controlling behaviors. Ashley stated that she [remarried] and has a baby with her current husband David Zarcone. Ashley stated that [Father] is upset that their children [M.J.] and [D.J.] started calling David dad and [Father] doesn't want them to. Ashley stated that she noticed this is when DSS started getting called on her. Ashley stated that [Father] called DSS on her saying that [M.J.] was being abused by David first now it's [D.J.]. Ashley stated that she knows that [Father] is telling the kids to say that David is abusing them but she knows that he is not. David Zarcone denies pushing stepson [D.J.] causing [him] to fall and hit his face on the tub. David stated that the only thing he does as far as punishment is timeout and they have a chair that they make the kids use. David stated that one time he did spank the boys but used his hand to spank them on their bottoms and only did this one time. David stated that he is the father figure inside the home and does feel that the boys need to listen to him when they are with him alone. Minor children [M.J. and D.J.] report being afraid to be alone with David Zarcone. Both stated that he is mean to them and slams them down on their backs and when they tell him to stop he says they

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