Richland County Dept. of Social Services v. Earles

Decision Date20 May 1997
Docket NumberNo. 24768,24768
Citation330 S.C. 24,496 S.E.2d 864
CourtSouth Carolina Supreme Court
PartiesRICHLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Venorris EARLES, Benny Richardson, and Herbert Gilmore, Of whom Venorris Earles is the Appellant. In the Matter of Perry Latisha EARLES, Essie Sylvester Earles, minors under the age of 18. . Heard

James A. Merritt, of Berry, Adams, Quackenbush & Dunbar, Columbia, for appellant.

Richard G. Whiting, Columbia, for respondent.

Elisabeth C. Gallant, Columbia, for the guardian ad litem.

BURNETT, Justice:

Appellant, Venorris Earles (Mother), appeals the order terminating her parental rights. We affirm.

FACTS

In February 1995, Richland County Department of Social Services (DSS) brought this action seeking to terminate Mother's parental rights. DSS also sought to terminate the parental rights of the children's fathers in this action. After the termination of parental rights hearing, the family court judge found Mother's parental rights should be terminated pursuant to S.C.Code Ann. § 20-7-1572(1) & (2) (1976 as amended) and the fathers' parental rights should be terminated pursuant to S.C.Code Ann. § 20-7-1572(3) & (4) (1976 as amended). 1 The family court judge further found it was in the best interest of these children to terminate Mother's parental rights.

Mother is the biological mother of two children, a boy, Sylvester Earles, born July 1, 1987, and a girl, Latisha Earles, born November 12, 1988. The first report concerning this family was made on June 3, 1988 to DSS. This report was unfounded. On November 14, 1988, a second report was made to DSS (1988 incident). This report was indicated 2 and an in-home treatment plan was implemented. On March 7, 1989, the children were taken into emergency protective custody (1989 incident). Allegedly, Mother left the children for four days in the care of an elderly woman who could not adequately care for them. In the removal action, the family court judge found physical neglect. Mother completed a treatment program including parenting skills training at the Nurturing Center and a 29 day in-patient alcohol dependency program at the VA Hospital. The children were returned to Mother's custody on December 12, 1989. This case was closed on June 1, 1990. The services provided by the Nurturing Center were terminated on August 21, 1991.

On November 9, 1991, the children were again taken into emergency protective custody and they have remained in the custody of DSS since that date (1991 incident). Latisha had scars all over her body and a "gash" in her forehead at the time of the removal. According to the medical report, Latisha had stated her mother was responsible for the gash; Mother denies responsibility for the gash. Allegedly, Latisha was also locked in a closet and had been burned with cigarettes. Mother denied committing these acts; however, a witness for Mother admitted Mother had told her she had burned Latisha and locked her in a closet. Latisha was also severely malnourished. At the time of this second removal, Latisha, who was three years old, weighed less than 20 pounds. This weight was less than when Latisha was returned to Mother in December 1989. The medical report concludes Latisha's medical history indicates chronic abuse. 3 Mother only admits to not feeding Latisha for three or four days as a form of punishment. According to Mother's testimony she was sober when this incident occurred.

On April 29, 1992, Mother plead guilty to felony child abuse and was sentenced to six years in jail. Mother was released from jail on four years probation on March 1, 1993. Since the 1991 incident, Mother has constantly asked to be reunited with her children. The decision to terminate Mother's parental rights occurred in April 1992. 4 In July 1992, the Family Court ordered visitation between Mother and the children to cease because visitation was traumatizing the children and adversely affecting their progress. In November 1992, DSS was granted an order by the family court no longer requiring it to provide services to Mother. DSS had provided Mother extensive services following the 1988 and 1989 incidents; however, no services were offered following the second removal action in 1991. The only evaluation done was a court-ordered psychological evaluation performed in 1994. Neither DSS nor the children's guardian ad litem (GAL) attempted to determine whether Mother had rehabilitated herself since 1991 or attempted to evaluate her current status as a potential parent. Shortly after the 1991 incident, the GAL offered her services to Mother; however, Mother declined her help. On March 21, 1995, Mother met with the current DSS case worker. This case worker offered to secure services for Mother, but Mother declined. Further, the case worker testified she would have assisted Mother in obtaining services even though DSS had been relieved of the duty to provide services. Mother did participate in some courses while in prison. After leaving prison, Mother went to the Women's Shelter where she took several classes and received counseling. Many of these courses were mandatory. Further, the focus of these courses and counseling were on improving Mother and teaching her to be self-sufficient and not on abuse issues. Mother then moved into transitional housing for two years. Mother has recently moved out of transitional housing. Mother admitted at the hearing she was not yet capable of caring for the children; however, she would like visitation.

While in foster care following the 1991 incident, the children reported they had been sexually abused by Mother. At the termination of parental rights hearing, Dr. Lois Wandersman, a clinical psychologist, who was qualified as an expert in sexual abuse, testified she had approximately 90 sessions with Sylvester and 50 sessions with Latisha beginning in May 1992 and ending November 1994. At the time Dr. Wandersman began seeing the children, both were showing serious behavior problems, including sexual acting out. The family court judge found the children were unavailable and the statements trustworthy pursuant to S.C.Code Ann. § 19-1-180 (Supp.1996). Therefore, over the objection of Mother, Dr. Wandersman was allowed to testify as to statements made by the children about the sexual abuse during the therapy sessions. According to Dr. Wandersman's testimony, in August 1993 Sylvester revealed Mother had been sexually abusing him and Latisha. Dr. Wandersman testified she found Sylvester's statements credible and did not believe the statements were coached. According to Dr. Wandersman, it is not unusual for children to delay disclosure of abuse for a long period of time. Dr. Wandersman testified Sylvester's behavior was consistent with sexual trauma. Dr. Felicia C. Myers, Coordinator for the Children Adolescent Family Program at Lexington County Medical Health Center where Sylvester was currently receiving treatment, testified she believed Sylvester had been sexually abused. Sylvester had not disclosed to Dr. Myers who committed the abuse. Mother denies any sexual abuse and has refused to obtain counseling for sexual abuse.

Sylvester continues in mental health care and suffers from severe problems including masturbation, touching adults on their breasts, getting on top of the foster mother while she is in bed, and going into his foster mother's room to see her change clothes. At the time of the hearing, DSS had no immediate plans for permanent placement for Sylvester. However, DSS hopes Sylvester will be placed after undergoing more treatment. Latisha has improved greatly since 1991 and Latisha's foster parents wish to adopt her.

ISSUES

I. Did the family court judge err in admitting the children's hearsay statements into evidence under S.C.Code Ann. § 19-1-180 (Supp.1996)?

II. Were the statutory grounds, S.C.Code Ann. § 20-7-1572(1) & (2) (1976 as amended), for termination of parental rights proven by clear and convincing evidence?

DISCUSSION
I.

Mother claims the family court judge erred in admitting the children's hearsay statements into evidence under S.C.Code Ann. § 19-1-180 (Supp.1996), because the judge failed to make the necessary findings of unavailability and trustworthiness. 5 We disagree.

Section 19-1-180 provides out-of-court statements made by children concerning an act of abuse or neglect may be admitted in family court proceedings if the child testifies or the child's out-of-court statement is shown to possess particularized guarantees of trustworthiness and the child is found unavailable to testify on one of the following grounds:

(i) the child's death;

(ii) the child's physical or mental disability;

(iii) the existence of a privilege involving the child;

(iv) the child's incompetency, including the child's inability to communicate about the offense because of fear;

(v) substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceedings or by means of videotaped deposition or closed-circuit television; and

S.C.Code Ann. § 19-1-180(B)(2)(a) (Supp.1996).

First, the family court judge was not required to make any findings concerning Latisha's unavailability or the trustworthiness of her statements. DSS did not attempt to elicit testimony from Dr. Wandersman of statements made by Latisha. Instead, Dr. Wandersman, on direct examination, only testified of statements made by Sylvester. Latisha's statements were admitted as part of Dr. Wandersman's affidavit which Mother offered into evidence. Thus, Mother cannot now complain of hearsay statements in that document attributable to Latisha.

The family court judge found the children unavailable to testify in person at the proceeding because of the likelihood the children would suffer severe emotional trauma. The judge determined she was not required to find the children would also suffer trauma if they testified by videotape or closed-circuit television. This was...

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