South Carolina Dep't of Soc. Servs. v. Mary C.

• Decision Date: 21 December 2011
• Docket Number: No. 4891.,4891.
• Citation: 396 S.C. 15,720 S.E.2d 503
• Court: South Carolina Court of Appeals
• Parties: SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. MARY C. and Daniel C., Defendants,Of Whom Mary C. is the, Appellant,andDaniel C. is the, Respondent.Mary C., Appellant, v. Daniel C, Respondent.

396 S.C. 15

720 S.E.2d 503

SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent,

v.MARY C. and Daniel C., Defendants,Of Whom Mary C. is the, Appellant,andDaniel C. is the, Respondent.Mary C., Appellant,

v.Daniel C, Respondent.

No. 4891.

Court of Appeals of South Carolina.

Heard June 7, 2011.Decided Sept. 21, 2011.Rehearing Denied Dec. 21, 2011.

David Michael Collins, Jr., and J. Benjamin Stevens, both of Spartanburg; for Appellant.

Albert V. Smith, of Spartanburg; for Respondent Daniel C.

Deborah Murdock, of Mauldin; for Respondent South Carolina Department of Social Services.Catherine Christophilis, of Greenville; Guardian ad Litem.Virginia Ravenel, of Columbia; Robert Clark and Don Stevenson, both of Greenville; for Respondent Guardian ad Litem.WILLIAMS, J.

On appeal from the family court, Mary C. (Mother) argues the family court improperly weighed the evidence in a South Carolina Department of Social Services (DSS) intervention action regarding the identity of her daughter's (Anna G.) sexual abuser. In addition, Mother claims the family court erred in assessing attorney's fees against Mother for the substitute counsel representing the volunteer guardian ad litem in the DSS intervention action and in assessing guardian ad litem fees against Mother for the appointed guardian in the private custody action. We affirm in part and reverse in part.

FACTS

Mother and Daniel C. (Father) were never married but had one child together, Anna G., who was born on December 11, 2004. Shortly after Anna G.'s birth, Mother filed a private custody action on March 4, 2005, against Father, requesting custody of Anna G., child support, contribution from Father for medical expenses from Mother's pregnancy, past and future medical expenses for Anna G., a visitation schedule, and attorney's fees and costs. In his Answer, Father admitted paternity and agreed to Mother's claims for custody and child support but denied responsibility for Mother's pregnancy costs and attorney's fees.

On June 22, 2007, the parties consented to the appointment of a guardian ad litem (GAL), Catherine Christophilis, in the private custody action. Approximately three months later, Anna G.'s counselor notified DSS she believed Father was sexually abusing Anna G. based on Anna G.'s behavior and statements during the child's therapy sessions. The family court suspended Father's visitation rights while DSS investigated the sexual abuse allegations. After issuing its report, DSS filed an intervention action on March 17, 2008, against Mother and Father, alleging Anna G.'s placement with Father put child at substantial risk of sexual abuse. Father filed an Answer denying the allegations of abuse. Mother filed no responsive pleadings. At that time, a volunteer GAL, Colleen Hinton, was assigned to represent Anna G. in the intervention action.¹

On May 22, 2008, the family court issued a sua sponte order to continue the final hearing in the private custody action until the sexual abuse allegations in the intervention action were litigated. Then, on August 4, 2008, the family court issued a pre-trial order consolidating the private custody action and the intervention action because “the issues involved in each [were] intertwined and closely related.”

The family court held a hearing to resolve the allegations of sexual abuse on September 22 to 26, 2008, October 22, 2008, and January 8, 2009. Although the family court initially consolidated the cases, the family court ruled it would only try the intervention action during the seven-day scheduled hearing because the issues in the custody action could not be addressed until it resolved the allegations of sexual abuse. After hearing testimony from numerous witnesses over the course of seven days, the family court found Anna G. was sexually abused but the perpetrator was unknown. The family court required Mother and Father to each pay the GAL $2,500 in fees for her services in the private custody action. In addition, the family court held Mother and Father must pay $2,593.75 to the substitute attorney (hired by appointed counsel) to represent the volunteer GAL in the intervention action. The family court then ordered that “the DSS portion of this case shall be closed, and DSS shall be dismissed from this action.” Neither party objected to or appealed the family court's decision to close the intervention portion of the case. Mother then filed a Rule 59(e), SCRCP, motion to reconsider, which the family court denied. Mother appealed.² Neither DSS nor the guardians contest the family court's rulings.

STANDARD OF REVIEW

On appeal from the family court, this court reviews factual and legal issues de novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 651–52 (2011). Although this court reviews the family court's findings de novo, we are not required to ignore the fact that the trial court, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony. Lewis, 392 S.C. at 385, 709 S.E.2d at 651–52. The burden is upon the appellant to convince this court that the family court erred in its findings. Id.

LAW/ANALYSIS

A. Identity of Child's Sexual Abuser

Mother claims the family court erred in finding that an unknown perpetrator, as opposed to Father, sexually abused Anna G. because DSS established by a preponderance of the evidence that Father abused Anna G. We disagree.

Pursuant to section 63–7–1650 of the South Carolina Code (2010), DSS may petition the family court for authority to intervene and provide protective services without removal of custody if DSS concludes by a preponderance of the evidence the child is an abused or neglected child and the child cannot be protected from harm without intervention. See § 63–7–1650(A). The family court must hold a hearing to determine whether intervention is necessary within thirty-five days of the filing date. See § 63–7–1650(C). Intervention and protective services must not be ordered unless the family court finds the allegations of the petition are supported by a preponderance of the evidence, including a finding the child is an abused or neglected child and the child cannot be protected from further harm without intervention. See § 63–7–1650(E).

The following evidence was adduced at the seven-day intervention hearing prior to the family court issuing an order finding DSS failed to prove by a preponderance of the evidence that an unknown perpetrator, as opposed to Father, sexually abused Anna G.

Mother and Father met as co-workers at an airline in Greenville, South Carolina. Eventually, Mother and Father commenced a romantic relationship, yet each maintained opposite accounts of their first sexual encounter. In finding the history of the parties' relationship was pertinent to the case, the family court noted the variations in their stories and found Father's version to be credible.³ At trial, Mother stated she did not remember having sex with Father because of an adverse reaction from a pain medication mixed with alcohol, whereas Father said they were sober and it was a consensual sexual encounter. In any event, the family court found and both parties admitted to having repeated consensual sexual encounters before Mother conceived Anna G. Father admitted to encouraging Mother to obtain an abortion and to cutting off contact with Mother until shortly before Anna G. was born but stated he changed his mind and wanted to become involved in the child's life before Mother gave birth to Anna G.

Mother initially permitted Father informal supervised visitation with Anna G. Approximately three months after Anna G. was born, Mother petitioned the family court for a formal visitation schedule as well as child support. Beginning in April 2005, the family court established a regular visitation schedule for Father with Anna G., which did not include overnight visitation. Father successfully increased his visitation with Anna G., but he was not awarded overnight visitation until July 2007. No allegations of sexual abuse were made prior to the commencement of Anna G.'s overnight visitation with Father.

In May 2007, shortly before Anna G.'s overnight visitation was to begin with Father, Mother scheduled therapy sessions with Ms. Meredith Thompson–Loftis, a specialist in sexual abuse and post-traumatic stress disorders. Ms. Loftis testified that Anna G., who was almost three years old, began to display sexualized behaviors in August 2007, which included masturbating in front of Ms. Loftis, urinating on the floor despite being potty-trained, and stating after prompting from Ms. Loftis that she, her sister, and Father touched and licked her “bottom,” ⁴ while all were in Father's bed.

Ms. Lynn McMillan, an expert in forensic interviewing of child abuse, testified before the family court. Ms. McMillan stated Anna G. made disclosures about being sexually abused by her sisters and Father in her forensic interview.

Ms. Cindy Stichnoch, an expert in the assessment and treatment of sexual behavior issues in children, testified before the family court. Ms. Stichnoch reviewed the DSS files; the written reports and videos from Anna G.'s sessions with Ms. Loftis and Ms. McMillan; treatment records from Anna G.'s pediatricians; Father's polygraph results; interview reports and affidavits from Mother, Father, and Father's two daughters; and the GALs' reports. Ms. Stichnoch was highly critical of Ms. Loftis' interviewing techniques, specifically her continuing to have therapy sessions with Anna G. about the sexual abuse allegations until a full assessment was conducted. Ms. Stichnoch stated a child of Anna G.'s age is easily influenced, and repetitive sessions and questions about the allegations could inadvertently and inappropriately reinforce those allegations with the child. Ms. Stichnoch also opined that Ms. McMillan inappropriately led Anna G. and...