SOUTH CAROLINA DSS v. Wilson
Decision Date | 17 July 2000 |
Docket Number | No. 3225.,3225. |
Citation | 342 S.C. 242,536 S.E.2d 392 |
Court | South Carolina Court of Appeals |
Parties | SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. Scott WILSON and Sharon Zimmer, of whom Scott Wilson is the, Appellant. In the interest of A minor under the age 18. |
H. Stanley Feldman, of N. Charleston; and Kelley M. Braithwaite, of Columbia, for appellant.
Carol A. Miller, of SC Department of Social Services, of Beaufort, for respondent.
Scott Wilson appeals a family court order finding he abused and neglected his minor daughter and directing his name be entered in the Central Registry of Child Abuse and Neglect pursuant to South Carolina Code section 20-7-650(K) (Supp. 1999).1 We reverse and remand.
The South Carolina Department of Social Services (DSS) instituted this child-abuse intervention action in the interest of a female child against her parents, Scott Wilson and Sharon Zimmer. The complaint alleged, among other things, that the child was at risk of sexual abuse by the father. Neither the father nor the mother answered the complaint.
At the beginning of the intervention hearing, counsel for DSS made an oral motion to have the child testify outside the visual presence of the father. As grounds for the motion, counsel for DSS stated, Counsel for DSS informed the court that she had made arrangements to have the father placed in a room where he could hear the child's testimony but would not be in view of her. Additionally, DSS sought leave for the father to consult his counsel after direct examination and again after cross-examination.
The father objected to this motion, arguing it denied him his right of confrontation. The family court, however, granted the motion over the father's objection, observing, No further proceedings were held or discussion had regarding the motion.
The child then testified outside the father's presence about three alleged incidents of improper "touchings" occurring when the child was between the ages of thirteen and seventeen. Thereafter, the family court issued the appealed order.
The father alleges the family court's decision to allow the child to testify outside his presence violated due process because it denied him the right of confrontation. We agree.
In South Carolina Department of Social Services ex rel. Texas v. Holden,2 our supreme court acknowledged, "The right to confrontation, although historically limited to criminal prosecutions, has been applied in the civil context."3 In determining when this right should attach, the court in Brown v. South Carolina State Board of Education4 held, "Where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."5 We must decide, then, whether due process required in the instant case that the father be given the opportunity to confront a witness against him, namely, the child.6 We hold that it did so. The proceeding was one in which important decisions depended upon questions of fact.7 Also, it involved a matter "of more than ordinary gravity" and one that could leave a permanent mark upon the father.8
South Carolina Code section 16-3-1550(E) (Supp.1999) requires the family court to "treat sensitively witnesses who are very young ... by using closed or taped sessions when appropriate.9 In State v. Murrell,10 our supreme court set forth specific procedures to which a trial court must adhere to ensure protection of these child witnesses:
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.11
A trial court's decision to allow testimony outside the presence of the defendant pursuant to section 16-3-1550(E) may be reversed only upon a showing that the trial court abused its discretion in making the decision or in implementing the appropriate procedure once the decision has been made.12
Here, even the most liberal reading of the record reveals the family court failed to follow the prescribed procedure both in making the decision to allow the child to testify outside the father's presence and in implementing the procedure by which testimony was taken. The family court made no fact-specific determination of the need for the child to testify outside the father's presence.13 Indeed, no testimony was offered as to the degree of any trauma the child would suffer if made to testify in the father's presence. Rather, the court simply accepted counsel for DSS's statement that the child "does not want to testify in front of her father." Furthermore, the father was not placed in a position allowing him to view the child during her testimony, and he did not have counsel both with him and in the courtroom while the child testified.
We hold the family court denied the father due process by refusing to allow him to confront the child.14 Given our disposition, we need not address the father's remaining issues on appeal.
REVERSED AND REMANDED.
1. S.C.Code Ann. § 20-7-650(K)(l) (Supp.1999) requires that the court "order that a person be entered in the Central Registry of Child Abuse and Neglect if it finds that there is a preponderance of evidence that the person physically or sexually abused or wilfully or recklessly neglected the child...." This information remains in the Registry for seven years from the date services are terminated. S.C.Code Ann. § 20-7-680(E) (Supp.1999).
5. Id. at 329, 391 S.E.2d at 867; see also State ex rel. Medlock v. Nest Egg Society Today, Inc., 290 S.C. 124, 348 S.E.2d 381 (Ct.App.1986)
(. )
6. Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner. Holden, 319 S.C. at 78, 459 S.E.2d at 849 (quoting South Carolina Nat'l Bank v. Central Carolina Livestock Market, 289 S.C. 309, 345 S.E.2d 485 (1986)).
7. See Brown, 301 S.C. at 329, 391 S.E.2d at 867 ( ).
8. Edward E. v. Department of Soc. Servs., 42 Mass.App.Ct. 478, 678 N.E.2d 163, 168 (1997) () ; see also, In re A.S.W. 834 P.2d 801, 805 (Alaska 1992)
() (internal citations omitted); Truman v. Watts, 598 A.2d 713, 719 (Del.Fam.Ct. 1991) () ; In Interest of M.S., 178 Ga.App. 380, 343 S.E.2d 152, 153 (1986) (); White v. White, 40 Mass.App.Ct. 132, 662 N.E.2d 230, 237 (1996) (...
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