Davis Adv. Sh. No. 8
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Richland 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.
Appeal From Richland County
Donna S. Strom, Family Court Judge
Opinion No. 24768
Heard May 20, 1997 - Filed February 23, 1998
AFFIRMED
- James A. Merritt, of Berry, Adams, Quackenbush & Dunbar,
- of Columbia, for appellant.
- Richard G. Whiting, of Columbia, for respondent.
- Elisabeth C. Gallant, of Columbia, for the guardian ad litem.
p. 21
RICHLAND COUNTY DSS v. EARLES
BURNETT, A.J.: 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(l) & (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 ftirther 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 indicated2 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
1The fathers of the children, Benny Richardson and Herbert Gilmore, have not
appealed the termination of their parental rights.
2An indicated report "means a report of child abuse or neglect supported by facts
which warrant a finding by a preponderance of evidence that abuse or neglect is more likely
than not to have occurred." S.C. Code Ann. 20-7-490(13) (Supp. 1996).
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RICHLAND COUNTY DSS v. EARLES
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.
3Sylvester appeared unharmed at the time of this removal.
4No explanation was provided as to why DSS waited almost three years after this
decision to start the termination of parental right action.
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RICHLAND COUNTY DSS v. EARLES
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(l) & (2) (1976
- as amended), for termination of parental rights proven by clear and
- convincing evidence?
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RICHLAND COUNTY DSS v. EARLES
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 error.
Unavailability under 19-1-180(B)(2)(a)(v) requires a finding that the child will suffer
5We note the scope of 19-1-180 is not at issue in this case.
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RICHLAND COUNTY DSS v. EARLES
severe trauma by testifying under all three methods.
However, the evidence in the record supports a finding that Sylvester would
suffer severe trauma if forced to testify under any method. Dr. Wandersman testified
Sylvester would suffer severe trauma by testifying under any method. Admittedly,
because Dr. Wandersman had not seen Sylvester in a year, her opinion on this issue is
suspect. However, Dr. Myers, who was treating Sylvester at the time of the hearing, also
testified Sylvester would be severely traumatized, thus corroborating Dr. Wandersman's
opinion. Dr. Myers also testified that Sylvester's reaction had been extremely severe the
last time the topic of his mother was discussed. According to Dr. Myers, Sylvester
became very angry and aggressive. Thus, although the family court judge erred, the
evidence supports a finding that Svlvester would be traumatized under any circumstances.
Dr. Wandersman testified she found Sylvester's statements to be
trustworthy and credible. Using the criteria set forth in 19-1-180(D), the family court
judge also found Sylvester's statements were trustworthy and credible. The judge found
Dr. Wandersman to be a credible witness and the statements attributable to Sylvester were
not coached. Further, Sylvester's description of the sexual abuse represented a graphic,
detailed account beyond a child of Sylvester's age, knowledge and experience and
demonstrated a personal knowledge of the abuse. Because the record contains evidence
supporting the family court judge's findings and because findings concerning the
trustworthiness of the statements are a credibility issue, this Court will give great
deference to the family court's determination on the issue of trustworthiness. Aiken
County Dep't of Social Services v. Wilcox, 304 S.C. 90, 403 S.E.2d 142 (Ct. App. 1991)
(because appellate court lacks opportunity for direct observation of the witness, it should
accord great deference to family court judge's findings where matters of credibility are
involved).
II.
S.C. Code Ann. 20-7-1572(1)
Mother contends the evidence was insufficient to support a termination of
her parental rights under 20-7-1572(l) because DSS failed to prove by clear and
convincing evidence Mother's home could not be made safe within twelve months. We
disagree.
S.C. Code Ann. 20-7-1572(l) provides for termination when:
- (1) The child or another child in the home has been harmed as defined in
- 20-7-490(C), and because of the severity or repetition of the abuse or
p. 26
RICHLAND COUNTY DSS v. EARLES
- neglect, it is not reasonably likely that the home can be made safe within
- twelve months. In determining the likelihood that the home can be made
- safe, the parent's previous abuse or neglect of the child or another child in
- the home may be considered.
A ground for termination of parental rights must be proved by clear and
convincing evidence. Greenville County DSS v. Bowes, 313 S.C. 188, 437 S.E.2d 107
(1993). In reviewing a termination of parental rights, the appellate court has the authority
to review the record and make its own findings of whether clear and convincing evidence
supports the termination. SCDSS v. Brown, 317 S.C. 332, 454 S.E.2d 335 (Ct. App.
1995).
In our opinion, the evidence clearly and convincingly supports termination
of Mother's parental rights on this statutory ground. The evidence clearly and
convincingly established the children had been harmed by Mother. According to
Mother's testimony, she was the sole caretaker of these children and no one else could
have abused Latisha or Sylvester. Latisha was severely malnourished. Contrary to
Mother's contention, it should take more than three or four days for a healthy three-year-
old to reach the state of malnourishment Latisha had reached at the time of the removal.
Mother's own testimony demonstrates the depth of Mother's cruelty in attempting to
starve Latisha. According to Mother, while denying Latisha food, Mother forced Latisha
to watch her brother eat. Further, the medical report, the pictures and the GAL's
testimony demonstrated Latisha had been beaten and burned in addition to the
malnourishment. In the medical report, which was admitted without objection, Latisha
stated the gash on her head was caused by Mother hitting her. The GAL's testimony, also
admitted without objection, corroborated the statement in the medical report. Even one of
Mother's witnesses testified Mother had admitted to her that Mother had burned Latisha
and locked her in a closet. The medical report concluded the abuse was chronic.6 Thus,
Latisha's condition was not the result of a one time incident.
The evidence also clearly established Mother was sexually abusing these
children. Dr. Wandersman testified these children had been sexually acting out since
removal in 1991 and their behavior was consistent with sexual abuse. Dr. Myers also
testified Sylvester's behavior was consistent with sexual abuse and she believed Sylvester
had been sexually abused. Sylvester told Dr. Wandersman Mother had been sexually
abusing him and Latisha all their lives. Sylvester's description of the sexual abuse is
graphic and detailed. Dr. Wandersman's testimony concerning statements made by
Sylvester about the abuse are believable and Sylvester's statements do not appear
6Chronic means "lasting a long time or recurring often." Webster's New World
Dictionary 254 (2d college ed. 1976).
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RICHLAND COUNTY DSS v. EARLES
coached. Thus, clearly Mother, repetitively and severely, physically and sexually abused
these children.
Further, clear and convincing evidence established Mother's home could
not be made safe. Although DSS did not provide Mother with any treatment after the
1991 incident, Mother had already received extensive parenting training on two prior
occasions. Unfortunately, these treatment plans were not successful as demonstrated by
the fact that the second removal occurred less than three months after Mother's
association with the Nurturing Center was terminated. Further, these children have been
severely traumatized and the mention of their mother causes adverse effects on the
children.
Contrary to Mother's contention, 20-7-1572(l) does not require DSS to
show Mother has failed to rehabilitate. Instead, DSS only has to show because of the
severity or repetition of the harm,. Mother's home cannot be made safe. This section does
not require that DSS provide Mother with a second or third chance. Because of the
severity and repetitive nature of the abuse and because Mother had received extensive
parenting courses in the past, we find the family court correctly determined Mother's
home could not be made safe for these children.
Therefore, we affirm the family court's order terminating Mother's parental
rights under 20-7-1572(l).7
Best Interest of the Child
Mother further contends the family court improperly relied on the
nonstatutory ground of best interest of the child to terminate Mother's parental rights.
We disagree.
At the time of this hearing, the best interest of the child was not a statutory
ground for termination of parental rights. See Hopkins v. SCDSS, 313 S.C. 322, 437
S.E.2d 542 (1993) (Chandler, A.C.J., concurring opinion). Here, the family court judge
determined parental rights should be terminated pursuant to the statutory grounds set out
in 20-7-1572(l).8 The family court judge then found, in an abundance of caution,
7Because we affirm under 20-7-1572(l), we need not address Mother's argument
that DSS failed to prove by clear and convincing evidence that Mother's parental rights
should be terminated under 20-7-1572(2).
8We note, effective January 1, 1997, a family court judge is required to make the
additional finding that termination is in the best interest of the child. S.C. Code Ann. 20-7-
p 28.
RICHLAND COUNTY DSS v. EARLES
termination was in the best interest of the children. The family court judge did not
consider the best interest of the child as a ground for termination of parental rights.
AFFIRMED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
1572 (Supp. 1996).
p. 29