THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Department of Social Services,        Respondent,

v.

Devri Lynn Gathings, Ross Keith Gathings, Delores Claudette Coughlin

IN RE:

Vincent Gathings,        Defendants,

of whom Delores Claudette Gathings is,        Appellant.

Appeal From Darlington County
Roger E. Henderson, Family Court Judge

Unpublished Opinion No. 2003-UP-664
Submitted September 17, 2003 � Filed November 17, 2003

AFFIRMED

Glenn F. Givens, of Florence, for Appellant.

Newton I. Howle, Jr., of Darlington, for Respondent.

PER CURIAM:�� Judge Roger E. Henderson held a merits hearing on July 31, 2002 on the issues of child abuse concerning Vincent Gathings.� S.C. Code Ann. � 20-7-736 (Supp.� 2001).� Removal occurred as the result of this hearing.���

FACTS / PROCEDURAL HISTORY

Coughlin is the maternal grandmother of Vincent Gathings.� Ms. Coughlin received legal and physical custody of the child New York. Since she gained custody, Coughlin has moved frequently; the child attended seven schools in seven years.�

The child was placed in foster care as a result of emergency protective custody as the result of a DSS investigation. He was in placement at the time of the merits hearing. DSS reported that Coughlin used profanity towards the child and calling him names such as �cock-sucking s.o.b.,� �motherfucker,� �bastard,� and �little pussy.�� Additionally, there were allegations that Coughlin shook Vincent.�

Dr. Noelker, A clinical psychologist, testified on behalf of DSS.� He testified regarding his evaluations of the parties involved.� Particularly, Noelker testified the child confirmed Coughlin�s physical and verbal abuse and �made it very clear� that Vincent did not wish to be returned to Coughlin�s care.�

Coughlin admitted to grabbing Vincent to deter him from running away from her.� She also admitted to cursing around Vincent, but never directing her comments at him.� Coughlin denied shaking Vincent.

Coughlin�s daughter, Devri Gathings testified to witnessing her mother curse Vincent.� She also testified to regularly seeing Coughlin physically abuse and strike Vincent.

The court found that �[r]etention of the child in Ms. Coughlin�s home, � would place the child at an unreasonable risk of harm affecting the child�s life, physical health or safety, and/or mental well-being��� The court authorized DSS to terminate or forego reasonable efforts to reunite Vincent and Coughlin because of Coughlin�s repeated and severe abuse.� Coughlin appeals.

ISSUE

Did the family court err in finding child abuse occurred because the court failed to apply and incorporate the corporal punishment or physical discipline exclusion to the case as revealed by the record?

STANDARD OF REVIEW

In appeals from the family court, the appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. However, because the family court is in a better position to judge the witnesses� demeanor and credibility, its findings should be given broad discretion. Scott v. Scott, 354 S.C. 118, 124, 579 S.E.2d 620, 623 (2003).

LAW/ANALYSIS

S. C. Code Ann. � 20-7-490(2)(a) states that child abuses occurs when the parent, guardian, or other person responsible for the child's welfare inflicts �upon the child physical or mental injury or engages in acts or omissions which present a substantial risk of physical or mental injury to the child, including injuries sustained as a result of excessive corporal punishment.�� The statute excludes corporal punishment or physical discipline which:

(i) is administered by a parent or person in loco parentis;

(ii) is perpetrated for the sole purpose of restraining or correcting the child;

(iii) is reasonable in manner and moderate in degree;

(iv) has not brought about permanent or lasting damage to the child; and

(v) is not reckless or grossly negligent behavior by the parents.

Id.

Coughlin argues that the statute excludes qualified corporal punishment or physical discipline.� She asserts that, although she cursed in the presence of Vincent and grabbed him to deter running away, the record lacks evidence showing her behavior constitutes abuse.� Her behavior, she argues is more akin to punishment or discipline.� We disagree.

Gathings testified to witnessing Coughlin cursing and physically abusing and striking the child.� Gathings personally witnessed Coughlin say �you don�t fucking know anything, you fucking cock sucker.�� This language, coupled with �grabbing� Vincent, clearly amounts to physical abuse within the meaning of the statute.

We are not convinced that Coughlin�s grabbing was for the purpose of restraint, but believe the grabbing amounted to physical abuse.� Additionally, the described behavior was not moderate, but was severe enough in nature to warrant DSS intervention.� Finally, the expert testified Coughlin�s reckless and grossly negligent behavior has caused lasting damage to the minor child.� Accordingly, we find that the family court did not err in finding child abuse occurred because the Coughlin�s behavior did does not satisfy any criteria set forth in the exceptions to the physical abuse statute.

AFFIRMED. [1]

HUFF, STILWELL, and BEATTY, JJ., concur.