SC Judicial Department

2009-UP-621 - Jesse G. v. South Carolina Department of Social Services

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jesse and Amanda G., Respondents,

v.

Gerald and Fay E., James and Elsie S., Guadaloupe and Brenda G., Edwin and Lisa R., and South Carolina Department of Social Services, Defendants,

Of Whom South Carolina Department of Social Services and Gerald and Fay E. are the Appellants.

Appeal From Greenwood County
�Billy A. Tunstall, Jr., Family Court Judge

Unpublished Opinion No. 2009-UP-621
Heard October 10, 2009 � Filed December 29, 2009

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Heather Hite Stone, of Abbeville, for Appellants Gerald and Fay E.

Scarlet B. Moore, of Greenville, for Appellant South Carolina Department of Social Services.

Desa Ballard, of West Columbia and Billy Garrett, Jr. of Greenwood, for Respondents.

Adam Bacot, of Greenwood, for Guardian Ad Litem.

PER CURIAM: The South Carolina Department of Social Services (DSS) and Gerald and Fay E. appeal from the family court's order finding a substantial change of circumstances justified Jesse and Amanda G. (Father and Mother) regaining custody of their minor children (Daughter and Son, collectively Children).� We affirm in part, reverse in part, and remand.�

FACTS

While Father was married to another woman, he began dating Mother.� Thereafter, Mother became pregnant with Father's child, Daughter.� However, Father and Mother stopped seeing each other prior to Daughter's birth on June 29, 2002.� In 2004, Father and Mother started dating again.� Subsequently, Father divorced his wife, and on March 13, 2005, Father and Mother married.� Father has three sons from his previous marriage.�

DSS first became involved with Father and Mother in 2004, when allegations arose that Daughter had been physically abused.� Two instances triggered DSS involvement. First, Daughter's daycare provider alleged Daughter had been physically abused.� Second, Father and Mother failed to follow a doctor's instruction to have Daughter x-rayed.�

On November 30, 2004, Dr. Dan Robinson referred Daughter to Dr. Steve Skinner for an evaluation because there was an eight-month history of recurring pain and swelling in Daughter's lower legs. During the appointment, Dr. Skinner noted there was trauma over Daughter's mid spine that had healed and bruises on her buttocks, back, right arm, and left foot; however, Dr. Skinner did not suspect abuse.� Dr. Skinner recommended Mother take Daughter to the hospital for an x-ray.� According to Mother, she waited at the hospital with Daughter for one hour; however, they left before having an x-ray because Dr. Skinner did not tell her it was urgent and Daughter was hungry and tired.�

On December 11, 2004, Emmie Burns, Daughter's babysitter, observed Daughter complaining of pain in her left leg.� As a result, Burns contacted Dr. Skinner and Mother about the pain in Daughter's leg.� Later that day, Burns took Daughter to the emergency room where Dr. Skinner ordered a full body x-ray.� The x-ray revealed multiple fractures involving the left lower leg, left femur, and left upper arm.� The fractures were isolated to Daughter's left side and all were in various stages of healing, ranging three to four weeks.� Dr. Skinner consulted with Dr. John Cathcart, an orthopedic surgeon, who previously examined Daughter.� On December 13, 2004, Dr. Skinner and Dr. Cathcart admitted Daughter to the hospital for casting.� The same day, Mother went into preterm labor with Son.�

Thereafter, Daughter was taken into emergency protective custody.� Gerald and Fay E., Daughter's maternal relatives, volunteered to take custody of Daughter.� At the probable cause hearing, Father and Mother consented to Gerald and Fay E. obtaining legal and physical custody of Daughter.� In January 2005, Son was born.� Son lived with Mother for approximately five weeks following his birth; however, Son was then placed with Lisa R., his grandmother, and James and Elsie S., Son's great-grandparents.�

At the merits hearing on November 23, 2005, Father and Mother agreed to an order finding: (1) they medically neglected Daughter; (2) they failed to protect Daughter; and (3) a possible threat of harm to Son existed.� Additionally, the family court found Daughter was physically abused "by a perpetrator whose identity has not been determined."� The family court prohibited Father and Mother from having any unsupervised visitation with Daughter or Son.� The family court placed legal and physical custody of Daughter with Gerald and Fay E., and Son's legal and physical custody was awarded jointly to Lisa R. and James and Elsie S.[1]� The family court found the agreement was in Children's best interests.� The family court's order also permitted DSS to close its case "since all parties agree that there are no services which []DSS can offer [Father and Mother]."�

On May 14, 2007, Father and Mother filed a complaint in the Greenwood County family court alleging a substantial change in circumstances justified a change in custody.� Gerald and Fay E. counterclaimed, requesting the family court allow them to retain custody of Daughter.�

The family court conducted a hearing September 15-18, 2008.� At the hearing, no one was able to testify with certainty as to how Daughter was injured.� Dr. Skinner and Dr. Cathcart both opined they believed Daughter was abused.� However, no evidence was introduced to prove Mother or Father abused Daughter.�

According to Karen Neelands of Crossroads Pregnancy Center, Father and Mother attended and completed various parenting classes from October 27, 2005 to April 25, 2006.� The classes Father and Mother completed involved discipline, creative parenting, anger management, nutrition, and budgeting.� Additionally, Father and Mother completed an eight-hour course in CPR and first aid.�

James S., Son's great-grandfather, and Brenda G., Father's mother, acknowledged Father and Mother were young and immature but have since matured.� Both testified Father and Mother were now fit and should regain custody of Daughter and Son.�

Father and Mother testified at the hearing.� Father and Mother both admitted they medically neglected Daughter in failing to have her x-rayed in 2004.� However, they denied abusing Daughter or knowing who harmed Daughter.� Father and Mother acknowledged they knew of Daughter's bruises.� Mother explained she looked for a medical explanation as to what caused the bruises, while Father attributed the bruising to the fact Daughter bruised easily and played with his sons.� Father also suggested Daughter's day care provider may have abused Daughter.� According to Gerald and Fay E., there had been no bruising on Daughter since she had been in their custody; however, Daughter was injured while playing on a chair.�

Father and Mother admitted in 2004 they were not fit parents; however, both asserted at the hearing they are now fit.� Since Daughter and Son's removal, both have maintained stable employment and housing.� Additionally, Father and Mother have lived in the same house, next door to Father's parents, since October 2005. �If returned to Father and Mother, Daughter and Son would have their own bedrooms.� Both Father and Mother believe it is in Children's best interests to be reunited.� According to Mother, she relinquished custody of Daughter and Son because she did not want her parental rights terminated.�

However, Cherry Mactaggart, Daughter's counselor, did not believe Daughter and Son should be returned to Father and Mother.� Likewise, Fay E. believed it was in Daughter's best interest to remain in her care.� Although Gerald and Fay E. did not know if Father and Mother abused Daughter, they believed Daughter was in danger of abuse if Father and Mother obtained custody.� Steve Strome, the county director of Greenwood DSS, testified DSS did not want a change in custody because Daughter suffered severe physical injuries while in Father and Mother's custody, and these injuries had not reoccurred since Father and Mother consented to relinquish custody.�

The guardian ad litem (GAL) also testified at the hearing.� The GAL expressed concerns over any decision to return Children to Father and Mother.� The GAL believed Father and Mother still need supervised visitation, and Father and Mother were not aware of the severity of Daughter's injuries.�

Following a hearing, the family court concluded Father and Mother "have substantially and positively changed their circumstances and lifestyles, in their and their children's best interest . . . ."� As a result, the family court ordered physical and legal custody of Daughter and Son be returned to Father and Mother.� Gerald and Fay E. filed a motion pursuant to Rule 59(e), SCRCP, which the family court denied.� DSS filed a petition for supersedeas, which this court denied.� This appeal followed.��

STANDARD OF REVIEW

In appeals from the family court, the court of appeals has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence.� Brown v. Brown, 362 S.C. 85, 89-90, 606 S.E.2d 785, 787 (Ct. App. 2004).� Although this court may find facts in accordance with our own view of the preponderance of the evidence, we are not required to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.� Id.� In particular, an appellate court should be reluctant to substitute its own evaluation of the evidence on child custody for that of the family court.� Id.� Our broad scope of review does not relieve appellants of their burden to convince this court the family court committed error.� Id.�

ISSUES

I.� Did the family court err in finding a substantial change of circumstances justified a change of custody?

II.� Did the family court incorrectly apply the doctrine of psychological parent and erroneously conclude the bond between Daughter and Gerald and Fay E. did not overcome the presumption in favor of a biological parent?

III.� Did the family court abuse its discretion in denying Gerald and Fay E.'s and DSS's motion to present hearsay testimony pursuant to section 19-1-180 of the South Carolina Code?

IV.� Did the family court abuse its discretion in awarding GAL fees and GAL's attorney's fees?

LAW/ANALYSIS

I.� Custody of Minor Children

DSS and Gerald and Fay E. argue the family court erred in finding a substantial change of circumstances justified a change in custody.� We disagree.

The best interest of the child is the primary and controlling consideration in all child custody controversies.� Moore v. Moore, 300 S.C. 75, 79, 386 S.E.2d 456, 458 (1989).� Nevertheless, there is a rebuttable presumption that it is in the best interest of any child to be in the custody of his or her biological parent.� Id.� In Kay v. Rowland, 285 S.C. 516, 517, 331 S.E.2d 781, 782 (1985), the supreme court placed a substantial burden on any third party attempting to take custody over a biological parent and "recognized the superior rights of a natural parent in a custody dispute with a third party. Once the natural parent is deemed fit, the issue of custody is decided."

"Since the paramount consideration of the court[] is the welfare of the child, the dilemma is how to assure that parents who temporarily relinquish custody for the child's best interest can regain custody when conditions become more favorable."� Moore, 300 S.C. at 79, 386 S.E.2d at 458.� This court should consider the following in custody determinations when natural parents seek to reclaim custody of their child: (1) whether the parents have proved they are fit parents, able to properly care for the child and provide a good home; (2) the amount of contact, in the form of visits, financial support or both, which the parents had with the child while the child was in the care of a third party; (3) the circumstances under which temporary relinquishment occurred; and (4) the degree of attachment between the child and the temporary custodian.� Id. at 79-80, 386 S.E.2d at 458-59.�

The order in the case presently before us indicates the family court considered each of the foregoing factors in reaching the decision to award custody to Father and Mother.� Our own application of the Moore factors reveals the family court did not err in finding Father and Mother are now fit parents able to provide a good home for Children.� Evidence in the record indicates since Father and Mother relinquished custody of Children, Father and Mother have married; maintained stable employment; obtained adequate housing; and, upon their own initiative, completed numerous parenting classes.� Further, at the time of the hearing, no one was able to offer any evidence Father and Mother abused Children.

Considering the second Moore factor, Father and Mother consistently visited Daughter and Son on weekends since Children's removal.� According to Mother, she sees Daughter three weekends a month, presumably indicating she sees Son the same.� However, Mother admits she did not visit Daughter during the week.� Mother pays Gerald and Fay E. approximately $90 every two weeks in child support.� Fay E. testified she did not expect any financial support from Father and Mother.� Rather, she assumed custody out of love for Daughter.� Father and Mother also purchased Daughter clothes, but Daughter leaves them at Mother and Father's home so she does not have to pack for visits.� Moreover, Father and Mother now have had custody of Daughter and Son for almost one year.

Regarding the third factor, the relinquishment occurred due to Father and Mother's medical neglect of Daughter.� Father and Mother have continually denied abusing Daughter, and for almost four years, no one has offered any evidence to the contrary.� Moreover, Mother, Father, Gerald E., and Fay E. consented to the child-care arrangement. When Daughter was placed in Gerald and Fay E.'s home, Father and Mother believed they could resume custody once they became fit parents.� According to Mother, she relinquished custody because she did not want her parental rights terminated.�

Finally, we observe the evidence presented regarding the degree of attachment between Children and their respective custodians.� Evidence indicates a strong emotional bond between Children and their custodians.� We commend Gerald and Fay E. for coming forward and volunteering to assume custody of Daughter during a very difficult situation.� By all accounts, Daughter did well while in their care.� However, Father and Mother continued to visit Children after they relinquished custody, which indicates Children have continued to maintain a strong bond with Father and Mother as well.� Accordingly, we find the family court did not err in finding a substantial change of circumstances justified a change in custody.

II.� Psychological Parent Doctrine

DSS and Gerald and Fay E. contend the family court incorrectly applied the psychological parent doctrine.� According to DSS and Gerald and Fay E., the family court erred in concluding Gerald and Fay E. failed to rebut the presumption that it was in Daughter's best interest to be placed with her natural parents. According to DSS and Fay and Gerald E., no burden exists.� We disagree.

There is a rebuttable presumption that it is in the best interest of any child to be in the custody of biological parents.� Moore, 300 S.C. at 79, 386 S.E.2d at 458; Dodge v. Dodge, 332 S.C. 401, 410, 505 S.E.2d 344, 349 (Ct. App. 1998) (quoting Moore); see also Middleton v. Johnson, 369 S.C. 585, 604, 633 S.E.2d 162, 172 (Ct. App. 2006) ("The limited right of the psychological parent cannot usually overcome the legal parent's right to control the upbringing of his or her child.").� In Moore, the Supreme Court explained, "[i]f a party relinquishes custody in good faith because of some temporary inability to provide for the child, such parent should be able to regain custody upon a showing that the condition which required relinquishment has been resolved. Child custody should not be subject to change because of adverse possession."� Id. at 81, 386 S.E.2d at 459.��

The parties do not dispute the family court's finding that a psychological parent-child relationship exists between Gerald and Fay E. and Daughter.� Rather, DSS and Gerald and Fay E. contend the family court erred in finding they have the burden to prove it is in Daughter's best interest to remain in their custody.� We believe, in accordance with Moore, the family court correctly concluded Gerald and Fay E. carry the burden to rebut the presumption it is in Daughter's best interest to be placed with Father and Mother once the family court found them to be fit parents.� See Middleton, 369 S.C. at 604, 633 S.E.2d at 172 (finding the psychological parent must present compelling circumstances to rebut the presumption that a fit, legal parent has the right to control the upbringing of his or her child).�

III.� Hearsay Testimony

DSS and Gerald and Fay E. argue the family court erred in not admitting Daughter's hearsay testimony under section 19-1-180(B)(2) of the South Carolina Code.� They assert Daughter was unavailable to testify because she was unable to communicate the details of her physical abuse due to fear and emotional trauma.� We disagree.�

"The admission or exclusion of evidence is left to the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of discretion."� S.C. Dep't of Soc. Servs. v. Lisa C., 380 S.C. 406, 411, 669 S.E.2d 647, 650 (Ct. App. 2008).� "In order for this court to reverse a case based on the erroneous admission or erroneous exclusion of evidence the plaintiff must show error and prejudice."� Osterneck v. Osterneck, 374 S.C. 573, 579, 649 S.E.2d 127, 131 (Ct. App. 2007).

An out-of-court statement made by a child under twelve years of age concerning an act of alleged abuse or neglect as defined by section 63-7-20 of the South Carolina Code (2008) may be admissible in a family court proceeding.� In order to be admissible, the family court must find the child is unavailable to testify on any one of the following grounds: (1) the child's death; (2) the child's physical or mental disability; (3) the existence of a privilege involving the child; (4) the child's incompetency, including the child's inability to communicate about the offense because of fear; or (5) the substantial likelihood the child would suffer severe emotional trauma from testifying at the proceeding or by means of videotaped deposition or closed-circuit television.� S.C. Code Ann. � 19-1-180(B)(2)(a) (Supp. 2008).� Additionally, there must be a showing the statement possesses "particularized guarantees of trustworthiness."� S.C. Code Ann. � 19-1-180(B)(2)(b) (Supp. 2008).�

The family court found Daughter was available to testify by either videotape or closed-circuit television.� Cherry Mactaggart, Daughter's licensed counselor, testified that based on play therapy with Daughter, Daughter should not testify.� Mactaggart explained Daughter has been diagnosed with post-traumatic stress disorder.� Initially, Daughter had difficulty with eating, sleeping, attachment, expressions, approaching adults, and shyness; however, she opined Daughter had made substantial progress.� During therapy sessions, Mactaggart did not attempt to elicit how Daughter might respond to a court setting.� Mactaggart acknowledged Daughter was mentally capable of testifying and knew the difference between the truth and a lie.� The family court denied DSS's motion to admit Daughter's hearsay testimony, finding Daughter could testify by videotape or closed-circuit television.� �

At the time of the hearing, Daughter was six years of age, and almost four years had passed since her removal.� Evidence indicated Daughter was mentally competent and knew the difference between right and wrong.� Accordingly, we do not believe the family court erred in finding Daughter could testify by videotape or closed-circuit television.[2]

IV.� GAL Fees and GAL's Attorney's Fees

Gerald and Fay E. maintain the family court's order contains no findings of fact to support the award of GAL fees and GAL's attorney's fees.� We agree.� �

Appointment of a GAL in a private action is controlled by the South Carolina Private Guardian Ad Litem Reform Act (the Act), which became effective January 15, 2003, and states:

(A) In a private action before the family court in which custody or visitation of a minor child is an issue, the court may appoint a guardian ad litem only when it determines that:

(1) without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem; or

(2) both parties consent to the appointment of a guardian ad litem who is approved by the court.

S.C. Code Ann. � 63-3-810 (2008). Furthermore, the Act authorizes the family court to appoint an attorney to represent a non-attorney GAL. �See S.C. Code Ann. � 63-3-820(E) (2008). When the family court determines the appointment of an attorney to represent the GAL is necessary, it must "set forth the reasons for the appointment and must establish a method for compensating the attorney."� Id.�

Section 63-3-850(A) of the South Carolina Code (2008) provides:

At the time of appointment of a [GAL], the family court judge must set forth the method and rate of compensation for the [GAL], including an initial authorization of a fee based on the facts of the case. If the [GAL] determines that it is necessary to exceed the fee initially authorized by the judge, the guardian must provide notice to both parties and obtain the judge's written authorization or the consent of both parties to charge more than the initially authorized fee.

The statute also provides the GAL is entitled to "reasonable compensation, subject to the review and approval of the court."� S.C. Code Ann. � 63-3-850(B) (2008).� In determining the reasonableness of the fees and costs, "the court must take into account" the following factors:

(1) the complexity of the issues before the court; (2) the contentiousness of the litigation; (3) the time expended by the guardian; (4) the expenses reasonably incurred by the guardian; (5) the financial ability of each party to pay fees and costs; and (6) any other factors the court considers necessary.

Id.� In Loe v. Mother, Father, & Berkeley County Dep't of Soc. Servs., 382 S.C. 457, 473-474, 675 S.E.2d 807, 816 (Ct. App. 2009), this court found the reasonableness of a GAL's attorney's fees should also be determined in light of these statutory factors.�

A review of the family court's order does not reveal the court considered the statutory factors in awarding GAL and GAL attorney's fees.� We do not address whether the GAL and GAL attorney's fees were properly approved pursuant to section 63-3-850 or whether the fees are reasonable. Instead, we reverse the award of fees and remand for a determination of whether the statutory requirements were met in authorizing fees for the GAL and the GAL's attorney and a determination of reasonableness pursuant to the factors specified in section 63-3-850(B).�

CONCLUSION

Based on the foregoing, we find the family court did not err in finding a substantial change of circumstances justified a return of custody to Father and Mother.� We affirm the family court's finding that Daughter was available to testify by videotape or closed-circuit television.� However, we reverse the award of GAL and GAL attorney's fees and remand this issue to the family court.

AFFIRMED IN PART AS MODIFIED, REVERSED IN PART, AND REMANDED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.

[1] The family court's order also outlined a visitation schedule for all parties.

[2] DSS and Gerald and Fay E. also contend the family court erred in not admitting the testimony pursuant to Rule 803(4) of the South Carolina Rules of Evidence.� Pursuant to Rule 803(4), SCRE, "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible.� We find Rule 803(4), SCRE, does not apply in the present case.� Even if Rule 803(4) is applicable, the exclusion of the hearsay testimony was not prejudicial because the family court gave DSS an opportunity to interview Daughter and put forth Daughter's testimony, which DSS failed to do.� Because of this failure, DSS cannot show both error and prejudice.