South Carolina Department of Social Services v. Pringle , 405 S.C. 608 ( 2013 )

Justice PLEICONES.

This is an appeal from a family court order finding appellant (Father) sexually abused his two young daughters, requiring that his name be entered on the Central Registry of Child Abuse and Neglect, and prohibiting him from visiting his four children until successful completion of a treatment plan. Father, who is divorced from the children’s mother, contends the family court erred in its interpretation of S.C.Code Ann. § 19-1-180 (Supp.2012) and in permitting the playing of videotape forensic interviews of the non-testifying child victims. We find the videotapes were inadmissible under § 19-1-180(G) and reverse.

FACTS

Father was alleged to have sexually abused his two young daughters. When the parties arrived at court for the hearing, the Department of Social Services (DSS) announced that it intended to rely on a videotape interview of the alleged victims in lieu of their testimony. The court instructed DSS that when it intended to rely on a child’s statement where the child was not available for cross-examination, a pretrial hearing was required. The family court judge adjourned the court until the next day in order to allow Father to prepare for the hearing on the admissibility of the videotape.

At the hearing the next day, DSS presented two witnesses to support its contention that the children were unavailable and their statements trustworthy within the meaning of § 19-1-180. Following the hearing, the family court found that both these criteria were satisfied. Ultimately, she admitted the videotape itself over Father’s objection that the person who interviewed the children on the tape was not a qualified person under § 19 — 1—180(G).

Following this videotape hearing, the trial itself commenced. The first witness, a DSS employee, testified that following a report of abuse he interviewed the children. After each child related graphic details of Father’s alleged misconduct, the DSS employee determined that a forensic interview of each child was required. The DSS employee explained that his role was only to take statements to determine whether further investigation was warranted, but that the referral for a forensic interview is to determine “the validity or the truthfulness of these kids.”¹

Appellant contends that the videotape of the forensic interview was not admissible under § 19-1-180(G). We agree.

ISSUE

Was the videotape erroneously admitted?

ANALYSIS

By statute, certain hearsay statements made by children under the age of twelve² may be admitted in family court proceedings “concerning an act of alleged abuse or neglect.” § 19-1-180(A). Since the children who made the hearsay statements here did not testify, the statements had to meet the requirements of § 19 — 1—180(B)(2). Under (B)(2), the family court must find the child is unavailable pursuant to at least one of the statutory reasons [ (B)(2)(a)(l) through (v) ] and that the hearsay statement “is shown to possess particularized guarantees of trustworthiness.” § 19-l-180(B)(2)(b).

Subsection (D) of the statute lists ten factors the family court may consider in determining whether the hearsay statement has “particularized guarantees of trustworthiness under subsection (B)(2)(b)” and subsection (E) requires the family court to support its unavailability and trustworthiness rulings with “findings on the record.” §§ 19-1-180(D) and (E).

Finally, subsection (G) provides:

If the parents of the child are separated or divorced, the hearsay statement shall be inadmissible if (1) one of the parents is the alleged perpetrator of the alleged abuse or neglect and (2) the allegation was made after the parties separated or divorced. Notwithstanding this subsection, a statement alleging abuse or neglect made by a child to a law enforcement official, an officer of the court, a licensed family counselor or therapist, a physician or other health care provider, a teacher, a school counselor, a Department of Social Services staff member, or to a child care worker in a regulated child care facility is admissible under this section.

Father contends that since the person to whom the videotaped hearsay statements were made (Houston) was not a qualified person under (G), the videotapes themselves were inadmissible.

Section 19-1-180 creates a narrow exception to the hearsay rule in family court proceedings for statements made by certain child sex abuse victims. In the first sentence of subsection (G), however, the legislature has restored the hearsay bar where the accused is a divorced or separated parent of the child and the allegation arose after the separation or divorce.³ The second sentence of (G) then allows for the admission of a hearsay statement made by this class of child accuser if the statement otherwise meets the requirements of § 19-1-180, and the statement was made to:

a law enforcement official, an officer of the court, a licensed family counselor or therapist, a physician or other health care provider, a teacher, a school counselor, a Department of Social Services staff member, or to a child care worker in a regulated child care facility....

Here, it is conceded that Houston is not licensed by the State of South Carolina in any field, nor is there any suggestion that she is a law enforcement official, an officer of the court, a physician or other health care provider, a teacher, a school counselor, a DSS staffer or a child care worker. Rather, she is a child forensic interviewer with a bachelor’s degree in sociology and a master’s degree in rehabilitative counseling. Houston also has a certificate in the RATAC model through her participation in a program called Finding Words.

Houston was not a qualified person under § 19-1-180(G) and thus the videotape of her forensic interviews with these children was not admissible. Although Little testified to certain statements made by the children to him, this testimony was not offered for the truth of these statements. State v. Brown, supra. The only substantive evidence at trial that the children were abused by Father was found in the erroneously admitted tape, and the taped statements were the sole basis for the family court’s finding of abuse against Father. On this record, the erroneous admission of the children’s statements made to Houston prejudiced Father, and requires that we reverse the appealed order.

CONCLUSION

The appealed order is

REVERSED.

BEATTY and HEARN, JJ„ concur. TOAL, C.J., dissenting in a separate opinion. KITTREDGE, J., concurring in part and dissenting in part in a separate opinion.

1 . The hearsay statements of the children were admitted during the DSS employee’s testimony not for their truthfulness, but rather to explain why further investigation was warranted. See State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994) (hearsay statements to explain investigation are not admitted for truth). That DSS and the family court understood the limited use of these statements is evident from the fact that DSS did not give statutory notice of its intent to rely upon them as substantive evidence as required by § 19-1-180(C), and the fact that the family court judge did not rely on them in her written order.

2 . Or by a person who functions as a child under the age of twelve. § 19 — 1—180(A). The children who made the statements at issue here were both under twelve.

3 . As the Court of Appeals recognized in S.C. Carolina Dept. of Social Services v. Lisa C., “the purpose of (G) is to protect a parent from potentially false accusations instigated by the other parent as part of a contentious divorce or custody battle.” 380 S.C. 406, 413, 669 S.E.2d 647, 650 (2008). In this case visitation is at stake as the children's mother is the custodial parent.