Allen Lee Jacobs v. Ashley Nicole Zarcone ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Allen Lee Jacobs, Meghan Jacobs, Donald L. Jacobs, and
Tamila D. Jacobs, Plaintiffs,
v.
Ashley Nicole Zarcone, David Zarcone, Joseph Rose,
April Rose and South Carolina Department of Social
Services, Defendants,
Of whom Ashley Nicole Zarcone is the Appellant,
and
Meghan Jacobs, Donald L. Jacobs, and Tamila D. Jacobs
are the Respondents.
Appellate Case No. 2018-000488
Appeal From Greenville County
Alex Kinlaw, Jr., Family Court Judge
Opinion No. 5901
Heard September 14, 2021 – Filed March 16, 2022
AFFIRMED IN PART, VACATED IN PART
Bruce A. Byrholdt and Sarah Ganss Drawdy, both of
Byrholdt Drawdy, LLC, of Anderson, and Jeffrey Alton
Phillips, of Phillips Law Firm, P.A., of Travelers Rest, all
for Appellant.
Bruce Wyche Bannister and Luke Anthony Burke, both
of Bannister, Wyatt & Stalvey, LLC, of Greenville, and
James D. Calmes, III, of James D. Calmes, III Law Firm,
of Greenville, all for Respondent Meghan Jacobs.
Amanda Morris Gallivan, of Christophillis & Gallivan,
P.A., of Greenville, and Robert Steve Ingram, III, of
Holliday Ingram LLC, of Greenville, both for
Respondent Donald L. Jacobs and Respondent Tamila D.
Jacobs.
MCDONALD, J.: Allen Jacobs (Father) died while seeking sole custody of his
two minor children, D.J. and M.J. (Children).1 Following a multi-week trial, the
family court awarded custody of the Children to Father's wife, Meghan Jacobs
(Stepmother), with supervised visitation granted to the Children's Mother, Ashley
Zarcone. Father's parents, Donald Jacobs and Tamila Jacobs (Paternal
Grandparents), intervened and were awarded visitation rights. Mother challenges
both the custody and visitation awards, arguing the family court erred in declaring
her unfit and finding Stepmother was the Children's de facto custodian and
psychological parent. We affirm in part and vacate in part.
Facts and Procedural History
The facts of this case are complex and tragic. Mother and Father married in 2006
and separated in 2011. They had two sons, D.J. in 2009 and M.J. in 2010. In
2013, the family court granted Mother and Father a divorce and awarded them
joint custody of the Children, with Mother having primary placement and Father
having "liberal visitation." The family court noted either party could request in
writing that certain standard visitation guidelines be applied.
In late May or early June 2013, Mother met David Zarcone—the couple married
the following September. Mother and David had one child together in 2014, L.Z.,
and David had visitation with one child from a previous relationship.
1
Father, a police officer with the Greenville Police Department, was killed in the
line of duty.
On August 8, 2014, Father filed an action seeking modification of visitation and
child support. By order dated February 3, 2015, the family court approved an
agreement between Mother and Father establishing joint custody, with Mother
having primary placement and Father having visitation on alternating weekends,
along with overnight Wednesday visits during the weeks he did not have weekend
visitation. The agreement also addressed summer visitation and prevented any
stepparent from administering corporal punishment. The family court's order
included the parties' agreement that "Linda Hutton, MSW, shall be used to counsel
the minor sons and provide family counseling to the extent Ms. Hutton deems
appropriate."
A few days after the family court issued the February 2015 order, four-year-old
D.J. sustained injuries in Mother's bathroom while Mother was at work and David
was the only adult at home. Mother testified David called her at work and told her
D.J. woke him up and told him he needed to use the bathroom:
David said, okay, go to the bathroom. David rolled over
to go back to sleep. And then he heard [D.J.] crying.
[D.J.] came and woke him back up and said, I just fell
going to the bathroom.
He—I got on the phone with [D.J.], asked him if he was
okay. Calmed him down. He stopped crying. He said he
was fine. I got back on the phone with David and David
said that he [saw] where he thought there was going to be
a knot on his forehead right there where he had hit the
tub and that he was going to put some ice on it or put a
cold rag on it and that he would stay up and monitor it
until I got home.
However, the Children reported to others that David pushed D.J. down in the tub.
Mother does not believe David caused D.J.'s bruising that night; she claims D.J.
told her he slipped on some clothes on the bathroom floor. Mother did not tell
Father about the bathroom incident when they next exchanged custody.
On February 12, 2015, when Stepmother picked the Children up from school for
Father's long weekend visitation, she noticed yellowish bruising on D.J.'s face.
She described this at trial as "excessive bruising." After Father examined D.J.'s
face, Stepmother dropped the Children off to spend the night with Paternal
Grandparents because Father had to work and Stepmother had a night class.
Although Stepmother told Paternal Grandparents that D.J. had fallen and hit his
head in the bathtub, Paternal Grandmother became alarmed during D.J.'s bath time
when she found the bruising was not just to the child's face or head, but on his back
and on one arm as well. Grandmother explained,
I discovered he had all these circle marks on his back.
And then right around here on one of his arms. I think it
was his left arm. But he had these marks there that
looked like three finger marks that someone had grabbed
him. And so it wasn't just his head, but then there was
these marks all over his back and on his arms.
The next morning, Father, Stepmother, and Paternal Grandmother took D.J. to the
emergency room at Greenville Memorial Hospital. Dr. Elizabeth Foxworth, a
pediatric emergency room physician, treated D.J. and observed bruising on his
arms, face, and back, and behind his ears. Dr. Foxworth testified, "I saw lots of
bruises on him in unusual locations." When asked what she meant by "unusual
locations," Dr. Foxworth explained, "You rarely get bruises on your back or in
particular he had one behind his ear. It was just really unusual places that are
suggestive of child abuse."2 Dr. Foxworth ordered lab work to rule out a medical
condition as the cause of the bruising and subsequently diagnosed D.J. with
bruising consistent with child abuse. Dr. Foxworth then referred D.J. to the Julie
Valentine Center3 for an evaluation.
South Carolina Department of Social Services (DSS) Investigator Bailey Thomas
responded to Greenville Memorial Hospital after DSS received the report of
suspected child abuse. Thomas observed D.J. had an "excessive" number of
bruises, which she believed were inconsistent with a fall. During her investigation,
Investigator Thomas met with D.J. and M.J. separately. Because of what she
learned during these interviews, Thomas opened an investigation.
2
At trial, Dr. Foxworth identified a drawing she made of D.J.'s bruising during her
medical examination and noted she did not typically illustrate a patient's injuries—
only having done three or four such drawings in her twenty-one-year career. Dr.
Foxworth documented the locations of D.J.'s bruises because she was concerned he
was being abused and these bruises "were just not where kids typically get
bruises."
3
The Julie Valentine Center is a child abuse recovery center in Greenville County.
On February 19, 2015, Mother, David, and Father entered a DSS Safety Plan,
which also covered L.Z (Mother and David's child). The safety plan listed Mother
as protector for the three children and specified that Children would not be alone
with David. The expected end date for the Safety Plan was set at "no later than
ninety days."4
On March 30, 2015, DSS indicated a case against David for "physical abuse and
substantial risk of physical abuse." The DSS Determination Fact Sheet reported
"[D.J.] was observed to have faint bruising on his back, ribs, scalp and a linear
bruise on his face. Bruising appears to be at least a week old." The Fact Sheet
further reported "[D.J.] states that he was pushed by David and hit his face on the
bathtub. Minor children report being afraid to be alone with David Zarcone
because he hurts them." In the "Family Story" portion of the Family Assessment,
DSS noted:
Ashley [Mother] states that she divorced Allen Jacobs
[Father] due to his controlling behaviors. Ashley stated
that she [remarried] and has a baby with her current
husband David Zarcone. Ashley stated that [Father] is
upset that their children [M.J.] and [D.J.] started calling
David dad and [Father] doesn't want them to. Ashley
stated that she noticed this is when DSS started getting
called on her. Ashley stated that [Father] called DSS on
her saying that [M.J.] was being abused by David first
now it's [D.J.]. Ashley stated that she knows that
[Father] is telling the kids to say that David is abusing
them but she knows that he is not. David Zarcone denies
pushing stepson [D.J.] causing [him] to fall and hit his
face on the tub. David stated that the only thing he does
as far as punishment is timeout and they have a chair that
they make the kids use. David stated that one time he did
spank the boys but used his hand to spank them on their
bottoms and only did this one time. David stated that he
is the father figure inside the home and does feel that the
boys need to listen to him when they are with him alone.
Minor children [M.J. and D.J.] report being afraid to be
alone with David Zarcone. Both stated that he is mean to
4
Ninety days after February 19, 2015, would have been May 20, 2015.
them and slams them down on their backs and when they
tell him to stop he says they better not tell their mother or
they will have to go to timeout. [D.J.] stated that David
was in the bathroom with him and pushed him down
causing him to hit his head on the tub.
On March 31, 2015, DSS performed a home visit and entered a new safety plan
with Mother. This revised plan specified, "Mother will ensure there is no contact
between David Zarcone and the minor children [M.J. and D.J.]." Investigator
Thomas and her supervisor, Jacquelynn Brawner, determined the safety plan
needed a revision to prohibit all contact between the Children and David based on
their review of the Children's interviews from the Julie Valentine Center and D.J.'s
medical records. Thomas emphasized the March 31 safety plan prohibited David
from having any contact with the Children, including holidays, and any change in
the safety plan "would need to be in writing." This safety plan was set to end not
later than ninety days, or by June 29, 2015. In Thomas's case dictation from this
home visit with Mother, Thomas noted, "DSS is worried about David's contact
with the children. [Mother] is worried about David having to leave the home."
Despite the March 31 safety plan's specific "no contact" provision, Mother, the
Children, L.Z., David, David's child from a previous relationship, and Mother's
parents (Maternal Grandparents) celebrated Easter together just five days later.
That same day, Mother took D.J. to the hospital after he fell down the stairs.
Mother testified David was in a different room (possibly the kitchen) when D.J.
fell on the stairs; however, she acknowledged that the Children allege David
pushed D.J. down the stairs.5 Mother does not believe this was an emergency but
claimed she took D.J. to the hospital as a precaution because DSS supervisor
Brawner told her if anything happened to D.J. during the investigation "to just take
him to the hospital and get it on the record as to what happened." When asked
about the Easter violation of the safety plan, Mother testified that Brawner told her
it was fine for the family to attend Easter church together, so long as David was not
alone with the Children. However, Brawner denied authorizing this holiday
contact. She further noted such would be nonsensical because she had just revised
the safety plan to "make it strict that there's no contact." Moreover, no such
change would be made without staffing the case and receiving input from the
caseworker.
5
David testified he was in the kitchen when D.J. slipped and fell down the stairs.
On Father's Day weekend in June 2015, again prior to the expiration of the safety
plan, Mother's family, including the Children and David, took a trip Florida to visit
Mother's brother. David admitted he knew the safety plan was still in place at the
time of the trip and that it prohibited him from having any contact with the
Children. However, like Mother, David claimed someone at DSS had given
Mother permission for David to go on the trip.
On June 29, 2015, Mother and David got into a disagreement at a Travelers Rest
Walmart in the presence of M.J., D.J., and L.Z. David became angry when the
Children "started running around and acting like kids" and Mother did not
discipline them. Mother told David she did not want him yelling around the
Children, and he grabbed her wrist and tried to remove her wedding ring. Mother
attempted to avoid David for the rest of the day, but after the Children went to bed,
he resumed yelling at her for not disciplining or spanking the Children.
The next day, Mother and David were involved in another altercation, which
resulted in David's arrest for criminal domestic violence (CDV). Mother testified
David became agitated after speaking with his ex-wife, who was denying David
visitation with his son. David left to buy cigarettes and "basically cool off";
however, he was even more upset upon his return. When Mother went upstairs to
get L.Z. to take him to Maternal Grandparents' house, David "got really mad." He
followed Mother upstairs, prevented her from going into L.Z.'s room, backed her
into their bedroom, waved his finger in her face, and stated she "wasn't going to
take his son away from him." David told Mother she "wasn't going to leave him"
and flicked some cigarette ashes on her while backing her into a closet. At trial,
Mother claimed she bent down to pick up the cigarette butt after David dropped it,
but stood up at the same time David was closing a door, and the door "smacked
[her] on the arm." David then followed Mother down the stairs and out the door,
continuing to yell at her and initially refusing to allow her to leave.
Eventually, Mother was able to leave the home and call her parents (Maternal
Grandparents) to meet her at the police department. Mother claimed she spoke
with a police officer because she wanted an officer to escort her home to get L.Z.,
but the police asked her to give a statement. Mother's father met her at the station
and went with the police to get L.Z., and the "next thing [she] knew, David was
arrested and in the back of the car and they charged him with criminal domestic
violence." Although Mother denied at trial that David struck her, her signed
statement to law enforcement reflects her statements that David grabbed her,
pushed her into a closet, and struck her while slamming a car door. David
completed pretrial intervention for the CDV arrest, Mother and David participated
in anger management and domestic violence counseling, and David completed a
twenty-six week Family Violence Intervention Program.
On July 7, 2015, DSS issued a new safety plan, transferring custody of the
Children to Father and Stepmother. This plan continued the prohibition of all
contact between David and the Children, permitted supervised contact with
Mother, and listed Father and Stepmother as the Children's protectors. 6 This
safety plan was expected to end on October 7, 2015.
On August 21, 2015, DSS indicated a case against Mother and David, referencing
a substantial risk of physical abuse to M.J., D.J, and L.Z. The Determination Fact
Sheet reported Mother and David "engaged in domestic violence in the presence of
their minor children. David Zarcone was arrested on 6/30/15 and has pending
charges of [CDV]. The minor children report being afraid of the parents arguing
and fighting in the home." In a subsequent affidavit, DSS Investigator Jamie Dill
reported, "Ashley Zarcone is not protective of the children, and her children have
disclosed that this is not the first domestic violence incident in the home."
On September 3, 2015, Father filed a motion for temporary relief, seeking sole
custody of the Children and a restraining order to prevent David from having
contact with them. The family court heard Father's motion on October 8, 2015;
Mother was not present. In an October 12, 2015 order, the family court awarded
Father temporary custody—finding he had demonstrated a substantial change in
circumstances—and granted a temporary restraining order prohibiting David from
having any contact with the Children. Mother timely moved to reconsider, which
the family court denied by supplemental temporary order on November 10, 2015.
In this supplemental order, the family court appointed Lisa Mobley as guardian ad
litem (GAL) for the Children and dismissed DSS as a party.
On January 15, 2016, the GAL requested a hearing to address Mother's visitation
with the Children. By second temporary order dated March 1, 2016, the family
court continued temporary custody of the Children with Father and provided
Mother two hours of weekend visitation with the Children. The GAL requested
that both stepparents be added as parties to facilitate any necessary restraining
orders, parenting guidelines, and co-parenting counseling recommended by Hutton.
The family court concurred and reiterated that no party was to allow David
6
Father and Stepmother married in August 2015.
Zarcone "to have any contact with the minor children of this action pending
investigation and trial."
On January 29, 2016, DSS closed its case against Mother and David. DSS
caseworker Janice Jamison testified she felt comfortable closing the case based on
the "no contact" condition ordered by the family court in Father's action. Jamison
explained, "DSS knew that the kids were with their father. Custody had been
given to him. So the need to stay [involved,] there was no need for that."
On March 18, 2016, Father was killed in the line of duty. On March 28, 2016,
Mother requested an emergency hearing and sought custody of the Children.
Mother argued "[t]he safety of the children was not a consideration of DSS" since
custody of L.Z. was not affected by the DSS action. She further noted she and
David had completed "every single requirement DSS placed" on them. Paternal
Grandparents filed a motion to intervene, to join DSS as an indispensable party,
and to request "permanent joint custody of the minor children together" with
Stepmother. Stepmother sought joinder and likewise requested custody of the
Children.
By third temporary order dated May 2, 2016, the family court awarded temporary
custody of the Children to Stepmother. The family court granted Mother
alternating weekend visitation to be supervised by either of her parents, with
increased visitation during the summer. The family court again prohibited any
party from allowing David "to have any direct or indirect contact with the minor
children of this action pending further Order of this Court." The family court
granted Paternal Grandparents' motion to intervene and added DSS as a party "for
the limited purpose of monitoring visitation and placement" of the Children during
the pendency of the current case.
On October 14, 2016, Stepmother moved for temporary relief, seeking an order to
prohibit Mother's brother from having contact with the Children and to relieve
Maternal Grandparents from the requirement that they supervise Mother's
visitation.7 By pretrial order, the family court trial judge granted Stepmother's "no
contact" motion as to Mother's brother during the pendency of the litigation and
ordered that the motion to relieve Maternal Grandparents of the supervision
requirement be served upon them prior to a December pretrial hearing.
7
Mother's brother pled guilty to a juvenile offense involving the sexual
molestation of a child unrelated to this action.
On January 19, 2017, Stepmother and Paternal Grandparents moved to present the
Children's out of court statements and other communicative behavior as
summarized in reports and trauma narratives from their therapist Natasha Patino.8
The motion asserted the Children "have made consistent and credible statements
within the comfort of therapy sessions that disclose abuse and safety issues"
pertinent to the court's consideration of their best interests.
In a series of pretrial orders, the family court addressed several issues raised by the
parties, including Stepmother's motion to introduce evidence and testimony about
events alleged to have occurred prior to Father's filing of the 2015 custody action.
The family court denied the introduction of any pre-2015 matters, but accepted the
parties' agreement on the § 19-1-180 motion to present the Children's out of court
testimony.9 Pursuant to this agreement, the family court found the Children
unavailable to testify at the final hearing due to their "incompetency, inability to
communicate about the offense, and/or the substantial likelihood that the children
would suffer severe emotional trauma" from testifying. Thus, therapist Patino
would testify as to the children's statements and behaviors during their counseling
sessions, and present "information as summarized in the reports and handwritten
trauma narratives." Specifically—and in accordance with the agreement—the
family court ordered, "The statements and other communicated behavior of the
minor children as testified to by Natasha Patino, MA, LPC, are admissible to prove
the truth of the matters asserted pursuant to S.C. Code Ann. § 19-1-180(C)."10
8
See S.C. Code Ann. § 19-1-180 (2014) (providing a process for the admission of
out of court statements by children under twelve years of age).
9
The family court also denied Paternal Grandparents' motion to alter or amend its
order barring the presentation of pre-2015 evidence, finding all evidence related to
child custody and visitation prior to February 3, 2015 had been heard and litigated
on several occasions.
10
Initially, the Children met with Hutton for grief counseling, but after Stepmother
expressed concerns, Patino began counseling the Children in September 2016.
Patino was qualified without objection as an expert in counseling, with a specialty
in trauma. At the time of her testimony, Patino had conducted twenty-three
trauma-focused cognitive behavioral therapy sessions with the Children.
The case was tried April 17–21, October 9–10, October 12, and December 13–14,
2017.11 Between trial dates, the family court denied Mother's motion to prevent
Stepmother from taking the Children to further therapy sessions with Patino and
noted the GAL would assist with resolving such issues that might arise among the
parties.
In a detailed February 21, 2018 order, the family court awarded sole custody of the
Children to Stepmother. The family court found Mother unfit due to her inability
to protect the Children's physical, mental, and emotional well-being and
emphasized its concern regarding Mother's refusal to believe the Children's
allegations that David was physically abusive, despite the evidence from experts
and DSS caseworkers. The family court held Stepmother was the Children's
psychological parent and de facto custodian and determined it was in the Children's
best interests to remain in Stepmother's sole custody. The family court's order
included no contact provisions for David Zarcone and Mother's brother, awarded
Mother supervised visitation from Friday through Sunday on alternating weekends,
and provided Paternal Grandparents visitation to be coordinated with Stepmother.
Mother has appealed not only the award of sole custody to Stepmother and the
requirement that her visitation with the Children be supervised, but the visitation
awarded to Paternal Grandparents as well.
Standard of Review
On appeal from the family court, the appellate court reviews factual and legal
issues de novo. Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)
(per curiam). Thus, the appellate court has the authority to find facts in accordance
with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C.
381, 384, 392, 709 S.E.2d 650, 651, 655 (2011). However, this broad scope of
review does not require the appellate court to disregard the fact that the family
court, which saw and heard the witnesses, was in a better position to evaluate their
credibility and assign comparative weight to their testimony. Id. at 385, 392, 709
S.E.2d at 651–52, 655. Therefore, the appellant bears the burden of convincing the
appellate court that the family court committed error or that the preponderance of
the evidence is against the family court's findings. Id. at 392, 709 S.E.2d at 655.
Law and Analysis
11
Prior to trial, DSS moved to be dismissed as a party. Upon the family court's
inquiry on the record, no party objected to DSS's dismissal so long as any
necessary DSS witnesses were made available for trial.
I. Mother's Fitness
Mother argues the family court erred in finding her unfit based on the February
2015 bathtub incident, the March 2015 Easter incident, the June 2015 CDV and
Walmart incidents, and Patino's testimony. Based on our de novo review of the
record, the parties' briefing, and oral argument, we affirm the family court's
finding.12
To determine whether a parent is fit, the court considers "the quality of the home
the natural parent can provide as well as the parent's employment stability." Urban
v. Kerscher, 423 S.C. 615, 625, 817 S.E.2d 130, 135 (Ct. App. 2018). At the time
of trial, Mother was employed with a law firm. Mother admitted she and David
had past financial issues, but her accounts were current at the time of trial.
Although it had not yet been used, Mother had a room ready for the Children at her
home. Further, it appears Mother attempted to be involved with the Children's
education as much as she was permitted as the non-custodial parent. The record
does not reflect that there has ever been an attempt to remove L.Z. from Mother's
custody. Following her visit to Mother's home, the GAL had no concerns about
the safety of the home itself, and a DSS caseworker noted the environment was
"appropriate." Thomas observed the home was clean, there was sufficient food,
and Mother had bunk beds ready for the Children.
Nevertheless, like the family court, we have serious concerns about Mother's
ability to protect the children from David given her repeated violations of the "no
contact" provision in the second DSS safety plan, her continuing refusal to believe
David injured D.J., and her minimization of other incidents. See, e.g., Baker v.
Wolfe, 333 S.C. 605, 610, 510 S.E.2d 726, 729 (Ct. App. 1998) ("That the Mother
has allowed her children to be physically abused by the Stepfather indicates that
the Mother is either unable to or uninterested in properly protecting the children,
and again supports the conclusion that the Mother is not fit to parent her
children."). Even though the Children were clearly afraid of David, Mother did not
believe their abuse allegations, instead choosing to believe David's accounts of the
events. Mother testified she would defer to the recommendations of the counselors
regarding the Children's exposure to David in the future but clarified, "I believe
that we should sit down and look at all the facts." She explained, the counselor
"should know every—both sides of the story from the beginning to the end so they
12
Mother did not appeal the family court's finding that awarding custody of the
Children to Stepmother was in the Children's best interests.
can adequately sit down and decide what the boys really need and how it would be
best to achieve that." Statements like this demonstrate Mother's continuing denial
that David ever abused and frightened the Children.
Although DSS closed its case in January 2016, DSS caseworker Janice Jamison did
not believe Mother and David had made behavioral changes. Jamison testified
Mother continued to minimize the situation, which was concerning due to the CDV
police report and the Children's recounting of events that occurred. As noted
above, Jamison felt comfortable closing the case because she believed the "no
contact" conditions regarding David imposed by the family court in the custody
case would remain.
Mother repeatedly violated the "no contact with David" provision of the DSS
safety plan. Mother disputes whether the March 2015 safety plan was still in place
at the time of the Walmart incident and claims that in June 2015, she was no longer
bound by it. However, it is clear that Mother violated the March safety plan by
allowing the Children to be around David both at Easter—when D.J. was again
injured—and in early June during the Florida family trip.
Additionally, although Mother maintains David did not push D.J. down the stairs
on Easter, the testimony presented at trial was inconsistent. Mother, David, and
Maternal Grandmother all provided conflicting testimony as to where David was
when D.J. was injured and whether anyone actually saw D.J. fall. Maternal
Grandmother's statement to hospital doctors indicated he fell down a flight of
stairs, but she testified at trial he only fell down a couple of stairs. Even though
these witnesses and parties minimized the incident at trial, they were concerned
enough to take D.J. to the emergency room, and he wore a neck brace for a period
of time following the fall. Significantly, the DSS safety plan in place at this time
clearly prohibited any contact between David and the Children, and despite
Mother's claim on this point, the overwhelming testimony from the DSS
employees at trial demonstrates no caseworker or supervisor would have orally
modified the plan to allow such unauthorized contact.
In support of reversal, Mother argues Patino was "one-sided" and suggests Patino
exaggerated the Children's fears about David. Yet we note Patino was qualified as
an expert without objection, and her testimony regarding the Children's trauma
narratives and statements was admitted by agreement of the parties. After meeting
with the Children twenty-three times, Patino believed their behavior was consistent
with "some kind of trauma happening." During their sessions, Patino observed
D.J. would "shut down a lot" when discussing sensitive topics, including David,
and M.J. became very tense and afraid when David was mentioned, at times not
wanting to say David's name. Patino testified the Children consistently reported
Stepmother was someone they could trust and they felt safe with her, whereas the
Children believed Mother was someone they needed to protect.
Patino conducted a joint therapy session with Mother and Stepmother and
explained "in length the fear the boys had" of David. Patino was concerned
Mother's minimization of the situation could put the Children at risk in the future,
whether Mother was with David or different partner, because she did not
appreciate how serious the issue was for the Children. Patino did not believe
further counseling would assist reunification of David and the Children due to
Mother's minimization of these risks and failure to grasp what happened.
The GAL was also concerned about the Children returning to Mother's custody
without specific parameters set for David. The GAL noted Mother never
acknowledged the safety risk David posed to the Children; DSS, Patino, and
Hutton shared these concerns. The GAL admitted Hutton agreed to conduct
reunification counseling if there were adequate participation by the parties.
Mother and David also believed a "controlled" reunification process would be
necessary to reintroduce David to the Children, and David claimed he would
continue to participate in counseling if necessary.
We, too are troubled by Mother's refusal to believe the Children's allegations, her
minimization of David's conduct, and her pattern of failing to comply with the no
contact provisions of the safety plan. Thus, we agree with the family court that the
evidence presented at trial established Mother was not a fit parent due to her
inability to care for the Children's well-being.13
II. Moore factors
Mother argues the family court erred in applying the factors of Moore v. Moore,
300 S.C. 75, 79–80, 386 S.E.2d 456, 458–59 (1989), in its custody determination
because Mother "always had custody of her two minor children. She never
relinquished custody (temporary or otherwise) of her children to Stepmother." She
13
At oral argument, counsel for Mother informed this court that Mother and David
have now divorced. This information was not before the family court; thus, it is
not proper for this court to consider it in our review of the family court's order. We
note nothing prevents Mother from filing an action to address this change in
circumstances as it may impact the consideration of custody or visitation.
further contends the family court's reliance on Moore was misplaced because the
Children were transferred from one natural parent (Mother) to the other (Father)
under a "voluntary" safety plan signed by Mother. We disagree.
In Moore, our supreme court established the factors a court must consider in
making a custody determination when a natural parent seeks to reclaim custody of
a child from a third party:
1) The parent must prove that he is a fit parent, 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 parent had with the child
while it was in the care of a third party.
3) The circumstances under which temporary
relinquishment occurred.
4) The degree of attachment between the child and the
temporary custodian.
300 S.C. at 79–80, 386 S.E.2d at 458 (citations omitted).
Mother relies on this court's language in Baker v. Wolfe, 333 S.C. at 605, 510
S.E.2d at 726, and our return of the minor child to her biological parent in Urban v.
Kerscher, 423 S.C. at 615, 817 S.E.2d at 130, to support her argument. However,
our review of these cases supports the family court's analysis here. In Baker, this
court found Moore inapplicable based on the circumstances surrounding the
mother's relinquishment of the children:
This case began as a custody dispute between parents
who had joint custody of the children. There was no
court order or agreement between the parents
relinquishing custody to the Grandmother. Although the
Mother voluntarily relinquished physical custody of the
children in 1993, she relinquished custody to the Father,
not a third party. Given that the Father resided with the
Grandparents, the Mother may well have assumed that
the Grandmother would be the primary caretaker of the
children. Nonetheless, her relinquishment of the children
to the Father does not seem to be the same type of
relinquishment contemplated in Moore. Accordingly,
given the unique factual circumstances of this case, we
conclude that Moore is not controlling, although its
factors may provide some guidance. Instead, we believe
this case is controlled by a determination of the Mother's
fitness as a parent and a consideration of the best
interests of the children.
333 S.C. at 610, 510 S.E.2d at 729. The court affirmed the family court's findings
that mother was unfit and that custody should remain with the paternal
grandmother based on evidence that mother and stepfather were drug users and
"[t]hat the Mother has allowed her children to be physically abused by the
Stepfather indicat[ing] that the Mother is either unable to or uninterested in
properly protecting the children." Id. at 610, 510 S.E.2d at 729.
Moreover, Urban is inapposite because this court found the mother there to be "a
fit parent, able to properly care for Child and provide a good home." Urban, 423
S.C. at 626, 817 S.E.2d at 135. Mother lived with her fiancé in a clean and stable
home, and Urban's child had a good relationship with the mother's fiancé. Id.
Urban's relinquishment of her child was truly voluntary, and the court found it
"commendable that Urban recognized her previous inability to care for Child and,
in good faith, left Child with people willing and able to provide for Child while
Urban attempted to better her family's circumstances." Id. at 630, 817 S.E.2d at
137.
Here, we agree Mother's relinquishment to Father pursuant to a DSS safety plan
was not the same initially voluntary relinquishment addressed in Moore. Although
Mother agreed to the July 2015 safety plan, she likely faced no reasonable
alternative as she sought to cooperate with DSS to expedite the return of the
Children to her care. And, we agree that when custody changed, Mother viewed
this as relinquishing custody to Father, rather than Stepmother. But as in Baker,
the family court here properly relied on the Moore factors for guidance in
considering custody. See Baker at 610, 510 S.E.2d at 729. Like the Baker court,
we believe this case is controlled by a determination of Mother's fitness as a parent
and a consideration of the best interests of the children. See id. "While there is a
presumption in favor of awarding custody to a natural parent over a third party,
that presumption applies only if the parent is found to be fit." Id. at 611, 510
S.E.2d at 730. Thus, we find the family court properly awarded Stepmother sole
custody of the Children.
III. Psychological Parent
Mother next argues the family court erred in finding Stepmother was the Children's
psychological parent because there was no "parental void" in the Children's lives
prior to Father's death and she never consented to or fostered a parent-like
relationship between the Children and Stepmother. Mother further contends
Stepmother's relationship with the Children was not of sufficient length to rise to
the level of a parent-like relationship. We disagree.
In order to establish the existence of a psychological parent-child relationship, a
party must demonstrate:
(1) that the biological or adoptive parent[s] consented to,
and fostered, the petitioner's formation and
establishment of a parent-like relationship with the
child;
(2) that the petitioner and the child lived together in the
same household;
(3) that the petitioner assumed obligations of parenthood
by taking significant responsibility for the child's care,
education and development, including contributing
towards the child's support, without expectation of
financial compensation; [and]
(4) that the petitioner has been in a parental role for a
length of time sufficient to have established with the
child a bonded, dependent relationship parental in
nature.
Marquez v. Caudill, 376 S.C. 229, 242, 656 S.E.2d 737, 743 (2008) (alterations by
court) (quoting Middleton v. Johnson, 369 S.C. 585, 596–97, 633 S.E.2d 162, 168
(Ct. App. 2006)). "[W]hen both biological parents are involved in the child's life, a
third party's relationship with the child could never rise to the level of a
psychological parent, as there is no parental void in the child's life." Middleton,
369 S.C. at 598, 633 S.E.2d at 169.
In this case, Father consented to and fostered Stepmother's parent-like relationship
with the Children. When Father was alive, he worked long hours as a police
officer, and Stepmother acted as a caregiver during Father's visitation periods.
Stepmother testified Mother initially encouraged her relationship with the
Children, and the two women communicated more than Mother and Father did
regarding their care. The Children called Stepmother by her first name, Meghan,
and Mother had previously texted Father that the Children could call Stepmother
"Mommy Meghan." In any event, whether Mother consented to and fostered the
Children's relationship with Stepmother is not controlling because the evidence
establishes Father fostered this relationship before his death.
Second, the Children have resided with Stepmother in the same household. The
Children began living with Stepmother and Father full time in July 2015. Prior to
that, Father and Mother had joint custody, and Father had a very liberal visitation
schedule. Thus, the evidence demonstrates the Children have been residing
full-time with Stepmother since at least 2015. See Id. at 598, 633 S.E.2d at 169 (in
determining whether the psychological parent "resided with" the child, the court
"can conceive of a situation, as in this case, where the legal parent and the
psychological parent operated under a sort of joint custody agreement where the
child spends half the time at the legal parent's house. The other half of the time is
spent at the psychological parent's house, which the child also considers home.
This type of arrangement also suffices to meet the second part of the test.").
Third, Stepmother has "assumed obligations of parenthood by taking significant
responsibility for [the Children's] care, education and development, including
contributing towards [their] support, without expectation of financial
compensation." See Marquez, 376 S.C. at 242, 656 S.E.2d at 743 (quoting
Middleton, 369 S.C. at 597, 633 S.E.2d at 168). While Father was still living,
Stepmother undertook many of the caretaking responsibilities for the Children.
Her caregiving responsibilities increased when the Children came to live with
Father and Stepmother full-time pursuant to the July 2015 safety plan. Stepmother
took the Children to and from school, to doctor's visits, and to visit Paternal
Grandparents. For example, Stepmother arranged for an appointment at the eye
doctor for M.J. to get glasses when she discovered he was having difficulty seeing
at school. Additionally, Stepmother paid for the Children's counseling sessions
with Hutton.
Finally, Stepmother has been in a parental role for a length of time sufficient to
establish a bonded, parent-like relationship with the Children. Stepmother first met
the Children on Easter weekend in 2013. During Father's visitation periods and
after the Children moved in with the couple, Stepmother undertook caretaking
duties such as taking the Children to school and doctor's appointments.
Stepmother communicated with Mother about the Children, including keeping her
informed about school events. Further, the GAL testified the Children had formed
a bonded parent-like relationship with Stepmother. We acknowledge no "parental
void" existed until Father's death on March 18, 2016. However, after Father died,
Stepmother stepped into Father's shoes as the parental figure who provided security
in the Children's lives. Of note is Patino's testimony that the Children consistently
reported Stepmother was someone they could trust and that they felt safe with her,
whereas the Children believed Mother was someone they needed to protect.
Accordingly, we agree with the family court's finding that Stepmother was the
psychological parent of M.J. and D.J.14
IV. Grandparents' Visitation Award
Mother argues the family court erred in awarding visitation to Paternal
Grandparents because there was no evidence they were ever denied visitation. We
disagree.
"[A] biological parent[']s death and an attempt to maintain ties with that deceased
parent[']s family may be compelling circumstances justifying ordering visitation
over a fit parent[']s objection." Marquez, 376 S.C. at 249, 656 S.E.2d at 747.
Section 63-3-530(A)(33) of the South Carolina Code (Supp. 2021) grants the
family court the following jurisdiction:
to order visitation for the grandparent of a minor child
where either or both parents of the minor child is or are
14
Because the Children were not in Stepmother's sole custody for one year prior to
the commencement of this litigation, Mother challenges the family court's finding
that Stepmother is the Children's de facto custodian. In light of the controlling
statutory language, we vacate the family court's de facto custodian finding. See
S.C. Code Ann. § 63-15-60(A)(2) (2010) (providing a "'de facto custodian' means,
unless the context requires otherwise, a person who has been shown by clear and
convincing evidence to have been the primary caregiver for and financial supporter
of a child who: . . . (2) has resided with the person for a period of one year or more
if the child is three years of age or older. Any period of time after a legal
proceeding has been commenced by a parent seeking to regain custody of the child
must not be included in determining whether the child has resided with the person
for the required minimum period.").
deceased, or are divorced, or are living separate and apart
in different habitats, if the court finds that:
(1) the child's parents or guardians are
unreasonably depriving the grandparent of the
opportunity to visit with the child, including
denying visitation of the minor child to the
grandparent for a period exceeding ninety days;
and
(2) awarding grandparent visitation would not
interfere with the parent-child relationship; and:
(a) the court finds by clear and convincing
evidence that the child's parents or guardians
are unfit; or
(b) the court finds by clear and convincing
evidence that there are compelling
circumstances to overcome the presumption
that the parental decision is in the child's
best interest.
"When grandparents have such a parent-like relationship, it can be particularly
important to the welfare of the children for the court to maintain the relationship."
Bazen v. Bazen, 428 S.C. 511, 532, 837 S.E.2d 23, 34 (2019); see also id. at 536,
837 S.E.2d at 36 (Kittredge, J., concurring in part and dissenting in part) (opining
"the critical factor in this case is the prominent and significant role the
grandparents had in the lives of their grandchildren prior to the death of" father).
Here, Paternal Grandparents have played an active role throughout the Children's
lives, helping to care for them, volunteering at their school, and participating in the
DSS safety plan, even when Father was alive. When Mother and Father were still
married, the Children spent every Saturday with Paternal Grandparents, and after
Mother and Father separated, they spent time with Paternal Grandparents during
Father's visitation weekends. The Children have their own room at Paternal
Grandparents' house. Paternal Grandmother believed it was very important that
she and Grandfather maintain a relationship with the Children to provide extra
guidance and support given their Father's death. She explained:
We feel like the Court has allowed us to be interveners
and step forward where Allen [Father] is not here. And
so we love Meghan [Stepmother] and know she's keeping
them safe. And we appreciate that. But we also know
that there's some things that we can do that Allen would
like us to do, I would think.
Over the summer, Paternal Grandparents hoped to take the Children to Texas to
spend more time with Paternal Grandmother's mother, and made a plan with
Stepmother for the trip. Paternal Grandparents also wanted the Children to see
where their late Father spent time during the summers in Texas when he was a
child. However, Mother refused to accommodate this request. At that time,
Mother had the Children on alternating Tuesdays, every Thursday, and every other
weekend; thus, Paternal Grandparents were unable to schedule the trip.
The GAL testified regarding Paternal Grandparents' inability to take the Children
on the Texas trip. She stated, "They've told me they've got extended family
out-of-state and that their daddy had a history of visiting there. So I think in the
future it's important that they be able to have time to be able to take the kids to
those places."15
The family court ordered Paternal Grandparents "shall have visitation with the
minor children as mutually agreed between themselves and [Stepmother]." To the
extent the parties could not agree, the court set forth the following schedule: at
least one weekend every other month from Saturday at 6:00 p.m. through Sunday
at 6:00 p.m., one week in the summer, six hours on Father's Day, two hours on
Easter, and five hours on Christmas. We agree with the family court's award of
visitation to Paternal Grandparents, and we find it appropriate under the
circumstances of this case. Critically, we find the award comports with the
language and intent of the jurisdictional statute.
Although Paternal Grandparents were not blatantly denied visitation, certain
instances in the record can be construed as unreasonably denying visitation
because they demonstrate the inability of Mother, and possibly other parties, to be
flexible in rearranging the visitation schedule, even for events or trips that would
be beneficial to the Children. See, e.g., Brown v. Key, 425 S.C. 490, 498, 823
15
The GAL conducted two phone conferences with the family court regarding
visitation periods in an effort to help the parties reach an agreement as to
accommodating plans among the various parties. These efforts were unsuccessful.
S.E.2d 212, 217 (Ct. App. 2019) (recognizing the danger that "a parent can
circumvent the statute by intentionally and disingenuously thwarting a
grandparent's ability to meet the statutory requirements—for example, by allowing
grandparents a fleeting visit with a child every eighty-nine days or intentionally
offering visitation when parent knows grandparent cannot be available").16
Providing a set schedule in the family court's order for Paternal Grandparents'
visitation mitigates the risk of future litigation over visitation in this case, which
has been in almost constant litigation for the majority of the Children's lives.17
Accordingly, we affirm the family court's award of visitation to Paternal
Grandparents.
Conclusion
Based on the foregoing, the family court's order is
AFFIRMED IN PART and VACATED IN PART.
HEWITT, J., and LOCKEMY, A.J., concur.
16
For example, during the December trial dates, the family court encouraged the
parties to work together to develop a Christmas visitation schedule. The parties
indicated they had attempted to negotiate the Christmas visitation but discussions
had "stalled." However, the parties also indicated they were able to agree on
Halloween and Thanksgiving "very quickly." Thus, the family court asked the
GAL to facilitate reaching a Christmas visitation schedule.
17
Notably, Stepmother requested an order granting Paternal Grandparents' claim
for visitation. Mother challenged it.