SCDSS v. Karen K. Larsen ( 2019 )

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
South Carolina Department of Social Services,
Respondent,
v.
Edward Larsen and Karen K. Larsen, Defendants,
Of whom Karen K. Larsen is the Appellant.
In the interest of minors under the age of eighteen.
Appellate Case No. 2019-000133
Appeal From Richland County
Rosalyn Frierson-Smith, Family Court Judge
Unpublished Opinion No. 2019-UP-373
Submitted November 8, 2019 – Filed December 3, 2019
AFFIRMED
Lyn Howell Hensel, of Law Office of Lyn Howell
Hensel, of Columbia, for Appellant.
Scarlet Bell Moore, of Greenville, for Respondent.
Angela L. Kohel, of Kohel Law, LLC, of Columbia, for
the Guardian ad Litem for the minor children.
PER CURIAM: Karen Larsen (Mother) appeals the family court's merits order
removing Child 1 and Child 2 (collectively, Children) from her home. Mother
argues the family court erred by (1) not returning Children to her because she was
a non-offending parent and did not subject Children to abuse, neglect, or sexual
abuse; (2) authorizing the South Carolina Department of Social Services (DSS) to
forego reasonable reunification efforts with her when the family court did not find
she abused or neglected Children; and (3) not making specific written findings to
support its decision to allow DSS to terminate reasonable efforts at reunification.
We affirm.
On appeal from the family court, this court reviews factual and legal issues de
novo. Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011); see
also Lewis v. Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). Although this
court reviews the family court's findings de novo, this court is not required to
"ignore the fact that the [family court], who saw and heard the witnesses, was in a
better position . . . to evaluate their credibility" and assign comparative weight to
their testimonies. Lewis, 392 S.C. at 385, 709 S.E.2d at 652 (quoting Inabinet v.
Inabinet, 236 S.C. 52, 55-56, 113 S.E.2d 66, 67 (1960)). "[A]n appellant has the
burden of showing the appellate court that the preponderance of the evidence is
against the finding of the [family court]." Stoney v. Stoney, 422 S.C. 593, 595, 813
S.E.2d 486, 487 (2018).
We find the family court did not err in not returning Children to Mother. See S.C.
Code Ann. § 63-7-1660(E) (2010) (stating the family court's findings in a removal
action must be supported by a preponderance of the evidence); id. (stating the
family court must determine if the child was "abused or neglected" and "that
retention of the child in or return of the child to the home would place the child at
unreasonable risk of harm affecting the child's life, physical health or safety, or
mental well-being and the child cannot reasonably be protected from this harm
without being removed"); S.C. Code Ann. § 63-7-20(6)(a)(i)-(ii) (Supp. 2019)
(providing "[c]hild abuse or neglect" or "harm" occurs when a parent "(i) inflicts or
allows to be inflicted 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 . . . [or] (ii) commits or allows to be committed against the child a sexual
offense . . . or engages in acts or omissions that present a substantial risk that a
sexual offense . . . would be committed against the child"). Here, the family court
found Edward Larsen (Father) sexually abused Child 1 and Child 2 was at a
substantial risk of sexual abuse because she lived in the home. At the merits
hearing, Mother still lived with Father. If Children were returned to Mother's
home with Father, Children would have been placed at an unreasonable risk of
harm.
We also find the family court did not err in foregoing reunification efforts with
Mother. See S.C. Code Ann. § 63-7-1640(C)(1)(a)-(b) (Supp. 2019) (providing the
family court can "authorize [DSS] to terminate or forego reasonable efforts to
preserve or reunify a family when the records of a court of competent jurisdiction
show or when the family court determines that one or more of the following
conditions exist: (1) the parent has subjected the child or another child while
residing in the parent's domicile to one or more of the following aggravated
circumstances: (a) severe or repeated abuse; [or] (b) severe or repeated neglect");
§ 63-7-20(6)(a)(i)-(ii) (providing that "child abuse or neglect" or "harm" occurs
when a parent "(i) inflicts or allows to be inflicted 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 . . . [or] (ii) commits or allows to be
committed against the child a sexual offense . . . or engages in acts or omissions
that present a substantial risk that a sexual offense . . . would be committed against
the child"); S.C. Code Ann. § 63-7-1640(F) (Supp. 2019) ("If the [family] court
authorizes [DSS] to terminate or forego reasonable efforts to preserve or reunify a
family, the [family] court must make specific written findings in support of its
conclusion that one or more of the conditions set forth in subsection (C)(1) through
(8) are shown to exist, and why continuation of reasonable efforts is not in the best
interest of the child."). We acknowledge the family court did not make specific
findings to support its conclusions as required by section 63-7-1640(F). However,
under a de novo review, this court can find facts in accordance with its own view
of the preponderance of the evidence. See Holcombe v. Hardee, 304 S.C. 522,
524, 405 S.E.2d 821, 822 (1991) (stating that when the family court fails to make
specific findings of fact, appellate courts "may remand the matter to the [family]
court or, where the record is sufficient, make its own findings of fact in accordance
with the preponderance of the evidence"). Here, Mother lived with Father and had
consistently denied he sexually abused Child 1. Mother's denial of the abuse and
decision to continue to live with Father constituted acts or omissions that present a
substantial risk a sexual offense would be committed against Children. Further,
given the nature of the abuse, we find Mother's actions constituted severe harm.
Additionally, we find reunification efforts with Mother were not in Children's best
interests. See § 63-7-1640(F) ("In determining whether to authorize [DSS] to
terminate or forego reasonable efforts to preserve or reunify a family, the [family]
court must consider whether initiation or continuation of reasonable efforts to
preserve or reunify the family is in the best interests of the child."). Here, Child 1
testified Father sexually abused her, she did not feel safe or loved in the home, and
she would run away if she were returned to Mother and Father. Child 2 testified
she did not feel safe in the home, she did not always feel loved and important, and
she did not want to live with Mother and Father. Additionally, Child 1; Jessica
Koumas, Children's foster care worker; Anna Jones, a supervising caseworker; and
the Guardian ad Litem (the GAL) testified visits between Children, Mother, and
Father were not positive. Children ultimately refused to visit with Mother and
Father. The GAL and Tequila Hunter, a DSS caseworker, believed Children
should not be returned to Mother and Father. Based on the foregoing, we find
reunification efforts with Mother were not in Children's best interests.
AFFIRMED.1
HUFF, WILLIAMS, and MCDONALD, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.