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Domestic Relations – Parent & Child – Abuse Registry – Coaching Defense – Child’s Hearsay

A counselor testified that it was “more likely than not” that a six-year-old would be traumatized by testifying and that the child was substantially likely to experience certain distress symptoms. This testimony was not sufficient to support the family court’s finding that there was a substantial likelihood that the child would suffer severe emotional trauma from testifying. In addition, the family court erred by limiting the defendant-Father’s cross-examinations, thereby preventing him from presenting certain evidence that Mother had coached the child.

We affirm the family court’s finding that it had subject matter jurisdiction and its qualification of an expert witness. However, we reverse Father’s entry onto the Central Registry of Child Abuse and Neglect and remand for a new trial.

There was a custody battle going on between the parents when the child made allegations that Father had “licked my butt and my no-no” while she was visiting Father in North Carolina. In this action (separate from the custody litigation), the family court declined to have the child testify and instead admitted her out-of-court statements. After also limiting Father’s cross-examination of Mother, the family court placed Father on the Central Registry.

Even though the alleged abuse occurred in North Carolina, (1) the legislature has conferred jurisdiction over abuse and neglect cases in South Carolina to family courts, (2) Father’s entry on the Central Registry will affect the child’s future custody and visitation determinations, and (3) there was a previous custody order over the child in the State of South Carolina. Moreover, this court is always mindful of a child’s best interest, and the forensic interview, victim statements, and therapy all occurred in South Carolina (where the child and Mother reside). Under these circumstances, the family court properly applied the Uniform Child Custody Jurisdiction and Enforcement Act and found that it had jurisdiction over this matter.

Elizabeth Creed testified she had an undergraduate degree in experimental psychology and a graduate degree in counselor education. She also testified that she underwent 750 hours of supervision and direct counseling. Moreover, she counseled the child.

Therefore, Creed possessed the specialized knowledge to assist the family court in determining a fact in issue. Rule 702, SCRE. Although we acknowledge Creed had not completed her supervised training, testified in court, or published a paper, these assertions go towards the weight of her testimony and not the admissibility.

However, the family court improperly limited the evidence during the hearing on the motion brought under S.C. Code Ann. § 19-1-180. On cross-examination, Father attempted to ask Creed whether she knew about the parents’ divorce proceedings, and the court sustained plaintiff-DSS’s objection on the grounds of relevancy and scope. Father argues the previous question he had asked—whether Creed was aware of the family’s situation going on with the child—was different from whether the witness had knowledge of the divorce proceedings. Therefore, he asserts the family court erred in excluding this line of questioning because it was relevant to the statutory factors to be considered before ruling on the motion. We agree. The family court abused its discretion by limiting Father’s cross-examination of Creed because evidence regarding the parents’ divorce was relevant to the trustworthiness of the child’s statements.

Father’s primary defense at the pre-trial hearing was that Mother had coached the child to make the abuse allegations in order to succeed in the custody action. Father initially asked Creed whether she was aware of the background and the family’s situation with the child prior to the allegations, and she said she was not. He then asked whether she was aware of the divorce proceedings, and the other parties objected.

The second question was sufficiently different from the first and was relevant because one of the factors the family court may consider regarding trustworthiness is “any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion . . . .” § 19-1-180(D)(4). Therefore, we hold the family court abused its discretion by limiting Father’s cross-examination of Creed regarding the divorce proceedings.

The family court also abused its discretion by admitting the child’s hearsay statements because the testimony elicited at trial was not sufficient to support the court’s finding that the child was unavailable.

At the pre-trial hearing, Creed initially testified, “[I]t is possible that [the child] would experience severe emotional trauma from testifying.” When pressed by counsel, she further explained that possible meant “more likely than not.”

Creed then described the different types of distress symptoms a six-year-old might experience from testifying and opined she thought the child was likely to experience the same sort of symptoms. Creed was then asked, “Do you think she is substantially likely to experience those?” and she replied, “I do.”

This testimony did not provide evidentiary support for the family court to find there was a substantial likelihood that the child would suffer severe emotional trauma from testifying. Therefore, the trial court abused its discretion by finding the child was unavailable to testify and admitting her out-of-court statements.

Finally, the family court abused its discretion by limiting Father’s cross-examination of Mother because evidence regarding Mother’s motive to coach the child was relevant to facts in issue. Here, the evidence against Father was the child’s repeated statements to several people. Father’s primary defense was that Mother had allegedly coached the child to make the allegations and that Mother had wielded abuse allegations in the past to accomplish her goals.

Father’s questions were relevant because the answers could make Father’s defense more or less probable; thus, the family court erred by not allowing him to question Mother on the relevant evidence. Moreover, this limitation of questioning was particularly prejudicial because Father was not allowed to cross-examine the child regarding the allegations.

Affirmed in part, reversed in part, and remanded for a new trial.

South Carolina Department of Social Services v. Scott (Lawyers Weekly No. 011-001-23, 16 pp.) (James Lockemy, A.J.) Appealed from Kershaw County Family Court (Michelle Hurley & Rosalyn Frierson-Smith, JJ.) Katherine Carruth Goode and Foster Manly Mathews for appellant; Megan Jeanine Katherine Meekins and Scarlet Bell Moore for respondent. S.C. App.

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