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Davis Adv. Sh. No. 8
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

    Richland County Department

    of Social Services,         Respondent,

        v.

    Venorris Earles, Benny

    Richardson, and Herbert

    Gilmore, of whom Venorris

    Earles is the         Appellant.

    In the Matter of: Perry

    Latisha Earles, Essie

    Sylvester Earles, Minors

    Under the Age of 18.

Appeal From Richland County

Donna S. Strom, Family Court Judge

Opinion No. 24768

Heard May 20, 1997 - Filed February 23, 1998

AFFIRMED

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        BURNETT, A.J.: Appellant, Venorris Earles (Mother), appeals the order

terminating her parental rights. We affirm.

FACTS

        In February 1995, Richland County Department of Social Services (DSS)

brought this action seeking to terminate Mother's parental rights. DSS also sought to

terminate the parental rights of the children's fathers in this action. After the termination

of parental rights hearing, the family court judge found Mother's parental rights should be

terminated pursuant to S.C. Code Ann. § 20-7-1572(l) & (2) (1976 as amended) and the

fathers' parental rights should be terminated pursuant to S.C. Code Ann. § 20-7-1572(3)

& (4) (1976 as amended).1 The family court judge ftirther found it was in the best interest

of these children to terminate Mother's parental rights.

        Mother is the biological mother of two children, a boy, Sylvester Earles,

born July 1, 1987, and a girl, Latisha Earles, born November 12, 1988. The first report

concerning this family was made on June 3, 1988 to DSS. This report was unfounded.

On November 14, 1988, a second report was made to DSS (1988 incident). This report

was indicated2 and an in-home treatment plan was implemented. On March 7, 1989, the

children were taken into emergency protective custody (1989 incident). Allegedly,

Mother left the children for four days in the care of an elderly woman who could not

adequately care for them. In the removal action, the family court judge found physical

neglect. Mother completed a treatment program including parenting skills training at the

Nurturing Center and a 29 day in-patient alcohol dependency program at the VA

Hospital. The children were returned to Mother's custody on December 12, 1989. This

case was closed on June 1, 1990. The services provided by the Nurturing Center were

terminated on August 21, 1991.

        On November 9, 1991, the children were again taken into emergency

protective custody and they have remained in the custody of DSS since that date (1991

incident). Latisha had scars all over her body and a "gash" in her forehead at the time of

the removal. According to the medical report, Latisha had stated her mother was

responsible for the gash; Mother denies responsibility for the gash. Allegedly, Latisha

appealed the termination of their parental rights.

        2An indicated report "means a report of child abuse or neglect supported by facts

which warrant a finding by a preponderance of evidence that abuse or neglect is more likely

than not to have occurred." S.C. Code Ann. § 20-7-490(13) (Supp. 1996).

p. 22

was also locked in a closet and had been burned with cigarettes. Mother denied

committing these acts; however, a witness for Mother admitted Mother had told her she

had burned Latisha and locked her in a closet. Latisha was also severely malnourished.

At the time of this second removal, Latisha, who was three years old, weighed less than

20 pounds. This weight was less than when Latisha was returned to Mother in December

1989. The medical report concludes Latisha's medical history indicates chronic abuse.3

Mother only admits to not feeding Latisha for three or four days as a form of punishment.

According to Mother's testimony she was sober when this incident occurred.

        On April 29, 1992, Mother plead guilty to felony child abuse and was

sentenced to six years in jail. Mother was released from jail on four years probation on

March 1, 1993. Since the 1991 incident, Mother has constantly asked to be reunited with

her children. The decision to terminate Mother's parental rights occurred in April 1992.4

In July 1992, the Family Court ordered visitation between Mother and the children to

cease because visitation was traumatizing the children and adversely affecting their

progress. In November 1992, DSS was granted an order by the family court no longer

requiring it to provide services to Mother. DSS had provided Mother extensive services

following the 1988 and 1989 incidents; however, no services were offered following the

second removal action in 1991. The only evaluation done was a court-ordered

psychological evaluation performed in 1994. Neither DSS nor the children's guardian ad

litem (GAL) attempted to determine whether Mother had rehabilitated herself since 1991

or attempted to evaluate her current status as a potential parent. Shortly after the 1991

incident, the GAL offered her services to Mother; however, Mother declined her help.

On March 21, 1995, Mother met with the current DSS case worker. This case worker

offered to secure services for Mother, but Mother declined. Further, the case worker

testified she would have assisted Mother in obtaining services even though DSS had been

relieved of the duty to provide services. Mother did participate in some courses while in

prison. After leaving prison, Mother went to the Women's Shelter where she took several

classes and received counseling. Many of these courses were mandatory. Further, the

focus of these courses and counseling were on improving Mother and teaching her to be

self-sufficient and not on abuse issues. Mother then moved into transitional housing for

two years. Mother has recently moved out of transitional housing. Mother admitted at

the hearing she was not yet capable of caring for the children; however, she would like

visitation.

        4No explanation was provided as to why DSS waited almost three years after this

decision to start the termination of parental right action.

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        While in foster care following the 1991 incident, the children reported they

had been sexually abused by Mother. At the termination of parental rights hearing, Dr.

Lois Wandersman, a clinical psychologist, who was qualified as an expert in sexual

abuse, testified she had approximately 90 sessions with Sylvester and 50 sessions with

Latisha beginning in May 1992 and ending November 1994. At the time Dr.

Wandersman began seeing the children, both were showing serious behavior problems,

including sexual acting out. The family court judge found the children were unavailable

and the statements trustworthy pursuant to S.C. Code Ann. § 19-1-180 (Supp. 1996).

Therefore, over the objection of Mother, Dr. Wandersman was allowed to testify as to

statements made by the children about the sexual abuse during the therapy sessions.

According to Dr. Wandersman's testimony, in August 1993 Sylvester revealed Mother

had been sexually abusing him and Latisha. Dr. Wandersman testified she found

Sylvester's statements credible and did not believe the statements were coached.

According to Dr. Wandersman, it is not unusual for children to delay disclosure of abuse

for a long period of time. Dr. Wandersman testified Sylvester's behavior was consistent

with sexual trauma. Dr. Felicia C. Myers, Coordinator for the Children Adolescent

Family Program at Lexington County Medical Health Center where Sylvester was

currently receiving treatment, testified she believed Sylvester had been sexually abused.

Sylvester had not disclosed to Dr. Myers who committed the abuse. Mother denies any

sexual abuse and has refused to obtain counseling for sexual abuse.

        Sylvester continues in mental health care and suffers from severe problems

including masturbation, touching adults on their breasts, getting on top of the foster

mother while she is in bed, and going into his foster mother's room to see her change

clothes. At the time of the hearing, DSS had no immediate plans for permanent

placement for Sylvester. However, DSS hopes Sylvester will be placed after undergoing

more treatment. Latisha has improved greatly since 1991 and Latisha's foster parents

wish to adopt her.

ISSUES

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DISCUSSION

I.

        Mother claims the family court judge erred in admitting the children's

hearsay statements into evidence under S.C. Code Ann. § 19-1-180 (Supp. 1996), because

the judge failed to make the necessary findings of unavailability and trustworthiness.5

We disagree.

        Section 19-1-180 provides out-of-court statements made by children

concerning an act of abuse or neglect may be admitted in family court proceedings if the

child testifies or the child's out-of-court statement is shown to possess particularized

guarantees of trustworthiness and the child is found unavailable to testify on one of the

following grounds:

S.C. Code Ann. .§ 19-1-180(B)(2)(a) (Supp. 1996).

        First, the family court judge was not required to make any findings

concerning Latisha's unavailability or the trustworthiness of her statements. DSS did not

attempt to elicit testimony from Dr. Wandersman of statements made by Latisha. Instead,

Dr. Wandersman, on direct examination, only testified of statements made by Sylvester.

Latisha's statements were admitted as part of Dr. Wandersman's affidavit which Mother

offered into evidence. Thus, Mother cannot now complain of hearsay statements in that

document attributable to Latisha.

        The family court judge found the children unavailable to testify in person at

the proceeding because of the likelihood the children would suffer severe emotional

trauma. The judge determined she was not required to find the children would also suffer

trauma if they testified by videotape or closed-circuit television. This was error.

Unavailability under § 19-1-180(B)(2)(a)(v) requires a finding that the child will suffer

p. 25

severe trauma by testifying under all three methods.

        However, the evidence in the record supports a finding that Sylvester would

suffer severe trauma if forced to testify under any method. Dr. Wandersman testified

Sylvester would suffer severe trauma by testifying under any method. Admittedly,

because Dr. Wandersman had not seen Sylvester in a year, her opinion on this issue is

suspect. However, Dr. Myers, who was treating Sylvester at the time of the hearing, also

testified Sylvester would be severely traumatized, thus corroborating Dr. Wandersman's

opinion. Dr. Myers also testified that Sylvester's reaction had been extremely severe the

last time the topic of his mother was discussed. According to Dr. Myers, Sylvester

became very angry and aggressive. Thus, although the family court judge erred, the

evidence supports a finding that Svlvester would be traumatized under any circumstances.

        Dr. Wandersman testified she found Sylvester's statements to be

trustworthy and credible. Using the criteria set forth in § 19-1-180(D), the family court

judge also found Sylvester's statements were trustworthy and credible. The judge found

Dr. Wandersman to be a credible witness and the statements attributable to Sylvester were

not coached. Further, Sylvester's description of the sexual abuse represented a graphic,

detailed account beyond a child of Sylvester's age, knowledge and experience and

demonstrated a personal knowledge of the abuse. Because the record contains evidence

supporting the family court judge's findings and because findings concerning the

trustworthiness of the statements are a credibility issue, this Court will give great

deference to the family court's determination on the issue of trustworthiness. Aiken

County Dep't of Social Services v. Wilcox, 304 S.C. 90, 403 S.E.2d 142 (Ct. App. 1991)

(because appellate court lacks opportunity for direct observation of the witness, it should

accord great deference to family court judge's findings where matters of credibility are

involved).

II.

S.C. Code Ann. § 20-7-1572(1)

        Mother contends the evidence was insufficient to support a termination of

her parental rights under § 20-7-1572(l) because DSS failed to prove by clear and

convincing evidence Mother's home could not be made safe within twelve months. We

disagree.

S.C. Code Ann. § 20-7-1572(l) provides for termination when:

p. 26

        A ground for termination of parental rights must be proved by clear and

convincing evidence. Greenville County DSS v. Bowes, 313 S.C. 188, 437 S.E.2d 107

(1993). In reviewing a termination of parental rights, the appellate court has the authority

to review the record and make its own findings of whether clear and convincing evidence

supports the termination. SCDSS v. Brown, 317 S.C. 332, 454 S.E.2d 335 (Ct. App.

1995).

        In our opinion, the evidence clearly and convincingly supports termination

of Mother's parental rights on this statutory ground. The evidence clearly and

convincingly established the children had been harmed by Mother. According to

Mother's testimony, she was the sole caretaker of these children and no one else could

have abused Latisha or Sylvester. Latisha was severely malnourished. Contrary to

Mother's contention, it should take more than three or four days for a healthy three-year-

old to reach the state of malnourishment Latisha had reached at the time of the removal.

Mother's own testimony demonstrates the depth of Mother's cruelty in attempting to

starve Latisha. According to Mother, while denying Latisha food, Mother forced Latisha

to watch her brother eat. Further, the medical report, the pictures and the GAL's

testimony demonstrated Latisha had been beaten and burned in addition to the

malnourishment. In the medical report, which was admitted without objection, Latisha

stated the gash on her head was caused by Mother hitting her. The GAL's testimony, also

admitted without objection, corroborated the statement in the medical report. Even one of

Mother's witnesses testified Mother had admitted to her that Mother had burned Latisha

and locked her in a closet. The medical report concluded the abuse was chronic.6 Thus,

Latisha's condition was not the result of a one time incident.

        The evidence also clearly established Mother was sexually abusing these

children. Dr. Wandersman testified these children had been sexually acting out since

removal in 1991 and their behavior was consistent with sexual abuse. Dr. Myers also

testified Sylvester's behavior was consistent with sexual abuse and she believed Sylvester

had been sexually abused. Sylvester told Dr. Wandersman Mother had been sexually

abusing him and Latisha all their lives. Sylvester's description of the sexual abuse is

graphic and detailed. Dr. Wandersman's testimony concerning statements made by

Sylvester about the abuse are believable and Sylvester's statements do not appear

Dictionary 254 (2d college ed. 1976).

p. 27

coached. Thus, clearly Mother, repetitively and severely, physically and sexually abused

these children.

        Further, clear and convincing evidence established Mother's home could

not be made safe. Although DSS did not provide Mother with any treatment after the

1991 incident, Mother had already received extensive parenting training on two prior

occasions. Unfortunately, these treatment plans were not successful as demonstrated by

the fact that the second removal occurred less than three months after Mother's

association with the Nurturing Center was terminated. Further, these children have been

severely traumatized and the mention of their mother causes adverse effects on the

children.

        Contrary to Mother's contention, § 20-7-1572(l) does not require DSS to

show Mother has failed to rehabilitate. Instead, DSS only has to show because of the

severity or repetition of the harm,. Mother's home cannot be made safe. This section does

not require that DSS provide Mother with a second or third chance. Because of the

severity and repetitive nature of the abuse and because Mother had received extensive

parenting courses in the past, we find the family court correctly determined Mother's

home could not be made safe for these children.

        Therefore, we affirm the family court's order terminating Mother's parental

rights under § 20-7-1572(l).7

Best Interest of the Child

        Mother further contends the family court improperly relied on the

nonstatutory ground of best interest of the child to terminate Mother's parental rights.

We disagree.

        At the time of this hearing, the best interest of the child was not a statutory

ground for termination of parental rights. See Hopkins v. SCDSS, 313 S.C. 322, 437

S.E.2d 542 (1993) (Chandler, A.C.J., concurring opinion). Here, the family court judge

determined parental rights should be terminated pursuant to the statutory grounds set out

in § 20-7-1572(l).8 The family court judge then found, in an abundance of caution,

that DSS failed to prove by clear and convincing evidence that Mother's parental rights

should be terminated under § 20-7-1572(2).

        8We note, effective January 1, 1997, a family court judge is required to make the

additional finding that termination is in the best interest of the child. S.C. Code Ann. § 20-7-

p 28.

termination was in the best interest of the children. The family court judge did not

consider the best interest of the child as a ground for termination of parental rights.

AFFIRMED.

        FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.

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