Who buggered my dog?

Posted Thursday, September 22nd, 2011 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Appellate Decisions

In the September 21, 2011 Court of Appeals opinion of South Carolina Department of Social Services v. Mary C., 396 S.C. 15, 720 S.E.2d 503 (Ct. App. 2011), a child’s therapist opined that a three-year old’s masturbating and defying her potty training by urinating on the floor were signs of “sexualized behaviors” indicative of sexual abuse.

This leads me to ponder: who buggered my dog?

Mary C. stems from a highly contentious visitation case which required DSS intervention.  From the Court of Appeals opinion, Mother appears to be one of the more disputatious (heck, even vile) family court litigants to become immortalized by our appellate courts.

Even the history of this couple’s first sexual encounter was disputed, with Mother testifying she had no recollection of this encounter due to “an adverse reaction from a pain medication mixed with alcohol.”  This did not stop her from continuing to have sex with Father and the family court did not find her credible on this issue (the dynamics of their interracial relationship may have played a factor in how contentious this case became).  Eventually a child was conceived.  Father initially wanted Mother to have an abortion but decided to become involved in his daughter’s life shortly before her birth.

At first Mother would only allow Father supervised visitation.  The family court eventually awarded Father non-overnight visitation and finally he was awarded overnight visitation.  Shortly before Father was to begin this overnight visitation, Mother took their daughter to therapy sessions with a specialist in sexual abuse and post-traumatic stress disorders.   Up to this point, no sexual abuse allegations had been made.  That therapist found the child had sexualized behaviors.  The family court suspended Father’s visitation and DSS brought an intervention action.   The family court consolidated the private action and DSS action and indicated it would try the intervention action before proceeding to the private action.

At trial in the intervention action Mother presented evidence that Father [and apparently Father’s young-adult daughter(s)] had sexually abused their daughter and Father disputed this evidence.  At the conclusion of the intervention action, the family court found the child had been sexually abused but the perpetrator was unknown.  It dismissed DSS, ordered the parties to pay a portion of the attorney’s fees for the DSS guardian and a portion of the private guardian’s fee.  Mother appealed these three issues.

The fact pattern, as recited by the Court of Appeals, presents a case study in how medical professionals who are untrained in forensic sexual abuse issues can bungle these investigations: asking a child repeated and leading questions until they obtain the answer they are expecting; failing to distinguish developmentally appropriate and common behaviors from behaviors that might be indicative of abuse; failing to consider the nature and number of previous interviews regarding sexual abuse in reaching their conclusions.  Numerous experts testified supporting both parents’ positions.  However it appears that Mother’s experts may have subtly and unwittingly coached the child and the child continued to display these sexualized behaviors long after she stopped having contact with Father.

I have litigated a few similar cases and these fact patterns are distressingly familiar: Mother doesn’t particularly like or trust Father and when the child displays developmentally appropriate behaviors involving his or her genitals (three year olds masturbate and children often defy potty training by eliminating in places they’re not supposed to), Mother suspects Father has sexually abused the child.  Mother asks the child myriad leading questions suggesting Father sexually abused the child until Mother gets a response that confirms her suspicions (the child often trying to please his or her primary caretaker).  Mother then takes child to the pediatrician/law enforcement/sexual abuse counselor/any combination thereof, who often engage in their own leading and suggestive interviews of the child.  These interviews “substantiate” the sexual abuse. Typically, unless the Father has the financial wherewithal to hire his own experts to review and analyze the previous child interviews, he is found to have sexually abused the child (or submits to a finding to avoid the expense of further litigation).

Here Father had the ability to mount a vigorous defense and the Court of Appeals found there was substantial evidence to justify the family court’s determination that it could not determine Father was the perpetrator of abuse on his daughter.  The substantial testimony presented during this seven-day trial appears to have made the Court of Appeals especially deferent to the family court’s determination, as the trial judge was in the best position to assess these witnesses’ credibility.  Since no one appears to have challenged the finding that the child was sexually abused, the Court of Appeals failed to consider whether abuse actually took place.  Thus, unless a subsequent opinion reverses this one, there is a binding factual finding that this child was abused but, apparently, the perpetrator will remain unknown.

Mother did successfully appeal the two financial issues.  The Court of Appeals found that the family court lacked any authority to require a parent to pay a portion of the volunteer guardian ad litem’s attorney’s fees in a DSS case and therefore reversed the award of attorney’s fees.  The family court had initially reserved payment of the private guardian’s fee for resolution of the private case and that guardian failed to provide a fee affidavit at the close of the intervention case.  Because of this, the Court of Appeals found that the family court failed to follow the mandates of S.C Code § 63-3-850 of the guardian ad litem statute in awarding fees and reversed that award.  In actuality, all this ruling does is defer an award of the private guardian’s fees pending subsequent order in the private case.

Mother’s attorney, J. Benjamin Stevens, is a friend and colleague (and the creator and moderator of the most popular family law blog in South Carolina).  He claims this opinion fails to list all the important facts and factors that were raised at trial.  In my own experience, appellate courts often provide a one-sided description of facts in order to make their rulings more justifiable so Ben’s claim may well be accurate.  However, the Court of Appeals fact pattern makes Mary C. appear one of the more disagreeable parents to grace family court and is an indication of why child sexual abuse allegations–which should be unequivocally tragic–often degenerate into farce.