South Carolina Court of Appeals opinions


Last week, the South Carolina Court of Appeals published two opinions: SCDSS v. Briggs and Tucker v. Doe.

SCDSS v. Briggs as an appeal from permanency planning order and a removal order from the family court. In the appeal, I’Tesha Briggs argued that the family court erred in (1) changing the permanent plan from reunification to relative custody concurrent with termination of parental rights (TPR), (2) allowing the Department of Social Services to forego reasonable efforts at reunification, and (3) removing her infant child based on the alleged abuse and neglect of their older children.

Briggs older three children were placed in emergency protective custody due to allegations of physical abuse. The family court determined that Briggs physically abused the children and adopted a placement plan prepared by DSS, pursuant to § 63-7-1680 of S.C. Code. The plan required Briggs to complete a psychological evaluation, attend counseling, maintain stable housing and income and complete a drug and alcohol. DSS would provide for the evaluation and counseling. In addition to the placement plan, the family court ordered a psychologist evaluate Brigg’s oldest child, a counselor observe Briggs interaction with the children, and a psychologist evaluate whether Briggs could parent the children.

Briggs was found to be compliant with the plan during the first permanency planning hearing. By the second hearing she had been discharged from therapy center for being difficult to deal with and being aggressive when redirected. At the same time, Briggs was making good progress in other areas. At the second hearing, DSS sought to be relieved of offering further services and moved for permanent plan for the children of TPR and concurrent adoption. DSS relied on reports provided from the therapy center. DSS also stated that it intended to offer support of the removal of Brigg’s youngest child, a newborn using the same evidence. The family court found changed the permanent plan for her three oldest children to relative custody concurrent with TPR and adoption. As well the court found that her youngest child was an abused and neglected child pursuant to § 63-7-20(4) (f), and ordered the child’s permanent plan to be relative custody concurrent with TPR and adoption.

This Court reversed and remanded the family court decision to allow DSS to forego reasonable efforts at reunification finding that the family court did not make adequate findings supporting its decision. Specifically, “the court did not make the findings required by § 63-7-1640 of the SC Code, nor did the court make any finding regarding the conditions listed in subsection 63-7-1640(C) as to why continuation of reasonable efforts was not in the best interest of the children.

Additionally, the Court reversed the family court’s permanent plan and remanded for a new permanency planning hearing for the court to make specific written findings to supports its decision as required by subsection 63-7-1640(F) and to consider the continuation of Brigg’s treatment services.

Finally, the Court affirmed the removal of Briggs youngest child finding that the youngest child qualifies as an abused child under 63-7-20(4) (f). Thus, the Court affirmed in part, reversed in part and remanded.

Tucker v. Doe was an appeal from the circuit court by John Doe and Doe Trucking Company arguing that the court erred in denying Doe’s motions for directed verdict and judgment notwithstanding the verdict (JNOV) because: (1) the sworn witness affidavit of Anthony Bernardo failed to satisfy the statutes requirements of section 38-77-170(2) of S.C. Code, (2) Respondent Bobby Lee Tucker, Sr. Failed to present sufficient evidence to create a question of fact about whether an unknown vehicle proximately caused his accident by leaving an object in the road, and (3) the evidence of recklessness was insufficient to sustain an award of punitive damages.

Tucker was the driver of a  tractor truck involved in a one vehicle accident when he attempted to unable to avoid an object in the road, causing him to lose control of the truck and collide with a concrete column in the medium. Two men witnessed the accident and stop to assist Tucker, one of those Bernardo provided a witness affidavit. The object in the road was discovered to be a steel bearing block found to have likely fallen from a blue freightliner truck that had traveled the same road earlier. At trial, Tucker was the only witness to testify to the accident. The court denied Doe’s motion for a directed verdict and the jury awarded Tucker $2.5 each in actual and punitive damages. Later the court reduced the punitive damages to $500K. This appeal followed.

This Court affirmed the circuit court’s decision in denying Does’ motion for directed verdict.  Looking to the historical review of the unknown driver statute in Gilliland v. Doe, the Court found that Bernado’s affidavit satisfied the witness requirements pursuant to SC Code § 38-77-170(2).

In Gilliland, our supreme court determined to what extent an independent witness must testify about the causal connection between the unknown vehicle and the accident to satisfy the legislature’s intent to protect insurance companies from fraudulent claims in “John Doe” actions. The court held the witness “must be able to attest to the circumstances surrounding the accident, i.e., what actions of the unknown driver contributed to the accident.”

357 S.C. at 200-1.

The Court distinguished its’ decision in Bradley v. Doe, 374 S.C. 622 (Ct. App. 2007) finding that in this case, Bernard, unlike any of the affiants in Bradley, actually witnessed the accident.

Secondly, the Court disagreed with Doe that Tucker failed to present sufficient evidence to create a question of fact about whether an unknown vehicle proximately caused his accident by leaving an object on the road. At trial, Tucker present evidence from Donald Wilson, a truck driver, testifying that he observed the blue freightliner truck traveling down the same interstate and that on the freightliner’s flatbed as a block that looked just like the bearing block Tucker hit. He also testified that he observed a nylon strap across it and recognized that this could be a problem causing the object to slide off flatbed. Subsequently, Harris, an expert in machine design testified without objection that the single nylon strap would not be adequate to secure the block in the flatbed. Viewing the evidence in the light most favorable to Tucker, the Court found he presented sufficient evidence to deny them motions for directed verdict and JNOV.

Finally, the Court found that the third issue on appeal was not preserved for appeal. Accordingly, the Court affirms the decision of the circuit court.

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