Background
The South Carolina Supreme Court affirmed a family court order finding that Gerardo Pimienta sexually abused his then-stepdaughter, identified as AP, and directing that his name be placed on the Central Registry of Child Abuse and Neglect. The decision also upheld the constitutionality of using a preponderance of the evidence—the ordinary civil standard requiring the more convincing evidence—in a Department of Social Services intervention proceeding under section 63-7-1650(E) of the South Carolina Code.
AP testified that Pimienta touched her beneath her clothing in 2020, when she was twelve, and continued until she asked him several times to stop. She disclosed the incident to her mother the next day but asked that it not be reported because she feared another family breakup. She reported it to a therapist in 2022, leading to a DSS investigation. Pimienta denied intentional touching and argued the contact, if any, was accidental. AP’s mother supported that account and pointed to photographs in which AP appeared comfortable around him. After hearing the witnesses, the family court found AP credible, found abuse by a preponderance of the evidence, ordered Pimienta placed on the Central Registry, and closed the case without changing custody or imposing a treatment plan.
On direct appeal, Pimienta argued that due process required DSS to prove abuse by clear and convincing evidence. He also challenged the sufficiency of the evidence. The appeal produced a divided court: Justice James wrote for a three-justice majority, while Justice Few dissented on the factual issue in an opinion joined by Chief Justice Kittredge.
The Court’s Holding
The majority first observed that Pimienta had challenged statutory provisions that did not precisely govern the family court’s decision. Section 63-7-1650(A) controls DSS’s determination to petition, and section 63-7-1660(E) concerns removal cases. The operative provision here was section 63-7-1650(E), governing intervention and protective services. The Central Registry statute, section 63-7-1940(A)(1)(b), separately mandates registration when the court finds by a preponderance that a person sexually abused a child. Pimienta had not specifically challenged that provision either.
Even addressing the constitutional merits, the court held that the preponderance standard satisfies due process. It distinguished Santosky v. Kramer, where the United States Supreme Court required clear and convincing proof before a state could permanently and irrevocably terminate parental rights. A South Carolina intervention proceeding does not itself sever all parent-child contact or authorize termination. It can support protective services or a treatment plan, and its consequences are not the irreversible destruction of family ties at issue in Santosky. Pimienta also had no parental rights in AP, his former stepdaughter. Those differences meant that the heightened standard constitutionally required for termination did not extend to this intervention.
Applying de novo review to the facts while recognizing the family court’s superior position to judge credibility, the majority also affirmed the abuse finding. AP gave a specific account, remembered the movie playing during the incident, and had told her mother the next day that the touching was not accidental. The majority credited her explanation that she tried to appear normal afterward to avoid splitting the family. It found the selected photographs unpersuasive and agreed that the mother’s failure to report, despite a court-ordered duty to keep AP’s father informed, gave her a self-protective reason to minimize what occurred.
The dissent would have reversed without reaching the constitutional issue. Justice Few emphasized inconsistencies about the location and duration of the touching, the family court’s failure to identify expressly the intentional sexual act it found, the presence of other children, and AP’s conduct after the incident. In his view, de novo review required the appellate court to make its own findings, and DSS had not carried even the preponderance burden.
Key Takeaways
- The preponderance of the evidence standard in section 63-7-1650(E) is constitutional for South Carolina child-protection intervention proceedings.
- Santosky‘s clear-and-convincing requirement is tied to the permanent termination of parental rights and does not automatically govern less final protective proceedings.
- Constitutional challenges must identify the provision that actually controls the challenged order; related statutes governing agency petitions, removal, or Central Registry placement are not interchangeable.
- De novo family-court review permits independent factual findings, but the trial judge’s credibility assessment remains important and the appellant retains the burden of showing error.
Why It Matters
The decision settles an important burden-of-proof question for South Carolina intervention cases. DSS and family-law practitioners can proceed under the statutory preponderance standard when the requested relief is intervention rather than termination of parental rights. At the same time, counsel should match any due-process challenge to the precise statutory consequence at issue. Central Registry placement is governed by its own provision, and a challenge aimed only at petition or removal statutes may miss the operative law.
The 3–2 division also makes record development critical. Practitioners should seek explicit findings on the act, intent, credibility, and statutory definition of abuse, especially when physical evidence is absent and testimony conflicts. On appeal, arguments should account for both parts of South Carolina’s review framework: the appellate court may find facts de novo, yet it generally respects the family court’s opportunity to observe witnesses. The majority’s treatment of delayed disclosure and outwardly normal behavior is particularly relevant when evaluating credibility in child-abuse litigation.