SCDSS v. Gerardo PimientaSCDSS v. Gerardo Pimienta
Gregory Samuel Forman, of Gregory S. Forman, PC, of Charleston, for Appellant Gerardo Pimienta.
Jillian D. Ullman, of Charleston, and Alwyn Taylor Silver, of Georgetown, both for Respondent South Carolina Department of Social Services.
Jessica Leigh Birt, of Summerville, for Guardian Ad Litem Abigail Luftig. Serge Palatkin and Natalya Pimienta, both of Summerville, Defendants pro se.
I. Background
In December 2022, the South Carolina Department of Social Services (DSS) received a report alleging Appellant inappropriately touched his then-stepdaughter, AP, in August 2020. At the time of the alleged abuse, AP was twelve years old, and Appellant was married to and living with AP‘s mother, Defendant Natalya Pimienta (Mother). Appellant and Mother separated around a year later. Mother is also divorced from AP‘s father—Defendant Serge Palatkin (Father).
In January 2023, DSS indicated against Appellant for sexual abuse, and after Appellant appealed, the indication was upheld by the DSS Dorchester County Director. In May 2023, DSS petitioned the family court pursuant to South Carolina Code section
The family court heard the case in February 2025. Appellant submitted a pre-hearing memorandum arguing the preponderance of the evidence burden of proof found in South Carolina Code subsections
AP testified she told Mother about the touching the next morning, and Mother called Appellant. According to AP, Appellant apologized over the phone to AP for making her feel uncomfortable and told her he was drunk at the time. AP also testified Appellant came home after the phone call, hugged AP, and at the time, AP forgave him because she “wanted to just pretend this was just a drunk accident and let him move on” and “just wanted everything to go back to normal.” AP further testified she asked Mother not to tell the police because she “had witnessed a divorce before [and] did not want to see the family split up anymore” and she was “just a scared little kid.” AP told her therapist about the touching in 2022 and the therapist reported the allegations to DSS. Soon after, AP also told Father, and he reported the allegations to law enforcement.
During cross-examination of AP, Appellant presented AP with a series of photographs featuring her and Appellant allegedly from around the same time as the incident, but AP could not testify as to when the photographs were taken. AP testified that after the incident, she was uncomfortable being around Appellant, but she was “just masking it and trying to act as if nothing happened” and “in order to prevent the whole family splitting up . . . [she] tried to act [] casual as if it didn‘t happen.” AP also testified she might have looked comfortable in the photographs with Appellant, but she “wouldn‘t be showing any discomfort in photos. I‘ve learned to smile for them every single time.”
DSS family preservation case manager Myashia Carter testified DSS was seeking a finding of sexual abuse against Appellant but was not requesting a treatment plan for Appellant, a change in the custody plan of any children, or a finding against Mother for failing to protect AP from Appellant. Carter also testified DSS was aware that DP, Appellant and Mother‘s minor male son, stayed with Appellant, but that DSS had no concerns regarding that child. Carter further testified Father filed a private action and was granted custody of AP and IP in February 2023.
Appellant presented Mother with the aforementioned photographs featuring AP and Appellant allegedly from around the time of the incident. Mother testified it did not look like AP was faking her smile. Mother confirmed a photograph was taken of AP, her sister, and her half-sister in the bed with Appellant shortly after the alleged touching would have occurred. Mother testified she thought the photograph was “cute” and from the image, she did not think sexual abuse had just occurred, but she noted Appellant could have accidentally touched AP‘s underwear or pants. Mother testified neither of the two other children in the photograph reported the touching to her nor were they upset that night. Mother further testified she had no concerns about Appellant abusing any of her children, including the son they have together. Mother testified the allegations reemerged almost two and a half years later when AP began expressing a desire to live with Father. Mother testified that, at that time, she and Appellant had been separated and had been living apart for around a year. Mother testified she believed Father was brainwashing AP because AP started acting differently and talking about the allegations against Appellant once AP moved in with Father. Mother also testified AP‘s story changed over time, including the duration of the touching—ranging from “the hand was kind of place[d] there and then it was off” to “it went to as far as five to seven minutes.”
Appellant testified last. Appellant testified he has nine children—seven girls and two boys. Appellant testified he had two drinks the day of the alleged incident during dinner with his employees, but he was not intoxicated and he did not tell Mother he was drunk at the time. Appellant testified AP misunderstood what happened and that he may have touched her when pushing up to get out of the bed to take a shower; however, he did not remember touching her and did not remember AP asking him to stop. Appellant further testified he did not touch AP
In March 2025, the family court issued an Order of Intervention and Order Closing Case pursuant to South Carolina Code section
Appellant appealed directly to this Court. He challenges the constitutionality of the preponderance burden of proof imposed by South Carolina Code subsections
II. Discussion
A. Constitutionality
DSS has a statutory duty to investigate all reports of suspected child abuse and neglect.
Appellant argues the preponderance of the evidence burden of proof set forth in South Carolina Code subsections
However, even if Appellant had properly challenged the constitutionality of the preponderance burden of proof in South Carolina Code subsection
Appellant primarily relies on Santosky v. Kramer, 455 U.S. 745 (1982), to argue due process requires a “clear and convincing evidence” burden of proof in this case. In Santosky, the Supreme Court of the United States analyzed a New York statute that provided the State of New York may terminate, over parental objection, the rights of parents in their natural child upon a finding by the “fair preponderance of the evidence” that the child is permanently neglected. Id. at 747. At the time of the Santosky case, New York authorized its officials to temporarily remove a child from the home if the child appeared “neglected.” Id. at 748. After the child had been in the care of an authorized agency for more than one year, if the State was convinced that “positive, nurturing parent-child relationships no longer exist,” then the State could initiate “permanent neglect” proceedings to free the child for adoption. Id. If the State supported its allegations by a “fair preponderance of the evidence,” the child could be declared permanently neglected—which would empower the family court to permanently terminate the natural parent‘s rights in the child. Id. at 748-49. The termination of parental rights would deny the natural parents “physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.” Id. at 749. In determining whether New York‘s “fair preponderance of the evidence” burden in those circumstances was constitutional, the Santosky Court held that before a state may “sever completely and irrevocably the rights of parents in their natural child, [the Due Process Clause of the Fourteenth Amendment] requires that the State support its allegations by at least clear and convincing evidence.” Id. at 747-48.
At the start of its analysis, the Santosky Court clarified that the central questions before the Court were “whether process is constitutionally due a natural parent at a State‘s parental rights termination proceeding, and, if so, what process is due.” Id. at 753 (emphasis added). The Santosky Court explained that when the State initiates a parental rights termination proceeding, it seeks to permanently end a parent‘s fundamental liberty interest in a child, because once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. Id. at 759. The Santosky Court explained the Court has engaged in a “straight-forward consideration of the factors identified in Mathews v. Eldridge, 424 U.S. 319 (1976)] to determine whether a particular standard of proof in a particular proceeding satisfies due process.” Id. at 754. These factors are (1) the private interests affected by the proceeding; (2) the risk of error created by the State‘s chosen procedure; and
Santosky is readily distinguishable from the case before us, primarily because this is not a termination of parental rights case. In termination of parental rights cases, South Carolina courts have adhered to Santosky and applied the clear and convincing burden of proof. See S.C. Dep‘t of Soc. Servs. v. Cochran, 364 S.C. 621, 626-27, 614 S.E.2d 642, 645 (2005) (“The termination of the legal relationship between natural parents and a child presents one [of] the most difficult issues this Court is called upon to decide. We exercise great caution in reviewing termination proceedings and will conclude termination is proper only when the evidence clearly and convincingly mandates such a result . . . . [T]he termination of parental rights [is] one of [the] most severe actions a state can take against its citizens . . . .“).
However, in an intervention action in South Carolina, a finding by the preponderance of the evidence that a child is an abused or neglected child does not, by itself, allow the family court to terminate parental rights. Instead, such a finding permits the family court to order intervention and protective services (
Because DSS was not seeking a termination of parental rights in the instant case, and because Appellant has no parental rights over AP, we hold the preponderance of the evidence burden set forth in South Carolina Code subsection
B. Family Court‘s Findings
On appeal from the family court, appellate courts review factual and legal issues de novo. Klein v. Barrett, 427 S.C. 74, 79, 828 S.E.2d 773, 776 (Ct. App. 2019) (citing Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018)). “[D]e novo review neither relieves an appellant of demonstrating error nor requires [the appellate court] to ignore the findings of the family court.” Lewis v. Lewis, 392 S.C. 381, 389, 709 S.E.2d 650, 654 (2011). The appellate court generally defers to the findings of the family court regarding credibility because the family court is in a better position to observe the witness and his or her demeanor. S.C. Dep‘t of Soc. Servs. v. Scott, 438 S.C. 400, 412, 883 S.E.2d 229, 235 (Ct. App. 2023) (citing Lewis, 392 S.C. at 385, 391, 709 S.E.2d at 651-52, 655). The party contesting the family court‘s decision bears the burden of demonstrating the family court‘s factual findings are not supported by the preponderance of the evidence. Lewis, 392 S.C. at 388-89, 709 S.E.2d at 653-54; see also Stoney, 422 S.C. at 595, 813 S.E.2d at 487 (“[D]e novo review allows an appellate court to make its own findings of fact; however, this standard does not abrogate two long-standing principles still recognized by our courts during the de novo review process: (1) a trial judge is in a superior position to assess witness credibility, and (2) an appellant has the burden of showing the
Therefore, Appellant must establish that the family court‘s factual findings that Appellant sexually abused AP and that AP is an abused and/or neglected child are not supported by a preponderance of the evidence. We hold Appellant has failed to do so.
As discussed above, “[i]ntervention and protective services must not be ordered unless the court finds that the allegations of the petition are supported by a preponderance of the evidence including a finding that the child is an abused or neglected child as defined in
Appellant contends that even under the preponderance of the evidence standard, DSS did not prove Appellant sexually abused AP. Appellant points to Mother‘s testimony that AP‘s recollection of events changed over time, AP was not forcing a smile in the photographs, and the other girls in the bed did not report the incident. Appellant contends the photographs show AP was comfortable around Appellant following the incident. Appellant also argues that while the family court found AP to be credible, none of the people tasked with protecting AP from Appellant acted as though the abuse had actually taken place, such as Mother making no attempt to keep Appellant from the children and DSS not seeking a treatment plan or removal of Appellant‘s other children.
This is admittedly a close question, as conflicting evidence was presented to the family court; however, AP‘s testimony is more convincing than the testimony presented by Appellant. The family court was in the best position to determine the
The family court also found AP to be more credible than Mother. AP told Mother the day after the incident that Appellant had inappropriately touched her and that it was not an accident. Mother failed to report the incident to Father as was required by court order, and she did not contact DSS or law enforcement. Mother then allowed AP to live with her and Appellant for another year after AP and Appellant “hugged it out;” however, Mother testified she continued to ask AP many times if she would like to report the incident. We agree with the family court‘s finding as to Mother‘s lack of credibility because of Mother‘s self-serving motive to place her lack of action in the best possible light because of potential criminal and contempt penalties.
As to the photographs introduced by Appellant, we agree with the family court that the photographs are not convincing to show Appellant did not sexually abuse AP. The photographs were handpicked by Appellant in support of his case, and AP herself testified she looked comfortable in the photographs. At the time, AP was a twelve-year-old girl who had already gone through the divorce of Mother and Father, and as the family court found, AP‘s testimony about desiring everything to be normal and not wanting her family to split up again was credible.
In conclusion, we hold Appellant has not met his burden of showing that the family court‘s factual findings were not supported by a preponderance of the evidence.
III. Conclusion
We hold the preponderance of the evidence burden set forth in South Carolina Code subsection
AFFIRMED.
HILL and VERDIN, JJ., concur. FEW, J., dissenting in a separate opinion in which KITTREDGE, C.J., concurs.
The majority has given us an extensive account of the evidence DSS presented to the family court. A careful reading of the majority opinion reveals the case against Pimienta is quite weak. The majority is being generous when it calls this “admittedly a close question.” I do not believe it is close.
My first point is the family court did not clearly identify the act it found Pimienta committed. The central issue in the case was whether the incident was accidental or intentional. The family court discussed the level of intent required in a motion hearing during trial, but made no finding of intent in the order. The alleged victim (AP) also was not clear on exactly what happened. Initially, AP told her mother the touching was quick and occurred on the outside of her underwear. At the hearing, however, she testified Pimienta had his hand under her underwear for a minute or two while she repeatedly asked him to stop.
My second point concerns the behavior and testimony of AP‘s mother. AP told her about the incident the day after it occurred. The mother promptly called Pimienta on the phone and the three of them discussed what happened. Pimienta then returned home and hugged AP. Based on these observations, the mother concluded that whatever occurred was accidental. Her conclusion might not ordinarily be important, but it is important here because she was subject to a court order that would have required her to report anything like sexual abuse to the child‘s father. The mother appears to have confirmed her conclusion there was no intentional sexual abuse as she observed AP and Pimienta interact over the next few days and weeks. To demonstrate this, Pimienta‘s counsel showed her photographs of AP and Pimienta closely interacting during this time. The photographs showed AP was smiling and appeared comfortable with Pimienta. When specifically asked whether AP‘s smile in those photographs appeared genuine or fake, the mother stated she knew her daughter could fake a smile but she was not faking the smile in those photographs. The mother‘s conclusion Pimienta did not sexually abuse AP is also confirmed by the fact she voiced no concerns over him continuing to live in the home with AP and other minor children, including their own son DP. In fact, the mother testified she
The mother also testified AP said nothing else of the incident for over two years. AP herself confirmed this in her testimony. During the second year, the mother and Pimienta separated and Pimienta moved out of her home. It was during this period of time when—the mother testified—AP‘s story began to change. The mother testified that initially AP told her the incident was short—“the hand was kind of placed there and then it was off“—but later AP told her it lasted “as far as five to seven minutes.” At some point, AP decided she wanted to go live with her biological father. When the mother was asked, “When did she first start indicating she would prefer to live with her dad,” the mother responded it was “right before” AP wanted to go public with the accusation against Pimienta. I find this critical to analyzing AP‘s credibility: AP said nothing about the incident for over two years except that she did not want the incident to be revealed, but then the minute she decided she wanted to live with her biological father, she insisted on revealing—even embellishing—an incident that made her mother look bad.
My third point is that AP‘s ultimate version of what occurred is inconsistent with the fact at least one other child was present when the incident occurred, but the other children said nothing about seeing or hearing anything out of the ordinary. These children were shown in photographs with Pimienta acting normally only minutes afterwards.
The family court made a finding that AP was credible, and we would normally defer to that credibility finding. Stoney, 422 S.C. at 595, 813 S.E.2d at 487. I would not defer to the family court in this case, however, because the evidence I have just discussed and other evidence recited by the majority clearly indicates the incident was an accidental touching. To me, the evidence clearly indicates the child later consciously embellished her story for the purpose of obtaining the custody situation she wanted—to live with her father.
For these reasons, I would reverse the family court‘s finding that Pimienta committed a sexual offense against AP.
KITTREDGE, C.J., concurs.