Preponderance of the Evidence Is Constitutionally Sufficient in South Carolina Children’s Code Intervention Proceedings (S.C. Code § 63-7-1650(E))

1. Introduction

In SCDSS v. Gerardo Pimienta (S.C. Sup. Ct. July 31, 2026), the South Carolina Supreme Court reviewed a family court order arising from a South Carolina Department of Social Services (DSS) petition under the Children’s Code seeking (1) a finding that a minor, AP, was abused and/or neglected and (2) placement of AP’s former stepfather, Gerardo Pimienta, on the Central Registry of Child Abuse and Neglect.

The litigation centered on an alleged 2020 incident in which AP reported that Pimienta inappropriately touched her while she was 12 years old. No physical evidence was presented; the case turned largely on testimony and credibility. Pimienta challenged both the merits (whether DSS proved sexual abuse) and the constitutionality of using a preponderance of the evidence standard rather than clear and convincing evidence.

The Supreme Court (majority opinion by Justice James) affirmed. It held that the preponderance standard in S.C. Code Ann. § 63-7-1650(E) is constitutional for intervention proceedings and that the family court’s finding of sexual abuse was supported by a preponderance of the evidence. Justice Few dissented, concluding DSS failed to prove an intentional sexual offense on de novo review.

2. Summary of the Opinion

  • Constitutional holding: Even assuming the issue was properly presented, the Court held the preponderance of the evidence burden in S.C. Code Ann. § 63-7-1650(E) (intervention/protective services without removal) does not violate due process.
  • Procedural clarification: The Court noted Pimienta primarily attacked § 63-7-1650(A) (DSS’s internal threshold to petition) and § 63-7-1660(E) (removal cases)—neither directly governed the hearing at issue—though the Court addressed § 63-7-1650(E) anyway.
  • Merits holding: The Court affirmed the finding that AP was an abused/neglected child and that Pimienta committed a sexual offense, emphasizing the family court’s credibility determination favoring AP.
  • Dissent: Justice Few would reverse on the facts, finding the evidence weak, the family court order unclear as to intent, and AP’s account inconsistent over time; he would not reach the constitutional question.

3. Analysis

3.1. Precedents Cited

A. Constitutional review framework and statutory presumption of validity

  • Owens v. Stirling, 443 S.C. 246, 264, 904 S.E.2d 580, 589 (2024): Cited for the standard of review—constitutional conclusions are reviewed de novo. This supported the Court’s independent evaluation of the due process challenge.
  • Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999) (citing Westvaco Corp. v. S.C. Dep't of Revenue, 321 S.C. 59, 62, 467 S.E.2d 739, 741 (1995)): Used to reinforce South Carolina’s strong presumption that statutes are constitutional and will not be struck down unless unconstitutionality is clear “beyond a reasonable doubt.”
  • Powell v. Keel, 433 S.C. 457, 461, 860 S.E.2d 344, 346 (2021): Cited for the principle that the party challenging a statute bears the burden of proving unconstitutionality.

B. Due process and burdens of proof in child-welfare proceedings

  • Santosky v. Kramer, 455 U.S. 745 (1982): The cornerstone of Pimienta’s argument. The majority distinguished it as limited to proceedings that “sever completely and irrevocably” parental rights. The Court emphasized that Santosky itself recognized a greater need for safeguards in parental-rights dissolution than in “ongoing family affairs” intervention.
  • Mathews v. Eldridge, 424 U.S. 319 (1976): Cited (through Santosky) for the three-factor due process balancing test (private interest, risk of error, government interest). The majority applied the Santosky/Eldridge framing to explain why intervention proceedings do not implicate parental liberty interests at the same level as termination of parental rights.
  • S.C. Dep't of Soc. Servs. v. Cochran, 364 S.C. 621, 626-27, 614 S.E.2d 642, 645 (2005): Used to show South Carolina already follows Santosky’s clear-and-convincing requirement in termination-of-parental-rights cases, underscoring that the question here concerned a different kind of proceeding.
  • In re Cochise Cnty. Juv. Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982): Persuasive authority supporting that Santosky’s clear-and-convincing rule is limited to parental severance and does not constitutionally extend to dependency/abuse-neglect determinations typically governed by preponderance.
  • Wright v. Arlington Cnty. Dep't of Soc. Servs., 9 Va. App. 411, 388 S.E.2d 477 (Ct. App. 1990): Additional persuasive authority that preponderance is permissible in abuse/neglect proceedings that may result in temporary placement, distinguishing those from permanent termination proceedings.

C. Appellate review in family court matters (facts, de novo, and credibility)

  • 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)): Cited to confirm that, on appeal, South Carolina courts review family court factual and legal issues de novo.
  • Lewis v. Lewis, 392 S.C. 381, 389, 709 S.E.2d 650, 654 (2011): Cited for two related principles: de novo review does not relieve the appellant of showing error; and the appellant bears the burden of showing the family court’s findings are against the preponderance of the evidence.
  • S.C. Dep't of Soc. Servs. v. Scott, 438 S.C. 400, 412, 883 S.E.2d 229, 235 (Ct. App. 2023): Cited for the practical deference appellate courts typically give to family court credibility determinations because the trial judge sees and hears the witnesses.
  • Stoney v. Stoney, 422 S.C. 593, 595, 813 S.E.2d 486, 487 (2018): The majority used Stoney (also invoked by the dissent) to frame the tension in South Carolina family appeals: de novo factfinding exists, but credibility deference and appellant’s burden remain “long-standing principles.”

3.2. Legal Reasoning

A. Statutory “fit” and the Court’s correction of the constitutional target

A notable feature of the majority opinion is its insistence that Pimienta’s constitutional challenge was aimed, at least in part, at the wrong statutory provisions.

  • § 63-7-1650(A) addresses DSS’s threshold determination to petition, not the family court’s adjudicative standard at the intervention hearing.
  • § 63-7-1660(E) addresses removal cases, and this was not a removal action.
  • The adjudicative standard for an intervention order is expressly stated in § 63-7-1650(E), which requires the family court to find allegations supported by a preponderance, including a finding of abuse/neglect under § 63-7-20.

Despite the mismatch, the Court proceeded to address the constitutionality of § 63-7-1650(E) to resolve the core due process argument.

B. Due process analysis: why Santosky does not control intervention proceedings

The majority treated Santosky v. Kramer as context-defining rather than controlling. Santosky’s constitutional rule (clear and convincing evidence) attaches to proceedings that irrevocably terminate parental rights. The majority’s distinctions were threefold:

  1. Nature of the proceeding: Intervention under § 63-7-1650(E) permits protective services and related court oversight; it does not itself authorize permanent termination of parental rights.
  2. Degree and finality of deprivation: The Court emphasized that intervention outcomes are not “final and irrevocable” and do not cause the “irretrievable destruction of [] family life” in the way termination does.
  3. Private interest at stake here: The Court added an important, case-specific point: Pimienta was a former stepfather and “has no parental rights as to AP,” undermining any claim that the proceeding implicated his fundamental liberty interest in a parent-child relationship (the core interest Santosky protects).

Synthesizing these distinctions, the Court concluded that the preponderance standard in § 63-7-1650(E) satisfies due process.

C. Merits review: preponderance, credibility, and de novo constraints

On the merits, the Court reaffirmed how de novo review operates in practice in family cases: it may reassess facts, but it generally defers to credibility findings because the family court observed witness demeanor. Applying that approach, the majority held Pimienta failed to show the family court’s findings were against the preponderance.

Key elements supporting affirmance included:

  • AP’s specificity and demeanor: AP recalled contextual details (the movie) and testified to repeated requests for him to stop. The family court found she “seemed to take no joy” in testifying.
  • Corroboration through mother’s admissions: Although Mother minimized the incident as “accidental,” she conceded AP initially told her it was not accidental.
  • Photographs not dispositive: The Court discounted photographs suggesting normalcy afterward as “handpicked” and consistent with AP’s explanation that she masked discomfort to avoid family disruption.
  • Mother’s credibility concerns: The Court accepted the family court’s skepticism about Mother’s incentives given her failure to notify Father despite a court order and her potential exposure to contempt or other consequences.

D. The dissent’s competing de novo view: intent and evidentiary weakness

Justice Few’s dissent framed the case as an instance where the appellate court should not defer because de novo review “contemplates that the appellate court will make its own findings of fact.” The dissent emphasized:

  • Lack of clarity in the family court’s order on the act and intent found (especially since the core dispute was accidental vs. intentional touching and the order did not clearly identify intent).
  • Mother’s contemporaneous assessment that the incident was accidental and her willingness to allow continued household contact for over a year.
  • Delay and narrative change (as characterized by Mother), including alleged embellishment in duration and timing aligned with AP’s custody preference.
  • Presence of other children who did not report anything unusual.

The dissent would have reversed on the facts and avoided the constitutional holding entirely.

3.3. Impact

A. Doctrinal impact: burden of proof in Children’s Code intervention proceedings

The most concrete precedential rule announced is that preponderance of the evidence under § 63-7-1650(E) is constitutional. The Court’s reasoning strongly signals that, absent a proceeding akin to termination of parental rights, Santosky will not be extended to require a heightened burden.

B. Litigation impact: precision in selecting the challenged statute

The opinion also functions as a cautionary precedent about statutory targeting. The majority highlighted that the appellant attacked provisions not governing the hearing at issue. Future litigants bringing due process challenges to burdens of proof in child-welfare cases should expect close scrutiny of whether they have identified the operative statute.

C. Step-parent posture and liberty-interest framing

By noting that Pimienta “has no parental rights as to AP,” the Court narrowed the constitutional narrative: a step-parent (or former step-parent) may face reputational and legal consequences from an abuse finding, but the specific fundamental parental liberty interest central to Santosky is not directly implicated. This may influence how due process arguments are framed by non-parents challenging abuse findings.

D. Central Registry consequences left largely unlitigated

The footnote draws attention to a practical consequence: the Central Registry entry in sexual abuse findings at a § 63-7-1650 hearing is governed by § 63-7-1940(A)(1)(b), which also uses a preponderance standard. The Court noted Pimienta “failed to challenge” that statutory burden. The decision therefore leaves room for a future, properly framed constitutional attack specifically directed at the registry statute—though the majority’s due process reasoning suggests such a challenge may face headwinds where the proceeding is not a termination case.

4. Complex Concepts Simplified

  • Preponderance of the evidence: The Children’s Code defines this as evidence that is “more convincing as to its truth than the evidence in opposition” (§ 63-7-20(22)). Practically: “more likely than not.”
  • Clear and convincing evidence: A higher standard than preponderance, used when the law demands greater certainty due to the severity and permanence of the deprivation (e.g., termination of parental rights under Santosky v. Kramer and South Carolina’s approach in S.C. Dep't of Soc. Servs. v. Cochran).
  • Due process (Fourteenth Amendment): Requires fair procedures before the State deprives a person of life, liberty, or property. In burden-of-proof disputes, courts evaluate whether the chosen standard adequately reduces the risk of erroneous deprivation given what is at stake.
  • Mathews v. Eldridge balancing: Courts weigh (1) the private interest affected, (2) risk of error under the procedure, and (3) the government’s interest (including administrative burdens). Santosky used this framework to require clear and convincing proof for termination; this case applies the same logic to explain why intervention does not demand that heightened burden.
  • De novo review in family court appeals: The appellate court can reassess facts, but it still commonly defers to the trial judge’s credibility assessments because the trial judge observed live testimony (Lewis v. Lewis; S.C. Dep't of Soc. Servs. v. Scott).
  • Central Registry of Child Abuse and Neglect: A state registry that records substantiated findings. In this context, the family court’s abuse finding and sexual abuse finding triggered mandatory entry under § 63-7-1940(A)(1)(b).

5. Conclusion

SCDSS v. Gerardo Pimienta establishes and confirms a key principle for South Carolina child-welfare practice: the “preponderance of the evidence” standard in § 63-7-1650(E) intervention proceedings is constitutional and is not displaced by Santosky v. Kramer, which the Court treated as limited to irrevocable termination of parental rights.

On the facts, the majority reinforced the practical force of credibility findings in de novo family appeals, affirming the abuse determination and Central Registry placement despite conflicting evidence and the dissent’s view that the proof did not establish an intentional sexual offense.

Going forward, the decision will likely (1) discourage broad Santosky-based attempts to impose clear-and-convincing proof in non-termination child-protection proceedings, (2) encourage careful alignment of constitutional challenges to the operative statutory provision, and (3) sharpen how litigants articulate the nature of the liberty or property interest at stake—particularly for non-parents facing significant collateral consequences from abuse findings.