By Gregory Forman- Material for South Carolina Bar CLE–August 2007

The following s is a list of tips that can be implemented in defending abuse and neglect cases:

1. Attorneys for a person who is named in a report or investigation pursuant to the Abuse and Neglect Statute are entitled to a copy of (most of) the DSS file.

S.C. Code Ann. §20-7-690(B)(5) specifically authorizes the attorney for a person who is the subject of an indicated DSS case (all abuse and neglect actions involve cases DSS indicated) to obtain a copy of the DSS file. DSS will redact information on the reporter, the foster parent and may not provide all of the child’s counseling records. Information on who is providing the counseling should be provided so that these records can be subpoenaed The information that is provided will include the caseworker’s notes and statements the child has made to the caseworker and others, which is often vital to impeachment of DSS’s witnesses.

This information can be requested (and will be provided) even when there is no order of discovery. The first thing I do after being retained to defend a parent in an abuse and neglect case it to send counsel for DSS a two-sentence letter: "Pursuant to S.C Code § 20-7-690(B)(5), please provide me all DSS records in this case at your earliest convenience. I expect these materials no later than [supply date]" Such a procedure should be a standard part of every attorney’s practice.

Numerous hearings other than the merits hearing require the court to make factual findings. The South Carolina Supreme Court has held that when a party requests it, testimony is required for the court to issue a permanency planning order:

Ex parte Morris, 367 S.C. 56, 624 S.E.2d 649, 653 (2006).

Morris indicates that any time the Abuse and Neglect statute suggests a "hearing" is required, testimony is required, if requested, before the court makes any required factual findings. This requirement is probably applicable to the child hearsay exception contained in S.C. Code Ann. § 19-1-180, especially insofar as that statute requires that, "[t]he court shall support with findings on the record any rulings pertaining to the child's unavailability and the trustworthiness of the out-of-court statement." It is also probably applicable to the required factual findings for a placement plan created pursuant to S.C. Code Ann. § 20-7-764.

Do not allow DSS to establish contested factual issues without testimony.

Expert testimony on a witness’ credibility is not allowed. See e.g., State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298, 302 (1989). Our appellate courts cannot be more explicit on this issue: "We have said before, and we will say it again, this time with emphasis–no psychotherapist may render an opinion on whether a witness is credible in any trial in this state. The assessment of credibility is for the trier of fact and not for psychotherapists." State v. Dempsey, 340 S.C. 565, 532 S.E.2d 306, 309 (Ct .App. 2000).

Despite this, DSS continues to use therapists’ testimony to bolster the credibility of allegedly abused children. I was involved in two abuse cases in 2006 in which the very therapist at issue in Dempsey was listed by DSS as an expert on the child’s credibility. In one of those cases, that expert even testified (because the Defendants’ attorney did not object).

In many contested merits hearings, the child’s credibility will be the primary issue. Expert testimony corroborating the child is devastating. Do not allow the child’s therapists to render an opinion on the child’s credibility.

         Often the best way to impeach DSS’s experts is through the use of treatises:

SCRE 803 (18).

     A standard part of my document or subpoena request in a DSS case is:

a. Copies of CV’s or resumes for any expert witnesses DSS intends to call at trial.

b. Copies of any learned treatises that DSS’s expert witnesses will rely upon in rendering expert testimony.

c. Copies of any records reviewed by DSS’s expert witnesses in coming up with their opinions not already requested.

If possible, obtain these records prior to taking the expert’s deposition. At the deposition, ask the expert to explain how these treatises were used to formulate the expert’s opinion. Also ask the expert whether there are any other authorities that the expert considers reliable, as these authorities then become usable in cross-examining the experts at trial.

Often the scholarly material relied upon by these forensic experts does not substantiate the expert’s opinions. Knowing the scholarly material that the expert relied upon (or considers scholarly) prior to trial, and using this material in voir dire or cross-examination, can diminish the effectiveness of the expert’s testimony.

The burden of proof for removal cases is set forth in S.C. Code Ann.§ 20-7-736 (F). The burden of proof for intervention cases is set forth in S.C. Code Ann. § 20-7-738(D). Both cases only require that abuse or neglect be shown by the "preponderance of the evidence." This burden may be unconstitutional.

"[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible, and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The United States Supreme Court "has mandated an intermediate standard of proof -- ‘clear and convincing evidence’ -- when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.’" Santosky v. Kramer, 455 U.S. 745, 756 (1982). For example, in the context of a termination of parental rights case, a clear and convincing evidentiary standard is required. Id, at 758.

"[D]ue process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Matthews, supra. An analysis of these factors show that a "clear and convincing" evidentiary standard might be required in abuse and neglect cases.

A finding of abuse or neglect carries substantial ramifications. Such a finding allows the removal of the child from the parent’s custody. S.C. Code Ann. § 20-7-736 (F). Such a finding allows the court to authorize intervention and protective services. S.C. Code Ann. § 20-7-738(D). A finding of abuse allows the court to require a parent to complete a placement plan before being reunified with his or her child. S.C. Code Ann. § 20-7-764. A finding of abuse or neglect can make it easier to terminate a parent’s parental rights. S.C. Code Ann. § 20-7-1572 (1, 2 & 8). A parent found to have abused his child may and, at times, must be ordered in the Central Registry of Child Abuse and Neglect. S.C. Code Ann. § 20-7-650 (L). That code section also authorizes the court to list the parent as a "sex offender" on the Central Registry. A person on the Central Registry cannot be appointed to a state or local foster care review board. S.C. Code Ann. § 20-7-2386. A person on the Central Registry cannot work at a licensed day care facility. S.C. Regs. § 114-590. Child placing agencies cannot place a child with a person on the Central Registry. S.C. Regs. §§ 114-4910 and 4980. A person on the Central Registry cannot work as a guardian ad litem in a private custody case. S.C. Code Ann. § 20-7-1547 (C). It is more difficult for a person on the Central Registry to obtain a name change. S.C. Code Ann. § 15-49-20.

The factors that mandated a "clear and convincing" evidentiary standard in Santosky mandate a similar requirement in abuse and neglect proceedings. "At the factfinding, the State cannot presume that a child and his parents are adversaries." Id, at 760. "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." Id, at 753.

The Supreme Court further noted that "Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties." Id, at 761. The Supreme Court found, in the context of a termination of parental rights proceeding, that such an evidentiary standard did not fairly allocate these risks. Id, at 758. Its reasoning is equally applicable to abuse and neglect proceedings:

Id, at 763-64.

While a termination of parental rights case does present permanency issues regarding the termination of the parental relationship, a parent’s loss of certain rights enumerated above from a finding of abuse or neglect are similarly permanent.

"So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children." Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565, 567 (2003), citing Troxel v. Granville, 530 U.S. 57, 65-66 (2000). "Parental unfitness must be shown by clear and convincing evidence." Camburn, 586 S.E.2d at 568. The Santosky decision was not limited to termination of parental rights cases and the requirement of the state proving abuse and neglect by a "clear and convincing" evidence standard may be applicable whenever the state seeks to marshal its resources to intrude upon the parent/child relationship. If a finding of parental unfitness in a private custody action requires a "clear and convincing" evidentiary burden, a finding sought by the government that a parent has abused or neglect his or her child should possibly carry an equally high burden.

There are some areas of South Carolina family law where the higher, "clear and convincing," evidentiary burden is already required. In family court, "[c]ivil contempt must be proved by clear and convincing evidence." Durlach v. Durlach, 359 S.C. 64, 596 S.E.2d 908, 912 (2004); Poston v. Poston, 331 S.C. 106, 113, 502 S.E.2d 86, 89 (1998). To obtain a divorce one has "to prove adultery by clear and convincing evidence." Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854, 856 (Ct.App. 1996); but see Perry v. Perry, 301 S.C. 147, 390 S.E.2d 480, 481 (Ct.App. 1990) (sustaining adultery finding on preponderance of the evidence standard)

"A ground for termination of parental rights must be proved by clear and convincing evidence." Greenville County Dep't of Soc. Servs. v. Bowes, 313 S.C. 188, 193, 437 S.E.2d 107, 110 (1993); Santosky, supra, 455 U.S. at 758. In visitation cases between parents and third-parties, a clear and convincing evidence standard is constitutionally mandated before the state can intrude upon parental decision making. Camburn, supra, 586 S.E.2d at 568.

State law already recognizes a parent’s heightened interest in the outcome of an abuse or neglect proceeding. S.C. Code Ann. § 20-7-110(B) mandates the appointment of counsel for an indigent parent in such cases. The areas of family law in which a higher evidentiary burden are already required implicate the interests that Santosky held necessitated this higher burden: the interests of the individual litigant are both "particularly important" and "more substantial than mere loss of money." Santosky, 455 U.S. at 756. Yet, except for termination of parental rights cases, the interests of the parent charged with abusing or neglecting his or her child are arguably more substantial than the interests of any area of South Carolina family law in which this higher evidentiary burden is required.

Aiken County Dept. Of Social Services v. Wilcox, 304 S.C. 90, 403 S.E.2d 142 (Ct.App. 1991) might appear to stand for the proposition that a "preponderance of the evidence" burden of proof is acceptable for a finding of abuse and neglect. Id., 304 S.C. at 92-93, 403 S.E.2d at 143-44. However, Wilcox failed to analyze the constitutional issues implicated by abuse and neglect proceedings and based its ruling merely upon the statutory language. Id. Because Wilcox never addressed the issue of whether a parent’s liberty interest in raising his or her child might mandate a higher burden of proof than South Carolina’s statute requires, its holding is not dispositive on the issue.

Some states have already concluded that a "clear and convincing" evidence standard is constitutionally required before a parent can be found to have abused or neglected his or her child See, In re Richard Suggs, 249 Ga. 365, 365-66, 291 S.E.2d 233, 234 (2005); In the Interest of M.M.L., 258 Kan. 254, 268-69, 900 P.2d 813, 822 (1995) (statue allowing child to be removed from fit parent’s custody can only comport with due process if need for removal is proven by "clear and convincing" evidence standard); Care and Protection of Erin, 433 Mass. 567, 571, 823 N.E.2d 356, 360 (2005); In re Jonathan, 415 A.2d. 1036, 1039 (R.I. 1980); In the Interest of JOV, 454 Pa. Super. 630, 686 A.2d. 421, 422-23 (1996); In the Matter of S.A., A.A., E.A. and A.A., 2005 SD 120, ¶12, 708 N.W.2d 673 (2005).

Some states’ statutes already require an abuse finding be found by "clear and convincing evidence. See Ala. Code § 12-15-65; West's Ann.Cal.Fam.Code § 7821; Georgia Code Ann. § 24A-2201(c); Iowa Code Ann. § 232.96; Kan. Stat. Ann. § 38-1555; Minn. Stat. § 260C.163; N.M. Stat. Ann. § 32A-4-20; N.C. Gen. Stat. § 7B-805; N.D. Cent. Code § 27-20-29; Ohio Rev. Code Ann. § 2151.35; Tenn. Code Ann. § 37-1-129 (c); and W. Va. Code § 49-6-2.

Especially in a close case, the burden of proof DSS is required to meet to obtain its finding may be dispositive. Until the South Carolina Supreme Court resolves this issue, be prepared to argue that the "preponderance of the evidence" burden of proof is unconstitutional.

The hearsay exception under S.C. Code § 19-1-180 may violate a parent’s right to confront witnesses against him or her.

The 6^th Amendment of the United States Constitution guarantees a defendant the right to confront and cross examine witnesses against him. The United States Supreme Court has recently held that denying a defendant the right to cross examine witnesses against him by allowing hearsay statements violated his 6^th amendment rights, even if the hearsay statement would otherwise be admissible under the rules of evidence. Crawford v. Washington, 541 U.S. 36 (2004).

Where important rights are at issue, South Carolina has recognized this right of confrontation in a civil context. See, Brown v. South Carolina Board of Education, 301 S.C. 326, 391 S.E.2d 866, 867 (1990) (where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. Procedural due process often requires confrontation and cross-examination of one whose word deprives a person of his or her livelihood).

This right to confront witnesses has been explicitly applied in the context of abuse and neglect cases. South Carolina Dept. of Social Services v. Wilson, 352 S.C. 445, 574 S.E.2d 730, 736 (2002), affirmed a Court of Appeals holding that the family court’s ruling allowing the child to testify outside of the Defendant’s presence violated his right to due process.

In his opinion in Crawford, Justice Scalia, analyzes the treason trial of Sir Walter Raleigh to show why the right to confront witnesses is so vital to the factfinding function of the courts:

Crawford, supra, 541 U.S. at 44-45 (citations omitted).

Justice Scalia’s opinion in Crawford further discusses the reason the founders required confrontation:

Crawford, supra, 541 U.S. at 50-51 (citations omitted).

The purpose behind the 6^th Amendment right to confrontation that Justice Scalia noted in the Crawford opinion is equally relevant in abuse and neglect cases: merely being able to cross-examine witnesses who repeat the accusations against a defendant deprives that defendant of a meaningful ability to discover the truth.

In 2006, two companion United States Supreme Court cases, Davis v. Washington, 547 U.S. ____, 126 S.Ct. 2266 (2006) clarified when Crawford protections applied, drawing a distinction between "testimonial" and "nontestimonial" statements. Testimonial statements, such as statements taken under police interrogation, implicate the 6^th Amendment and are inadmissible hearsay; nontestimonial statements, such as statements made in phone calls to 911 or statements made to the police in emergency settings do not implicate the 6^th Amendment and are admissible.

Under this analysis, forensic evaluations of children are clearly testimonial, strengthening the argument that such statement are inadmissible hearsay.

Often most of the "evidence" that a parent abused or neglected the child will be the child’s hearsay statements. Precluding that evidence from being admitted may vitiate DSS’s case. Until the South Carolina Supreme Court rules on a 6^th amendment challenge to S.C. Code Ann. § 19-1-180, be prepared to raise this issue at trial.

Often, by the time counsel has been obtained or appointed the minor child has already had a forensic evaluation done. Part of the forensic review process entails discussing and determining the identity of the perpetrator(s) of the alleged abuse.

Sometimes, when the child is brought in for an initial forensic evaluation, the person bringing the child in may have an agenda that will not be known to the evaluator. That agenda may include enlisting the child in a campaign to have another person (often the other parent) be found to have abused the child or to create conditions in which the other person’s contact with the child will be limited. While most forensic evaluators are careful to search for signs that the child has been coached, some evaluators are less careful. Further, if the parent bringing in the child provides the evaluator false information, the result can be a flawed evaluation. Some evaluators do a less-than-thorough job in evaluating the child and will fail to ask follow-up questions that might highlight discrepancies in the child’s narrative. Generally, the evaluation is done at DSS’s request and is done by an agency that frequently does evaluations for DSS. These circumstances can lead to a flawed or incomplete evaluation.

When the evaluation appears flawed or incomplete, one can petition the court for an independent evaluation. In making that motion, rather than simply arguing with the conclusions of the evaluation, counsel needs to show what specific facts make the initial evaluation flawed or incomplete.

An independent evaluation carries risks. If the new evaluation develops different information that leads away from the conclusion that one’s client abused the child, that evaluation can lead to the case being dismissed. However, a second (and hopefully more thorough) evaluation may merely corroborate the initial evaluation, making defense of the case even harder. The decision whether to seek an independent evaluation or to wait for trial to attack the accuracy of the initial evaluation requires strategic thinking. If the primary evidence against one’s client is the flawed evaluation, giving DSS the opportunity to do a better evaluation is ill advised. However, if there is other substantial evidence implicating one’s client, obtaining an evaluation that might potentially exonerate one’s client might be the best hope of defeating a finding.

There are cases in which the child’s lack of credibility will be a parent’s primary defense to the allegations of abuse or neglect. The discovery process will frequently develop information about the child’s statements, but will not necessarily lead to a complete picture of what information the child will testify about at trial. Further, where the hearsay exceptions of S.C. Code Ann. § 19-1-180 apply, the child’s statements will come in through the testimony of his or her medical providers (who themself may have only received partial information from the child regarding all facts and circumstances surrounding the allegations of abuse).

In such circumstances, it makes sense to take the deposition of the minor child prior to trial. Oftentimes the court will put stipulations on the deposition, such as requiring the alleged perpetrator to observe the deposition on closed circuit television or requiring that, unless the trial court deems additional testimony from the child necessary, the deposition be used in lieu of testimony at trial. Even with these limitations, taking the child’s deposition is still advisable.

Before filing a motion to take the child’s deposition, it is useful to take the child’s counselor’s deposition and to establish in that deposition the child’s ability to testify without suffering "severe emotional trauma" and what conditions might be placed on the deposition to limit the child’s "emotional trauma." See S.C. Code Ann. § 19-1-180 (B)(2)(a)(v). One can then (possibly) use this counselor’s deposition to show the court that the child can be deposed without suffering "severe emotional trauma."

Then, when filing the motion be prepared to show what information needs to be established from the child’s testimony that cannot be established from the child’s previous recorded statements. The crux of one’s argument supporting the motion will be that, without deposing the child prior to trial, the ability to develop impeachment evidence on these issues is impossible.

Waiting until trial to hear, for the first time, the child’s testimony on key facts limits one’s ability to effectively impeach the child’s testimony. Nothing in the abuse and neglect statute prohibits a child’s deposition from being taken and, when credibility is an issue, counsel should try to take the child’s deposition.

"At the probable cause hearing, the respondents may ... cross-examine the department’s witnesses as to whether there existed probable cause to effect emergency removal." S.C. Code Ann. § 20-7-610(M). Typically, DSS will present the caseworker as its witness. Use this cross-examination of DSS’s witnesses to learn about the case, discover where the child has been evaluated and determine what witnesses may exist regarding the allegations. One can also use this cross-examination to develop claims of inadequate investigation or hasty conclusions by DSS in the removal of the child. Learning about DSS’s case and locking in the caseworker’s testimony on key facts prior to the merits hearing can expedite the process of developing a defense to the allegations and reduce the caseworker’s effectiveness as a witness at trial.

The probable cause hearing serves not only to determine whether probable cause existed at the time the child was taken into emergency protective custody, it must also determine whether probable cause remains to retain legal custody of the child at the time of the hearing. See S.C. Code Ann. § 20-7-610 (M).

Generally, if probable cause existed at the time of removal it will also exist at the time of the probable cause hearing. However, there are circumstances in which this may not be the case. For example, if the child is removed because of a one-time failure of the parent to supervise the child, showing at the probable cause hearing that this problem has been rectified could lead to a finding that probable cause no longer exists, leading to early dismissal of the case.

One of the functions of the probable cause hearing is to determine whether continuation of the child in the home would be contrary to the welfare of the child. See S.C. Code Ann. § 20-7-610 (N). S.C. Code Ann. § 20-7-610 (M), specifically anticipates that the court may find probable cause but still return the child home pending the merits hearing: "If the child is returned to the home pending the merits hearing, the court may impose such terms and conditions as it determines appropriate to protect the child from harm, including measures to protect the child as a witness." Sometimes, there can be probable cause but the child can still safely be returned home if there is some suitable person willing to provide in-home supervision.

This circumstance when probable cause is found but the child is returned home pending the merits typically occurs where the allegation is one of neglect rather than abuse. If a suitable person (often a relative, but it can also be a family friend) is willing to move into the home pending the resolution of the case and monitor all contact between the parent and child, the child can be safely returned. This in-home placement minimizes the disruption of the child’s life and is less likely to weaken the parent-child bond than any other type of placement.

Nothing in the abuse and neglect statute requires that a parent’s contact with the child be supervised merely because there is probable cause for removal. Sometimes, in cases of alleged neglect, the condition leading to the removal is a condition more related to the condition of the home than an aspect of the parent’s care of the child. For example, a parent who is unable to provide safe or adequate housing for the child may not pose any other risks to the child. There is nothing compelling the court to require that parent’s visitation be supervised pending the merits hearing. Sometimes a child is removed because a parent has a substance abuse problem. If the parent is not currently using and is obtaining treatment, unsupervised visitation may be allowed so long as monitoring is in place to insure the parent is no longer using.

Even if the parent’s visitation is to remained supervised, nothing requires DSS to handle the supervision. DSS caseworkers have limited time to supervise visitation and if DSS is required to handle visitation supervision, a parent is unlikely to see the child more than a few hours a week. Finding a suitable supervisor prior to the probable cause hearing can result in the parent having substantially more contact with the child pending the merits hearing.

Though foster parents provide an essential service, placement with someone the child is familiar with is almost always preferable. Placing the child with strangers and in an unknown situation leads to greater anxiety for both parent and child. The abuse and neglect code makes provisions for the expedited placement of the child with a relative of the first or second degree. S.C. Code Ann. § 20-7-610 (O). If such relative placement is requested:

Even if such relative placement cannot be facilitated, placement with a family friend is often possible. When probable cause is not disputed and the parent is not seeking return of the child pending the merits, it is advisable to provide DSS with suggested alternative placements for the child prior to the probable cause hearing so that DSS can conduct the necessary pre-placement investigation prior to the probable cause hearing.

When placement is proposed with someone out-of-state, the provisions of the Interstate Compact on the Placement of Children (the ICPC) apply. See S.C. Code Ann. § 20-7-1980 et. seq.

DSS will routinely request a home study before placing a child out-of-state. A home study will substantially delay placement, as the receiving state’s DSS will need to arrange a home study and this state’s family court has no control over another state’s DSS. Nothing in the ICPC requires such a home study. See S.C. Code Ann. § 20-7-1980.

Subsection three of § 20-7-1980, sets the conditions that must be met prior to an out-of-state placement. The only condition that the receiving state must meet is that it "shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child." Subsection 3(d). If the receiving state is comfortable complying with this provision without a home study, no home study is required.

The purpose of the placement plan is to provide a guide to a parent as to what he or she must do to remedy the conditions that led to the child’s removal. See S.C. Code Ann. § 20-7-764(B). Sometimes a parent will be unable to complete a placement plan for reasons having nothing to do with that parent’s willingness to remedy the conditions that led to removal. In those circumstances, the plan may be amended by the court upon motion of a party after a hearing based on evidence demonstrating the need for the amendment. S.C. Code Ann. § 20-7-764 (G).

Occasionally the placement plan will need amending because an agency that or person who was supposed to be providing services to a parent no longer provides those services. Sometimes, the plan will need amending because a service provider is being unreasonable and that unreasonableness is preventing completion of the placement plan. Sometimes services that were made part of the placement plan are different than the services that the provider offers. In these cases, if the placement plan is not amended DSS can hold up the return of the child because the placement plan was not completed.

As noted above, the goal of the placement plan is to remedy the conditions that led to the removal. When provisions in a placement plan no longer serve that function, they merely frustrate the parent and delay the return of the child.

Thus, as soon as it becomes apparent that a placement plan needs to be altered in order for the parent to be able to complete the plan successfully, one should either enter a consent order altering the placement plan or file a motion so that the placement plan can be altered. Merely waiting until the remainder of the plan is completed before resolving the issues preventing completion of the placement plan will substantially delay the return of the child–even after the conditions that led to the removal have been remedied.