Triaging Your Removal Case and Client Goal Setting

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

In the medical field, triage refers to the process of sorting victims, as of a battle or disaster, to determine medical priority in order to increase the number of survivors. Those who will die no matter what services are offered are not treated as the highest priority, even though their injuries are most severe. Those whose injuries are not immediately life-threatening may also wait. The highest priority and most immediate care will be provided to those who are not so seriously injured that any treatment is in vain but have serious enough injuries that immediate attention is vital.

Representing parents in abuse and neglect settings involves a similar triage process. Early on in the case, the client (with the advise of counsel) needs to set goals. Is the client’s plan to challenge the merits finding, complete the placement plan, or simply do nothing? These goals will ask different things of the attorney and require different strategies.

Typically, by the time counsel is retained (or appointed) the probable cause hearing has taken place and the child has been removed from the home. Most parents will be (justifiably) frantic and looking for the best way to get their child returned. If the case is one for intervention (rather than removal), the pressure to act quickly to obtain return of the child is greatly reduced.

S.C. Code Ann. § 20-7-736(B) sets forth the standard by which the South Carolina Department of Social Services (DSS) may seek to remove a child from the home:

S.C. Code Ann. § 20-7-610 sets forth the procedures and standards by which the police may take a child into emergency protective custody (EPC). If the child is removed by EPC, a probable cause hearing must be held within 72 hours (or the next business day if that period ends on a weekend or holiday). See § 20-7-610(M). Further, DSS is required to file a removal action pursuant to § 20-7-736(K). If DSS seeks removal (a non-EPC case), a hearing can be held on 72 hours notice. § 20-7-736 (E). In either case, the petition must include a notice of a right to counsel. § 20-7-610(F), § 20-7-736(E).¹

Frequently counsel will not be appointed until the probable cause hearing. However, sometimes the court will continue the probable cause hearing to give a parent a chance to meet with court-appointed counsel and have that counsel prepare for the hearing.

At the hearing in a removal case,

§ 20-7-736(F).

At the probable cause hearing in the EPC case,

§ 20-7-610(M).

If one can convince the court that either probable cause did not exist to take the child into emergency custody or that probable cause no longer exists for DSS to retain custody, one can get the case dismissed at the probable cause hearing and get the child returned to the parent. Should one have the opportunity to represent the parent before the probable cause hearing, one should explore the possibility of presenting (through both cross examination and affidavit) evidence to defeat a finding of probable cause or to show that the child can be safely returned home.

If the case is not dismissed at the probable cause hearing, the attorney and parent must work together to effectuate the return of the child. In an EPC case, the court will set a merits hearing within 35 days of the removal petition being filed. § 20-7-610(M). The hearing must be scheduled, though it does not necessarily need to be completed within 35 days of the filing of the removal petition. South Carolina Dept. of Social Services v. Gamble, 337 S.C. 428, 523 S.E.2d 477, 478 (Ct.App. 1999). That hearing is designed to determine whether the parent abused or neglected the child as defined in § 20-7-490.² The court can continue the merits hearing to a period no more than 65 days from the removal petition being filed and can continue the case for another 30 day period beyond that only upon exceptional circumstances. Thus, unless the parent agrees, a merits hearing on the removal will begin no later than 95 days after the removal (and generally within 65 days of the removal).

If, after a merits hearing, the court finds there was no abuse or neglect, it cannot remove the child (or must return the child if the child was previously removed). § 20-7-736(F). If the court finds abuse or neglect, and thereby orders or keeps the child from the parent, the court must create a placement plan (sometimes called a treatment plan) within ten days of the removal hearing. § 20-7-764(A).

§ 20-7-764(B)(1).

To the extent possible, the placement plan must be developed with the parent’s participation. § 20-7-764(A). Further, "[t]he placement plan clearly shall state the conditions necessary to bring about return of the child and the reasonable efforts that will be made by the department to reunite the child with the child's family." § 20-7-764(c).

Within a year of a child being placed in foster care, the court must create a permanency plan for the child. § 20-7-766(A). If the department's plan is not reunification with the parents, custody or guardianship with a fit and willing relative, or termination of parental rights, the department must show compelling reasons for the selection of another permanent plan. § 20-7-766(c). Thus, once a child is removed from a parent and placed in foster care, a parent basically has one year to get the child back.

Typically removal cases will fall into one of three categories. In one category are parents so enmeshed in their dysfunctional behavior that no advice the attorney can provide them will be heeded. All the attorney can do in this case is encourage the parent to overcome the behavior and warn that parent of the risks of parental rights being terminated if the parent does not act quickly. See § 20-7-1572(2 & 8) (parental rights can be terminated where a child has been out of the home for a period of six months following the adoption of a placement plan by court order or by agreement between the department and the parent, and the parent has not remedied the conditions which caused the removal or where the child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months).

In another category are parents who acknowledge abusing or neglecting their child. For these parents the best strategy may not be to work on defeating a finding of abuse or neglect, but instead to develop a workable placement plan that addresses the concerns that led to the child’s removal and remedies those concerns. Often if the alleged abuse or neglect did not cause substantial harm to the child, DSS will defer a finding of abuse or neglect against the parent and dismiss the case and return the child when the parent has completed the placement plan.

In representing a parent who acknowledges the abuse or neglect, counsel’s first role will be to make sure that a placement plan is created that addresses the parent’s problems and that the parent is capable of complying with the plan and completing it. Counsel may also want to explore whether placing the child with a relative or family friend is possible, as this may reduce the emotional impact upon the child from his or her removal from the parent’s home. See § 20-7-610(D). Non-foster care placement also stops the deadlines of § 20-7-766 from coming into play. Finally, counsel may wish to explore whether the parent can have unsupervised visitation or visitation supervised by someone other than DSS. There is no statutory requirement that DSS actually supervise the visitation.

Once a placement plan is in place, counsel’s role will be to assist the parent in completing it to the extent the parent needs assistance and in getting the placement plan modified to the extent that completion of the placement plan becomes unexpectedly difficult for reasons having nothing to do with the parent (e.g., services thought to be available were not available; a service provider takes unreasonable positions on the parent’s compliance with the placement plan or is dilatory in providing the necessary services). If necessary a motion to amend the placement plan may be brought. § 20-7-764(G). As the parent addresses the concerns that gave rise to the removal (by completing portions of the placement plan), it is possible to petition the court for increased and/or unsupervised visitation.

Once the placement plan is completed, counsel’s role will be to obtain the return of the child. S.C. Code Ann. § 20-7-764(A & C) would seem to indicate that once the placement plan is completed the child should be returned home. Yet often DSS will not believe the child is ready to be returned. A motion seeking the return of the child based on completion of the placement plan may be required to actually obtain the child’s return.

The third category of parent is the one who denies abusing or neglecting the child. In preparing for a contested merits hearing, counsel should be preparing to do one or all of the following: 1) obtain an order of discovery and engage in discovery; 2) obtain copies of all medical and forensic evaluations of the child; 3) seek an independent medical examination of the child if there is reason to believe the initial forensic or medical examination was flawed; 4) take the deposition of the child if the child’s credibility will be an issue at the merits hearing; 5) prepare to defend a claim that the child’s hearsay statements are admissible under § 19-1-180. Further, counsel should immediately request from DSS the case file as authorized by § 20-7-690(B)(5). Counsel for this parent must prepare for the merits hearing in a greatly compressed time frame. DSS will sometimes try to delay the merits hearing past the initial 35 day period and, if the parent wants the rapid return of the child and there is good reason to believe a finding of abuse or neglect can be defeated, counsel should be prepared to fight any request for a continuance.

Intelligent, thoughtful counsel is vital in counseling a client whether to seek return of the child by fighting the merits or completing a placement plan. A bad decision (to pointlessly fight the merits finding or failing to fight a merits finding when a placement plan is untenable) based on poor legal advice is malpractice. Further claims of malpractice may arise when counsel for the disinterested parent fails to warn of the risks of inaction. Any attorney representing such a parent would be wise to have at least one letter to the client in the file warning of the risks and deadlines in failing to remedy the conditions that led to removal.

Fighting the merits in cases where the parent’s abuse or neglect is obvious greatly delays and often prevents the return of the child. A parent who spends the initial months of the case denying the problem that led to removal (rather than remedying the problem) alienates DSS and the court (by taking the position that DSS’s allegations were without merit when they actually were). When the merits are eventually resolved against the parent, that parent has not even begun to remedy the conditions that led to the removal and has created an atmosphere of distrust. A parent who has spent the first few months of the case denying an obvious substance abuse problem or denying obvious physical abuse of the child should not be surprised when DSS and the court perceive that parent’s post-merits-finding "desire" to remedy the conditions that led to the removal as insincere. Likely the placement plan will be more onerous, the proof required for completion more rigorous, and the return of the child once the placement plan is completed less automatic than it might have been if the parent had not denied the allegations initially. If that same parent’s initial posture had been one of remorse and contrition, both DSS and the court would likely show some empathy for the parent and be supportive (rather than suspicious) of the parent’s attempts to remedy the conditions that led to the removal.

In contrast, there are times when the fight has to be over the merits finding because a placement plan is untenable to the parent. This typically occurs in cases where the allegation is of sexual abuse. Because sexual abusers of children are so stigmatized in this culture, many parents will not acknowledge their sexual abuse of their own child even if it happened. Even fewer parents would "acknowledge" their sexual abuse of their own child if the abuse did not happen. Since "acknowledging" this sexual abuse is almost always a required part of the placement plan after a sexual abuse finding, parents accused of sexually abusing their child may need to defeat the finding to get their child returned (because they will never complete the placement plan if a sexual abuse finding is made). Representing these parents with any strategy other than one of vigorously defending and defeating a merits finding is simply malpractice. In any case where a placement plan will be untenable, the strategy must be to defeat the merits finding.

Rather than letting a removal case casually drift, counsel for parents of a removed child should set the strategy and control the tempo of the case. Where the merits will be challenged, parent’s counsel should prepare for trial to proceed as quickly as the case can be readied and should file motions (and request expedited hearings on the motions) to the extent necessary to be prepared. One should not allow DSS to set the tempo in a merits case. Where completion of a placement plan is the goal, one should move quickly for the creation and the court’s adoption of the placement plan while removing any obstacles to a parent’s completion of the plan. Obtain the return of the child home and, even if the case is not over, counsel for the parent will likely be representing a much less anxious (and anxiety-provoking) client.

1. Cases in which DSS seeks to intervene and require a parent to obtain treatment without removing the child are called intervention actions and are brought pursuant to § 20-7-738. Most of the procedures for intervention actions are the same as for removal actions. However, because the child remains in the parent’s home there is less urgency involved.

2. "Child abuse or neglect", or "harm" occurs when the parent, guardian, or other person responsible for the child's welfare:

(a) inflicts or allows to be inflicted upon the child physical or mental injury or engages in acts or omissions which present a substantial risk of physical or mental injury to the child, including injuries sustained as a result of excessive corporal punishment, but excluding corporal punishment or physical discipline which:

(i) is administered by a parent or person in loco parentis;

(ii) is perpetrated for the sole purpose of restraining or correcting the child;

(iii) is reasonable in manner and moderate in degree;

(iv) has not brought about permanent or lasting damage to the child; and

(v) is not reckless or grossly negligent behavior by the parents.

(b) commits or allows to be committed against the child a sexual offense as defined by the laws of this State or engages in acts or omissions that present a substantial risk that a sexual offense as defined in the laws of this State would be committed against the child;

(c) fails to supply the child with adequate food, clothing, shelter, or education as required under Article 1 of Chapter 65 of Title 59, supervision appropriate to the child's age and development, or health care though financially able to do so or offered financial or other reasonable means to do so and the failure to do so has caused or presents a substantial risk of causing physical or mental injury. However, a child's absences from school may not be considered abuse or neglect unless the school has made efforts to bring about the child's attendance, and those efforts were unsuccessful because of the parents' refusal to cooperate. For the purpose of this chapter "adequate health care" includes any medical or nonmedical remedial health care permitted or authorized under state law;

(d) abandons the child;

(e) encourages, condones, or approves the commission of delinquent acts by the child and the commission of the acts are shown to be the result of the encouragement, condonation, or approval; or

(f) has committed abuse or neglect as described in subsections (a) through (e) such that a child who subsequently becomes part of the person's household is at substantial risk of one of those forms of abuse or neglect.

§ 207-490(2).

For purposes of EPC, "threat" of harm is sufficient for removal. § 20-7-610(A)(1).