Representing Parents in Court-Appointed Abuse & Neglect Cases (December 2004)

Material for the December 2004 Charleston County Bar CLE

South Carolina’s abuse and neglect statute was recodified in 2008.  A more recent publication covering this material with the updated code citations can be found here: Triaging Your Removal Case and Client Goal Setting

By operation of Rule 608(c)(1)(B), SCACR, non-exempt attorneys who do not qualify or chose not to be on the criminal appointment list are required to be on the civil appointment list for indigent representation. Often such appointments are to defend parents who are accused of the abuse or neglect of their child. See S.C. Code Ann. §20-7-110(B).

Frequently the attorney who gets the appointment has little or no experience in abuse and neglect cases. Yet counsel’s diligence (or lack thereof) can often mean the difference between a parent being reunited with the child or having their parental rights terminated. Counsel’s diligence can also be a factor in how long it takes to reunite parents with their child.

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:

Upon investigation of a report received under Section 207650 or at any time during the delivery of services by the department, the department may petition the family court to remove the child from custody of the parent, guardian, or other person legally responsible for the child’s welfare if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be safely maintained in the home in that he cannot be protected from unreasonable risk of harm affecting the child’s life, physical health, safety, or mental wellbeing without removal.

S.C. Code Ann. § 20-7-610 sets for the procedures and standard 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,
The court shall not order that a child be removed from the custody of the parent or guardian unless the court finds that the allegations of the petition are supported by a preponderance of evidence including a finding that the child is an abused or neglected child as defined in Section 207490 and that retention of the child in or return of the child to the home would place the child at unreasonable risk of harm affecting the child’s life, physical health or safety, or mental wellbeing and the child cannot reasonably be protected from this harm without being removed.

§ 20-7-736(F).

At the probable cause hearing in the EPC case,
[the court] shall determine whether there was probable cause for taking emergency protective custody and for the department to assume legal custody of the child and shall determine whether probable cause to retain legal custody of the child remains at the time of the hearing. At the probable cause hearing, the respondents may submit affidavits as to facts which are alleged to form the basis of the removal and to crossexamine the department’s witnesses as to whether there existed probable cause to effect emergency removal.

§ 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.

If the case is not dismissed at the probable cause hearing, the attorney and parent must work together to effect 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).

The placement plan shall include, but is not limited to:

(1) the specific reasons for removal of the child from the custody of the parent or guardian and the changes that must be made before the child may be returned, including:

• (a) the nature of the harm or threatened harm that necessitated removal, a description of the problems or conditions in the home that caused the harm or threatened harm, and the reason why the child could not be protected without removal;
• (b) the nature of the changes in the home and family situation that must be made in order to correct the problems and conditions that necessitated removal, time frames for accomplishing these objectives, and means for measuring whether the objectives have been accomplished. The objectives stated in this part of the plan must relate to problems and circumstances serious enough to justify removal. The plan must be oriented to correcting these problems and circumstances in the shortest possible time in order to expedite the child’s return to the home;
• (c) specific actions to be taken by the parents or guardian of the child to accomplish the objectives identified in subitem (b) and time frames for taking these actions.

§ 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 the parents one will be appointed to represent 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 treatment 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 treatment plan.

In representing a parent who acknowledges the abuse or neglect, counsel’s first role will be to make sure that a treatment plan is created that addresses the parent’s problems and that parent is capable of complying with the plan and completing it.  Counsel may also want to explore whether relative placement or placement with a 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 treatment 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 treatment plan modified to the extent that completion of the treatment 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 treatment plan or is dilatory in providing the necessary services). If necessary a motion to amend the treatment plan may be brought. § 20-7-764(G).   As the parent addresses the concerns that gave rise to removal (by completing portions of the treatment plan), it is possible to petition the court for increased and/or unsupervised visitation.

Once the treatment 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 treatment plan is completed, the child should be returned home but 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 treatment 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. Counsel for this parent must prepare in a greatly compressed time frame for the merits hearing.  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. Further, counsel should immediately request from DSS the case file as authorized by § 20-7-690(B)(5).

Public Interest groups in South Carolina provide Inexpensive (or free) and useful information on abuse and neglect procedure.  The South Carolina Children’s Law Office (a program of the U.S.C. School of Law) has numerous useful brochures on its website, including a Guide for Lawyer Appointed in Child Protection Cases.  The Appleseed Justice Center has a Child Abuse and Neglect Handbook online that provides parents a short and easy-to-understand overview of case procedure and deadlines.

There are many evidentiary and procedural rules that are unique to abuse and neglect cases. Counsel defending an abuse or neglect case needs to familiarize him or herself with these rules. A valuable resource on defending abuse and neglect cases is Guarding the Democracy of Home: Representing Parents in Child Protection Cases by John D. Elliott. It is published by the Children’s Law Office and is available for a nominal charge. No attorney defending an abuse and neglect case should be without it

Anyone who doubts that the courts recognize attorneys who zealously handle DSS court appointments is directed to SCDSS v. Truitt, Op. No.3873 (S.C. Ct. App. filed October 11, 2004) (Shearouse Ad. Sh. at 39, 48, n.5).  Handling such representation zealously and thoroughly can often prevent the removal of a client’s child or result in a quick return of the child. A lack of zealous and thorough representation can result in the parent’s relationship with the child being irretrievably damaged or even terminated.

__________________________________________

[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.

§ 20-7-490(2).

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