The Department of Social Services (DSS) serves multiple purposes in South Carolina. Perhaps the most well known service is for the protection of children who have been abused or neglected. This process can be complicated to understand, so here, our Charleston family lawyers and DSS defense attorneys explain the basic process of a DSS case and certain terminology used in these types of cases.
Reporting Abuse or Neglect to DSS in South Carolina
Most DSS cases start off with someone reporting abuse or neglect. It can be a teacher or neighbor who witnesses bruises, a doctor who treats the child and sees signs of abuse or neglect, or any other person who suspects something is wrong. Certain people are required by law to report a case to law enforcement if they receive information that the child’s welfare is in danger. The list is long, but generally it includes health care workers, educational workers, certain child caretakers, funeral home employees, certain social workers, and clergymen. Law enforcement then notifies DSS.
There are protections for certain types of reporting. For example, employees can’t be fired or disciplined for reporting. The identity of the person making the report should remain confidential, except in limited situations such as if the reporter is going to testify in a criminal trial against the alleged abuser. A mandatory reporter is immune from being sued so long as the report is made in good faith. Further, Mandatory reporters can take pictures or x-rays of child without consent of the parent or guardian and must give these photos to DSS.
If a mandatory reporter doesn’t report and this failure is discovered, the person can be charged with a crime that carries up to 6 months in jail. Certain privileges on not having to talk to people do not apply. One example is the doctor-patient privilege, where normally doctors can’t talk to others about their patients.
If a report is made in bad faith, then the parent or guardian who had to respond to the report might be able to obtain the identity of the reporter and sue the reporter. A person who knowingly makes a false report can be charged with a crime that carries up to 90 days in jail.
Emergency Protective Custody in South Carolina
After the police are called, they can take emergency protective custody of the child, without consent of the parents or guardians, if the officer has probable cause to believe that abuse or neglect has put the child in substantial and imminent danger. The police might also take emergency protective custody if the parents on scene are being arrested or if the child is lost. If the child needs emergency medical care, the officer will take the child to a health care facility. The parents will be responsible for the medical bills unless the medical exam is done at the cop’s request for the purpose of determining whether abuse or neglect occurred. If the child doesn’t need medical care, then the child will be turned over to DSS and foster care options will be considered. The child can’t be placed in jail or a similar setting. DSS can’t take custody until they have a court order or until after law enforcement has already taken emergency protective custody.
Preliminary Investigations in South Carolina DSS Cases
DSS is supposed to conduct a preliminary investigation within 24 hours of taking the child into custody to determine whether they have probable cause to begin the court process of removing the child. DSS should also investigate whether a relative can take custody in the event there are allegations against the parents that would lead to a continued removal. DSS should meet with the parents to discuss corrective actions and placement of the child.
Before placing the child in a relative’s home, DSS will perform a risk assessment (sometimes called a “home study”) to determine whether there is a significant risk that the child could be abused or neglected in the relative’s home. DSS will also check the relative to see if he or she has ever been placed on the Central Registry of Child Abuse and Neglect, sex offender registries, or had other issues that would pose a risk to the child.
If DSS takes temporary legal custody of the child, then in most cases it will still reveal the location of the child to the parents and attempt to arrange visitation unless there are good reasons why visitation or revealing the location should not happen.
If DSS wants to place the child with a relative and the parents agree on that person, DSS can hold custody an additional 5 days to allow the relative to make travel or other arrangements. If the placement can’t be made within 5 days, then a probable cause hearing will be needed if the parents request it, or DSS will need to file a petition for removal. We’ll discuss the probable cause hearing shortly.
AS part of the investigation, DSS can get a warrant authorizing them to interview the child, inspect the condition of the child, inspect the premises where the child may be, and/or get copies of medical records, school records, or other records.
Emergency Protective Custody Proceedings in South Carolina
If the officer instructs DSS to not return the child to a parent or relative, regardless of the outcome of the preliminary investigation, then DSS must keep custody pending the investigation and the probable cause hearing.
Probable Cause Hearings in DSS Cases
In many cases, DSS will start a case for removal. In these cases, the family court will schedule a probable cause hearing within 72 hours of taking the child into custody. If the last day falls on a weekend or holiday, the hearing will occur on the next working day.
At the hearing, DSS generally calls witnesses and presents photographs or other evidence. The parents or their lawyer may submit affidavits to support their position and may cross-examine DSS’s witnesses. These witnesses usually consist of investigators, DSS caseworkers, law enforcement, or others.
If the court finds probable cause to believe the allegations against the parents or guardians are true and that these allegations put the child in danger, then the court will order that DSS can retain custody.
Merits Hearings in DSS Cases
The “merits hearing” should be held within 35 days of the receipt of the removal petition. In certain circumstances, the court can reschedule the hearing to occur up to 65 days after the receipt of the removal petition. The hearing can be even longer out so long as the court finds exceptional circumstances and sets the case for trial.
Temporary Hearings in DSS Cases
DSS, the guardian ad litem (GAL) for the child, or the parents can request pendente lite hearings (aka temporary hearings) during the case to address other matters that are not part of the standard procedure in DSS cases.
Protecting the Child in DSS Cases
The court may issue orders along the way for the protection of the child. For example, the court may allow visitation but only if supervised or prohibiting the child to be brought around certain people such as a violent boyfriend of a mother.
Indicated vs. Unfounded DSS Cases
Within 24 hours of receiving the report of abuse or neglect, DSS must begin an investigation to determine whether the report is “indicated” or “unfounded.” The finding is supposed to come within 45 days.
The designations are described as follows:
- Indicated – DSS makes a determination that they believe there is sufficient evidence that a child has been abused or neglected. DSS must also state what services they can provide to the child and family.
- Unfounded Category IV – DSS decides not to investigate, but this still makes record in case reports come later concerning same child or family.
- Unfounded Category III – the investigation can’t be completed because DSS can’t locate the child or family, or other strong reasons. This type of case can be reopened at a later date.
- Unfounded Category II – there may be some evidence, but not a preponderance of the evidence, that abuse occurred.
- Unfounded Category I – abuse and neglect were ruled out.
- Suspected – a preliminary classification that the report has not yet been indicated or unfounded.
Central Registry of Child Abuse and Neglect in South Carolina
DSS maintains a Central Registry of Child Abuse and Neglect. This is an internal database that allows DSS to track perpetrators of abuse and neglect. Perpetrators will be entered in the registry if ordered by the court, or in limited other circumstances. The registry will contain the person’s name, date of birth, address, and other identifying information. Unfounded reports will not go into the registry.
At any time following receipt of a report of abuse or neglect, DSS can petition the family court for an order to place the person in the Central Registry. The petition must state the facts that would cause a finding of abuse or neglect against the person. DSS will serve the petition on the person, and the person then has 5 days to request a hearing in writing. If the person (or his or her attorney) requests a hearing, the court will hear the case on its merits. If the court finds by a preponderance of the evidence that the person physically abused the child, sexually abused the child, recklessly or willfully endangered the child, or gave birth to the child and the child tested positive for certain drugs. There is a limited exception if the only “abuse” is excessive corporal punishment.
The information contained in the Central Registry is pretty confidential. DSS can use it when making decisions associated with the delivery of services to certain families. It can be accessed in name change cases. Applicants of certain types of employment, volunteer roles, or licenses can be screened against the Registry. There are a few other instances where Central Registry information can be accessed.
If a person is entered into the Central Registry of Child Abuse and Neglect, then the person must be notified by certified mail that his or her name was entered in the registry, and the person may appeal this decision. An appeal begins with a “contested case hearing.” If the determination of abuse or neglect is upheld at the hearing, then the person charged can petition to have the case heard in family court.
Representation of Children in DSS Cases
In all child abuse and neglect cases, the court will appoint a Guardian ad Litem (GAL). The GAL’s primary role is to protect the interests of the child. In many cases, the GAL will have an attorney representing him or her. In some cases, the family court will also appoint an attorney to represent the child but this is not as common. Any attorney for the child can’t be the same attorney for any of the other parties to the case.
Representation of Parents or Legal Guardians in DSS Cases
If a parent, guardian, or other person is involved in a DSS case, the court can appoint a lawyer for that person if the person is unable to afford legal representation. There is a screening process that will likely be used to determine if the person meets the criteria for having a lawyer appointed.
DSS Services for Families
In both cases of removal and cases where the child is left with the parents, DSS has an obligation to provide certain services to these families. The types of services will depend on the case. The Court will review the services that are offered to the families. Services can be as simple as parenting classes or can involve intensive counseling programs.
DSS Safety Plan
Sometimes DSS will attempt to address the situation without court involvement through what is called a “safety plan.” The safety plan is essentially contract where the parent or guardian agrees to do certain things or abide by certain restrictions to avoid court involvement. DSS will continue to monitor the situation to make sure the parent or guardian is doing what they’re supposed to under the safety plan. If all goals are met and the problems seem to be fixed, then DSS can close its file.
DSS Treatment Plan
If a court orders removal of the child so that protective services continue, the court will review and approve a treatment plan to help make sure the child will not be endangered in the future. The plan will be prepared by DSS and will lay out any changes in parental behavior or home conditions they believe should be made. Treatment plans can include things like cleaning unsanitary houses, submitting to drug testing, submitting to anger management classes, substance abuse counseling, and keeping children away from certain individuals.
The plan will have a set date for certain goals to be completed. Depending on what the court orders, the case will end upon completion of the treatment plan, or the case will have to go back before a judge for review. The most positive thing about a treatment plan is that it is designed to protect the child and will ultimately lead to reunification between the child and parents.
DSS Placement Plan
When a child is removed from a parent, generally they will seek to place the child with the other parent first. If the other parent can’t be found, is unfit, or is subject to removal as well, then they will try to place the child with a relative. As last resort, DSS will place the child in foster care.
If the court orders removal, it will also order a placement plan. The plan will be prepared by DSS with input of the parents, if possible. The first part of the plan will discuss what changes must occur before the child can be returned. The second section talks about what specific actions must be taken by the parents and what services will be made available to the parent. This section will include time frames for the completion of actions or services. The third section will state the rights and obligations of the parents, including any obligation to pay child support to a foster family and any visitation rights during the removal. The failure to support or visit the child as provided in the plan, or the failure to remedy the problems that led to removal within 6 months, can result in the termination of parental rights. The fourth section addresses the temporary placement of the child. The plan can be amended by a motion to the court if circumstances change that make the plan no longer practical. A party may also object to the plan, but it will be up to the judge to ultimately approve whatever plan will be in place.
A review hearing will be held within 1 year of the date of placing the child in foster care. At the initial permanency planning hearing, the court will review the case, see what progress might have been made, and determine whether an amended plan is required. DSS will submit a supplemental report at this hearing, which will state the facts from DSS’s perspective, recommend a permanent plan, state the status of any termination of parental rights proceeding, and give a report of the local foster care review board about the child’s status. The DSS report will normally either give a reunification plan, show a desire to give custody to a fit and willing relative, or express intent to terminate the parental rights.
If the judge decides at the permanency planning hearing that the child would be safe in the parents’ home and that the parents have fixed the conditions that led to the removal, the court will order the child be returned. The court has the option of ordering of period of DSS supervision that can last up to 12 months. If the court does not believe the child should be returned, the court will order DSS to initiate a termination of parental rights case.
If the parents haven’t completed everything they were supposed to, the court has the option to forego termination of parental rights at this time and extend of the plan if the court believes that the parent(s) have tried hard to correct the problems leading to removal, that there is reason to believe the problems will be fixed by the end of the extension, and that termination of parental rights is not in the child’s best interests.
Terminating Parental Rights in DSS Cases
DSS will file a termination of parental rights (TPR) case if the child has been in DSS or foster care for 15 of the last 22 months, if the child is an abandoned infant, if the parent has committed murder, manslaughter, or homicide by child abuse of another child, if the parent committed a felony assault that caused serious bodily injury to the child or another child of the parent, or if the parent has been in willful contempt of a family court order twice in the past 12 months.
The court can halt the TPR proceedings if it believes that the child would not benefit from TPR or if DSS did not provide adequate services to the parents to help in fixing the problems that led to removal.
Dealing with DSS in South Carolina
If DSS has come to your door, it is best to first contact a lawyer. You can make statements to the investigator or police that could be used against you in possible criminal proceedings. If a safety plan is offered, you should consider whether it is a reasonable solution that you can comply with to nip the case in the bud. If your child is removed, you will be served with papers. Read them all carefully. Contact legal counsel. Check the date for the first hearing. If you have a family member who is in your opinion the best person to take custody of your kids, contact that family member and tell them to get the house cleaned up and ready for a home study. Tell DSS that you would prefer this family member over others and over foster care.
Having your children taken can be a horrible event that should not be taken lightly. Get your lawyer on board to start handling the legal aspects, but go ahead and start improving your home situation if that is what led to the removal. If your house is unsanitary, start cleaning. If you can’t pass a drug test, stop using drugs. If your boyfriend or girlfriend is a convicted sex offender, consider whether the relationship is as or more important than your kids. Every case is different. Use common sense.
If you can’t afford an attorney, remember to ask the court at the first hearing to appoint one for you.