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Court of Appeals finds reversible error to go forward with DSS Judicial Review Hearing when incarcerated mother had order of transport and the Department of Corrections failed to transport her to hearing

Today the Court of Appeals, in Department of Social Services v. Laura D., 386 S.C. 382, 688 S.E.2d 130 (2009), reversed and remanded a family court’s decision to proceed with a DSS Judicial Review Hearing when the incarcerated Mother was not present but when another judge had previously issued an order of transport to the hearing.  Her attorney sought a continuance due to her inability to appear at the hearing but the family court judge denied the request, finding her incarceration was “her fault” and thus her failure to attend was her fault.

The rationale of the Court of Appeals’ decision is unclear.  The appellate opinion references case law holding that “one family court judge may not ignore an order of another family court judge.”  The reversal appears to be based on the fact that the hearing judge ignored the previous judge’s order of transport in refusing the continue the hearing.  However there is also language in the order indicating that “the family court’s refusal to grant Mother’s motion for a continuance denied Mother, a necessary and proper party, meaningful access to this State’s courts.” Read broadly, this language could mean that whenever incarcerated parties seek an order of transport to a proceeding in which they are necessarily involved, it would be reversible error to refuse their transport request.

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