I received an email from a recently licensed attorney noting a previous blog and asking whether I thought she, as the guardian ad litem in an abuse and neglect case, should be making recommendations on the merits. This got me thinking about how the recent changes to the abuse and neglect statute, explained here, will impact resolving such cases.
When I previously asked: In a DSS abuse and neglect case, when the treatment plan is resolved, should the guardian ad litem have an opinion on the merits?, I really didn’t have an answer in mind. However, among the recent changes to the abuse and neglect statute is a provision in S.C. Code § 63-7-1680 providing that completion of the treatment plan may not be sufficient for return of the child.
Prior to this statutory change I has always assumed that completion of the treatment plain would routinely lead to the child being returned (unless new abuse or neglect issues arose in the meantime). The few times completion of the treatment plan did not lead to return of the child, and where there had been no new concerns about abuse or neglect, I had been quite angry with the court, the guardian, and DSS. Now I cannot make the assumption that completion of the treatment plan will lead to the return of the child (and will no longer be angry at DSS, the guardian, and the court when it doesn’t). Instead the court will look to a defendant’s completion of the treatment plan to determine if that defendant has remedied the conditions “justifying removal of the child from the custody of the parents or guardian.” If the treatment plan has been completed but the conditions haven’t, in the court’s opinion, been remedied, the child will not be returned.
Completion of the treatment plan is concrete: it’s easy to determine whether a defendant has completed (or not). Remedying the conditions that led to removal is more amorphous. Each individual judge will have an opinion on whether the conditions were remedied. It is now much harder to advise a client when a child will be returned.
Most of the recent revisions to the abuse and neglect statute are designed provide parents less time to remedy the conditions that led to removal and allow DSS to forgo efforts to unify if conditions that led to removal were particular egregious. It also makes treatment plans more detailed and explicit than they previously were. If one thinks it’s a good thing for children from dysfunctional homes to spend less time waiting for their caregivers to remedy the dysfunction before they can be freed for adoption–a point that has benefits and drawbacks but not one I find necessary to debate–the revisions to the abuse and neglect statute are clear improvements. However, since one cannot rely upon competition of the treatment plan as leading to the return of the child, there’s less incentive to agree to a treatment plan while deferring the finding on the merits. There will be increased occasions–basically when merits are questionable and the treatment plan is rather involved–in which a trial on the merits may now be preferable to agreeing to a treatment plan without a merits finding. This is an unintended consequence of this statute’s get-tough philosophy.
And the question I asked months ago about whether a guardian should have an opinion on the merits when the treatment plan has resolved is now easy to answer: the answer is yes. If completion of the treatment plan will not automatically lead to return of the child, a guardian had better be prepared to investigate sufficiently to have an opinion on whether the child needs protection from his or her caregivers if the treatment plan is completed but DSS still doesn’t want to return the child.