Defending child protective services cases

There are four types of cases in which caregivers, typically a child’s parents, can use the services of a South Carolina child abuse attorney in defending child protective services cases brought by the Department of Social Services (DSS): intervention cases, removal cases, permanency planning cases, termination of parental rights cases.  Mr. Forman can assist parents in navigate each of these child abuse law cases.

Intervention and Removal Case

Intervention cases are requests by DSS for the family court to order parents to obtain services, typically parenting classes or mental health or substance abuse treatment, as a condition of keeping custody of their children.  Removal cases are similar to intervention cases except that DSS also seeks removal of a child from a caregiver’s custody.  In either type of case, child abuse law requires DSS will need to prove to the family court that a child has been abused, threatened with abuse, or neglected by the caregiver before the court can order a parent to obtain these services.

The Probable Cause Hearing

Typically removal cases begin with the child’s actual removal.  In these circumstances a probable cause hearing should take place within three business days of removal.  Parents have limited opportunities to present evidence at these hearings but an experienced attorney for child abuse law can occasionally get the case dismissed at the probable cause hearing.  More often, an attorney for child abuse law can obtain the child’s return under specified conditions, obtain placement of the child with a relative or friend who can monitor the parent’s contact with the child (and thus allow the parent more time with the child than DSS can provide), or insure that the parents have substantial opportunities to see the child pending resolution of the case. Involving an experience child abuse lawyer early in the process is critical step to keeping your family together.

The Merits Hearing

Both intervention cases and removal cases progress to a merits hearing, which is basically a trial on whether there was a child abuse law infraction.  If the court does not find abuse or neglect, the case ends and, if the child has been removed, the child is returned to the caregiver.  If the court finds abuse or neglect, it orders a treatment plan, which is basically the services the caregiver needs to undertake to keep custody of the child (in an intervention case) or regain custody of the child (in a removal case).  If the court finds abuse or neglect it can place, and in certain instances is required to place, the caregiver on what is called the Central Registry.  Being placed on Central Registry can have permanent consequences, especially in the area of employment.  An experienced child abuse lawyer can reduce the risk of a caregiver being placed on the Central Registry.

Whether to Fight the Merits

In preparing for a merits hearing, an experienced attorney for child abuse can help a client decide whether it makes sense to fight the merits, the allegation of abuse or neglect.  Fighting the merits may successfully lead to the case ending and the child being returned.  However, it takes months to prepare for a merits hearing and those are often months a parent could spend progressing in a treatment plan.  Fighting an unwinnable merits case merely delays the return of the children, and often creates an unnecessarily adversarial relationship between a parent and DSS/the family court. An experienced attorney for child abuse law can guide a parent on whether to fight the merits or negotiate a treatment plan.

The Treatment Plan

Assuming there has been a merits finding and a treatment plan, a seasoned child abuse lawyer can assist a parent in completing the treatment plan, document completion of the treatment plan, and obtain a review hearing in which a parent can seek return of the child by demonstrating that he or she has remedied the conditions that led to removal.  For myriad reasons parents can have trouble completing aspects of the treatment plan.  Often the issue can be as simple as arranging payment for the treatment providers or arranging transportation to the treatment providers.  Again, experienced child abuse lawyer can assist parents in removing barriers to treatment plan completion.

The Innocent Parent

Innocent parents can often become defendants in removal or intervention cases, especially when the parents do not cohabit. DSS is required to name all parents as parties to any intervention or removal case.  Such innocent parents can often obtain temporary custody of the child.  Experienced child abuse attorneys can assist such innocent parents in obtaining their rights.

However, DSS cases will not typically result in the innocent parent retaining permanent custody.  Once the parent whose child has been removed remedies the condition(s) that led to removal, DSS will ask the court to close the case and the prior status quo on custody will resume.  If the innocent parent wishes to retain custody after that point, a private custody modification case will need to be filed.  Often such actions should be filed well before DSS seeks return of the child to the initial custodian.  Again, a knowledgeable child abuse lawyer can assist the innocent parent in retaining custody of his or her child.

Permanency Planning Cases

When children have languished in the DSS system for more than 18 months, DSS is required to bring what is called a permanency planning case.  The goal is to keep children from languishing in the child protective services system.  Typically, these permanency plans resolve in one of three manners.  In cases where the parent remedies the conditions that led to removal, the child is returned to the parent.  In cases where the parent fails to remedy the conditions that led to removal but the child is in stable relative placement (which can sometimes be the other parent), the child is left with the relative, with the parent having the right to petition the court in a private action to regain custody of the child.  In cases where the parent fails to remedy the conditions that led to removal but the child is in foster care, the court is likely to order termination of parental rights as the permanency plan so the child can be freed up for adoption.  Experienced child abuse lawyer can assist parents in obtaining the return of their child by assisting with and demonstrating compliance with the treatment and demonstrating that the parent has remedied the condition(s) that led to removal.

Termination of Parental Rights Cases

Finally, DSS can bring termination of parental rights (TPR) cases.  To obtain a termination of parental rights DSS must demonstrate a statutory ground for termination, set forth in S.C. Code § 63‑7‑2570, and that termination is in the child’s best interests.  It must demonstrate both these items by clear and convincing evidence, a greater evidentiary burden than the typical preponderance of the evidence.

Whether to Fight Grounds

In any TPR case an experienced child abuse attorney will defend the best interest ground by demonstrating how such termination will not be in the child’s best interests, typically by showing that the parent retains the ability to care for the child.  Whether to defend the statutory grounds is a strategic decision that can sometimes be counterproductive.  A parent’s sincerity is a significant issue in defending best interests.  That sincerity can often be undermined by a weak or spurious defense of the statutory ground.

Mr. Forman has written and lectured extensively on defending DSS cases. Among his material on this matter are Advanced Tips on Representing Parents in Abuse and Neglect Cases, Triaging Your Removal Case and Client Goal Setting, It Can Be Counterproductive to Fight Grounds in Termination of Parental Rights Cases and Lessons from My First Contested Termination of Parental Rights Prosecution Trial.  If you would like to retain Mr. Forman as your attorney for child abuse law, you can contact him here.

 

 
 

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