The Folly of Fighting Child Protective Services after a Merits Finding

Posted Thursday, July 2nd, 2020 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I developed a theory that all such parents fall into one of three categories: 1) the innocent; 2) the repentant; and 3) the goners.

The innocent were those parents who denied abusing or neglecting their child(ren). For them, my goal was to prepare the case for trial in the hope that the Department of Social Services (DSS) would dismiss the case or, if it would not, that I could defeat a finding of abuse or neglect at trial. If the children had been removed from my clients’ custody, this strategy, if successful, would result in the child(ren) being returned at the close of trial. No treatment plan would be necessary. A successful defense on the merits would also end the case–and end it favorably.

The repentant were those parents who acknowledged having some issue that led them to abuse or neglect their child(ren). For these parents the goal was to negotiate a treatment plan designed to fix their issues, shepherd them through that treatment plan, and get the case closed with DSS out of their lives (and their children returned if DSS had removed them).

The goners were those parents who couldn’t care less. Most parents have a strong sense of urgency when their children are removed; these parents didn’t. Often my female goners would be pregnant before my representation ended–I assume their thought process being, “if DSS takes my child(ren), I’ll just have another one.” Although the pay for representing indigent parents was minimal, I enjoyed representing the innocent and the repentant. But I resented having to work for reduced fees for the goners.

However the validity of this classification system only remains through the order from the merits hearing. Merits orders are final orders which must be timely appealed. Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999). In other words, an unappealed merits order is binding on DSS, the parents, and the family court. An unappealed merits order that finds a parent abused or neglected the child is a binding finding against that parent.

Often parents will contact me in the midst of an abuse and neglect proceeding about wanting to “fight [and often sue] DSS.” The first question I ask such parents is, “has there been a merits hearing and, if so, what was the result?” These parents will generally evade answering this question while regaling me with tales of DSS malfeasance. So I will ask again, “has there been a merits hearing and, if so, what was the result?” Evidently, with these parents, an adverse merits finding did not extinguish their desire to fight DSS. Informed of such adverse findings, I advise these parents that the time to fight DSS is over. Now the only productive strategy is cooperation. This advice often leads to raised voices, abrupt hang-ups, or both.

Before a merits finding, an argument for “innocence” remains a viable strategy. After an adverse merits finding, parents are either repentant or goners. Wise parents will head my advice to engage a repentance strategy but, in the small subset of parents who desire to fight DSS after an adverse merits finding, there is not much wisdom.

3 thoughts on The Folly of Fighting Child Protective Services after a Merits Finding

  1. Angelia Teague says:

    How can a child be removed from a parent just by going on word of a child? Doesnt actions need to be proven first? Its classified of hearsay without findings.

    1. S.C. Code 19-1-180 allows child hearsay in abuse and neglect proceedings. There’s an argument that this code is unconstitutional. If the child directly testifies about abuse or neglect, why shouldn’t the “word of a child” be sufficient for removal?

  2. Jessica says:

    What if the mother was denied a merits hearing ? No merits hearing took place and custody of children was granted to paternal grandparents at first and only hearing.

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