The interactions of abuse and neglect placement plans with return of the child

Posted Wednesday, July 29th, 2020 by Gregory Forman
Filed under Attorney-Client Relations, Department of Social Services/Child Abuse and Neglect, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Any time a family court finds a parent has abused or neglected his or her child, it will offer that parent a placement plan (sometimes referred to as a treatment plan) unless the court recommends permanent third-party placement or termination of parental rights. The development of such placement plans is guided by S.C. Code § 63-7-1680. Completion of that plan is a necessary, but not sufficient, condition to obtain return of the child. Understanding what should be in a placement plan can help parents and their attorneys guide the development of such plans. And such parents must absolutely understand the ramifications of completing or not completing the placement plan at the time the plan is developed.

The purpose of the placement plan is to remedy the conditions that led to the removal of the child. The plan must be approved by the court. Subsection F(4), requires that “the plan is meaningful and designed to address facts and circumstances upon which the court based the order of removal.” To the extent possible, the plan must be prepared with the participation of the parents or guardian of the child, the child, and any other agency or individual that will be required to provide services in order to implement the plan. Thus parents and their attorneys can and should be actively involved in the development of the plan. A placement plan has four sections:

The first section of the plan shall set forth the changes that must occur in the home and family situation before the child can be returned. These changes must be reasonably related to the reasons justifying removal of the child from the custody of the parents or guardian. This section of the plan must contain a notice to the parents or guardian that failure to make the indicated changes within six months may result in termination of parental right.

In negotiating a placement plan, the attorney representing the parent should insure that the plan is intended to remedy the conditions that led to the child’s removal and that prevent the current safe return of the child. Much of the time, the Department of Social Services (DSS) will seek to add provisions in the plan that are unrelated to those conditions. The more conditions in the placement plan, the more difficult it will be for the parent to complete the plan.

Further, the attorney representing the parent needs to instill a sense of urgency in that parent. Failure to complete the placement plan within six months may result in that parent’s rights to the child being terminated.

The second section of the plan shall set forth:

(1) specific actions to be taken by the parents or guardian of the child; and

(2) social or other services to be provided or made available to the parent or guardian of the child.

This section of the plan must include time frames for commencement or completion of specific actions or services. This section must contain a notice to the parents or guardian that completion of the indicated actions will not result in return of the child unless the changes set forth in section one of the plan have occurred.

This is the portion of the plan in which responsibilities for payment of and transportation to the services required by the plan are negotiated. For a parent with limited means or no reliable transportation a placement plan that requires large expenditures or frequent transportation to service providers is a plan that likely cannot be completed. Here is the place where attorneys for parents need to advocate and address these issues.

The third section of the plan shall set forth rights and obligations of the parents or guardian while the child is in custody including, but not limited to:

(1) the responsibility of the parents or guardian for financial support of the child during the placement; and

(2) the visitation rights and obligations of the parents or guardian during the placement.

This section of the plan must include a notice to the parents or guardian that failure to support or visit the child as provided in the plan may result in termination of parental rights.

The fourth section of the plan must address matters relating to the placement of the child including, but not limited to, the following:

(1) the nature and location of the placement of the child, unless there are compelling reasons for concluding that disclosure of the location of the placement to the parents, guardian, or other person would be contrary to the best interests of the child. The placement must be as close to the child’s home as is reasonably possible, unless there are compelling reasons for concluding that placement at a greater distance is necessary to promote the child’s well-being. In the absence of good cause to the contrary, preference must be given to placement with a relative or other person who is known to the child and who has a constructive and caring relationship with the child;

(2) visitation or other contact with siblings, other relatives, and other persons important to the child. The plan shall provide for as much contact between the child and these persons as is reasonably possible and consistent with the best interests of the child;

(3) social and other supportive services to be provided to the child and the foster parents, including counseling or other services to assist the child in dealing with the effects of separation from the child’s home and family; and

(4) the minimum number and frequency of contacts that a caseworker with the department will have with the child, which must be based on the particular needs and circumstances of the individual child but which must not be less than once a month for a child placed in this State.

These are the sections of the plan where an attorney should remind parents to provide financial support for their child and where an attorney should attempt to maximize the amount of contact the parent has with the child while the plan is being implemented. Where siblings are separated, it is also the time to address sibling contact. Finding acceptable low or no-cost supervisors for visitation can help parents maintain a relationship with their child and minimize their anxiety while they complete the plan. In cases in which the sole condition leading to removal is the condition of the parent’s home, unsupervised daytime visitation is sometimes acceptable.

Subsections F and I indicate that the family court should hold hearings on the plan if there is not an agreement. Subsection K indicates a contempt petition may be brought against the DSS if that agency does not fulfill its responsibilities under the plan. Subsection H addresses amendment of plans:

The plan may be amended at any time if all parties agree to the revisions, and the revisions are approved by the court. The amended plan must be submitted to the court with a written explanation for the proposed change. The plan also may be amended by the court upon motion of a party after a hearing based on evidence demonstrating the need for the amendment.

Per subsection G, “Before the court orders return of the child, the court must find that the changes in the home and family situation specified in section one of the plan have occurred and that the child can be safely returned to the home. Completion of the tasks specified in section two of the plan is not in itself sufficient basis for return of the child.” What this subsection means is that completion of the plan–which, under subsection H, can be an amended plan–is a necessary condition for the return of the child. However, the court must still find the child can safely be returned home before the child is returned home.

Typically, when a placement plan has been completed but the court will not return the child, one of two things has occurred. Either the parent has completed the plan but new issues have arisen that make return of the child unsafe or there are other circumstances that make the child’s return unsafe. If parents live together and only one parent has completed the plan, the court will not return the child unless the parents separate. If a parent has developed new safety issues since the plan was approved, the court will likely amend the plan and required those additional conditions to be met before the child is returned.

Once a merits finding has been made against a parent, the attorney and parent’s task is to negotiate a placement plan that the parent can fulfill and that remedies the conditions that led to the removal. It is then that parent’s task to complete the plan with all deliberate speed and the attorney’s task to assist the parent is overcoming obstacles to the plan’s completion. Finally, once the plan is completed, the task becomes to convince DSS and the guardian (if possible) and the court (if necessary) that the child can be safely returned.

Treating the placement plan as an afterthought to an adverse merits finding or failing to complete the plan with all deliberate speed are mistakes that frequently result in the ultimate resolution being the termination of parental rights.

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