DSS safety plans don’t override custody/visitation orders

Posted Monday, July 5th, 2021 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Miscellaneous, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific, Visitation

I typically don’t blog about unpublished opinions. Since they cannot be used as precedent, their holdings are unreliable guidance. Still, when the Court of Appeals issued Campbell v. Winstead, in February, 2021, I was tempted. I opened a case last week in which it became clear Campbell is the rare unpublished opinion that merits a blog.

In Campbell, Mother made abuse allegations against Father and DSS began an investigation. Mother, but not Father, signed a safety plan agreeing to no contact between Father and Child. Eventually DSS unfounded the investigation, and visitation between Father and Child resumed.

Father than sought contempt against Mother for the visitation denial. At the contempt hearing, Mother admitted she denied the visitation. Mother acknowledged she had a duty to follow the Visitation Order regardless of the DSS investigation. Mother defended her actions by alleging a lack of bad purpose. She contended her compliance with the DSS safety plan and withholding of visitation does did constitute an act done with bad purpose. Mother stated “DSS . . . informed her in no uncertain terms that her child would be placed in an alternative home if she failed to comply.” Mother argued it would be “an abuse of judicial discretion” [actually arguing a harder standard for her to overcome than the de novo review she was entitled to] to require her to file a court action to change the Visitation Order because if the investigation was unfounded she would have to pay attorney’s fees to Father.

The family court found Mother in contempt. It noted if Mother wanted to “change a court order, you just bring an action for an [e]mergency [h]earing, you have a [c]ourt suspend visitation. You just can’t do it on your own.” In its contempt order, the family court found a DSS safety plan “is not a court order”, and noted that Mother “did not file any pleadings to modify visitation during this period of time.” Mother was sentenced to five days in jail, purged upon the payment of $100 and further strict compliance with the Visitation Order. Father received an additional week of visitation to make up for the missed visitation. Mother appealed.

In its unpublished opinion the Court of Appeals affirmed, holding:

We find the family court did not err in holding Mother in contempt for disregarding the Visitation Order. The DSS safety plan does not hold the authority of law and does not give Mother (or DSS) the authority to circumvent an order of the family court. The DSS safety plan states “I agree that if at any time I find that I cannot or will not comply with . . . this agreement, I must notify DSS immediately.” Mother could have notified DSS that she could not comply with the safety plan because of the Visitation Order and DSS could have proceeded from there. Mother admitted at the family court hearing that she knew she was under a family court Visitation Order that she must follow regardless of the DSS investigation. As the family court stated, “[I]f DSS does not file an action, and you don’t intend to [follow] a court order, you need to change the court order. That’s just the way the system has to work.”

Situations in which a parent is accused of serious abuse against a child but remains unwilling to forgo court ordered visitation leaves the other parent in a situation with no good options. One can allow the visitation to go forward. With that choice, one may have one’s child removed by DSS and face allegations of failing to protect the child from the abuser. One can refuse to sign a safety plan under the assumption that DSS will bring a removal action and seek an ex-parte order of removal. With that choice, one will find oneself in DSS abuse and neglect litigation and may find one’s child in third-party placement. One can file a custody modification action and seek an ex-parte order terminating visitation. With that choice, one will be filing an action before all the facts are known and may possibly be filing a non-meritorious action. All of these choices have serious pitfalls.

The one choice Campbell seems to foreclose is simply denying visitation under the assumption that the abuse allegations and DSS investigations will defeat a claim of willfulness in a contempt proceeding. Although Campbell isn’t precedent, I would assume any family court judge shown this opinion would feel bound to reject a willfulness defense. Attorneys should be aware they cannot advise a client to disallow court ordered visitation merely because DSS advises limiting the other parent’s contact with the child.

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