FAQs

confused man This site is intended to inform the general public and is not intended to be an in-depth legal treatise.  Case and statutory cites, where provided, are merely inserted to allow the reader to augment the information provided here.  Paraphrasing is par for the course.  If you need legal assistance, please consult an attorney.

The following and more questions will be answered on this site in the near future. Let’s get started.

 

FREQUENTLY ASKED QUESTIONS

South Carolina Department of Social Services is–arguably–the most reviled and misunderstood of all state agencies.  What is it?  And what does it do?

DSS has many core programs and services.  A complete list with detailed descriptions is located at https://dss.sc.gov/content/about/divisions.aspx, but probably the ones more familiar to the general public are the financial assistance programs, including Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, and the protective services programs, Adult (APS) and Child (CPS). This blog will focus on the protective services programs, and, more particularly, CPS.

I suspect that my neighbor is abusing her children. I have no hard proof, but I hear them crying.  I’m afraid that if I make a report to DSS, my neighbor will retaliate.

The identity of the person making a report of  suspected child abuse or neglect to any agency, such as law enforcement or DSS, must be kept confidential by the agency receiving the report and may only be disclosed in special circumstances.  It is a crime to reveal the name of the reporter.  While there are exceptions, these exceptions are not significant to this discussion and will be discussed more fully in a separate post.

Do I need a lawyer?

I personally counted ninety-eight separate code sections related to child abuse simply by scrolling through the online text.  There may be more or less.  The code covers investigations, appeals, foster care and termination of parental rights.  Each of these code sections has been parsed and interpreted by the appellate courts.  The burden of proof by which the DSS attorney must prove that child abuse or neglect occurred is relatively light, and he only has to convince one person, the judge.  And the judge, if he makes a mistake, will most likely err in favor of protecting the child.  So you tell me.  Do you need a lawyer?

It looks like I will need an attorney to help me.  How do I get one?

You must hire an attorney, if you want one to represent you.  If you meet the federal poverty guidelines, you may apply for a court appointed attorney.  We will discuss this in a more detailed post.

What should I do when DSS knocks on my door and accuses me of child abuse?

First and foremost, and above all else, try to remain calm and rational.  This may be the hardest thing that you will ever have to do.  But doing so will set the tone for events to follow and could help your case.  If law enforcement or DSS determines that the child has to be removed for its safety, fighting will not change anyone’s mind and will only make matters worse.  There must be a hearing before a family court judge within 72 hours of the removal.  A knowledgeable attorney with experience in DSS matters can either prepare and present a favorable case to the judge, or help you formulate a plan designed to facilitate reunification.

How can you say “keep calm”?  They are taking my child from me.

It is imperative to keep control, stay reasonable, and know that anything you say or do may later be used against you.  Less talk and more listening is usually the best course of action until you are represented.  Don’t risk making matters worse for yourself or your child.

What authority does DSS have to insert itself in my life in the first place?

In spite of what you may have heard, DSS has no inherent authority to take a child from his parents.  Nor does it go cruising, looking for children to snatch.  The agency is already stretched to its limit with children in foster care.

Then why do I hear horror stories about DSS taking children from their parents?

Confidential reports of suspected child abuse or neglect are investigated by a DSS worker who determines if further action is warranted.  If DSS then believes that by reason of abuse or neglect the child’s life, health, or physical safety is in substantial and imminent danger, DSS must apply to the local Family Court for a court order ordering the child into DSS custody.  If the danger to the child is such that there is no time to apply for a court order, a law enforcement officer will be called to the scene.  The officer on the scene must make an independent decision that removal is indicated and take the child into emergency protective custody.

Who can make a report of suspected child abuse?

Anyone suspecting or knowing of child abuse or neglect should report that to DSS or law enforcement.

However, medical, dental, and mental health professionals, school employees, child care professionals, religious professionals, most public employees associated with law enforcement and related fields, undertakers and funeral home employees, film processors, computer technicians, judges, or volunteer non-attorney guardians ad litem serving on behalf of the South Carolina Guardian Ad Litem program are required to report suspected child abuse or neglect to DSS.  South Carolina Code section 63-7-310.

Who reported me to DSS?

The identity of the person making a report of suspected child abuse or neglect is confidential.  It is a criminal offense to reveal the reporter’s identity, except in certain extremely limited situations.  When the report is made to DSS, DSS may identify the reporter to law enforcement for use in criminal proceedings.  South Carolina Code section 63-7-330.

Does DSS have to take my child from me?

It depends on several factors.  First, who is actually accused of child abuse?  Are there alternative placement options?  Can you and the child move away from the abuser?  Also, before the department assumes legal custody, it shall make reasonable efforts to prevent removal of the child.   Such reasonable efforts should at least include offering services which relate to the needs of the family and attempting to place the child with a relative known to the child or in another familiar environment.  South Carolina Code section 63-7-720.

What options does DSS have?

South Carolina Department of Social Services has three options once it finds probable cause to believe that a child has been abused or neglected.  In a relatively minor infraction, such as excessive corporal punishment, it may elect to offer in-home services without court involvement by way of a safety plan.  Or DSS may petition the family court for authority to intervene and provide protective services without removal of custody if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be protected from harm without intervention.  Finally DSS may petition the family court to remove the child from custody of the parent if the department determines by a preponderance of evidence that the child is an abused or neglected child and that the child cannot be protected from unreasonable risk of harm without removal.  We will discuss this in more detail in a separate post.

What happens after removal?

DSS is required to hold a hearing in family court to determine if there was probable cause to remove the child.  The probable cause hearing must be held within 72 hours of the removal, excluding weekends and holidays.  If DSS can show probable cause, a low threshold, the court must order the child into the “physical and legal custody of DSS.”  If DSS cannot show probable cause, the family court must order the child returned home.  But that doesn’t mean that DSS has to leave you alone or that the case is dismissed.  DSS will still continue to seek a finding by the court that the child was abused or neglected.
South Carolina Code section 63-7-720.

Why does DSS need a finding that the child was abused or neglected?

Child Protective Services is all about child abuse or neglect.  Without child abuse or neglect, DSS has no authority to insert itself into your life.  DSS is bound by certain principles which are set out in detail in South Carolina Code section 63-7-10.

What are these principles and why are they important?

These principles delineate the boundaries within which DSS must operate and have the effect of law.  We will explore these boundaries and how DSS often pushes or exceeds them in subsequent posts.  They include, among others:

  • Parents have the primary responsibility for and are the primary resource for their children.
  • Children should have the opportunity to grow up in a family unit if at all possible.
  • State and community agencies have a responsibility to implement prevention programs aimed at identifying high risk families and to provide supportive intervention to reduce occurrence of maltreatment.
  • Child welfare intervention into a family’s life should be structured so as to avoid a child’s entry into the protective service and foster care systems if at all possible.

Will my child be placed for adoption?

These principles are a mandate to DSS to work with families to help them remedy the cause of the removal and restore the child to his or her custodian.  The child cannot be adopted unless the parental rights have been terminated by the court.  That requires a failure on the part of the family to correct the problem which caused the removal and is only done as a last resort.  A knowledgeable attorney can help make sure that the requirements for reunification are reasonably designed to promote reunification and assist you in meeting complying with the requirements in a timely manner.

Why does DSS try to have parents’ parental rights terminated?

Except in cases of extreme abuse or neglect (for example: sexual abuse or abuse resulting in severe injury to the child or death of a sibling), DSS will first propose a treatment plan reasonably designed to promote rehabilitation and reunification.  If the plan fails and the child is in a foster home, DSS will file a separate action to terminate the parental rights (TPR) and free the child for adoption.  REMEMBER, TPR is not automatic. The court must find that TPR is appropriate in any given case.

What is DSS’s burden of proof?

For a 72 hour removal hearing, DSS must show (1) that there was probable cause for law enforcement to take the child into emergency protective custody and for the department to assume legal custody of the child and (2) that probable cause to remains to retain legal custody of the child at the time of the hearing.  South Carolina Code section 63-7-710.

At hearing on the merits, DSS must prove its case by a preponderance of the evidence.  South Carolina Code section 63-7-1650 and 1660.

In an action for termination of parental rights, DSS must prove its case by clear and convincing evidence.

What is the Central Registry of Child Abuse and Neglect?

The Department of Social Services must maintain a Central Registry of Child Abuse and Neglect (Central Registry) within the department’s child protective services unit which lists perpetrators of child abuse and neglect whose entry has been ordered by the court.  Each entry in the registry must be accompanied by information further identifying the person including, but not limited to, the person’s date of birth, address, and any other identifying characteristics, and describing the abuse or neglect committed by the person. South Carolina Code section 63-7-1920.

Is it true that my name will be entered into the Central Registry?

If the court orders that your child be taken or retained in custody or finds that the child was abused or neglected, the court must order that a person’s name be entered in the Central Registry if the court finds that there is a preponderance of evidence that the person physically or sexually abused or willfully or recklessly neglected the child.  Placement on the Central Registry cannot be waived by any party or by the court. However, if the only form of physical abuse that is found by the court is excessive corporal punishment, the court may order that your name be entered in the Central Registry if you would present a significant risk of abusing or neglecting a child if you were in a position or setting outside of your home that involves care of or substantial contact with children, such as a daycare worker, a coach or a scoutmaster.

DSS found that I neglected my child and I am now on the Central Registry.   Now I’m gonna lose my job!

Well, maybe.  Just as the identity of the person making a report of suspected child abuse or neglect must be kept confidential, all reports made and information collected and maintained by the South Carolina Department of Social Services and the Central Registry of Child Abuse and Neglect are confidential. A person who disseminates or permits the dissemination of these records and the information contained in these records except as authorized in this section, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand five hundred dollars or imprisoned not more than one year, or both.  But an employer can ask you to voluntarily reveal if you are on the Central Registry, if your employment involves working with children.

Can I work a deal with DSS?

When a child is in DSS custody and placed in foster care, DSS must have a finding that the child was abused or neglected.  You, on the other hand, want to stay off of the Central Registry.  Maybe DSS will agree to a finding that the abuse was only excessive corporal punishment or “simple” neglect (as opposed to willful or reckless neglect).  In that case, and depending on the circumstances, you might reach a compromise agreement to a lesser finding that will keep you off of the Central Registry.

Will DSS give custody of my child to his father?

This is one of the most misunderstood concepts of a CPS case.  DSS has no authority whatsoever to give custody to anyone.  Only the court can grant custody.  But DSS can, for example, honor an existing joint custody order to place the child with a non-offending parent.  If a child is in foster care, it is in the legal custody of DSS.  And remember that DSS must make a reasonable attempt to place the child with a relative known to the child or in another familiar environment.

But it sounds like I will lose custody, then.

No.  If you recall, in the vast majority of cases, DSS must make reasonable efforts to preserve or reunify a family.  Reasonable efforts would include offering services which relate to the needs of the family.  In other words, DSS is mandated to work with the family to restore custody to the person from whom the child was removed.

My friend lost custody of her child to her ex-husband in a DSS case.

The court will not grant legal custody to another parent in a DSS action.  But a non-custodial parent may successfully seek to obtain legal custody by filing a private custody action based on the facts and circumstances of the DSS action.

Why should I have to pay child support to DSS?

All parents have a moral and legal obligation to support their children.  When DSS must step into protect a child from an abusive parent, the taxpayers are forced to assume that support responsibility and they are entitled to be reimbursed by the parents.

What happens of someone reports me to DSS and DSS finds that I did not abuse or neglect my child?

The case is marked as “unfounded” and closed.  It cannot be used against you in the future.

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