I’m often asked if a party to a Department of Social Services case needs an attorney.
Sometimes, they have even been told they don’t need an attorney by the guardian ad litem (“GAL”) or someone else. I strongly disagree with this bad advice.
In May of 2013, the South Carolina Supreme Court declined to overturn the termination of parental rights (“TPR”) of a mother who had been denied legal counsel. The TPR involved a child who was in the legal custody of South Carolina Department of Social Services.
However, the TPR was filed by the foster parents, and not by DSS itself. While DSS normally files for TPR in a child abuse or neglect case, it is not improper for a private, interested party to file its own TPR action when DSS is dragging its feet or there is otherwise undue delay.
In this instance, at the time the TPR was filed on May 15, 2009, the child had lingered in DSS custody for almost two years. By the time of the final TPR hearing on November 11, 2011, the child had been in custody for over 4 years. Father relinquished his parental rights to the child during the pendency of the case. The mother opposed the TPR. You can read the full text of the opinion by clicking here.
In the underlying child protective services (“CPS”) case, the mother was represented by appointed counsel who apparently unilaterally withdrew from representation. (Although this would be in violation of the court order appointing legal counsel, that issue was not addressed in the appeal). At the TPR trial, the mother requested that the court appoint her legal counsel in that case, but was denied because DSS did not file the TPR.
S.C. Code Section 63-7-2560(A) provides that parents, guardians, or other persons subject to a termination of parental rights action and who are unable to afford legal representation must be appointed counsel by the family court, unless the defendant is in default. This statute does not specifically relate to actions which are brought by DSS. However, because the TPR action was not brought by DSS, the trial judge declined to appoint legal counsel for the mother. The trial court found the evidence to be clear and convincing that the child had been in the custody of South Carolina DSS for more than fifteen of the last twenty-two months and that mother had failed to visit the child for a period exceeding six consecutive months. The court also found that TPR was in the child’s best interests.
The mother appealed in part on the ground that she was denied legal counsel “at critical stages of the proceedings.” Had she been represented by a lawyer, she argued, her attorney could have filed motions on her behalf, including a motion for reunification with the child. Although the South Carolina Supreme Court found that denying mother appointed counsel was improper, it upheld the TPR, determining that “the error did not prejudice Mother or render the termination of her parental rights unfair, and thus does not warrant reversal.”
The lesson of the case is that an attorney is essential to any DSS case, especially where DSS or another party is seeking to terminate your parental rights. And TPR is always lurking in the background in any DSS case. While an appointed attorney is a “real” attorney, he is not getting paid any significant amount to represent you. His primary interest may be in real estate law, bankruptcy law, probate law, or even family law in an area other than DSS defense. Knowledge is power and an attorney knowledgeable in DSS defense is essential to properly defend your rights in your children. And a paid attorney will be more motivated to act promptly in any given case to protect his client’s interests.