Custodians and Intervention in DSS cases

Band-aides support

This is a true  story about a custodian of a child involving DSS in a South Carolina case. Confidentiality mandates preclude identifying any of the participants.

A family court judge recently granted a woman’s (referred to herein as “custodian”) motion to intervene and ordered DSS to return a (female) child which had been wrongfully removed by DSS.  There are two points in play here. First, the custodian was not the child’s parent and was not named by DSS as a party to the case when DSS filed the action.  Second, the child, who was 18-months old at the time of removal, had been voluntarily placed in the custodian’s physical custody when she was two weeks old.

Because the custodian was not named by DSS as a party, she first had to establish her right to file the motion seeking the return of the child. This was accomplished by filing a motion to intervene, which is allowed by court rules. Then she had to show that DSS wrongfully removed the child from her custody.

Because the child had been living in the custodian’s home for eighteen months, the court had little problem ordering intervention. Finding that DSS should return the child was the real issue.  So let’s look at the factual background.

The child was born in June 2010, and voluntarily placed by mother with custodian a short time later.  After a sibling was born drug-positive in November 2011, the child was unilaterally removed without court approval from custodian based on mother’s alleged neglect. DSS made no allegations of abuse or neglect against custodian and her two natural children were not removed. Also, DSS did not cite any specific facts to support how mother’s alleged substance abuse impacted adversely on the child while she was living with custodian.

DSS must follow the law when removing children from their home.  The South Carolina Court of Appeals has ruled that even a voluntary placement, when made in conjunction with a DSS investigation, requires a proper removal hearing.  SCDSS v. Randy S., 390 S.C. 100, 700 S.E.2d 250 (Ct.App. 2010).  Could a DSS caseworker be charged with kidnapping?  Perhaps.

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Written by

Graves H. Wilson, Jr. worked as a staff attorney for the South Carolina Department of Social Services in Dorchester County, South Carolina from 2005 to 2011. He now represents clients involved in DSS cases--parents, grandparents, or other interested parties. He practices state-wide and accepts cases in all South Carolina counties.

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