Foster Parents as Advocates: Fighting for What's Best for the Child

It is the goal and policy of the South Carolina Department of Social Services to attempt to reunite a child with his or her birth family after being separated due to abuse or neglect. You may be a foster parent who has placement of a child that you don’t believe would be served by being reunited with their birth family.

A few years ago, I represented foster parents through a horrific situation with DSS. On a warm fall evening they two sisters into their home. One child about a year old. The other only a few weeks old. When the children came into their care they were filthy. The oldest child could not yet walk, though she stood bow-legged because she spent almost all of her waking hours in a child’s bouncy seat. For two years they cared for these children as DSS gave the birth parents chance after chance to get things right. DSS blamed the foster parents for the delay because of their desire to maintain custody and to adopt the children. While I believe in the process to reunite families, this case was clear that the birth parents were never going to get their act together. They had few parenting skills or instincts, lacked life skills despite completed parenting classes, and could not stay off of drugs.

DSS ignored our warnings and calls to reconsider and the parents went from supervised visits, to unsupervised daytime visits, to weekend visits and ultimately sought a return of the children. DSS continued to push towards reunification though the signs were there that the birth parents had not improved their situation and were not ready for custody of the children to return. We tried a two day contested permanency planning hearing where the family court determined the parents had sufficiently remedied the conditions that initially led to the removal of the children by DSS. That day, my clients’ hearts broke as they returned those two little girls back to their birth parents. At that time, the children had spent about 80% and 90% of their lives with my clients. They were the only parents they knew. And just like that they were gone. Traumatized again and returned to their birth parents - who were all but strangers. But, the Court made sure there was a long review period where DSS had to keep up with the family before closing the case.

The story does not end there. Prior to the return in the DSS we had also filed a private termination of parental rights and adoption action seeking privately what DSS would not. In this case we had another Guardian ad Litem who was also investigating. We continued to observe and keep tabs on the children. Until another report was made to DSS. This time with medical concerns for the children. This time the Court found it appropriate to return the children to my clients in the private action. Now, they were the legal custodians.

More investigation ensued and another two day trial followed. We learned that shortly after the children were placed by with the parents, there were failed drug screens. The house was filthy again, and the children were not well taken care of. Ultimately, these foster parent clients were able to adopt these two children. After three years of fighting, litigating, investigating, appeals, and untold expense, this family was created.

Can I Sue DSS for foster care abuse?

I have represented hundreds of clients with DSS abuse and neglect allegations. Clients almost never have a positive experience with the Department of Social Services. That is understandable. A government agency has come into their home and either threatened to remove or has removed their children. And, this is a traumatic experience for the children, parents, and other family members to have the family separated in this way. Sometimes, there are valid reasons for DSS involvement in a family. And DSS has a difficult job of working to preserve family bonds, provide necessary services to these families, and protect the children in their care, sometimes they just don’t do a good job.

Many clients ask me if they can sue DSS for the interference in their lives. Typically, a governmental agency is immune from most actions. That means they cannot be sued in most cases. So, the removal of your children is not necessarily a reason DSS can be sued. The South Carolina Tort Claims Act, S.C. Code § 15-78-60(25), permits lawsuits for gross negligence committed by a state agency.

The most common way for people to recover from DSS is for injuries or abuse to children while they are in foster care. Children can be injured in foster care in a number of ways: they may be assaulted physically or sexually, raped by adults or other children in the home, having food withheld, having to live in unsafe and unsanitary living conditions, neglect of appropriate medical treatment, care, or medications, neglect of emotional or mental healthcare, not being seen regularly by their caseworkers who have excessive caseloads, cruel or unusual punishment or discipline by foster parents, or even death.

Abuse in foster care can be physical, mental, social, or emotional. A child may suffer physical injuries like broken bones, brain trauma, cuts, bruising, and internal organ damage. They may have mental injuries, including anxiety, a decline in school performance, avoidance of social situations, and other harm.

What is Gross Negligence?

"Gross negligence is the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Etheredge v. Richland Sch. Dist. One, 341 S.C. 307, 310, 534 S.E.2d 275, 277 (2000) (citing Clyburn v. Sumter Cnty. Dist. Seventeen, 317 S.C. 50, 451 S.E.2d 885 (1994); Richardson v. Hambright, 296 S.C. 504, 374 5.E.2d 296 (1988)). In other words, "[i]t is the failure to exercise slight care." Id. at 310, 534 S.E.2d at 277 (citation omitted). "Gross negligence has also been defined as a relative term, and means the absence of care that is necessary under the circumstances." Id. (citing Hollins v. Richiand Cnty. Sch. Dist. One, 310 s.c. 486, 427 S.E.2d 654 (1993)). Normally, the question of what activity constitutes gross negligence is a mixed question of law and fact. Id. However, "when the evidence supports but one reasonable inference, the question becomes a matter of law for the court." Id. (citation omitted). Bass v. S.C. Department of Social Services, 414 S.C. 558, 2015).

What is Discovery?

Discovery in a lawsuit is the process by which both parties in a legal case obtain information and evidence from each other. This information can include documents, witness testimony, and physical evidence.

The purpose of discovery is to allow each party to gather the necessary information and evidence to build their case and prepare for trial. It is an important part of the legal process because it helps to ensure that both sides have access to all relevant information and evidence, which promotes fairness and transparency in the legal system.

Discovery can take many forms, including written requests for documents, depositions, and requests for admissions. The specific rules and procedures for discovery vary depending on the jurisdiction and type of case, but generally, both parties are required to disclose all relevant information and evidence that they have in their possession or control.

In South Carolina, the discovery process is governed by the South Carolina Rules of Civil Procedure. Rule 26(b)(1) of these rules states that, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Discovery can be a lengthy and complex process, but it is essential for ensuring that each party has a fair opportunity to present their case and that the court has all the necessary information to make a well-informed decision.

What age can I leave my child at home alone in South Carolina?

There is no specific law in South Carolina that sets forth an allowable age for leaving children home alone. This is certainly a very individualized issue and can be fact specific for each family.

Since there is no “bright line” to tell you when you should leave your child at home alone, I suggest you consider the following in deciding whether it is appropriate for YOUR child to be left home alone:

1. Does the child know how to use the telephone to contact you, or someone else close by if there is an issue?

2. Does the child have access to a telephone to be able to do this?

3. Does the child know what to do if someone comes to the door?

4. Is the home otherwise safe of danger (e.g. no dangerous weapons or items within reach or that could accidentally harm the child)?

5. How mature is your child?

6. Will the child be expected to cook a meal?

7. How long will the child be left alone?

8. Is the child responsible for other children in the home?

What should you be concerned about?

Since each case is evaluated on its own, it is best to know what can happen if this becomes an issue? You should be especially cognizant that allegations that a child has been left at home alone can be used against a parent in a custody action or in a DSS child abuse/neglect investigation. Worse that than, there are also criminal charges that can flow from this in egregious circumstances.

SC Code §63-5-70 says that it is unlawful for a parent to “place the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety” and that a conviction of this charge is a felony that could result in up to 10 years in prison for each count.

Not only that, but DSS may seeking findings against a parent who is neglectful based on the specific circumstances of the case.

What to expect when I meet with my divorce lawyer

There are several important things you should consider asking your divorce attorney. Some of the key questions to ask include:

1. What are my legal options and what are the potential outcomes of each option?

2. How will my assets, debts, and income be divided during the divorce process?

3. How will child custody and support be determined?

4. How will spousal support (also known as alimony) be decided?

5. How long will the divorce process take, and what are the costs associated with it?

6. How will we communicate and how often can I expect updates on the case?

7. Do you have experience with similar cases to mine, and what were the outcomes?

8. How do you plan to handle negotiations with my spouse and their attorney?

9. How will you ensure that my rights and interests are protected throughout the divorce process?

It's important to remember that every divorce is different, and your attorney will be able to provide specific guidance based on your individual circumstances. It's also a good idea to bring any documents or information related to your marriage, assets, and debts to your initial consultation with your attorney.

How do I establish paternity and custody?

Question: How do I establish paternity and custody for my daughter? Me and the child's mother have fallen out a long time ago but she is still living in my home. I would like to establish paternity and custody before I separate from the mother.

You have a few options to establish paternity in South Carolina:

(1) if you are both in agreement and want to establish paternity you can complete the Paternity Acknowledgement Affidavit at either S.C. Department of Health and Environmental Control (DHEC) or the county health department in the county where the child was born.  There is usually a small fee charged (around $15). 

(2) If the mother will not agree you can go to the DSS child support enforcement office in your county and  fill out a Non-Custodial Parent Application for Services (available at DSS child support offices) and pay a $25 processing fee .  DSS will then schedule a paternity test.  If you are the father DSS will certify paternity and schedule a conference to determine a child support obligation. 

(3) you can retain a lawyer to file an action in Family Court to determine paternity and seek an order related to custody, visitation, and support of the child.  Once paternity is established the Court can address custody, visitation, and support. 

Does the Family Court Have to Consider Expected Increases in Value of Assets when determining Alimony

Alimony is one of the most challenging issues to advise clients about in their divorce cases. SC Code Ann. Section 20-3-130(C) sets forth the 13 factors that the Family Court judge must weigh in determining whether to award alimony. But, once the Family Court has determined that alimony is appropriate to order in a particular case there is no guidance on the amount.

The South Carolina Supreme Court addressed an issue related to alimony in its opinion that was issued on March 20, 2019 in Sweeney v. Sweeney.

This case deals with a very specific issue about whether there should be a requirement for the Family Court judge to assign a specific value to a party's investment income when determining an alimony award. This clarifies one of the alimony factors found in S.C. Code Ann. Section 20-3-130(C)(6), "the current and reasonably anticipated earnings of both spouses" by examining what level of specificity is needed to be considered by the Family Court when evaluating the "reasonable anticipated earnings" of a spouse.

The Court specifically framed the issue as determining whether there should be a requirement for the Family Court Judge to consider the expected increase in value of a party's assets in determining alimony awards.

In Sweeney, Husband and Wife were married nearly 30 years. At the beginning of the marriage, Wife supported Husband as he earned his Masters Degree. Later in the marriage he began a consulting business which became successful enough for the family to be financially secure and for Wife to no longer need to work and remain home caring for the children. More specifically, Husband's gross monthly income was in excess of $30,000.

For the lawyers out there that want to know about the other alimony factors the Family Court considered, let's dive in: (1) parties were married nearly 30 years, (2) Husband's adultery contributed to the breakdown of the marriage - though Husband alleged that his affair did not begin until after the parties separated and had been having marital difficulties, (3) the parties enjoyed a well above-average lifestyle, and (4) Husband has the ability to pay alimony.

In the trial of the case, Husband's financial expert presented evidence that alimony was unnecessary in this case because Wife will be receiving a significant sum in equitable apportionment and this sum - a large amount of investments - will provide wife a substantial income each month in excess of her reported living expenses. Wife's expert disputed the claim and alleged that investment income from the investments should not be considered in the calculation of support because it was too speculative and Wife would have to invade the principal of the investments to maintain her lifestyle while Husband would not have to invade his portion of the assets.

The Family Court ordered $5,000 per month in alimony even though Wife "would receive substantial income from her share of the assets" though it did not specify or estimate how much "substantial income" would be.

The Supreme Court reviewed the record along with the statutory alimony factors and considered the Family Court's review of the factors and declined to require Family Court judges assign a specific number to future investment income of the parties when considering alimony awards.

Grandparent Visitation in South Carolina

Grandparent visitation is an important issue in South Carolina - and beyond. But grandparent rights are limited in South Carolina. There is a 2014 statute that clarified our grandparent visitation statute.

SC Code §63-3-530(A)(33) provides the following:

to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:

(1) the child's parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and

(2) awarding grandparent visitation would not interfere with the parent-child relationship; and:

(a) the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or

(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.

The judge presiding over this matter may award attorney's fees and costs to the prevailing party.

For purposes of this item, "grandparent" means the natural or adoptive parent of a natural or adoptive parent of a minor child.

Since the enactment of this statute there has been no case law for us to interpret these new terms with untile recently.

In Janaruy 2019, the South Carolina Court of Appeals issued its Opinion in the case of Brown v. Key. In this case, the father and mother dated when they were teenagers and from their relationship and child was born. Shortly after the child's first birthday, the father was killed in a car accident. The father's mother (grandmother) and mother's relationship was strained and father's death did nothing to improve that. There were issues related to the a possible wrongful death settlement, among other things, that created a strained relationship. While the father was still living the child had some visits with grandmother.

As the relationship between mother and grandmother deteriorated, grandmother would ask to see the child and mother would offer her some visits but insisted the visits must be supervised because of the lack of relationship with the child. Grandmother rebuffed those responses and refused visits offered because she felt (maybe pridefully) that she didn't need to be supervised. Ultimately, grandmother began to threaten legal action which pushed mother away more.

Ultimately grandmother did file an action in the Family Court seeking visitation with the grandchild. At the trial level she won. The Family Court determined that mother "unreasonably denied visitation with Grandmother for a period exceeding ninety days and 'there are compelling reasons for allowing grandparental visitation; to wit, this is the only child of grandmother's deceased child and the child will likely not know her or her father or the child's paternal family unless visitation is ordered.'" Grandmother was awarded visitation every fourth weekend of each month.

Mother appealed this alleging the Family Court erred in finding grandmother met all of the required elements for grandparent visitation as set forth above.

As stated before, grandparent visitation rights are pretty limited. The U.S. Supreme Court stated in Troxel v. Granville, 530 U.S. 57, 66 (2000) that "[W\] have recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children." This includes who the children see and spend time with - even grandparents.

So, back to the interpretation of the statute at hand. In this case, grandmother had not been denied visitation by the mother. Mother had offered specific, supervised visits for grandmother and grandmother denied them because she didn't think she needed to succumb to the requests of mother. The Court of Appeals opinion states, "The record reveals Grandmother's continuing and clear resistance to this condition."

In this situation the Court of Appeals held that mother did not unreasonably withhold the visitation, but that grandmother chose not to visit because she didn't like the terms and since the visitation was not unreasonably deprived, the Family Court did not have authority to grant the visits.

The Court goes on to state that these cases should be determined on a case-by-case basis because they are highly fact specific.

Since these cases are so highly fact specific, if you have a grandparent visitation issue, I would suggest meeting with a lawyer to discuss your options.