BACKGROUND      |      FINAL REPORT

BACKGROUND
The Bench-Bar Committee was established in 1994 as part of South Carolina Families for Kids, a partnership of the South Carolina Department of Social Services and United Way of South Carolina. Through generous support of the Kellogg Foundation, this initiative studied and made recommendations to improve foster care, adoption, and related legal systems in the state. A central goal of Families for Kids was that every child in foster care have a permanent home within twelve months of coming into the child welfare system. In addition to activities related to the Bench-Bar Committee, Families for Kids established an African-American Adoption Center, undertook a "Backlog Blitz" - to achieve permanent homes for children who had been in the foster care system for more than twelve months, expanded adoption preservation services, and designed a casework team concept.

The Bench-Bar Committee was formed by Family Court Judge Bill Byars to focus on the legal aspects of the child protection system. Although originally conceptualized as a committee of lawyers and judges, the committee quickly became multi-disciplinary in membership and philosophy. Judge Byars frequently urged members to set aside their own professional perspective and look at the system through the eyes of a child. The legal system was examined to identify obstacles to timely permanence.

A major accomplishment of the Bench-Bar Committee was enactment of the Child Protection Reform Act of 1996. This legislation established permanency planning hearings for the first time in South Carolina and set deadlines for implementation of a child's permanent plan, compressed time frames for required hearings, added a ground for termination of parental rights, separated the Central Registry from DSS' internal data system, and made numerous other changes intended to streamline the system.

The Dual Track Project was another recommendation of the Bench-Bar Committee. A pilot project was designed, and authorizing legislation enacted, to test and evaluate a child protection system in which less serious cases are diverted from the court system into a social work response system or an alternative process.

The Bench-Bar Committee also identified the need for additional training and assistance for legal professionals and others involved in family court proceedings related to child abuse and neglect. This recommendation led to establishment of the Children's Law Center at the USC School of Law. The Children's Law Center began in 1995 and became fully operational in 1996 as a statewide resource center for professionals involved in family court child protection matters as well as criminal child abuse proceedings. The office has since expanded to serve professionals involved in juvenile justice proceedings.

The work of the Bench-Bar Committee concluded in 1997 when the Families For Kids grant period ended. In 2001, the committee was reconvened to review the current status of statutes and practices looking for unintended consequences and the need for additional reforms to improve the administration of justice to abused and neglected children and their families.

1. Recommendations to be pursued by committee
   1. Information / Data
       
      1. Child protection cases should be distinguished by a docket number other than “DR”. (S.C. Code Ann. §20-7-770(D)(Supp. 2001)).
          
      2. Family court judges should have data concerning cases past due for hearings. South Carolina DSS should send monthly reports of overdue
         hearings to each county director who, after verifying the information, should send an Incomplete Merits Hearing Report and an Overdue Permanency Planning Hearing Report to the Chief Administrative Judge (or all resident family court judges) every month. The reports will be limited to purely factual information so as not to constitute ex parte communication. A sample is attached.
          
      3. The court file should contain a Legal Case History Form to provide a brief case summary. The form should include the date the child entered foster care, the date of the probable cause hearing, the date of the merits hearing and finding, the date of the permanency planning hearing and the plan ordered, and (if applicable) dates and reasons for any continuances.
         
         DSS has drafted a form and will begin testing it. DSS will enter the date when child entered foster care, then forward it to the court for entry of additional items as hearings, etc., occur. CLO will contact the Family Court Judges Advisory Committee to discuss the mechanics of judges completing the form.
          
   2. Representation
       
      1. More training is needed for attorneys appointed in child protection cases.
         1. The CLO will ask the S.C. Bar to encourage attendance at CLEs by attorneys on the appointment list for child protection cases.
         2. CLO will ask the S.C. Bar president to encourage local bar associations to sponsor local or regional CLEs on child protection issues.
         3. CLO will ask to present on child protection issues at a “Hot Tips” seminar, scheduled for the morning in between two hot topics.
         4. Ask the Family Court Judges Advisory Committee to submit to the Chief Justice a recommendation that attorneys appointed in child protection cases be required to attend CLEs on this area of the
            law. Ask that Rule 608 be modified to include the following: Any attorney appointed to represent a child, guardian ad litem, or defendant in a child abuse or neglect proceeding must within the two years immediately preceding the appointment have attended an approved CLE in this area of the law or shall hire an attorney who has received this training to handle the case. Failure to complete the CLE shall not constitute grounds for a continuance.
         5. CLO consider presenting local CLEs free or at a nominal cost. Discuss with the Family Court Judges Advisory Committee the possibility of local family court judges participating in the sessions to encourage attorney participation.
         6. CLO will explore working with the South Carolina Bar to produce “on-demand” training modules and marketing of manuals for appointed attorneys.
             
      2. The appropriateness of dual appointment of guardians ad litem, enabling two guardians to work as a team, needs to be determined. The CLO will discuss this issue with the Family Court Judges Advisory Committee.
          
      3. Procedures should be established for cross-county monitoring by the Guardian ad Litem Program when the child’s placement and venue are in different counties. The GAL Program should form an advisory committee to study the statute and make a recommendation as to whether this change would be beneficial and how it could be enacted.
          
      4. A procedure should be established to allow removal of a volunteer guardian who violates the GAL Program guidelines. The GAL Program should have language included in GAL appointment orders presented to the judge which provides for dismissal. Two examples of suggested language are as follow:
          
      5. It should be determined whether children are better served in counties where DSS has a full-time staff attorney versus having the legal work done by a contract attorney. The committee will develop criteria (such as days in foster care, number of overdue hearings) for use by DSS in conducting a self-study to compare the two methods of representation.
          
   3. Court System Procedures
       
      1. The scheduling of child protection cases should be improved for more efficient and effective use of court time. Greater use of time certain scheduling may need to be considered. Before recommending specific changes in scheduling procedures, the CLO will collect data on cattle call systems, continuances, the number of cases filed in each circuit per month, the amount of time required for scheduling cases, and the inability of defense attorneys to get motions and/or hearings scheduled.
          
      2. A uniform Order of Continuance form should be implemented to be used for all types of hearings, indicating the reasons for the continuance.
         Court Administration will be asked to adopt such a form.
          
      3. Scheduling clerks should be present in the courtroom or otherwise available so that, in the event of a continuance, the hearing is immediately scheduled for a date/time certain no more than 30 days out. This procedure should be adopted regardless of whether a related criminal case is pending.
          
      4. DSS attorneys should utilize laptop computers and printers in the courtroom to prepare orders so that they can be served on all the parties at the conclusion of the hearing.
          
      5. The distinct purposes of Judicial Reviews and Permanency Planning Hearings should be clarified, with judicial reviews used to fast track cases for both return home and TPR.
          
      6. DSS should update its form order for permanency planning hearings to include the correct information and findings according to statute.
         Although the previous forms were found to be consistent with statutory requirements, new form orders have been distributed in light of new federal regulations.
          
      7. Child support should be set at either the probable cause or merits hearing, rather than waiting for referral to child support enforcement.
          
      8. A strategy should be developed that will encourage, and possibly require, pre-trial conferences for DSS cases which are likely to take two or more hours of court time These pre-trial conferences should explore settlement, details of the treatment plan, stipulation of any evidence, and/or other
         matters that will resolve the case in the shortest time possible. They should involve the parents, DSS, GAL, attorneys, other parties, and other service providers.
          
      9. The permanency planning statute (S.C. Code Ann. §20-7-766 (Supp. 2001)) should be reviewed to determine whether an amendment is needed to provide for early termination of parental rights and whether DSS must have prior approval from the court to proceed with termination of parental rights.
          
      10. A procedure should be implemented to reduce the unnecessary wait in court by staff of various agencies that should have input into the treatment plan for a child, but do not have primary case management responsibilities. The suggestion that interagency staff be permitted to remain on standby until needed at a court hearing will be discussed with the Family Court Judges Advisory Committee with the goal of distribution by memorandum to administrative judges suggesting and placing the suggestion in the Administrative Judges Handbook.
           
   4. Treatment Plans
       
      1. Procedures for development of treatment and placement plans should provide for the following:
         1. Plan to be thoughtfully prepared in coordination with the parents, prior to the hearing.
         2. A standard guide for the format submitted to court should be used statewide.
         3. The agency’s placement planning process should be reviewed in light of S.C. Code Ann. §20-7-766 (Supp. 2001) to assure that all mandatory elements are addressed.
         4. The plan should assure visitation to the extent resources are available.
         5. Address the various co-payment arrangements (Medicaid, payment plan, waiver) for services required in the court-ordered treatment plan.
             
      2. Treatment/placement plans should be achievable.
         
         A subcommittee including DSS and Tim Harbeson will study whether there are inconsistent requirements being made of parents in the plan, e.g. being required to maintain a job while also required to attend appointments during working hours, or being required to keep appointments when no transportation is available.
          
      3. The role of guardians ad litem in the placement planning process should be clarified.
          
      4. Ongoing assessment/treatment training should be provided to DSS staff or local teams that need to work together on behalf of the child’s permanency plan.
          
      5. S.C. Code Ann. §20-7-765 (Supp. 2001) should be reviewed to determine whether language on drug cases is overly limiting and whether changes are needed. Discuss this issue with the Family Court Judges Advisory Committee.
          
      6. Specific language concerning informed consent needs to be included in court orders. Sample language needs to be re-distributed to all attorneys.
          
      7. The process of transferring a case from the child protective services worker to the foster care or treatment worker should assure continuity for the child.
          
      8. Explore whether statutory language is needed to establish a permanent address for parents in the treatment plan for future services. Consider due process issues.
          
      9. Concurrent planning needs to be encouraged and carefully communicated to the parents by all people involved with the child victim of abuse or neglect for almost all cases.
          
   5. Interagency Issues
       
      1. Determine whether early assistance can be given to non-custodial parents who are in court for child support issues (e.g. assistance with employment, temporarily holding contempt order in abeyance, assistance with housing).
          
      2. Resolve confidentiality issues among agencies related to substance abuse treatment. The Notice of Motion on Disclosure for Release of DAODAS Information and Consent Form should be implemented statewide. The consent form should be amended to include staff of the Guardian ad Litem Program among parties to whom disclosure is allowed.
          
      3. DAODAS should present information on confidentiality issues and the PAIRS project (Partners in Achieving Independence through Recovery and Self-Sufficiency) at an upcoming meeting of family court judges.
          
      4. Every child protective services case in which drug treatment is needed should be referred to the PAIRS Project. Conflicts between statutory requirements on permanent plans and substance abuse treatment need to be addressed.
          
      5. Management of child protection cases which include spousal abuse should be improved. Negotiated federal funds for assistance with case management should be explored, and a strategy developed for obtaining orders for treatment services in domestic violence cases.
          
2. Additional Positions
    
   1. Publicly funded defense attorneys should be provided in child protection cases.
       
   2. Publicly funded attorneys for guardians ad litem should be provided in these cases.
       
   3. The committee is concerned about inherent conflicts resulting from the Guardian ad Litem Program’s being placed within the Governor’s Office, but is not in a position to recommend a new home for the program.