Court can be confusing, producing anxiety for even seasoned foster parents. It is important to understand the court process and your role as a foster parent in court so that you can best advocate for the children in your home.
According to dss.sc.gov, “The legal professionals of the South Carolina Department of Social Services serve in a state-wide “law firm” handling matters at all levels of judicial forums, from Administrative Hearings to the Supreme Court, and in Family Court in every county of South Carolina. DSS employs over 80 attorneys and over 100 paralegals.” Robert Cone is the Assistant Managing Attorney of County Operations for SC DSS General Counsel. Today he joins #FosterFridayLive to help us better understand the court process and the role and rights of foster parents in court.
Robert, along with the Managing Attorney, oversees all county legal operations for the 46 counties in SC. For most of his career he was a county attorney for DSS in Greenwood, Abbeville, Newberry, and Laurens area. He has been practicing law for 23 years and most of that time within child welfare. Originally he was representing the parents in abuse and neglect cases.
The DSS attorney has two main roles. The first role is being the advocate for DSS, representing the interest of the agency in court. Obviously we are there to look out for the best interest of the children, what the children need- be in the home or stay out of the home. We advocate for what treatment services need to be offered to the parents or if no treatment services need to be offered for the parents. Maybe we need to seek relatives to place the children with or terminate the parental rights and place the children for adoption. Our role as an advocate is to prepare all the paperwork for court to explain why DSS is involved and why the children are in foster care, and then what the Department thinks needs to happen based on that. We make court appearances, draft all the court orders, submit to the court for signature, filing, make sure everyone involved is served and notified, and keep up with the hearings to make sure they are happening within the proper timeframes by law- keeping track and moving cases through the system the way they are supposed to. That’s our role as an advocate- to handle all the court aspects.
Our other role is as a counselor for the agency. The counseling part is where we give legal advice to our client which is the agency, DSS. They explain the situation and we explain the options legally. We are heavily involved once the case is ready to go to court. We become more involved in the case management because we have to say, “how are we going to present this to the judge?” When the court orders us to do certain things, we need to make sure there is follow through. For example, if the court orders a paternity test, we have to say, “well, did you do it?” If you have, what are the results? It’s our job to make sure the court has all the information. We have parts to play before, during, and after.
There is often only one DSS attorney in each county. It may be an attorney covering multiple counties in smaller areas. For example, in Greenwood, Abbeville, and Newberry there is only one attorney to cover all those cases. She travels and meets with the staff in all three of those counties, does court in all three of those counties. That’s one thing that a lot of folks don’t realize. Your county may only have court once or twice a month, but the attorney has to be in those other counties as well. And when new children are coming into foster care, they’re having to do 72 hour hearings (Probable Cause) and obviously, we don’t know when those are going to come. So when there is a call that a new kid has entered care in your county you have to quickly draft all the paperwork, get it filed, and schedule a hearing and you have to go.
The American Bar Association nationwide recommends that a child welfare attorney has a maximum caseload of about 75 cases that they manage. On average, our attorneys in South Carolina are managing 100+. It does vary by county and region. In some counties with large caseloads, attorneys may be managing up to 200 cases. We do have contract private attorneys help out sometimes or we can get help from adjoining counties.
Learn more about the details of these court hearing in Understanding The Different Types of Foster Care Hearings
2. Merits Hearing
When: Scheduled within 35 days of removal
Purpose: Determine nature and extent to which DSS will be involved with the family; treatment plan is ordered and/or agreed upon. It may not be fully completed, set for a full trial and rescheduled for several months out.
3. Permanency Planning Hearing
When: Must be scheduled within twelve months of the child(ren)’s initial removal. Often within 9-12 months, unless otherwise indicated in the Merits Hearing.
Purpose: Ensure an appropriate permanent plan is established. Review work completed on the case by DSS, level of cooperation from the parents, and whether the child can be reunited with the family
4. Termination of Parental Rights (TPR): This hearing only takes place after a separate action is initiated by filing a new petition. This legal process ends a parent’s rights to their child, and renders the child free for adoption.
When: Once petition is filed. There is no set timeline for TPR hearing, but may occur after six months to twenty-two months depending on the case and parent’s involvement.
Purpose: End the parents’ rights to their child(ren) and renders child(ren) free for adoption
Foster parents have the right to information about the child that is relevant to them being able to care for the child particularly if the circumstances of how they came into foster care are affecting their health, mental health, behavioral problems, education issues. You’re entitled to that kind of information. As we learn, as the agency, we’re supposed to be passing that on so that you can take them to doctor’s appointments and counselors.
You have the right to be present at all hearings and observe all hearings. You’re supposed to be notified of all hearings. If you haven’t gotten something in the mail from the legal department but you know there is supposed to be a hearing coming up, you need to follow up on that because we notice everybody else, we’re supposed to send you a notice. It’s a different kind of notice. It just tells you the date and times of the hearing. When you’re at the hearing, you have the right to be heard if you want to be heard. You’re not a party. You can’t call witnesses or cross examine witnesses on the witness stand, but you can make a statement to the court about what’s going on with the children, what are your intentions, how do you think they’re doing. If the foster parents are really involved in visitation, you can talk about how those are going or share what the kids say about their parents. But you’re allowed to speak. You don’t have to. That is your right if you want to be heard. Some foster parents don’t want the parents to know who they are and you have to be identified if you’re going to talk in court, there has to be a record of who talks in court. So you do have to at least give your names and some foster parents don’t want the biological parents to know anything about them. Some foster parents will just sit and watch and see what happens which you’re allowed to do.
Foster parents that want to speak in court should let someone know that they’re there and have intentions of speaking to the court. If you’ve been to Family Court on DSS Day, it’s kind of a circus. There are people all over the place, running around. It’s important to let the caseworker know that you want to speak or you can try to find the attorney to introduce yourself and tell them. You can ask who the paralegal is and tell them. Just let them know you want to speak. The attorney is the ringmaster of the circus, and if somebody doesn’t tell us that foster parents want to speak, we sometimes don’t know you’re in the courtroom. It’s not deliberately overlooking you, we’re just trying to figure out who everyone is. You have the right to be there and to speak.
There occasionally are foster parents that really want to get involved. They want the right to call witnesses or present evidence. Maybe they don’t think that DSS or the guardian are telling the whole story. To do that you have to file a motion to intervene to become a party to the case. And they have to have a separate hearing on that. If the court rules that you can intervene, you are a party to the case and you can call witnesses, present evidence, and cross-examine witnesses. If that’s something you want to do, my recommendation is to talk to a lawyer. The DSS attorney and the guardian’s attorney cannot tell you what to do because that is legal advice. It’s not very common. It doesn’t happen very often. This tends to happen in the most complicated cases- in my mind they’ve gone off the rails. Maybe they’ve dragged on too long or changed the plan too many times, maybe the agency and the guardian are disagreeing about what should happen. The foster parents for whatever reason are not comfortable with how things are going. The foster parent will have to take on all financial responsibility for their legal counsel out of pocket. Most of the time if you have concerns, you can communicate those to the caseworker or the guardian and they can communicate that to the court. Most of the time they know what is happening.
Sometimes foster parents want to adopt but that’s not the agency’s plan. The agency has some statutory obligations to try to return children to their parents. The alternative is to give the children to a relative. We cannot advocate for the foster parent to adopt if that’s not the agency’s plan. So sometimes foster parents want to take a more aggressive stand on that and actually bring their own action to try to terminate parental rights and adopt the children as opposed to working through the DSS system.
In terms of court, the most important thing is to maintain open communication with the caseworker and the guardian. Make sure you’re telling them what you think is going well and what is not going well, your concerns. Some of that depends on how involved you are and making sure the caseworker is aware of what’s going on at doctor’s appointments and therapy. What is being recommended by the therapist? If they’re saying that the children are having significant reactions after visits, the caseworker needs to know that, as does the guardian. That’s the best thing. Some foster parents are very involved with the visits and the parents. And that’s a choice.
If you disagree with the plan or what’s happening in court, make sure that you are communicating with your caseworker. If you’re not getting notices of hearings, contact your caseworker, their supervisor, or the county attorney. That’s an oversight and you should be getting notice. That’s a red flag if you didn’t. As far as things not going the way you expect, I wish I could say that doesn’t happen, but it does. We’ll walk into court with one plan and when we are there lots of conversations and negotiations are going on. And under the law, foster parents have very limited right to be involved in those negotiations because they’re getting into the substance of what happened and the parents, etc. Just make sure you’re checking in with the caseworker. Ask them to tell you if the plan changes so you’re not surprised in court. The best thing you can do is go to court. Attend. The best thing is to be there. Keep being in touch because plans do change. We might find something out right before court that changes our plans. Mom gets arrested. A relative comes forward. Those things do happen. Sometimes the defendant doesn’t communicate with us, but their attorney tells us something significant the day of court. Plans do change. We try not to have it change radically, but it does happen. It’s fluid.
If your case keeps getting continued or your frustrated about waiting all day to hear if your case is going to get called, it’s fair to contact your caseworker or the county attorney and let them know that you’re there in court. They may be able to give you a better idea if the case is going to be seen. The only time we really know is if we do what’s called a day-certain hearing. We know when those are going to be – we know they are going to take more than an hour. So we need a half-day or a whole day or multiple days. We know when those are going to be because the court is going to give us a specific day and time. That only happens when we’ve already made multiple attempts. On a normal docket day when there are 25 cases on the docket, we may not know what we’re going to get through. We do have an order we typically see cases in. If I have a case that children can go home that day, I try to put that in front of a judge. If there is a TPR case that is not contested, we’ll try to get through that. The reality is that 25 cases in three hours is not possible. We tend to run out of time. We will sometimes know that morning what cases have to be continued for whatever reason.
To some degree the way that court goes depends on the judge. The judge decides what order cases are seen. Judges have their own standards about the kinds of cases they want to hear first. They are heavily influenced by courthouse deputies (for example, there may be someone in court that is a safety risk). The judge is the final decision maker. Most of the time they will defer to us.
A lot of this varies by county or region. It may be the size of the county. It’s very different going to court in Greenville than Greenwood. Because of the number of judges holding court in Greenville there can be all kinds of hearings going on; in Greenwood there is only one. The way that judges hold court varies based on their preferences in each county. The foster parent can ask the caseworker about what to expect. The attorney is going to understand what to expect and plan in advance for that.