Appendix — Jensen v. Conrad

Supreme Court brief1985

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JAN 18 1985

ALEXANDER L. STEVAS,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

Karole K. Jensen, as

Administratrix of the

Estates of Sylvia Brown

and Michael Clark, Deceased,

Petitioner,

Virgil L. Conrad, et al,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

APPENDIX

VOLUME II

COUNSEL OF RECORD ARE:

O. Fayrell Furr, Jr.

LAW OFFICES OF O. FAYRELL FURR, JR.

Post Office Box 2909

Myrtle Beach, SC 29201

ATTORNEY FOR PETITIONER

William C. Hubbard

Joel H. smith

NELSON, MULLINS, GRIER &

SCARBOROUGH

Post Office Box 11070

Columbia, SC 2921i

LEAD COUNSEL

ATTORNEYS FOR RESPONDENTS

Commissioner and Members

of the State Board

Wilburn Brewer, Jr.

James L. Werner

NEXSEN, PRUET, JACOBS

& POLLARD

Post Office Box 2426

Columbia, SC 29202

ATTORNEYS FOR RESPONDENTS

County Director and

County Board Members

George Beighley

RICHARDSON, PLOWDEN,

GRIER & HOWSEER

1340 Pickens Street

Columbia, SC 29201

—————

ATTORNEY FOR RESPONDENT

Patricia Jones

Charles E. Hill, Jr.

TURNER, PADGET, GRAHAM

& LANEY

Post Office Box 1473

Columbia, SC 29201

ATTORNEY FOR RESPONDENT

Mary Williams

David Robinson, II

ROBINSON, McCFADDEN, MOORE,

POPE, WILLIAMS, TAYLOR

& BRAILSFORD

Post Office Box 944

Columbia, SC 29202

: ATTORNEY FOR RESPONDENT

Barbara Locklair

ene ee En er eee Oe

pore ge reer ee Set Ee ee

Opinion of the Fourt Circuit

Court of Appeals (entered

October 5, 1984)... cccccccvees

Order of the United States

District Court for the

District of South Carolina

at Columbia (entered March 4,

SOEs is 62 HEE Oa ee TO

Supplemental Order of the

United States District Court

for the District of South

Carolina at Columbia

(entered July 18, 1983).......

Order of the United States

District Court for the

District of South Carolina

at Anderson (entered

Jue £64. Bas 6k b6e ee 06 08 88%

Order of the United States

District Court for the

District of South Carolina

at Anderson (entered

AUGUSE £45 LFSZ ces socecvcevess

Order of the United States

‘District Court for the

150

204

District of South Carolina

at Anderson Granting Virgil

L. Conrad’s Motion for

Summary Judgment (entered

AUGUSC 24, LIF) cccccevevvvcer

Order of the United States

District Court for the

District of South Carolina

at Anderson Directing Clerk

to Enter final judgment

(entered August 24, 1983).....

S. C. Code Ann. Sections

20-7-480 through 20-7-736

(3962 Cum. BUGD.Jesceccvesseves

Child Protection Act of 1977.

200

202

232

291

IN THE UNITED STATES DISTRICT COURT

FOR THe DISTRICT OF SOUTH CAROLINA

ANDERSON DIVISION

CIVIL ACTION NO 82-2059-14

Karole K. Jensen,

as Administratrix

of the Estate of

Michael Clark,

Deceased,

ORDER

Plaintiff,

VS.

Virgil L. Conrad, in his

individual and official

Capacity as Commissioner

of the Department of

Social Services;

Kenneth Pryor,

individually and in his

official capacity as

Director of the

Anderson County Depart-

ment cf Social Services;

Dawn Hawkins, individually

and in her official

capacity as Program

Director for Human Services

of the Anderson County

Department of Social Services;

me eee eee ee”

Susan Straup and Charie Ann

A-200

Jenkins, individually and in

their official capacities as

social workers with the

Anderson County Department

of Social Services;

Defendants.

This matter is before the Court on

motion by Defendant Virgil L. Conrad

seeking summary judgment pursuant to

Fed.R.Civ.P. 56(b). Based on this

Court ’s reasoning in its Orders of June

16, 1983 and August 24, 1983, and the

affidavit submitted by Defendant, this

motion is granted.

AND IT IS SO ORDERED.

William W. Wilkins, Jr.

United States District Judge

Greenviile, SC.

August, 24, 1983.

A-201

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CARCLINA

ANDERSON DIVISION

CIVIL ACTION NO. 82-2059-14

Karole K. Jensen,

as Administratrix

of the Estate of

Michael Clark,

Deceased,

Plaintiff,

VS.

Virgil] L. Conrad, in his

individual and official

capacity as Commissioner

of the Department of

Social Services;

Kenneth Pryor,

individually and in his

official capacity as

Director of the

Aneerson County Depart-

me..t of Social Services;

Dawn Hawkins, individually

and in her official

capacity as Program

Director for Human Services

of the Anderson County

Department of Social Services;

Susan Straup and Charie Ann

A-202

et tell

ORDER

Jenkins, individually and in

their official capacities as

social workers with the

Anderson County Department

of Social Services;

Defendants.

eee eee eee

Finding that there is no just

reason for delay, the Clerk is directed,

pursuant to Fed.R.Civ.P. 54(b), to enter

final judgment in favor of Virgil L.

Conrad and the members of the Boards of

the State and Anderson County Department

of Social Services.

AND IT IS SO ORDERED.

William W. Wilkins, Jr.

United States District Judge

Greenville, SC.

August, 24, 1983.

A-203

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON DIVISION

CIVIL ACTION NO. 82-2059-14

Karole K. Jensen,

as Administratrix

of the Estate of

Michael Clark,

Deceased,

Plaintiff,

VS.

Virgil L. Conrad, in his

individual and official

capacity as Commissioner

of the Department of

Social Services;

Kenneth Pryor,

individually and in his

official capacity as

Director of the

Anderson County Depart-

ment of Social Services;

Dawn Hawkins, individually

nd in her official

Capacity as Program

Director for Human Services

of the Anderson County

Department of Social Services;

Susan Straup and Charie Ann

A-204

mm ee ee eee ee eee ee ee

ORDER

Jenkins, individually and in

their official capacities as

social workers with the

Anderson County Department

of Social Services;

Defendants.

eee eee eee eee”

MOTION FOR

RECONSIDERATION

This matter is before the Court on

Plaintiff°s motion for leave to file an

Amended Complaint pursuant to

Fed.R.Civ.P. 15(a). Also, pursuant to

Fed.R.Civ.P. 59(e), Plaintiff seeks to

alter or amend this Court’s Order of

June 16, 1983, granting summary judgment

in favor of all members of the Boards of

the State and Anderson County

Departments of Social Services. Finding

no merit to either motion, both are

denied.

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Plaintiff°’s initial Complaint was

filed on August 16, 1982. Shortly

thereafter, various defendants sought

dismissal pursuant to Fed.R.Civ.P.

12(b)(6) alleging Plaintiff had faiied

to state a cause of action. At the

conclusion of a hearing held by this

Court to consider these motions,

Plaintiff was instructed to file more

detailed allegations. Upon receipt of

these allegations, the parties were

notified that the Court would construe

Defendants” pending motions to dismiss

as motions for summary judgment. Both

Sides were then provided a full

Opportunity to file Supporting

affidavits and supplemental briefs.

This Court subsequently granted summary

judgment based on the affidavits

submitted.

In essence, Plaintiff now seeks to

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escape summary judgment by filing new

pleadings. Also, Plaintiff offers

additional affidavits and exhibits not

previously filed in response to the

motion for summary judgment which are

now alleged to raise a genuine issue of

fact. However, it is clear that summary

judgment cannot be circumvented in such

a manner.

Once summary judgment is granted

against a party, the case cannot be

reopened by filing new pleadings unless

the judgment is first set aside or

vacated. 6 Wright & Miller, Federal

Practice and Procedure: Civil Section

1489; See also, Sachs v. Snider, 631l

lGiven the fact that this Court

previously ordered Plaintiff to file

additional pleadings, this would

constitute Plaintiff°’s third Amended

Complaint in this case.

---

A-207

F.2d 350 (4th Cir: 1980); Chrysler Corp.

v. Commercial Lakeshore Finance Corp.,

66 F.R.D. 607 (E.D.Wis. 1975). Moreover,

summary judgment will generally not be

altered or vacated on the basis of

Supplemental exhibits or affidavits

filed after summary judgment is

granted. See DeLong Corp. v. Raymond

International, Inc., 622 F.2d 1135 (3rd

Cir. 1980); Clarke v. Montgomery Ward &

Co., 298 F.2d 346 (4th Cir. 1962). This

is particularly true ina a such as

this where the party seeking to amend

judgment has made absolutely no showing

that the additional evidence offered

could not have been timely submitted in

the exercise of reasonable diligence.?

Plaintiff was given ample opportunity

to submit responsive briefs, exhibits

and affidavits before summary judgment

was granted. Had more time been

necessary, Plaintiff was certainly free

to petition the Court for an extension.

No such motion was made.

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Consequently, Plaintiff is denied leave

to file an Amended Complaint and this

Court’s prior Order granting summary

judgment is reaffirmed.°

In reaffirming this Order, further

discussion is warranted in two areas.

(1) Defendants” mction for summary

judgment raised difficult issues

concerning good faith immunity from suit

under Harlow v. Fitzgerald, 102 S.Ct.

2727 (1982), which were resolved by this

Court after exhaustive consideration.

This Court has Since discovered

additional authority to support its

conclusions on these issues. (2)

Recently, on reconsideration, Judge

Clyde H. Hamilton of this District,

3m0 the extent that Plaintiff’s motion

to alter or amend the judgment céil ce

construed to be based on allegations of

error, this Court finds ne werit in

Plaintiff’s claim.

A-209

dismissed a claim based on facts very

Similar to the facts involved in this

case due to a lack of state action. See

Jensen Vv. Conrad, Cums 82-2061-15

(D.S.C. Supp... Order July. 18, 1983).

Consequently, it is now incumbent on

this Court to elaborate on its reasoning

for not dismissing this case on the same

basis.

IMMUNITY

Summary judgment was granted in

favor of all members of the Boards of

the State and Anderson County

Departments of Social Services based in

part on the Harlow good faith immunity

rule. In Harlow, the United States

4the court also granted summary judgment

based on the merits of the case prior to

considering Defendants” immunity claim.

—-

A-210

Supreme Court held that public officials

sued in their individual capacity for

damages under 42 U.S.C. Section 1983 are

entitled to good faith immunity from

Suit unless their actions’ violated

"Clearly established" law. This Court

found that the alleged failure of

Department of Social Services’ Board

wembers to provide protective service

caseworkers with effective training ina

specific area of expertise did not

allege a violation of cleurly

established federal or state law.

However, the claim that caseworkers

personally assigned to a child abuse

case failed to complete a= proper

investigation was found to allege a

violation of clearly established state

law. Moreover, this Court held that a

stat official who acts in violation of

clearly established state law which nas

a direct bearing on his’ official

A-211

conduct, may not assert good faith

immunity as a defense to a subsequent

Section 1983 action.

The question of whether a state

official who acts in violation of

This Court did, of course, recognize

that a mere violation of state law would

not constitute a cause of action under

Section 1983. To establish a claim under

Section 1983, it is necessary to prove a

violation of constitutional or federal

statutory rights. In this regard, the

Court found the claim that protective

service caseworkers had acted with

deliberate indifference in failing to

protect a child from obvious”~ and

preventable dangers alleged a violation

of the due process clause of the

fourteenth amendment. See Doe v. New

York City Department of Social Services,

649 F.2d 134 (2d Cir. 1981). Moreover,

th: fact that a constitutional right to

such protection was not clearly

established at the time of the child’s

injuries was held not to constitute a

defense to the claim since the

caseworkers were allegedly acting in

violation of clearly established state

law.

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clearly established state law may be

entitled to the protection of good faith

immunity was specifically addressed in

Williams v. Treen, 671 F.2d 892 (5th

Cis. 1982).° After thorough analysis of

the policy objectives which prompted

recognition of the good faith immunity

defense, the Fifth Circuit ruled that

state officials who violate clearly

established state law are not entitled

to this protection. Specifically, that

court stated:

We believe that prison

"...officials are charged with

knowledge of their own prison

regulations." Chavis v. Rowe, 643

F.2d 1281, 1289 (7th Cir. 1981) and

“The Court stated: "We are therefore

confronted with what appears to be a

question of first impression in this

Circuit. We must determine whether 1983

defendants are entitled to the

protection of a qualified immunity when

there has been a violation of clearly

established state law." Williams v.

Treen, 671 F.2d at 899.

A-213

that they "may not take solace in

ostrichism." Id. If an official’s

conduct contravenes his own state's

explicit and clearly established

regulations, a subjective belief in

the lawfulness of his action is per

se unreasonable.... To hold

otherwise would be to encourage

official ignorance of the law.

We of course recognize that a

Section 1983 plaintiff must allege

a deprivation of a federally

protected right in order to set

forth a prima facie case, Maine v.

Thiboutot, 448 U.S. 1, 100 S.Ct.

2502, 65 L.Ed. 2d 555 (1980);

violation of a state iaw alone does

not give rise to a cause of action

under Section 1983. Bills v.

Henderson, 631 F.2d 1287 (6th Cir.

1980). We believe that our

conclusion regarding the immunity

defense in this case is entirely

consistent with this well

established principle. The Section

1983 cause of action in this case

is based upon the fact that the

federal constitutional rights of

these inmates were violated.... At

this juncture, the only question

before the court is whether the

defendant officials are entitled to

the special protections of a

gualified immunity. We hold that

when a state official violates the

constitutional rights of a citizen,

and in so doing also violates

clearly established state law which

enforces those rights, the

A-214

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

defendant official is not entitled

to an immunity which is based upon

reasonable good faith..

Williams vs. Treen, 671 F.2d at

899-900.

STATE ACTION

In examining the issue of whether

state action exists in this case, it is

important to carefully consider’ the

alleged basis for liability. On June

ase 1980, Michael Clark, a

three-year-old child, was apparently

beaten to death by the live-in boyfriend

of Michael’s mother. Four months

previously, the Anderson County

Department’ of Social Services had

received a report of child abuse in

Michael ‘s family. However, the

A-215

protective service caseworkers assigned

to investigate that incident allegedly

failed to conduct a proper’ abuse

investigation in violation of specific

requirements of state law. Failing to

make contacat with Michael’s family, the

Complaint alleges that the protective

service caseworkers simply classified

the report as "unfounded" and the case

was officially closed. Consequently,

due to alleged deliberate indifference

on the part of state officials, Michael

was abandoned to a clearly abusive home

life, making subsequent injury virtually

inevitable.

7Because of the current posture of this

case, the Court is required to view the

facts in a light most favorable to

Plaintiff. Of course, this should not be

construed to indicate that the Court has

reached any conclusions concerning the

merits of the claii against the

caseworkers.

A-216

Under these circumstances, because

Micnael was killed by a private party

not under state supervision or control,

it might be argued that there was no

state action which Significantly

contributed to his death. Certainly

state officials did not affirmatively

act to harm him. However, such an

argument ignores the fact that had the

protective service caseworkers properly

performed their duties in accordance

with state law, Michael’s death could

possibly have been prevented. In other

words, state officials may have been

responsible for Michael’s death due to

their conscious inaction rather than

because of any affirmative conduct.

It is an established principle of

law under Section 1983 that’ state

officials may be held liable for damages

A-217

resulting from their failure to perforin

official duties. In this regard, police

officials are liable for purposeful

failure to protect individuals who,

through the exercise of constitutional

rights, are endangered by resulting mob

violence. See Downie v. Powers, 193

F.2d 760, 764-65 (10th Cir. 195:).8

Bin Downie the Court Stated:

One charged with the duty of keeping the

peace [under state law] cannot be an

innocent bystander where the

constitutionally protected rights of

persons are being invaded. He must

stand on the side of law and order or be

counted among the mob.... But the

officials are the keepers, not’ the

insurers of the peace in the community.

Diligent and conscientious effort is all

that is required....

When ali the evidence bearing upon the

action or inaction of the city officials

is considered in its totality we think

it presented a factual ee

(Emphasis added. )

Downie v.° Powers, 193 F.2d at 764.

A-218

Furthermore, state officials must

enforce the law in a non-discriminatory

manner. For example, they may be held

liable under Section 1983 for purposeful

failure to protect unvopular

minorities. See Smith v. Ross 482 F.2d

33 (6th Cir. 1973); Catlette v. United

States, 132 F.2d 902 (4th Cir. 1943).?

Therefore, the conscious faiiure of

state officials to perform statutorily

imposed duties without justification in

itself constitutes state action.

9 ;

In this regard, the Court stated:

We agree with appellants that a law

enforcement officer can be liable under

Section 1983 when by his inaction he

fails to perform a statutorily imposed

duty to enforce the laws equally and

fairly, and thereby denies equal

protection to persons legitimately

exercising rights guaranteed them under

state or federal law. Acts of omission

are actionable in this context to the

same extent as are acts of commission.

(Emphasis added. )

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It is clear, however, that the mere

fact that some state action was involved

in Michael’s death does not entirely

resolve the state action issue. In

order for an injury to be actionable

under Section 1983, there must have been

sufficient state action so that state

officials may be fairly held

responsivle. Defendants have argued,

based on Martinez v. California, 444

U.S. 277 (1980), that Plaintiff has

Smith v. Ross, 482 F.2d at 36-37.

In Catlette, The Court stated: "It 1S

true that a denial of equal protection

has hitnerto been largely confined to

affirmative acts of discrimination. The

Supreme Court, however, has already

taken the position that culpable

official State inaction may also

constitute a denial of equal

protection." Catlette Vv. United

States, 132 F.2d at 907.

A=220

failed to allege sufficient state action

to maintain a claim under Section 1983.

In Martinez, a Section 1983 action

was brought against members of the

California Parole Board on behalf of a

15-year-old girl who was murdered by a

parolee five months after he was

released from prison. This claim was

based on the allegation that the Board’s

action in granting parole, despite the

parolee’s history as a sex offender, haa

caused the loss of the girl’s life

without due process of law. In

dismissing this case for a lack of state

action, the Supreme Court stated:

"[D]ecedent’s death is too remote a

consequence of the parole officers’

action to hold them responsible under

federal civil rights law." Martinez v.

California, 444 U.S. at 285. However,

this conclusion appeared to be based

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primarily on the finding that "the

parole board was not aware that

appellants” decedent, as distinguished

from the public at large, faced any

10 ra,

special danger."

Of course, the facts of the present

case are readily distinguishable from

the facts in Martinez. Unlike the parole

officers in Martinez, the protective

service caseworkers in this case were

allegedly eursiiie that particular

individuals (i.e., the children in the

Clark family), “as distinguished from

the public at large," faced special

danger (i.e., physical abuse by their

10mne Court also considered the fact

that the parolee was not an agent of the

Parole Board and the murder had occurred

five months after his release. Martinez

v. California, 444 J.s. at 285.

A-222

guardians). Moreover, the caseworkers

were hired specifically to protect

children such as Michael from this

particular "special danger." As public

officials, they were required to perform

Specific statutory procedures designed

to prevent child abuse. SeeS. C. Code

Ann. Section 20-7-650(C). Allegedly,

these procedures were not followed and a

proper investigation was never

completed. Under these circumstances,

it would simply be unreasonable to

characterize Michael’s death as "too

remote a consequence" of the

caseworkers” alleged failure to perform

their official duties. Viewing the

llohis distinction was recognized by

Judge Phillips in a recent _ Fourth

Circuit opinion. Fox Vv. Custis, 4

82-1144, slip op. at 10 (4th Cir. July

13, 1982).

/ A-223

facts in a light most favorable to

Plaintiff, Michael’s death was a direct

and highly predictable consequence of

official inaction for which the

caseworkers may be fairly held

accountable under Section 1983.

It is, of course, clear that a

claim may not be asserted under Section

1983 on the basis of state action

alone. To establish a claim under

lore is also important to recognize that

another significant distinction can be

made between the facts in Martinez and

the facts in this case. In Martinez,

the Parole Board was’ performing a

discretionary risk-assessing function.

A strong argument can be made that in

order to provide the members of the

Parole Board with the necessary

flexibility of judgment to. properly

perform such a function, they must be

given significant protection from suit.

However, in the present case it is

alleged that the caseworkers failed to

perform mandatory functions. In

performing mandatorv functions,

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Section 1983, it is also necessary to

prove a violation of federal

constitutional Or statutory rights

Defendants argue that, even in the

presence of state action, Plaintiff’s

claim must be dismissed due to a failure

to allege a violation of § federal

rights.

flexibility of judgment is .ot generally

required and, therefore, immunity from

suit is not justified.

The mandatory abuse investigation

required under South Carolina law is

designed to collect information

concerning suspected abuse cases. This

information may subsequently be utilized

by the Department of Social Services in

performing discretionary functions, sucn

as deciding whether to attempt to

terminate parental rights. When making

this sort of determination, a strona

argument could be made that the

Department of Social Services also neesis

protection from lawsuits in order to

function properly.

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In this regard, Defendants cite

Bowers Vv. DeVito, 686 F.2d 616 (7th

Cir. 1982), which held cenerally there

is no right to state protection against

criminal conduct. Consequently, since

there is no "constitutional duty [on the

state] to provide such protection its

failure to do so is not actionable under

Section 1983." Bowers v. DeVito, 686

F.2d at 618. However, in recently

accepting this principle in Fox v.

Custis, No. 82-1144, slip op. at 9-11,

the Fourth Circuit also recognized an

important exception. Although the state

has no constitutional duty to protect

members of the general public’ from

randoin criminal violence, a

constitutional right to affirmative

protection by the state may arise out of

special relationships "created or

assumed by the state in respect of

A-226

particular persons." Fox vv. Custis,

No. 82-1144, slip op. at 9.

Unfortunately, the Court in Fox did

not specifically define the type of

"special relationship" which may give

rise to a right to protection vindicable

under Section 1393.33 tiowever, it is

difficult to iiagine a relationship more

special than that assumed by the state

with respect to children reported to the

Department of Social Services as

1305 this regard, the Court stated:

Without attempting a general definition

of the special relationship required to

give rise to a right, vindicable under

Section 1983, to affirmative protection

. by the state, it suffices to observe

that none is claimed or appears here.

The claimants here were simply members

of the general public living in the free

society, and having no special custodial

or other relationshiv with the state.

(Emphasis added. )

Fox v. Custis, No. 82-1144, slip op.

at 10.

A-227

Suspected victims of abuse. This is

particularly clear in light of the

exhaustive statutory procedures adopted

by the state specifically mandating a

rapid and detailed investigation of

every report. Based on these statutory

procedures, it is clear that this state

has assumed a special protective

relationhip with respect to such

children.

It is important to realize,

however, the mere failure of »vrotective

service caseworkers to fcllow’ these

procedures and offer appropriate

protection due to negligence or

inadvertence, even in light of this

special relationship, does not state a

claim under Section i983. To establish

liability under Section 1983, Plaintiff

must prove that Defendants acted with

"deliberate indifference." See Doe v.

A-228

Wew York City Department of Social

Services, 649 F.2d at 134. In essence,

this requires a showing that Defendants,

with actual knowledge that Michael faced

a pervasive and unreasonable risk of

harm, failed to provide reasonable

protection due to a conscious lack of

concern for his safety.!4 Conduct of

this type, in violation of statutory law

and a duty of protection clearly assumed

14a. though "deliberate indifference” may

be presumed from violations of specific

statutory law or acts of gross

negligence, this is merely a permissible

inference or presumption. As such, the

inference is sufficient to avoid entry

of summary judzment or directed

verdict. However, it does not result in

a shiftinc cr the burden of proof or

require .:ciy specific response from

Defendants. In the final analysis, a

jury would have to _ conciude_ that

Defendants acted with actual knowledge

and a conscious lack of concern in order

to return a verdict in Plaintiff’s

favor.

A~229

by the state, is sufficiently offensive

to traditional notions of fundamental

fairness and substantial justice to

violate the due process clause of the

fourteenth amendment.

Consequently, this Court’s prior

Order of June 16, 1983 is reaffirmed.

AND IT IS SO ORDERED.

s/William W. Wilkins, Jr.

United States District Judge

Greenville, S. C.

August 24, 1983.

A-230

by the state, is sufficiently offensive

to traditional notions of fundamental

fairness and substantial justice to

violate the due process ciause of the

fourteenth amendment.

Consequently, this *Court’s prior

Order of June 16, 1983 is reaffirmed.

AND IT IS SO ORDERED.

s/William W. Wilkins, Jr.

United States District Judge

Greenville, S. C.

August 24, 1983.

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ee ee ee ee

ARTICLE 7

INTAKE

SUBARTICLE 1

GEWERAL PROVISIONS

Section 20-7-480. Purpose.

Recognizing that abused and

neglected children in South Carolina

need protection, it is the purpose of

this article to save them from injury

and harm by establishing an effective

reporting system and encouraging the

reporting of children in need of

protection; by establishing an effective

system cof services throughout the State

to safeguard the well-being and

development of endangered children and

to preserve and stabilize family life,

whenever appropriate; by establishing

fair and equitable procedures,

compatible with due process of law to

A-232

intervene in family life with due regard

to the safety and welfare of all family

members and by establishing an effective

system of protection of children from

injury and harm while living in public

and private residential agencies and

institutions meant to serve them.

HISTORY: 1981 Act No. 11, Section

1, eff May 19, 1981.

Section 20-7-490. Definitions.

When used in this article and

unless the specific context indicates

otherwise:

(A) "Child" means a person

under the age of eighteen.

(B) "Abused or neglected

child means a child whose physical

or mental health or welfare is harmed

or threatened with harm, as defined

by items (C) and (D) of this section,

by the acts or omissions of his

an. 9599

parent, guardian or other person

responsible for his welfare.

health or welfare can occur when

the parent, guardian or other person

responsible for his welfare:

(1) Inflicts or allows to be

inflicted upon the child physical

or mental injury, including injuries

Sustained as a result of excessive

corporal punishment, but exlcuding

corporal punishment or physical

discipline which meets each of the

following guidelines:

(a) The physical aggression

must be administered by a parent or

person in loco parentis.

(b) It must be perpetrated

for the sole purpose of restraining

or correcting the child.

the discipline must be reasonable in

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manner and moderate in degree.

ean di

(d) The force and violence

of the discipline must not have brought

about permanent or lasting damage to the

child.

(e) The behavior of the parent

must not be reckless or grossly negligent.

(2) Commits or allows to be

committed against the child a sexual

offense as defined by the law of this

State.

(3) Fails to supply the child

with adequate food, clothing, shelter,

education as required under Article 1

of Chapter 65 of Title 59, or health

care though financially able to do so or

offered financial or other reasonable

means to do so. For the purpose of this

chapter "adequate health care" includes

any medical or nonmedical remedial health

care permitted or authorized under state

law.

(4) Abandons the child, as defined

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by Section 20-7-1570.

(5) Encourages, condones or

approves the commission of delinquent

acts by the child and the commission of

the acts are shown to be the result of

the encouragement, condconation or approval.

(D) “Threatened harm" means a sub-

stantial risk of harm, as defined by item (C).

(E) "A person responsible for a

child’s welfare" includes the child’s parent,

guardian, foster parent, an employee of a

public or private residential home, institu-

tion or agency, or other person legally

responsible for the child’s welfare ina

residential setting.

(F) “Physical injury" means death,

disfigurement or impairment of any bodily

organ.

(G) “Mental injury" means a substan-

tial impairment of the intellectual, psycho-

logical or emotional capacity of a child as

evidenced by inhumane, or unconscionable

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acts and conduct. Provided, nothing herein

shall be construed as prohibiting a person

responsible for a child’s welfare from

imposing reasonable restrictions deemed

necessary by such person for the intellec-

tual, psychological or emotional well-being

of the child by any of the following means

or methods:

(1) Restrictions relating to

attendance at amusements, concerts, social

events or activities, or theaters;

(2) restrictions on amount of exposure

to secular activities such as television,

extra-curricular school activities or

community recreational activities;

(3) ainstructions, directions, or

mandates relating to public or private

elementary or secondary education or

attendance at churches or other places of

worship.

(H) “Institutional child abuse and

neglect" means situations of known or suspected

child abuse or neglect where the person

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responsible for the child’s welfare is the

employee of a public or private residential

home, institution or agency.

(I) "Protective Services Unit" means

the unit established within the Department

of Social Services which shail have prime

responsibility for state efforts to stregthen

and improve the prevention, identification

and treatment of child abuse and neglect.

(J) “Subject of the report" means

any person reported under this chapter,

including any child or parent, guardian, or

other person responsible for the childs

welfare.

(K) "Suspected report" means all

initial reports of child abuse or neglect

received pursuant to this article.

(L) “Unfounded reort" means a

report made pursuant to this chapter for

which there is no probable cause to believe

that the child is abused or neglected. For

the purposes of this article, it is presumed

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that all reports are unfounded unless the

local child protective agency determines

otherwise.

(M) "Indicated report" means a

report of child abuse or neglect supported

by facts which warrant a finding that abuse

or neglect is more likely than not to have

occurred.

(N) “Probable cause" means facts

and circumstances based upon accurate and

reliable information, including hearsay,

that would justify a reasonable person to

believe that a child subject to a report

under this article is abused or neglected.

(O) “Local child protective service

agency in a county or contiguous counties

having prime responsibility for local efforts

to strengthen and improve the prevention,

identification and treatment of child abuse

and neglect.

(P) “Child protective investigation"

means any inquiry conducted by the local

child protective service agency in response

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to a report of child abuse or neglect

made pursuant to this article.

HISTORY: Act No. 71 Section l,

eff May 19, 1981; 1982 Act No. 398,

Section 21, eff June 7, 1982.

SUBARTICLE 3

IDENTIFICATION

SEC.

20-7-500. Persons or families needing

assistance encouraged to

seek it.

20-7-510. Persons to report.

20-7-520. Manaatory reporting to medical

examiner or coroner; postmortem

examinations.

20-7-530. Photographs and x-rays.

20-7-540. Immunity from liability.

20-7-550. Abrogation of privileged

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communication.

20-7-560. Penalties.

20-7-570. (Renumbered).

20-7-580. (Renumbered).

20-7-590. (Renumbered).

Section 20-7-500. Persons or

families needing assistance encouraged

to seek it.

Any person seeking assistance in

meeting child care responsibilites may

use the services and facilities

established by this article, including

the single statewide telephone number

and local child protective servicess

where available. Such persons shall be

A-241

ee ee es

referred to appropriate community

resources or agencies, notwithstanding

whether the problem presented involves

child abuse or neglect as defined by

this article.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

Section 20-7-510. Persons to report.

(A) Any physician, nurse, dentist,

optometrist, medical examiner or coroner,

Or any other medical, mental health or allied

health professional, Christian Science

practitioner, religious healer, school

teacher or counselor, social or public

assistance worker, child care worker in any

day care center or child caring institution,

A-242

police or law enforcement officer or any

judge having reason to believe that a child’s

physical or mental health or welfare has

been or may be adversely affected by abuse

or neglect is required to report or cause

a report to be made in accordance with this

section.

(B) Except as provided in (A) of

this section, any other person who has

reason to believe that a child’s physical

or mental health or welfare has been or may

be adversely affected by abuse and neglect

may report in accordance with this section.

_ (C) Reports of child abuse or

neglect made pursuant to this section

may be made orally, by telephone or

otherwise to the county department

of social services, or in the alterna-

tive, to a law enforcement agency in

the county where the child resides

or is found.

(1) Where reports are made

pursuant to this section to a law enforce-

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;

ment agency, it shall notify the county

department of social services of its

response to the report at the earliest

possible time.

(2) Where a county or contiguous

counties have established local child

protective services, pursuant to

Section 20-7-650, county department of

social services shall immediately

transfer reports pursuant to this

section to the service.

HISTORY: 1981 Act No. 71,

eff May 19, 1981.

Section 20-7-520. Mandatory

reporting to medical examiner or

coroner; postmortem examinations.

Any person required under

subsection (a) of Section 20-7-510 to

report cases of suspected child abuse or

neglect, including workers of the local

child protective service agency, who has

reason to believe that a child has died

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as a result of child abuse or neglect,

shall report that fact to the

appropriate medical examiner or

coroner. Any other person who has

reason to believe that a child has died

as a result of child abuse or neglect

may report that fact to the appropriate

medical examiner or coroner. The

medical examiner or coroner shall accept

the report for investigation and shall

report his findings to the appropriate

law enforcement agency, circuit

solicitor’s office, the local child

protective service agency or county

department of social services, and, if

the institution making a report is a

hospital, to the hospital.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

Section 20-7-530. Photographs and

x-rays.

Any person required to report under

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Section 20-7-510 may take, or cause to

be taken color photographs of the areas

of trauma visible on a child who is the

subject of a report and, if medically

indicated, cause to be performed a

radiological examination of the child

without the consent of the child’s

parents or guardians. All photographs,

negatives, and copies of them shall be

sent to the appropriate local child

protective service agency or county

department of social services at the

time a report pursuant to Section

20-7-510 is made, or as soon thereafter

as possible.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

Section 20-7-540. Immunity from

liability.

Any person required or permitted to

report pursuant to this article or who

participates in judicial proceedings

A-246

resulting therefrom, acting in good

faith, shall be immune from civil and

criminal liability which might otherwise

result by reason of such actions. In

all such civil or criminal proceedings

good faith shall be rebuttably

presumed.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

Section 20-7-550. Abrogation of

privileged communication.

The privileged quality of

communication between husband and wife

and any professional person and his

patient and client, except that between

attorney and client or priest and

pentinent, is abrogated and shall not

constitute grounds for failure to report

or the exclusion of evidence in any

civil child protective proceeding

resulting from a report pursuant to this

article.

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HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

Section 20-7-560. Penalties.

Any person required to report a

case of child abuse or neglect, or any

person required to perform any other

function under this article, who

knowingly fails to do so, or any person

who threatens or attempts to intimidate

a witness shall be deemed guilty of a

misdemeanor and upon conviction shall be

fined not more than five hundred dollars

or be imprisoned for not more than six

months, or both.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

SUBARTICLE 5

INTERVENTION BY LAW ENFORCEMENT AGENCIES

SEC.

20-7-600. Taking child into custody;

A-248

notice to parents or others;

release; transportation;

peace officer’s records.

20-7-610. Emergency protective

custody.

20-7-620. Temporary detention of

children.

20-7-630. Juvenile intake and

pro»ation services;

review of recommendations

as to intake; secrecy of

files.

Section 20-7-600. Taking child into

custody; notice to parents or others;

release; transportation; peace

officers” records.

(a) When a child found

violating any law or ordinance, or

whose surroundings are such as to

endanger his welfare, is taken into

custody such taking into custody

shall not be termed an arrest.

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The jurisdiction of the court

shall attach from the time of

such taking into custody. When

a child is so taken into custody,

such officers shall notify the

parent, guardian or custodian of

the child to a parent, a responsi-

ble adult, a responsible agent

of a court approved foster home,

group home, facility or program

separate from any secure facility

upon the written promise, signed by

such person, to bring the child to

court at a stated time or at such

time as the court may direct. Such

written promise, accompanied by a

written report by the officer, shall

be submitted to the Department of

Juvenile Placement and Aftercare

as soon as possible. If such

person shall fail to produce the

child as agreed, or upon notice

from the court, a summons or a

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warrant may be issued for the

apprehension of such person or

of the child.

(b) When a child is not

released pursuant to subsection (a),

the officer taking the child into

custody shall immediately notify

the authorized representative of the

South Carolina Department of Juvenile

Placement and Aftercare, who shall

review the facts in the officer’s

report or petition and any other

relevant facts and determine if

there is a need for detention of the

child. The officer’s written report

shall be furnished to the authorized

representative of the Department

of Juvenile Placement and Aftercare

within twenty-four hours from the

time the child was taken into custody

and such report shall state: (1) the

facts of the offense; and, (2) the

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reason why the child was not

released to the parent. Unless

detention is necessary for the

protection of the community or to

serve the best interest of the

child, the child shall be released

by the authorized representative of

the Department of Juvenile Placement

and Aftercare to the custody of his

parents or other responsible adult

upon their written promise to bring

the child to the court at a stated

time or at such time as the court

may direct. Provided, if the

offense for which the child was taken

into custody would be a felony the

child may only be released by the

authorized representative of the

Department of Juvenile Placement

and Aftercare with the consent of

the officer who took the child

into custody.

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ported in any police vehicle which

also contains adults under arrest.

No child shall at any time be’

placed in a jail or other place of

detention for adults, but shall be

placed in a room or ward entirely

separate from adults.

(d) Peace officer’s records

of children shall be kept separate

from records of adults and shall

not be open to public inspection,

and shall be open to inspection

only by such governmental agencies

as authorized by the judge.

When the authorized representative

of the Department of Juvenile Placement

and Aftercare determines that detention

is necessary, he shall make a diligent

effort to place the child in an approved

home, facility or program separate from

any secure facility, when such

alternatives are appropriate and

A-253

available. The Department of Juvenile

Placement and Aftercare shall provide to

the court a list of appropriate

facilities to be utilized for such

placement. When the Department of

Juvenile Placement and Aftercare

determines that a secure facility is

necessary, a child may only be detained

in a facility which has’ sight and sound

separation from adults. The Department

of Juvenile Placement and Aftercare

shall develop specific written criteria

to use in determining: (1) whether

detention is necessary for the

protection of the community to insure an

orderly court process or to serve the

best interest of the child, and (2)

whether a secure or nonsecure facility

is appropriate for detention of the

child. The Department cf Juvenile

Placement and Aftercare shall also

evaluate these criteria using accepted

A-254

research methods.

After January 1, 1982, a child who

is taken into custody because of a

violation of law which would not be a

Criminal offense under the laws of this

State if committed by an adult shall not

be placed in a detention facility.

If the authorized representative of

the Department of Juvenile Placement and

Aftercare has not released the child to

the custody of his parents or other

responsible adult, the court shall hold

a detention hearing within forty-eight

hours from the time the child was taken

into custody, excluding Sundays’ and

holidays, in accordance with rules of

practice in a family court. At this

hearing, the authorized representative

of the Department of Juvenile Placement

and Aftercare shall submit to the court

a written report stating the facts

surrounding the case and a

A-255

BIEN ROLE EP REO SIAR EAT MEAT ME | IRS ARN ARETE ORE ME BON

recommendation as to the child’s

continued detention pending the

adjudicatory and dispositional

hearings.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981; 1981 Act No. 178

Part II Section 36, eff July 29, 1981.

Section 20-7-610. Emergency protective

custody.

(A) A law enforcement officer

may take a child into protective custody

without the consent of parents,

guardians or others exercising

temporary or permanent control

over the child if:

(1) He has probable cause

to believe that by reason of abuse

or neglect, there exists an imminent

danger to the child’s life or

physical safety.

(2) Parents, guardians or

A-256

others exercising temporary or

permanent control over the child

are unavailable or do not consent

to the child’s removal, from

their custody.

(3) There is not time to

apply for a court order pursuant

to Section 20-7-736.

(B) When an officer takes

custody of a child under this section

he shall transport the child to a

place previously designated for this

purpose by the Family Court or the

appropriate judicial circuit. In no

case shall the place designated be a

facility for the detention of criminal

or juvenile offenders.

custody of a child under this

section he shall immediately

notify the appropriate local child

protective service agency and

Family Court of the circuit and

A-257

Shall make every reasonable effort to

notify the parent, guardian or other

person exercising temporary or

permanent control over the child of

the place of custody. The

notification shall be in writing

and shall include notice of the

right to a hearing and right to

counsel pursuant to this chapter.

(D) The local child

protective service agency shall,

upon such notification, commence a

child protective investigation,

including immediate attention to

the protection of other children

tn the home, or other setting where

the child was found. The agency shall

then initiate a removal proceeding

pursuant to Section 20-7-736 on or

before the next working day in the

appropriate Family Court. The

Family Court shall schedule a

A-258

pretrial hearing pursuant to the

provisions of Section 20-7-736 to be

held within ten days of the initiation

of the proceedings. At the pretrial

hearing, the Court shall undertake

} to fulfill the requirements of

Section 20-7-110 shall consider

such matters as will promote a

fair and expeditious trial,

including a prima facie review

of any emergency action taken or

initiated in behalf of the child.

The hearing to determine whether

removal of custody is needed,

pursuant to Section 20-7-736,

shall be held within thirty

days of the date of receipt of

the removal petition.

(E) The Family Court may

order ex parte that a child be taken

into emergency protective custody

without the consent of parents,

guardians or others exercising

A-259

temporary Or permanent control

over the child if:

(1) The Family Court judge

determines there is probable cause

to believe that by reason of abuse

or neglect there exists an imminent

danger to the child’s life or

physical safety; and

(2) Parents, guardians or

others exercising temporary or

permanent control over the child

are unavailable or do not consent

to the child’s removal from their

custody.

(F) If the court issues

such an order it shall schedule

a pretrial hearing pursuant to

the provisions of Section 20-7-736

and pursuant to the requirements of

subsection (D) within ten days after

the child was placed in custody.

(G) During the pendency

A-260

of the removal proceeding, any child

place pursuant to this section shall

remain in such placement until

removal proceedings have been

concluded.

HISTORY: 1981 Act No 71,

Section 1

eff May 19, 1981.

Section 20-7-620. Temporary

detention of children.

Provisions shall be made for a

detention .10me or homes for the

temporary detention of children, to be

conducted by the court, or, subject to

the approval and supervision of the

court, by other approppriate public

agency; or the court may arrange for the

use of private homes for such detention,

subject to supervision of the court or

other agency, or may arrange with any

institution or agency to receive for

temporary care and custody children

A-261

within the jurisdiction of the court.

Section 20-7-630. Juvenile intake

and probation services; review of

recommendations as to intake; secrecy of

files. <

Beginning July 1, i978, the South

Carolina Department of Juvenile

Placement and Aftercare shall _ provide

intake and probation services for

juveniles brought before the family

courts of this State and for persons

committed or referred to the Department

of Youth Services in cooperation with

all local officials or agencies

concerned. All recommendations by the

Department of Juvenile Placement = and

Aftercare as to intake shall be reviewed

by the office of the solicitor in the

circuit concerned and the final

determination as to whether or not the

juvenile shall be prosecuted in family

court shall be made by the solicitor or

A-262

of his authorized assistant. Statements

of the juvenile contained in the

Department of Juvenile Placement and

Aftercare files shall not be furnished

to the solicitor’s office as part of the

intake review procedure nor shall the

solicitor’s office be privy to _ such

statements in connection with its intake

review.

HISTORY: 1981 Act No. 71, Section

1, eff May 19, 1981.

SUBARTICLE 7

INTERVENTION BY CHILD WELFARE AGENCIES

SEC.

20-7-640. Duties of State Depart-

ment of Social Services.

20-7-650. Duties of local child

protective agency.

20-7-660. Information, training,

A-263

and publicity.

20-7-670. Institutional abuse and

neglect.

20-7-680. Central registry.

20-7-690. Confidentiality of

reports and records,

penalties.

20-7-700. (Renumbered).

20-7-710. (Renumbered).

20-7-720. (Renumbered).

20-7-730. (Renumbered).

Section 20-7-640. Duties of State

Department of Social Services.

(A) The Department of Social

Services may maintain a toll-free

number available to persons through-

out the State for the referral of

family-related problems, including:

(1) The reporting of known

or suspected cases of child abuse

or neglect.

(2) Other problems of a nature

which may affect the stability of

A-264

family life.

Such telephone service shall

Operate continuously.

Upon receipt of a call

involving suspected abuse or

neglect, the Department of Social

Services shall transmit the full

contents of the report to the

appropriate local child protective

service agency. Immediately upon

transmitting the report the Department

of Social Services shall destroy the

contents of the suspected report.

Upon receipt of a call

involving other problems, of a nature

which may affect the stability of

family life, the Department of Social

Services shall refer the call to the

appropriate local child protective

service agency or other service

agency where appropriate.

A-265

(B) The Department of Social

Services shall have within it a separate

organizational unit administered within

the Department with qualified staff and

resources sufficient to fulfill the

purposes and functions assigned to it

by this article.

Services responsibilities shall include,

but not be limited to: assigning and

monitoring initial child protection

responsibility through periodic review

of services offered throughout the

State; assisting in the diaqnosis

of child abuse and neglect;

coordinating referrals of known or

suspected child abuse and neglect;

measuring the effectiveness of

existing child protection programs

and facilitating research, planning

and program development; and

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establishing and monitoring a state-

wide central registry for child abuse

and neglect as hereinafter provided.

(D) The County Department of

Social Services in each county is

designated as the Child Protective

Service Agency, whose duties are set

forth in Section 20-7-650. The county

in which the child resides shall be

the legal place of venue; provided,

that in conjunction with the powers

enumerated in this section, each

County Board of Social Services shall

appoint an advisory board to be

composed of resident professionals

in the county in which the child

resides in the fields of medicine,

including nurses, education, health,

social workers, members of the clergy,

and law enforcement officials, if

available for the purpose of

determining the course of protective

action to be taken by the County

A-267

Department of Social Services.

These recommendations are to be

deemed advisory only. These

appointments to the advisory board

shall be made ina nondiscriminatory

manner.

HISTORY: 1981 Act No. 71,

Section 1, eff May 19, 1981.

Section 20-7-650. Duties of local

child protective agency.

(A) It is the purpose of this

section to encourage the voluntary

acceptance of any service offered by

the child protective service agency

in connection with child abuse and

neglect, or any other problem of a

nature affecting the stability of

family life.

(B) The local child protective

service agencies shall be adequately

Staffed with persons trained in the

investigation of suspected child abuse

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and neglect and in the provision of

services to abused and neglected

children and their families.

of the receipt of a report of suspected

child abuse or neglect, the agency

shall commence an appropriate and

thorough investigation to determine

whether a report of suspected child

abuse or neglect is “indicated" or

"unfounded". The findings shail be

made no later than sixty days from

the receipt of the report. In

conducting the investigation if

the facts so warrant the agency

investigator may petition the Family

Court of the appropriate judicial

circuit for a warrant to inspect

the premises and condition of the

child subject of the report. The

Family Court shall issue the

inesesnias warrant upon probable

A-269

cause to believe the child is abused

or neglected, as defined by this

article.

(D) Indicated findings shall

be based upon a finding of the facts

available to the agency that abuse

or neglect is more likely than not to

have occurred; whenever the facts

available to the agency indicate a

lesser finding, determinations shall

be deemed "unfounded". Indicated

findings shall include a description

of the services being provided the

child and those responsible for his

care, as well as all relevant

dispositional information.

{(E) Copies of indicated

investigations of abuse and neglect

shall be communicated immediately to

the statewide Central Registry. The

agency shall maintain a local’ registry

and reports of child abuse shall be

maintained in one of three categories:

A-270

Suspected, Unfounded or Indicated.

All initial reports shall be deemed

Suspected. Reports of suspected

abuse and neglect shall be maintained

for no more than sixty days after the

report was received by the agency. On

or before the expiration of that time,

they shall be converted into either

unfounded or indicated reports, pursuant

eo the agency ’s investigation.

(1) Indicated reports shall

be maintained on the central and local

registries only when accompanied by

supplemental information as required

under subsection (D).

(2) Unfounded reports shall

be classified "Unfounded by reason

of insufficient evidence."

(3) If no finding has been

made by the agency after sixty days

from the date a report was received,

it shall be classified "Unfounded

A-271

for want of an investigation."

(F) The ~ames, 2ddres-es

and all other identifying characteris-

tics of all persons named in all

unfounded reports shall be destroyed

one year from the date that the last

report has been determined to be

unfounded; provided, however, that

all information in any such report

which is unnecessary for auditing

purposes shall be destroyed

immediately upon a determination

that such report is unfounded and

the remaining information shall be

kept confidential except for auditing

purposes. The names, addresses, birth

dates and all other identifying

characteristics of all persons named

in indicated reports shall be destroyed

seven years from the date services are

terminated.

(G) The local child protective

service agency shall be charged with

A-272

providing, directing or cocred:nating

the appropriate and timely delivery cf

services to children found to be abused

or neglected and those responsible

for their care or others exercising

temporary or permanent control over

such children. "Services" shall not

be construed to include emergency

protective custody provided for in

Section 20-7-736.

(H) Where the agency initiates

protective services in cases of indicated

physical, mental or sexual abuse, it

shall notify the Family Court of the

jurisdiction of the services offered

within one week after the initiation

of such services. The Family Court

shall schedule a hearing within ninety

days after receipt of the notice to

determine:

(1) Whether the agency had

reasonable cause to initiate the

A-273

protective services offered.

(2) Whether the services

being offered are reasonable in

light of the agency’s justification

for intervention.

(3) In all proceedings under

this section the agency shall have

the burden of proof by a preponderance

of the evidence, except in cases where

the agency has alleged mental injury,

in which case the evidence must be

clear and convincing.

(I) In cases where a report

has been filed with the Central Registry,

the outcome of these proceedings shall

be communicated immediately by the

agency to the Central Registry.

(J) If at any time after the

initiation of protective services by

the agency those receiving services

indicate a refusal to cooperate, the

agency shall withdraw. If the facts

SO warrant, the agency may petition

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the Family Court to invoke the

jurisdiction of the court under the

Family Court Act to intervene, but in

no case shall the agency threaten

such action to coerce participation.

(K) The agency shall cooperate

with law enforcement agencies and the

circuit solicitor within the area it

serves and establish such procedures

as it deems necessary to facilitate

the referral of child protection

cases to the child protective services

agency. Where the facts indicating

abuse or neglect also appear to indicate

a violation of criminal law, the agency

shall notify the appropriate law

enforcement agency of those facts for

police investigation.

(L) The agency shall actively

seek the cooperation and involvement

of all local public and private

institutions, groups, and programs

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concerned with matters of child

protection and welfare within the

area it serves.

HISTORY: 1981 Act No. 71,

Section 1, eff May 19, 1981.

Section 20-7-660. Information

training and publicity.

(A) The Department of Social

Services Protective Services and the

local child protective services agencies

shall, on a continuing basis, inform

all persons required to report under

this article of the nature, problem

and extent of child abuse and neglect

and of their duties and responsibilities

in accordance with this article. The

Department of Social Services and local

agencies shall also, on a continuing

basis, conduct training programs for

local agency staffs as well as

appropriate training for persons

required to report under this article.

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(B) The Department of Social

Services Protective Services and

the local child protsctive services

agencies shall, on a continuing basis,

inform the public of the nature,

problem and extent of the child abuse

and neglect and of the remedial and

therapeutic services available to

children and their families. The

Department of Social Services and

the local agencies shall also

encourage families to seek help

consistent with Section 20-7-500.

Services Protective Services and

the local child protective services

agencies shall, on a continuing basis,

actively publicize the appropriate

telephone numbers to receive reports

of suspected child abuse and neglect,

including the twenty-four hour,

statewide, toll-free telephone service

and respective numbers of the local

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child protective services agencies.

HISTORY: 1981 Act No. 71,

Section 1, eff May 19, 1981.

Section 20-7-670. Institutional

abuse and neglect.

(A) The Department of Social

Services Child Protective Services

shall be empowered to receive and

investigate reports of institutional

abuse and neglect and shall promulgate

regulations consistent with this

authority to investigate such reports

and take remedial action, if necessary.

In no case shall the Department of

Social Services have responsibility

for investigating allegations of

abuse and neglect in institutions

operated by the Department of °

Social Services.

The Department of Social

Services shall take whatever steps

it deems necessary to inform

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potential reporters of institutional

abuse and neglect of its responsibili-

ties under this section.

(B) Subject to the provisions

of subsection (A), the State Law

Enforcement Division is empowered

to receive and investigate reports

of institutional abuse and neglect

alleged to have occurred in any

institution operated by the

Department of Social Services and

may promulgate regulations consistent

with this authority to investigate

such reports and take remedial

action, if necessary.

The agency shall take whatever

steps it deems necessary to inform

potential reporters of institutional

abuse and neglect of its responsibilities

under this section.

HISTORY: 1981 Act No. 7l,

Section 1, eff may 19, 1981.

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Section 20-7-680. Central registry.

(A) The purpose of this

section is to establish a system

for the identification of abused

and neglected children and those

who are responsible for their care,

to provide a system for the

coordination of reports concerning

abused and neglected children and

to provide data for determining

the incidence and prevalence of

child abuse and neglect in this State.

(B) The State Department of

Social Services shall maintain a

Central Registry of Child Abuse and

Neglect within the Department of

Social Services child protective

services unit. The registry shall

receive and maintain indicated

reports of child abuse and neglect

from county departments of social

services and from local child

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protective services agencies and

it shall transmit information to

authorized persons and agencies °

as provided in Section 20-7-690.

service agencies shall transmit

monthly any data required by the

Department of Social Services for

purposes of statistical analysis

and data gathering, subject to the

limitations imposed on identifying

characteristics contained in

subsections (E) and (F) of

Section 20-7-650.

(D) The Department of Social

Services shall furnish annually to

the Governor and the Ceneral Assembly

a report on the incidence and prevalence

of child abuse and neglect in South

Carolina, the effectiveness of services

provided throughout the State to

protect children from such harm and

any other data deemed instructive.

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(E) The names, addresses,

birthdates, and all other identifying

characteristics of all persons named

in indicated reports contained in the

Registry shall be destroyed seven years

from the date services are terminated.

HISTOPY: 1981 Act No. 71

Section l. eff ma’ 19. 1981.

Section 20-7-690. Confidentiality of

reports and records; penalties.

(A) All reports made pursuant

to this article maintained by the

State Department of Social Services,

local child protective service agencies

and the Central Registry of Child

Abuse and Neglect shall be confidential.

Any person who disseminates or permits

the unauthorized dissemination of such

information shall be deemed guilty of

a misdemeanor and upon conviction shall

be fined not more than five hundred

dollars or be imprisoned for not more

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than six months, or both.

(B) Infcrmation contained in

reports described in subsection (A)

shall not be made available to any

individual or institution except:

(1) Appropriate staff of

the State Department of Social

Services, local child protective

services agencies and multidisciplinary

evaluation teams empaneled by the

agencies and law enforcement agencies

investigating suspected cases of

abuse and neglect.

(2) Any person who is the

subject of a report, subject to the

qualifications provided in sub-

section (C).

(3) Family Courts conducting

child abuse and neglect or child

protective proceedings.

(4) Any person engaged ina

bona fide research purpose, with

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written permission of the Commissioner

of the State Department of Social

Services, but no information regarding

the names, addresses and other

identifying characteristics of subjects

of the report shall be made avail-

able to the researcher.

(5) Any person appointed

as a child’s guardian ad litem

pursuant to Section 20-7-110.

subject of a report made pursuant

to this article shall be immediately

notified of the fact that his name

has been recorded bv the State

Department of Social Services, the

local child protective services

agency and, if applicable, the Central

Registry of Child Abuse and Neglect.

He shall also be informed of the

findings of the investigation and

whether or not his name has been

destroyed in accordance with this

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a-ricle. Any person who is the

subject of a report shall be informed

of his right to inspect the report

and any substantiating data or

evidence and his right to challenge

any part of its contents. The only

details of the report which shall

be withheld from the subject’s

knowledge or inspection are the

name, address, occunation and all

other identifying characteristics

of the reporter.

(D) For the purpose of this

section, "any person who is the subject

of a report" shall mean the child and

any person who is alleged or determined

to have abused or neglected the child,

who is mentioned by name in a report

or finding.

HISTORY: 1981 Act No. 71,

Section 1, eff May 19, 1981.

ARTICLE 9

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PROCENURFS FOR FAMIT.Y COURTS

SUBARTICLE 1

ABUSED, NEGLECTED AND

DELINQUENT CHILDREN

SEC.

20-7-735. (Renumbered).

20-7-736. Jurisdiction of family

court under article; removal

proceedings; procedures.

20-7-740. Preliminary inquiry

and informal action by courts;

contents, verification, and filing

of petition; investigation; notice.

20-7-745. Service of summons,

process of service.

20-7-750. Failure to obey summons

Or process; issuance of warrant.

20-7-755. Corduct of hearings.

20-7-760. Rules for conduct of

hearings; evidence; adjournment;

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temporary order for support.

29-7-765. (Renumbered).

2-7-779%, ("envmb-re”’).

20-7-775. ‘'Rerum*er-d)

20-7-780. Records, confidential

information; names and pictures of

children shall not be made public;

fingerprints.

Section 20-7-736. Jurisdiction of

family court under article;

removal proceedings; procedures.

(A) The Family Court shall

have exclusive jurisdiction over all

proceedings held pursuant to this

article.

(5) Upon investigation of a

report received under Section 20-7-650

Or at any time during the delivery

of services by the agency, the local

child protective services agency may

petition the Family Court in its

jurisdiction to remove the child from

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custody of the parent or guardian when

the agency has probable cause to believe

removal is necessary to protect the

child’s health or welfare.

a full description of the reasons why

the child cannot be protected adequately

in the custody of the parent or guardian,

including a descriptioin of the condition

of the child, any vrevious efforts to

work with the parent or guardian, in-

home treatment programs which have

been offered and proven inadequate

ana the attitude of the parent or

guardian towards placement of the

child in an alternative setting.

The petition shall also contain a

statement of the harms the child

is likely to suffer as a result

of removal and a description of

the steps that will be taken to

minimize the harm to the child

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that may result upon removal.

(D) Upon receipt of a

removal petition under this section,

the Family Court shall schedule a

hearing to be held within thirty

days of the date of receipt to

determine whether removal is

necessary.

The Family Court shall

notify the parent or guardian of

the hearing by delivering a copy of

the petition, together with a notice

of the hearing, which shall include

the date and time of the hearing and

an explanation of the right of the

parent or guardian to have an

attorney under Section 20-7-110.

The Family Court shall effect

delivery at least twenty-four hours

prior to the hearing. The respondent

shall be allowed to seek leave of

court for a continuation of not less

than forty-eight hours.

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(E) A child shall not be

removed from the custody of the

parent or guardian unless the court

finds that:

(1) The child has been

physically injured as defined in

Section 20-7-490 and there is a

preponderance of the evidence that

the child cannot be protected from

further physical injury without

being removed.

(2) the child has been

endangered as otherwise defined in

Section 20-7-490 and there is clear

and convincing evidence that the

child cannot be protected from

further harm of the type justifying

intervention without being removed.

(3) There is an alternative

Dlacement available hut in no case

shall the nlacement he a facility for

detention of criminal or juvenile

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offenders.

(F) The petition for removal

may include a petition for termination

of parental rights under the jurisdiction

conferred on the Family Court by the

Family Court Act.

HISTORY: 1981 Act. No. 71,

Sec’ ion 1, eff May 19, 19871;

198? Act no. 398, Section 9,

eff June 7 1982.

CHAPTER 10 (new)

Child Protection Act of 1977

SEC.

20-10-10. Short title.

20-10-20. Definitions.

20-10-30. Purpose.

20-10-40. Persons or families

needing assistance encouraged

to seek it.

20-10-50. Persons to report.

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20-10-60. Mandatory reporting to a

medical examiner or coroner; postmortem

oxensnatiods

20-10-70. Photographs and x-rays.

20-10-80. Emergency protective

custody.

20-10-90. Immunity from liability.

20-10-100. Abrogation of privileged

communication.

20-10-110. Duties of State Department

of Social Services.

20-10-120. Duties of the local child

protective agency.

20-10-130. Central Registry.

20-10-140. Confidentiality of reports

and records; penalties.

20-10-150. Information, training

and publicity.

20-10-160. Institutional abuse

and neglect.

20-10.170. Removal.

20-10-180. Legal representation.

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20-10-1190. Penalties.

Section 20-10-10. Short title.

This chapter shall be known as

the Child Protection Act of 1977.

Section 20-10-20. Definitions.

When used in this chapter and

unless the specific content indicates

otherwise:

(A) “Child" means a person

under the age of eighteen.

(B) "Abused or neglected child"

means a child whose physical or

mental health or welfare is harmed

or threatened with harm, as defined

by items (C) and (D) of this section,

by the acts or omissions of his parent,

guardian or other person responsible

for his welfare.

or welfare can occur when the parent,

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guardian or other person responsible

for his welfare:

(1) Inflicts of allows to

be inflicted upon the child physical

Or mental injuries, including injuries

sustained as a result of excessive

corporal punishment, but excluding

corporal punishment or physical

discipline which meets each of the

following guidelines:

(a) The physical aggression

must be administered by a parent or

person in loco parentis.

(b) It must be perpetrated

for the sole purpose of restraining

Or correcting the child.

of the discipline must be reasonable

in manner and moderate in degree.

(d) the force and violence

of the discipline must not have brought

about permanent or lasting damage

to the child.

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must not be reckless or grossly negligent.

(2) Commits or allows’ to be

committed against the child a sexual

offense as defined by the laws of the

State.

(3) Fails to provide the child

with adequate food, clothing, shelter,

education as required under Article l

of Chapter 65 of Title 59, or health

care though financially able to do so

or offered financial or other reason-

able means to do so. For the purpose

of this chapter "adequate health care”

includes any medical or nonmedical

health care permitted or authorized

under state iaw.

(4) Abandons the child, as

defined by Section 20-11-20, Code of

Laws of South Carolina, 1976.

(5) Encourages, condones or

approves the commission of delinquent

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acts by the child and commission of the

acts are shown to be the result of

the encouragement, condonation or

approval.

(D) "Threatened harm" means a

substantial risk of harm, as defined

by item (C).

(E) "A person responsible for

a child’s welfare" includes the child’s

parent, guardian, foster parent, an

employee of a public or private

residential home, institution or agency,

or other person legally responsible

for the child’s welfare ina

residential setting.

(F) “Physical injury" means

death, disfigurement or impairment

of any bodily organ.

(G) “Mental injury" means

a substantial impairment of the

intellectual, psychological or

emotional capacity of a child as

evidenced by inhumane or unconscionable

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acts and conduct. Provided, nothing

herein shall be construed as prohibiting

a person responsible for a child’s

welfare from imposing reasonable

restrictions deemed necessary by

such person for the intellectual,

psychological or emotional well-

being of the child by any of the

following means or methods:

(1) Restrictions relating

to attendance at amusements, concerts,

social events or activities, or

theaters.

(2) restrictions on amount of

exposure to secular activities such as

television, extra-curricular school

ctivities or community recreational

activities.

(3) instructions, directions,

or mandates relating to public or

private elementary and secondary

education or attendance at churches

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or other places of religious worship.

(H) "Institutional child abuse

and neglect" means situations of known

or suspected child abuse or neglect

where the person responsible for the

child’s welfare is the employee of a

public or private residential home,

institution or agency.

(I) “Protective Services Unit"

means the unit established within the

Department of Social Services which

shall have prime responsibility for

state .efforts to strengthen and improve

the prevention, identification and

treatment of child abuse and neglect.

(J) "Subject of the report"

means any person reported under this

chapter, including any child or parent,

guardian or other person responsible

for the child’s welfare.

(K) "Suspected report" means

all initial reports of child abuse or

neglect received pursuant to this

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chapter.

(L) “Unfounded report" means

a report made pursuant to this chapter

for which there is not probable cause

to believe that the child is abused or

neglected. For purposes of this

chapter, it is presumed that all reports

are unfounded unless the local child

protective service agency determines

otherwise.

(M) "Indicated report" means

a report of child abuse or neglect

supported by facts which warrant a

finding that abuse or neglect is

more likely than not to have occurred.

(N) "Probable cause" means

facts and circumstances based upon

accurate and reliable information,

including hearsay, that would justify

a reasonable person to believe that a

child subject to a report under this

chapter is abused or neglected.

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(O) “Local child protective

service agency" means the agency in

a county or contiguous counties having

prime responsibility for local efforts

to strengthen and improve the prevention,

identification and treatment of child

abuse and neglect.

(P) "Child protective

investigation" means any inquiry

conducted by the local child protective

service agency in response to a report

of child abuse or neglect made pursuant

to this chapter.

HISTORY: 1977 Act No. 187 Section 4;

1978 Act No. 497 Section l,

eff May 5, 1978.

Section 20-10-30. Purpose.

Recognizing that abused and

neglected children in South Carolina

need protection, it is the purpose of

this chapter to save them from injury

and harm by establishing an effective

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reporting system and encouraging the

reporting of children in need of

protection; by establishing an effective

system of services throughout the State

to safeguard the well-being and

development of endangered children and

to preserve and stabilize family life,

whenever appropriate; by establishing

fair and equitable procedures,

compatible with due process of law *

intervene in family life with due regard

to the safety and welfare of all family

members and by establishing an effective

system of protection of children from

injury and harm while living in public

and private residential agencies and

institutions meant to serve them.

HISTORY: 1977 Act No. 187 Section 2.

Section 20-10-40. Persons or

families needing assistance encouraged

to seek it.

Any person seeking assistance in

A-301

meeting child care responsibilities may

use the services and facilities

established by this chapter, including

the single statewide telephone number

and local child protective services

where available. Such persons shall be

referred to appropriate community

resources or agencies, nothwithstanding

whether the problem presented involves

child abuse or neglect as defined by

this chapter.

HISTORY: 1977 act No 187 Section 3.

Section 20-10-50.

(A) Any physician, nurse, dentist,

optometrist, medical examiner, or coroner,

or any other medical, mental health, or

allied health professional, Christian

Science practitioner, religious healer,

school teacher or counselor, social

or public assistance worker, child care

worker in any day care center or child

A-302

Caring institution, police or law

enforcement officer or any judge

having reason to believe that a child’s

physical or mental health has been or

may be adversely affected by abuse or

neglect is required to report or cause

a report to be made in accordance with

this section.

(B) Except as provided in (A)

of this section, any other person who

has reason to believe that a child’s

physical or mental health or welfare

has been or may be adversely affected

by abuse or neglect may report in

accordance with this section.

neglect made pursuant to this section

may be made orally, by telephone or

otherwise to the county department

of social services, or in tne alterna-

tive, to a law enforcement agency in

the county where the child resides or

is found.

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(1) Where reports are made

pursuant to this section to a law

enforcement agency, it shall notify

the county department of social

services of its response to the report

at the earliest possible time.

(2) Where a county or

contiguous counties have established

local child protective services, pursuant

to Section 20-10-20, the county depart-

ment of sociai services shall

immediately transfer reports pursuant

to this section to the service.

HISTORY: 1977 Act No 187 Section 5,

1978 Act No. 497 Section 2,

eff May 5, 1976.

Section 20-10-60. Mandatory reporting to

a medical examiner or coroner,

postmortem examinations. |

Any person required under Section

20-10-50(A) to report cases of suspected

child abuse or neglect, including

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workers of the local child protective

service agency, who has reason to

believe that a child has died as a

result of child abuse or neglect, shall

report that fact to the appropriate

medical examiner or coroner. Any other

person who has reason to believe that a

child has died as a result of child

abuse or neglect may report that fact to

the appropriate medical examiner or

coroner. The medical examiner or

coroner shall accept the report for

investigation and shall report his

findings to the appropriate law

enforcement agency, circuit solicitor’s

office, the local child protective

service agency or county department of

social services and, if the institution

making a report is a hospital, to the

hospital.

HISTORY: 1977 Act No 187 Section 6.

Section 20-10-70. Photographs and

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x-rays.

Any person required to report under

Section 20-10-50 may take, or cause to

be taken color photographs of the areas

of trauma visible on a child who is’ the

subject of a report, and, if medically

indicated, cause to be performed a

radiological examination of the child

without the consent of the child’s

parents or guardians. All photoographs,

negatives, and copies of them shall _ be

sent to the appropriate local child

protective service agency or county

department of social services at the

time a report pursuant to Section

20-10-50 is made, or as soon thereafter

as possible.

HISTORY: 1977 Act No 187 Section 7;

1978 Act No. 497 Section 3, eff May 5,

1978.

Section 20-10-80. Emergency protective

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custody.

(A) A law enforcement officer

may take a child into protective custody

without the consent of parents,

guardians or others exercising

temporary or permanent control over

the child if:

(1) He has probable cause to

believe that by reason of abuse or

neglect there exists an imminent

danger to the child’s life or

physical safety.

(2) Parents, guardians or

others exercising temporary or

permanent control over the child are

unavailable or do not consent to the

child’s removal from their custody.

(3) There is not time to

apply for a court order pursuant to

Section 20-10-70.

(B) When an officer takes

custody of a child under this section

he shall transport the child to a place

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previously designated for this purpose

by the Familiy Court of the appropriate

judicial circuit. In no case shall the

place designated be a facility for the

detention of criminal or juvenile

offenders.

custody of a child under this section

he shall immediately notify the

appropriate local child protective

service agency and Family Court of

the circuit and shall make every

reasonable effort to notify the

parent, guardian or other person

exercising temporary or permanent

control over the child of the place

of custody. The notification shall

be in writing and shall include

notice of the right to a hearing and

right to counsel pursuant to this

chapter.

(D) The local child

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protective service agency shall, upon

such notification, commence a child

protective investigation, including

immediate attention to the protection

of other children in the home, or other

setting where the child was found. The

agency shall then initiate a removal

proceeding pursuant to Section 20-10-170

on or before the next working day in

the appropriate Family Court. The

Family Court shall schedule a pretrial

hearing pursuant to the provisions

of Section 20-10-170 to be held within

ten days of the initiation of the

proceedings. At the pretrial hearing,

the Court shall undertake to fulfill

the requirements of Section 20-10-180

and shall consider such matters as will

promote a fair and expeditious

trial, including a prima facie review

of any emergency action taken or

initiated in behalf of the child. The

hearing to determine whether removal

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of custody is needed, pursuant to

Section 20-10-170, shall be held

within thirty days of the date of

receipt of the removal petition.

(E) The Family Court may

order ex aprte that a child be taken

into emergency protective custody

without the consent of parents,

guardians or others exercising

temporary or permanent control

over the child if:

(1) The Family Court judge

determines there is probable cause

to believe that by reason cf abuse

or neglect there exists an imminent

danger to the child’s life or

physical safety: and

(2) Parents, guardians or

others exercising temporary or

permanent control over the child

are unavailable or do not consent to

the child’s removal from their custody.

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(F) If the court issues such

an order it shall schedule a pretrial

hearing pursuant to the provisions of

Section 20-10-170 and pursuant to the

requirements of subsection (D) within

ten days after the child was placed

in custody.

(G) During the pendency of the

removal proceeding, any child placed

pursuant to this section shall remain

in such placement until removal

proceedings have been conducted.

HISTORY: 1977 Act No. 187 Section 8;

1978 Act No. 497 Section 9,

eff May 5, 1978; 1980 Act No. 498,

eff June ll, 1980.

Section 20-10-90. Immunity from

liability.

Any person required or permitted to

report pursuant to this chapter or who

participates in judicial proceedings

resulting therefrom, acting in good

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faith, shall be immune from civil and

Criminal liability which might otherwise

result by reason of such actions. In

all such civil or criminal proceedings

good faith shall be rebuttably

presumed.

HISTORY: 1977 Act No 187 Section 9.

Section 20-10-1000. Abrogation of

privileged communication.

The privileged quality of

communication between husband and wife

and any professional person and his

patient or client, except that between

attorney and client Or priest and

penitent, is abrogated and shall not

constitute grounds for failure to report

or the exclusion of evidence in any

civil child protective proceeding

resulting from a report pursuant to this

chapter.

HISTORY: 1977 Act No. 187 Section

10.

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Section 20-10-110. Duties of the State

Department of Social Services.

(A) The Department of Social

Services may maintain a toll-free

number available to persons throughout

the State for the referral of family