November 16, 2007
The Children's Law Committee met on Friday, November 16, 2007, at 12 noon.
Members Present (13):
Taron Davis, Chair
Bar Staff Present (1):
Call to Order: Ms. Davis welcomed everyone to the meeting and asked all to introduce themselves.
Minutes: Ms. Davis asked for approval of the September 14, 2007, minutes. A motion was made that the minutes be approved. The motion was seconded, and the minutes were unanimously approved.
2008 Bar Convention: Ms. Way showed the Bar Convention brochure to the Committee and informed members they could access information on the Bar Web site. Members complimented the cover of the brochure. Chair Davis went over the schedule for the Convention.
Saturday, January 26, 2008 1:00 p.m. "" 4:15 p.m.
Â· Serving as GAL in Abuse and Neglect Cases/Tara Taggart and Pam Robinson
Â· Serving as GAL in Private Family Court Cases/Patricia Forbis
Â· Competency Issues in Juvenile Delinquency Cases/Tana Vanderbilt
Â· Treatment Services Available to Delinquent Youth in the Community/Dr. Craig Williams and Dr. Kevin Irmiter
Â· The Legal Rights of Undocumented Children/Tammy Besherse
Ms. Vanderbilt expressed a desire for Psychologist Donna Culley to co-present the segment on Competency Issues in Juvenile Delinquency Cases. Chair Davis stated approval might not be possible as related to deadline purposes. Ms. Way would check with the Convention Manager regarding hotel reimbursement arrangements and get back with Ms. Vanderbilt and Chair Davis.
Non-custodial Parent Rights in South Carolina: The Committee further discussed code ramifications of S. C. Code of Laws Title 20, Chapter 7, Section 20-7-953 (B): "Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity."
At the request of the South Carolina Bar Pro Bono Program, Ms. Way reported that program receives many calls stating law enforcement response to custody disputes vary from law enforcement jurisdiction to jurisdiction and the response may even vary based on how the individual officer responds to a specific custody situation. Ms. Way reported that some law enforcement responses reported in situations where the biological mother is the primary physical custodian until the biological father takes the child or decides to keep the child beyond visitation are:
1) police tell the mother that she needs to get a lawyer and go to court to get a custody order;
2) police escort the mother to the father's home and tell the father that he needs to give child back to the mother and father needs to file for custody in court action; and
3) police decline to get involved "because it is not a police matter but a family court matter."
Ms. Way stated that perhaps the matter should also be presented to Family Law and Law Related Education in a proposed effort for Sheriff's Associations, etc., to be provided with the same information enabling clear enforcement.
Chair Davis reported the implications of this statute were what had previously inspired the Committee to create the fact sheet outlining the legal rights of non-custodial parents.
Ms. Adler distributed draft Q/A for Committee review and comment.
Following discussion, it was determined that Ms. Way would distribute the Q/A via listserv and ask for suggested edits. Ms. Lamb volunteered to assist with drafting answers not included in present text. Ms. Robinson volunteered to float the document to law students for comment/suggested edits.
Ms. Adler stated the present version was geared toward clients' reading level and perhaps at a later date the Committee might draft a version geared toward law enforcement. There was also discussion as to whether this would be in brochure or booklet form, whether it would be beneficial to contact solicitors, and whether a cover letter should be distributed to sheriff's offices setting out statute interpretation.
By motion, second and unanimous vote, the present draft Q/A was approved "in theory" with final amendments to be made using comments and edits received.
FAQs to the public regarding children's issues: There was discussion of Angela McClure's suggestions to:
1) link the Children's Law Center web site where Kid's Law publication is provided to South Carolina Bar/Kids' Law web site for access to the .pdf publication until the Bar provides a new interface; and
2) figure out ways to more widely disseminate hard copies of Children's Law Center publication Kid's Law perhaps to schools and/or libraries.
Chair Davis stated Ms. McClure might want to check with Carolyn Morris at the Children's Law Center to determine present status of the publication and to obtain permission to post on the Bar web site. The consensus was the Kid's Law publication might need updating inasmuch as the last version was published in 2005. There was also discussion as to the audience the Bar's interface would be directed and Ms. Way reported she thought to children. The statement was made if directed to parents of illegitimate children, one could refer to the Non-custodial Parent Rights in SC Q/A format once it was complete.
Guidelines for Guardians ad litem for Children in Family Court: Ms. Way reported that a Committee member's prior suggestion for the Guidelines to be printed in South Carolina Lawyer magazine was determined not appropriate; however, a notice would appear in the January issue that the Guidelines are available with directions on access via the Bar web site.
U Need 2 Know radio segment: Chair Davis reported Committee members participation during the week of November 12, 2007 was as follows:
M: Private guardians ad litem-Thom Neal
W: Adoption/Heart Gallery/Committee member Mary Williams obtained a DSS attorney as her replacement
Th: Child protection/Tara Taggart and Chair Davis
F: Juvenile Justice/Serena McDaniel and Sarah Smith
Chair Davis and Ms. Taggart reported there were no call-ins during their segment.
Discussion of suggested 2007-2008 goal to "Seek clarification of S.C. Code Ann. Â§20-7-110, which currently requires the appointment of an attorney and a guardian ad litem for all children abuse in neglect proceedings": Chair Davis reported the Federal Legislation Amendments to Uniform Representation of children in Abuse, Neglect, and Custody Proceedings Act had been distributed by Ms. Way to Committee members via listserv. Ms. Robinson reported following the Committee's request, she had law students research regarding the manner in which other states ensure that older foster youth, 16 years and older, articulate their wishes in child protection cases. She reported law student Kristin Pawlowski had performed an advanced Westlaw search and located a lengthy Law Review article which had been reduced to a "State-by-State Chart." The chart was included in meeting materials. She stated it appears every state handles this differently and read the following summary of the research: "In the end we could find no trends; not even two states matched in theory and practice. The inconsistency in the terminology was a major factor"¦" "It therefore appears that the American jurisdictions are currently in clash or paradigms, and the confusing picture offered by the findings of the 2005 survey suggest that the paradigms, pulling in opposite directions, are creating confusion on the ground."
The Convention on the Rights of Children, which the U.S. has not signed, advocates that every child should have a lawyer and that the guardian doesn't fit in except as an investigator.
There is a S.C. bill introduced that would combine the role of the lawyer and the guardian ad litem if the person being appointed is a lawyer.
There was Committee discussion as to:
a) the role of the guardian ad litem;
b) privilege not being an issue if appointed as guardian;
c) ethically cannot play both roles;
d) if the Model Appointment Order was used role clarification was included in the Order;
e) Ethics Advisory Opinion 98-02 states the guardian cannot also be the attorney;
f) stirring the matter up might make things worse;
g) the academic point of view being that because the term "guardian ad litem" denotes a different meaning in other states, until the term becomes uniform that everyone understands what "attorney" is.
Chair Davis asked the Committee if they desired to submit the goal "as is," change the language, or drop it entirely. It was determined the suggested goal would be dropped at this time but that the matter would be monitored.
Discussion of draft of Bill of Rights for Juveniles in the Juvenile Justice Systems: At the request of Peter Jaensch, Esquire, Policy Associate with The National Center on Addiction and Substance Abuse at Columbia University, Ms. Davis discussed the recent version of the draft Bill of Rights for Juveniles in the Juvenile Justice System which had been disseminated to Committee members for confidential comment. Chair Davis reported she had also referred Mr. Jaensch to the Children's Law Center. She stated it was Mr. Jaensch's intention to develop a state flow chart to establish standards. Chair Davis asked if the Committee desired to establish a subcommittee to correspond with Mr. Jaensch. Following discussion, it was determined Committee members would e-mail Mr. Jaensch on an individual level. Ms. Way provided his email address.
General Assembly issues:
"¢ Continue to support efforts to reintroduce and for the passage of the Disturbing School Statute bill. Ms. Hill reported a decision from the School Board and Department of Education was pending wherein the statute bill would apply only to non-students. There was discussion that applying to "non-students" only would alleviate problems including the monetary factor. There was discussion that DJJ thought it needed Bar support to get passed but in the event the School Board is behind it, there would not be a need for Bar support.
"¢ Support legislative changes that will assist foster children to obtain a driver's license and insurance. No report given.
"¢ Monitor legislation dealing with children's issues. Chair Davis reported she was monitoring legislation and that there was Senate Bill 518 pending setting out requirements on making available a video presentation on the dangers of shaking infants and information on the importance of infant CPR which would become effective January 1, 2008.
Ms. Way reported Public Affairs Director Kali Turner had requested the Committee either have a legislative subcommittee or provide a point person and 3-4 testifiers. It was determined Chair Davis would be the point person and that testifiers would depend on the then pending legislative matters. At this time testifiers would be as follows:
Disturbing School Statute bill: Elizabeth Hill and Larry Vanderbilt
Changes that will assist foster children to obtain a driver's license and insurance: Mary Williams.
Continue to distribute child Protective Service cards: Ms. Robinson asked the Committee for suggestions on ways to distribute these cards. They had already been distributed to Sheriff's Departments. One suggestion was to the Columbia Police Department. Mr. Vanderbilt suggested they be distributed to all law enforcement entities in the state and contact information to these entities was available.
Ms. Taggart stated she would ask her guardian staff if additional cards were needed and stated they were most useful at DSS at the initial stage.
Next meetings: The next meetings are scheduled for January 11, 2008, and March 14, 2008, at noon.
Adjournment: There being no further business, Ms. Davis adjourned the meeting.