An attorney should not enter into a contract to represent DSS at any review hearing involving a child which the attorney represented at the initial stages of the case. It is proper, however, for an attorney to represent S.C.
DSS at a review hearing concerning a case in which the attorney has not been involved. Thus, attorneys can generally represent children at initial stages of certain child abuse cases and represent DSS at review hearings concerning child abuse cases in which they have not been involved. Such action by an attorney should not create a dual representation problem since the County Department of Social Services, against which the attorney takes a quasi-adversarial position in representing the children, and S.C. DSS are not identical agencies.
Question:
Is it proper for the attorney to represent the children at the initial stages of child abuse cases if he accepts the contract to represent S.C. DSS at the review hearings?
Opinion:
Anytime that the court removes a child from a home, the law requires that the court conduct a review at least every twelve months. Although it is usually initiated by the protective services agency known as the South Carolina Department of Social Services ("S.C. DSS:), the review may be initiated by any interested person. South Carolina Code Ann. Section 20-7-766 (1976).
The practice of S.C. DSS is to enter into a contract with an attorney in each county to bring the petitions for review hearings. The attorney is paid $100.00 per case.
An attorney is involved in child abuse cases with the ABC County Department of Social Services. The attorney regularly represents the Guardian ad Litem for the abused children pursuant to S.C. Code Ann. Section 20-7-110 (1976). S.C. DSS contacts the attorney in ABC County and asks him to represent S.C. DSS in the review hearings.
The law of this state is written to ensure that a child involved in a child abuse case has legal counsel who represents only that child's interest. South Carolina Code Ann. Section 20-7-110(a) (1976), provides that in all child abuse and neglect proceedings:
Children shall be appointed legal counsel and a guardian ad litem by the Family Court. i Counsel for the child shall in no case be the same as counsel for the parent, guardian or other person subject to the proceeding or any governmental or social agency involved in the proceeding.
As a result of the above Code section, an attorney could not represent the child and S.C. DSS in a child abuse proceeding. This rule applies to all stages of child abuse proceedings since the representation of a child does not end after the initial hearing but continues until the matter is sufficiently resolved. Therefore, at no time during the proceedings could the attorney agree to represent another party involved in the action in addition to the child.
The Code does not address whether or not the attorney for the guardian ad litem can also represent another party, except to the extent that it disallows the attorney for the guardian ad litem being the same as the attorney for the child. However, the guardian ad litem has very specific duties and obligations in child abuse proceedings, and the attorney for the guardian ad litem should not represent any other person's interest at the same time as representing the guardian ad litem's interest. The guardian ad litem serves as a court appointed special advocate for the child and one of the responsibilities, and perhaps the most important, is to represent the best interests of the child. Section 20-7-122 (1976).
Section 29-7-122 requires that the guardian ad litem continue to protect and promote the best interests of the child "until formally relieved of the responsibility by the Family Court." Similarly, Section 20-7-124 of the Code provides that "the obligation of the guardian ad litem to the court is a continuing one." The law further provides that the guardian ad litem is entitled to legal counsel pursuant to Section 20-7-110.
Once the attorney takes on representation of the guardian ad litem he is under a duty to advise such guardian regarding the best interests of the child until the matter is fully and finally resolved. The guardian ad litem's role entails the responsibilities and duties set forth in Section 20-7-122 which include (i) maintaining accurate written case records, (ii) providing written reports, consistent with the rules of evidence and rules of court, (iii) monitoring compliance with Family Court orders and (iv) making necessary motions.
Therefore, once the attorney agrees to represent the guardian ad litem, he is obligated to advise the guardian ad litem as to motions, requests, and the rules of court with regard thereto, necessary to represent the best interests of the child. As with any client, this obligation is not fulfilled, and the representation does not end, until the court makes a final decision as to the outcome of the matter. The review hearings in child abuse cases are a part of and generally the last step in, the legal proceedings and the child must have an attorney and a guardian ad litem present. In addition, the guardian ad litem is entitled to have legal counsel present.
In order for the guardian ad litem to adequately fulfill his duties, responsibilities and obligations set forth in Sections 20-7-122 and 20-7-124, he must continually have the aid and advise of legal counsel. Such legal counsel could not effectively represent the interests of the guardian ad litem and S.C. DSS at the same time, whether it be during the initial stages of a matter or during the review hearings.
Code Section 20-7-766, which governs the review proceedings, allows S.C. DSS, or any interested party, including the guardian ad litem, to file a petition for review. If such a review is requested by S.C. DSS, the agency may submit to the court affidavits from the natural parents, the child's legal counsel and the guardian ad litem. It is conceivable that S.C. DSS and the guardian ad litem will not agree as to the outcome of the matter. For instance, S.C. DSS may take the position that the child should remain in foster care, while the guardian ad litem, through his attorney, may take the position that the child should be returned to his or her natural parents. Thus, a conflict of interest arises if the attorney for S.C. DSS and the guardian ad litem are one and the same.
If the attorney has not represented the guardian ad litem in the specific case before the court (although he or she generally represents guardians ad litem) it would not create a conflict of interest if the attorney agreed to represent S.C. DSS at a review hearing. In such a case the guardian ad litem would have its own counsel to aid him or her in representing the best interests of the child. The propensity for conflict and inadequate representation is not present in a case where both the guardian ad litem and S.C. DSS are represented by separate legal counsel.