Skip to Content

Joseph F. Rice School of Law

Merits Hearing


A hearing on the merits must be scheduled within 35 days of receipt of removal complaint by family court.

A primary characteristic of a merits hearing is that formal legal process is used to notify necessary parties and witnesses for the hearing and to secure their attendance. There should be a clear demonstration that the defendants have been served with the summons and complaint and the hearing notice for the merits hearing. Service issues need to be resolved initially at this hearing for the record to avoid delays in the future processing of the case. If notice of the merits hearing was contained in the probable cause order, proof of service of the probable cause order is sufficient notice for the merits hearing. Otherwise, an affidavit of service for all parties should be provided to the court. Case outcomes are improved when all necessary parties receive timely notice of the merits hearing and timely service of the pleadings.

The court should make findings of abuse or neglect regarding the children at the merits hearing. In rare circumstances, the court may hold in abeyance the determination of the perpetrator of the abuse or neglect but not the findings. If there is no agreement on the findings, then parties should set matter for trial.

Quick View

  • Determine if the child has been abused or neglected and whether the child can reasonably be protected from unreasonable risk of harm to his or her life, physical health or safety, or mental well-being without being removed.
  • Approval of placement plan (if submitted; plan may be submitted within 10 days of merits hearing). § 63-7-1680.
  • Must be scheduled within 35 days of receipt of removal petition. § 63-7-1660(D).
    • See SCDSS v. Gamble, 337 S.C. 428, 523 S.E.2d 477 (S.C. App. 1999) – merits hearing must be scheduled, but not necessarily completed, within 35 days of receipt of removal petition.
  • Strict compliance - Hearing must be held within 10 days of statutory deadline or child should be returned home. Doe v. State, 294 SC 125, 363 S.E.2d 106 (1988); Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999).
  • However, failure to comply with statutory time limits in protective services cases does not raise a jurisdictional defect; the remedy for such failure is for aggrieved parent to "petition for the return of children or move to vacate the order granting custody to DSS." SCDSS v. Meek, 352 S.C. 523, 575 S.E.2d 846 (Ct. App. 2003).
  • Continuances are to be granted only in exceptional circumstances; if continued, hearing must be completed within 65 days of filing of removal complaint. § 63-7-710. To continue past 65 days, must (1) return child home, or (2) issue written order finding:
    • the child should remain in DSS custody because there is probable cause to believe the child's physical safety or emotional well-being would be seriously endangered if returned home; and
    • the hearing is set for a date and time certain not more than 30 days from the continued hearing; and
    • exceptional circumstances support the continuance OR the parties and GAL agree to the continuance.
  • Continuance due to absence of a witness only if the testimony of the witness is necessary to the court's decision and the party exercised due diligence to secure attendance of witness and the court cannot start the hearing and have the witness testify at a later date or by deposition.
  • Continuance does not prevent the court from ruling on a motion for temporary relief pending merits hearing.
  • When a continuance is granted, the court shall ensure the hearing is rescheduled within the time frames and give the hearing priority over other matters except: probable cause hearings, detention hearings, and other custody cases if there are compelling reasons to do so.
  • Parties must be served with summons, complaint and notice of hearing and right to counsel at least 72 hours prior to hearing. § 63-7-1660(D).
  • DSS shall provide written notice to foster parent, preadoptive parent, or relative providing care for the child of hearing date, place, time, and right to attend hearing and address the court concerning the child. § 63-7-1630.
  • The burden of proof is a preponderance of the evidence. (Aiken County DSS v. Wilcox, 304 S.C. 90,403 S.E.2d 142 (Ct. App. 1991); Beaufort County DSS v. Strahan, 310 S.C. 553, 426 S.E.2d 331 (Ct. App. 1992))
  • ICWA standard is clear and convincing evidence.
  •  Initial Permanency Planning Hearing must be held within 12 months of child's entry into foster care. § 63-7-1700(A).
  • Judge may set a date and time for review hearing at Merits Hearing.

Hearing Checklist

  • Was hearing scheduled within 35 days of receipt of removal petition?
  • If a continuance was granted, for exceptional circumstances, is the hearing being completed within 65 days of receipt of removal petition? § 63-7-710(E).
  • See Time Frame - Strict Compliance under the Merits Hearing Quick View.
  • Applies to Native American children who are members or qualify to be members of a federally recognized Indian tribe.
  • If applicable,
    • See ICWA checklist.
    • DSS shall not schedule any family court hearing until at least ten days have elapsed following the party's receipt of notice. 25 U.S.C.A. §1912(a).
    • Burden of proof in removal actions (Merits Hearings) is clear and 
  • This includes timely service of the summons, complaint, notice of hearing, and right to counsel, as well as notice to noncustodial parent. No responsive pleading is required. § 63-7-1660.
  • Best Legal Practices regarding service and notice to necessary parties
    • Clear demonstration of service of pleadings/orders/notices
      • DSS shall provide the court with an affidavit stating:
        1. Method of service [personal service, certified mail (restricted delivery), or publication]; and
        2. Statement that summons and complaint, notice of merits hearing and/or probable cause order was served; or, statement that such documents were served on defendant at the probable cause hearing.
      • DSS should obtain an affidavit of service from the processor or newspaper, as applicable.
      • If probable cause order was served on defendant with scheduled merits hearing included, service of probable cause order is sufficient.
    • Clear demonstration of due diligence and preparation of affidavits
      • For defendants upon whom proper service could not be effected, DSS should provide the court with:
        1. Affidavit of non-service, and
        2. Affidavit of due diligence stating the method of attempted service; persons contacted to obtain information on defendant; information obtained from other persons contacted; and how that information was utilized to attempt to locate defendant.
    • Motion/request (on record) to publish notice of merits order
      • Draft motion and serve on all parties.
      • Motion should state:
        1. Reasons service was not effected;
        2. Due diligence efforts (attach affidavit);
        3. Request date and specific publication source (newspaper name) in which notice will be placed; and
        4. Request to publish notice of merits order in publication (if proceeding without prejudice to defendants not served, therefore notice of merits order would notify defendants that order is issued and of their right to request a merits hearing).
      • Request to publish this second merits hearing date or a judicial review hearing which can serve as a merits.
      • If written motion is not prepared, make oral motion to court to request an order of publication.
      • Order for publication may be included in the merits order for convenience.
    • Notice to attorneys; Due to delays in attorney appointments and US Mail, DSS should notify attorneys of record by phone, e-mail, and/or fax of a hearing, in addition to notice by US Mail.
  • Move forward on all served parties. If all defendants are properly served, the case should move forward regardless of whether all defendants are present in the courtroom. If unable to serve defendants, move forward on the defendants (not served) without prejudice, in the judge’s discretion.
  • Right to notice
  • Right to an attorney
  • Right to cross-examine witnesses
  • See Advise parties of their due process rights and appoint attorneys and GALs as needed under Initial Inquiries and Advisements in Probable Cause section.
  • See Resolve Paternity Issues under Initial Inquiries and Advisements in Probable Cause section.
  • The court may appoint a qualified interpreter "whenever a party or witness to a civil legal proceeding does not sufficiently speak the English language to testify." § 15-27-155.
  • The court may waive this requirement only AFTER making a finding on the record that:
    • It is "not necessary for the fulfillment of justice";
    • It is "in the best interest of the party or witness"; and
    • It is "in the best interest of justice."
  • If child is not a U.S. citizen:
    • require DSS to report on steps taken to determine the child's citizenship and immigration status and to ensure compliance with the Hague Convention, including contacting the foreign consulate in the U.S. to comply with international law and to receive assistance they may be able to provide;
    • require DSS to determine child's eligibility for Special Immigrant Juvenile Status and other immigration benefits IF the permanency plan may include a recommendation that the child remain in the U.S.;
    • issue necessary orders or formal requests to effectuate foreign home studies, passport issuance, and international service of process; and
    • assess challenges that language, culture, and/or immigration status have on reasonableness of proposed treatment or placement plan.


  • Burden of proof is a preponderance of the evidence.
  • If ICWA applies (See ICWA Section):
    • there must be clear and convincing evidence that continued custody by the parent/Indian custodian is likely to result in serious emotional or physical damages to the child; and
    • the hearing must include testimony of a "qualified expert witness" regarding Indian child-rearing practices.
  • Parties must be given opportunity to present evidence, examine reports and cross-examine DSS witnesses.
  • Make required determinations and findings.
  • Review placement plan and its compliance with § 63-7-1680.
  • Make decisions regarding additional issues as applicable. (See Additional Issues below.)
  • Ensure written order meets statutory requirements.
  • Determine whether the child has been subjected to, or is threatened with a substantial risk of harm as defined by § 63-7-20 of physical injury, mental injury, lack of supervision, neglect, abandonment, or a sexual offense. § 63-7-1660(E).
  • Determine whether return of the child to the home would place child at unreasonable risk of harm to his or her life, physical health or safety, or mental well-being, and
  • Determine whether the child can reasonably be protected from this harm without being removed.
  • The court may rule on whether reasonable efforts to preserve or reunify the family are required.
    § 63-7-1640(B). The court may authorize DSS to terminate or forego reasonable efforts to preserve or reunify the family if the court determines that it is in the child’s best interests and one or more of the conditions outlined in § 63-7-1640(C) exists. (See Reasonable Efforts Quick View.)
  • If the court removes custody of the child, the court must find whether DSS made reasonable efforts to prevent the child’s removal, and
  • Whether continuation of the child in the home would be contrary to the child’s welfare. § 63-7-1660(G).
  • In making these findings, the court should consider and must specify in the order:
    • the types of services offered to the family before the removal and how these services related to the family’s needs;
    • DSS efforts to provide services to the family before removal;
    • the reason efforts to provide services did not eliminate the need for removal; and
    • whether the efforts to eliminate the need for removal were reasonable, including but not limited to, whether they were timely, available, adequate to address the child’s protection and the family’s needs, and realistic under the circumstances.
  • If DSS’s first contact with the child occurred under such circumstances that reasonable services would not have allowed the child to remain safely in the home, the court shall find that removal without services or without further services was reasonable. § 63-7-1660(G)(4).
  • Withholding of health care. § 63-7-950.
    • The court may authorize treatment, but not enter a finding of abuse by the parent, in cases where the caregiver failed to obtain medical care due to religious beliefs or an exercise of parental judgment concerning what treatment would be in the child’s best interests.
  • Central Registry. § 63-7-1940.
    • If the court finds by a preponderance of evidence that a defendant physically or sexually abused the child, willfully or recklessly neglected the child, or gave birth to the infant and the infant tested positive for a controlled substance, prescription drugs not prescribed to the mother, or metabolite of a controlled substance (unless the presence of the substance or metabolite is the result of medical treatment), or the infant has a medical diagnosis of neonatal abstinence syndrome, the court must order defendant’s name be entered in the DSS Central Registry of Child Abuse and Neglect and this requirement cannot be waived by the court or any party.
    • However, if the only form of physical abuse found by the court is excessive corporal punishment, the court only may order the person’s name be entered in the Central Registry if the nature and circumstances of the abuse indicate the person would present a significant risk of committing physical or sexual abuse or willful or reckless neglect if in a position or setting outside the person’s home that involves care of or substantial contact with children.
  • Before approving placement of child with a relative not licensed as a foster parent who indicates to the court he or she does not wish to pursue licensure, court must find whether DSS complied with the requirements of §§ 63-7-735, 63-7-2320(C) and (E), and 63-7-2330. § 63-7-735(C).
  • Best Legal Practices Regarding Findings
    • Findings should be clear and accurately reflect the reason for intervention, as supported by the facts of the case.
    • Findings should reflect the harm done to a child.
    • Findings should be made regardless of whether finding will be included or excluded from the central registry.
    • In rare circumstances, after the findings of abuse or neglect have been made, there may be a need to hold in abeyance the determination of the perpetrator. Examples of rare circumstances:
      • The court coordination protocol for handling abuse and neglect cases in family court in coordination with simultaneous, related general sessions cases.
      • Perpetrator is unknown.
      • Perpetrator has not been served.
  • The court must approve a placement plan if the court orders a child removed from the custody of the parent or guardian. § 63-7-1680(A).
  • The placement plan must be presented to the court at the merits hearing or within 10 days after the hearing. If the plan is not submitted at the merits hearing, a hearing on the plan must be held if requested by a party.
  • The placement plan must be a written document prepared by DSS with participation, when possible, of the parents or guardian, the child, and any others who will be required to provide services as part of the plan.
  • The plan shall be organized in four sections as follows:
    • The first section (§ 63-7-1680(B)) must include:
      • changes that must occur in the home and family situation before the child can be returned; these changes must be reasonably related to the reasons justifying removal; and
      • notice to the parents or guardian that failure to make the indicated changes within six months may result in TPR.
    • The second section (§ 63-7-1680(C)) must include:
      • specific actions to be taken by the parents or guardian;
      • social or other services to be provided or made available to the child’s parents or guardian;
      • time frames for commencement or completion of specific actions or services; and
      • notice to parents or guardian that completion of the indicated actions will not result in return of the child unless the changes set forth in section one of the plan have occurred.
    • The third section (§ 63-7-1680(D)) shall set forth rights and obligations of the parents or guardian while the child is in custody including, but not limited to:
      • the responsibility of the parents or guardian for financial support of the child; and
      • the visitation rights and obligations of the parents or guardian.
      • notice to the parents or guardian that failure to support or visit the child as provided in the plan may result in TPR.
            DSS may move before the court for termination or suspension of visits between the parent or
            guardian and child, and the court may order such, if ongoing contact between the parent or
            guardian and child would be contrary to the child's best interests.
    • The fourth section of the plan (§ 63-7-1680(E)) must address matters relating to the placement of the child including, but not limited to:
      • the nature and location of the child’s placement, unless compelling reasons show that such disclosure would be contrary to the child’s best interests.  The placement must be as close to the child’s home as reasonably possible, unless compelling reasons show placement at a greater distance is necessary to promote the child’s well‑being.  Without good cause to the contrary, preference must be given to placement with a relative or other person known to the child and who has a constructive and caring relationship with the child;
      • visitation or other contact with siblings, other relatives, and other persons important to the child.  The plan shall provide for as much contact between the child and these persons as is reasonably possible and consistent with the child’s best interests;
      • social and other supportive services to be provided to the child and the foster parents, including counseling or other services to assist the child in dealing with the effects of separation from the child’s home and family;  and
      • the minimum number and frequency of contacts that a caseworker with DSS will have with the child, which must be based on the individual child’s needs and circumstances and at least once a month.
  • If the conditions which justified removal include substance abuse issues, the court may require that the plan address those issues and include the following requirements that must be met before the child may be returned home (§ 63-7-1690):
    • the parent must successfully complete a treatment program approved by DSS;
    • any other adult living in the home who has been determined by the court to have a substance abuse problem and whose conduct has contributed to the parent’s substance abuse must successfully complete a treatment program approved by DSS; and
    • the parent and/or other adult must submit to random testing for substance abuse and must be alcohol or drug free for a period of time determined by the court.  The parent or other adult must continue random testing for substance abuse and must be alcohol or drug free for a period of time to be determined by the court after return of the child before the case will be authorized closed.
  • The court shall approve the plan ONLY if it finds (§ 63-7-1680(F)):
    • the plan is consistent with the court’s order placing the child in DSS  custody;
    • the plan contains the required contents set forth in  § 63-7-1680(B) through (E);
    • if the parents or guardian did not participate in the plan’s development, DSS made reasonable efforts to secure their participation; and
    • the plan is meaningful and designed to address facts and circumstances upon which the court based the order of removal.
  • If the court determines that any of these criteria are not satisfied, the court shall require that necessary amendments to the plan be submitted to the court within a specified time but no later than 7 days.  A hearing on the amended plan must be held if requested by a party.
  • Best Legal Practices: Placement Plan
    • Uniformity
      • Placement plans in removal cases should follow a similar layout throughout circuits. DSS should follow the uniform placement plan template found on the DSS intranet.
      • The content of the plan should be narrowly tailored to each case by adding the specific facts, findings, services, etc. for the family.  The plan should be written in plain, easily understood language
    • Participation in plan’s development
      • DSS should submit proposed placement plan prior to merits hearing and the following should be allowed to participate in the plan’s creation: parents, child, extended family members, and any other agency or individual that will be required to provide services, including the child’s GAL and relatives who will provide placement. 
      • DSS should be prepared to advise the court as to whether the parents participated in developing the plan or why they did not.
      • The plan should be signed by all participants.
    • Time frames and expectations
      • Plan should set forth specific time frames for all parties to schedule appointments or for DSS to schedule referrals and for a party to begin and/or complete services or activities.
      • Plan should include specific objectives that must be completed by parties within specified time frames, e.g., certificate of successful completion from drug and alcohol counseling or parenting classes, random drug screens, etc.
      • Plan should state which party is financially responsible for any services required and what method of assistance DSS will provide.
      • Parents should provide HIPPA releases to DSS and the child’s GAL.
    • Set visitation schedule.
      • Plan should address visitation with parents, guardians, siblings or other relatives.
      • Plan should be specific as to the start date, frequency and location of visitation.
      • Plan should specify who is responsible for transportation to and from visitation.
      • It should specify the level of supervision and name anyone, other than DSS, authorized to supervise visitation.
      • Plan should address whether DSS has discretion to change visitation without further order of the court.
    • Incorporate placement plan into the order.
      • Plan approved at each hearing should be incorporated into the court order for that hearing, by reference or by attaching a copy of the plan to the order.
    • Provide list of treatment providers.
      • A list of approved treatment providers should be submitted by DSS for classes, assessments, etc., along with the placement plan.


  • DSS or defendant’s attorney should present defendant’s financial declaration and a proposed child support amount according to the child support guidelines to the court. The court will order the proposed amount or recalculate support based on additional or new information and order that amount. Link to financial declaration form:
  • If financial declarations and proposed child support are not completed by the merits hearing, the court should order DSS to calculate child support and submit it at the next hearing or by a consent order, whichever is sooner.
  • A completed Support Information Sheet (SCCA446) should be attached to any order addressing child support. Any redirection of previously ordered child support should be clearly addressed in the order and on the Support Information Sheet.
  • When calculating child support according to the guidelines, consideration should be given to support orders for other children and additional children of the parent in parent’s home.
  • Home studies are discretionary by the court.
  • Any party may make a request to the court for a home study for the placement of the child.
  • Specify the findings for the need of a home study.
  • Specify time frame for conducting and completing home study.
    • Should be done within 72 hours, then placement can occur (Best Legal Practices).
  • Question whether placement is being sought out of state and, if so, include ICPC compliance and determine whether ICPC Regulation 7 order for expedited home study is applicable. If so, include necessary language in court order and follow ICPC Regulation 7 procedures.
  • Home studies require criminal record checks on all residents of the home.
  • Standards from Best Legal Practices the court should consider when ordering a home study at the merits hearing or for a long term placement:
    • All standards for a short-term placement home study (See Home Studies under Probable Cause Hearing);
    • Composition of all household members;
    • Physical description of the home;
    • Financial situation of alternate caregiver, including access to any public assistance;
    • Medical information of alternate caregiver;
    • Motivation to care for the child and understanding of the length of time involved;
    • Ability to protect the child from the perpetrator;
    • Assessment of the caregiver’s parenting skills; and
    • References/recommendations for placement.
  • If notified that defendant is incarcerated or housed at a state or private facility or institution, whereby defendant is prohibited to leave facility voluntarily, order should include:
    • specific instructions on date and time to have defendant arrive at family court,
    • specific contact information, i.e., name, address and phone number of contact person at DSS for facility to facilitate arrangements, and
    • who is responsible for any payment associated with the transport of defendant.
  • If parties agree, the court may order psychological evaluations, when appropriate.
  • If parties agree, the court may order drug and alcohol screenings and random drug testing, when appropriate.
  • Other assessments, screenings or testing may be ordered as appropriate.




  •  If the court removes custody of the child, the order shall contain a finding of whether reasonable efforts were made by DSS to prevent removal and a finding of whether continuation in the home would be contrary to the child’s welfare.
  • The order must specify:
    • services made available to the family before removal and how they related to the family’s needs;
    • DSS’s efforts to provide these services to the family before removal;
    • the reason such efforts did not eliminate the need for removal; and
    • whether the efforts to eliminate the need for removal were reasonably available, timely, adequate to protect the child and address the family’s needs, and realistic under the circumstances.
  • Provisions of the placement plan must be incorporated as part of a court order. § 63-7-1680(K).
  • If court is approving placement of child with a relative not licensed as a foster parent, order must contain finding whether DSS informed the relative of the right to become licensed, procedures for obtaining licensure, and benefits of being licensed, including eligibility for financial assistance and supportive services. § 63-7-735(B).
  • Order must include notice to defendants that failure to remedy the conditions that caused the removal within 6 months may result in TPR. § 63-7-1680(G).

Return to Table of Contents

Challenge the conventional. Create the exceptional. No Limits.