• See “Time Frame” in Probable Cause Hearing Quick View. 

• Biological parents, including custodial and non-custodial parents;
• Husband of mother, including by common law marriage (confirm mother's marital status at time of birth);
• Other custodians or guardians (obtain school records and DSS records, including public benefits, birth records and medical records, to ascertain whether there have been other custodians);
• Alleged perpetrator; and
• Other parties as the court deems necessary.

• If service was not made on a defendant, DSS should provide court with:
  
  • Affidavit of non-service;
  • Affidavit of due diligence documenting efforts made to locate and serve defendant; and
  • Motion for Publication - DSS should request order for publication with attached affidavit of due diligence.
• Question those parties present at hearing regarding location of other necessary parties. Questions to ask include:
  
  • Home or work address and directions;
  • Former home or work address and directions;
  • Home or work address of other parties’ relatives or friends;
  • Regular “hang out” spots of other parties, i.e., club, restaurant, specific neighborhoods, barber shop, etc;, and
  • Whether defendant is a member of a federally recognized Indian tribe (See ICWA section).
• If all defendants have been served, the judge has discretion to move forward regardless of whether a defendant is present.
• If there are defendants who have not been served, the judge has discretion to move forward with case on served defendants, without prejudice to the non-served defendants.
• If defendant parent is currently residing outside the United States, service is required to be in compliance with international law. 

• It is critical to determine citizenship of the child as soon as possible as citizenship can impact rights of child. To do so, DSS should confirm child's citizenship, e.g., birth certificate, Consular Report of Birth Abroad, Certificate of Naturalization, Certificate of Citizenship, or US or foreign passport.
• If child is not a US citizen:
  
  • require DSS to determine public benefits to which child is entitled;
  • 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;
  • order parents to provide child's vital records and immigration documents and cooperate with requests for assistance regarding immigration matters;
  • grant DSS and GAL permission to contact an immigration lawyer and/or Hague-certified attorney to evaluate case; and
  • require all subsequent judicial review reports to advise on the status of any immigration, international law, or Hague Adoption Convention issues.

• 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 must notify the Indian child’s parent and the Indian tribe that DSS has initiated a child protection proceeding. §1912(a).
  • 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).
  • An indigent Indian parent is entitled to an appointed attorney. 25 U.S.C.A. §1912(b).
  • Burden of proof in removal actions (Merits Hearings) is clear and convincing. 25 U.S.C.A. §1912(e).
  • Burden of proof in a termination of parental rights action is beyond a reasonable doubt. 25 U.S.C.A. §1912(f). 

• 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.” 

• Provide defendants with clear notice of right to counsel on record
  
  • Parents, guardians and “other persons subject to any judicial proceeding” are entitled to counsel and must be appointed counsel if unable to afford one. § 63-7-1620(3).
    
    • Inquire of defendants if they want an attorney for the case.
    • Explain case may proceed for many months.
    • Explain that neither DSS nor the guardian ad litem represents the defendant.
    • Explain to the defendants they may lose rights to their child if grounds for termination are alleged and proved.
• Address waiver of right to attorney by defendant.
  
  • If defendant waives the right to an attorney, proceed with the following:
    
    • Place defendant’s waiver on the record and in order;
    • Explain to defendant that the waiver is permanent and defendant will no longer be entitled to a court appointed attorney unless evidence is produced showing defendant’s incompetence; and
    • Explain to defendant alternatives to court appointed attorney: hiring an attorney or representing themselves, i.e., pro se representation.
• If defendant requests appointment of an attorney, take sworn testimony regarding defendant’s income.
  
  • If defendant requests, DSS may ask the judge to screen defendant for eligibility of court appointed attorney during the hearing.
  • To screen for eligibility, place defendant under oath and ask:
    
    • Defendant’s gross income;
    • Gross income of persons living in defendant’s home for whom defendant is legally responsible; and
    • Assets of defendant, i.e., bank accounts, stocks, bonds, real property other than primary residence, cars, etc.
  • Under Rule 608, SCACR, an “indigent” is “any person who is financially unable to employ counsel.” The Rules use the Federal Poverty Guidelines, published annually in the Federal Register to make a determination of indigency. (See attachment for federal poverty guidelines and current presumptive indigency amounts.)
• Appoint attorney at probable cause hearing.
  
  • If defendant qualified for appointment of an attorney, place the following information in the order:
    
    • That defendant financially qualifies for a court appointed attorney;
    • Name, address and phone number of defendant;
    • Name, address and phone number of appointed attorney (DSS attorney to obtain from the family clerk of court prior to hearing the list of names on the Rule 608 civil appointment list);
    • Language that defendant received this order in courtroom; and
    • Language that order was faxed and/or e-mailed and will be mailed to appointed attorney before the end of the business day of probable cause hearing.
  • Appointment of counsel order may be included in probable cause order or handled in a separate order if it is more practical and efficient for appointed attorney’s information to be in a separate order.
• Appoint guardian ad litem for child. § 63-7-1620.
  
  • Inquire if the GAL Program or Richland CASA staff is present to determine if case will be assigned to a volunteer; appoint volunteer if name is available.
  • If the name of the volunteer is not available, the GAL Program should submit name of a volunteer to the court per consent order within 48 business hours.
  • Utilize the standard GAL Program appointment form. The form includes language for appointment of the volunteer GAL and the GAL’s attorney.
• Appoint guardian ad litem for defendant if incompetent.
  
  • If there are questions of defendant’s incompetence (i.e., age, incarceration, mental or physical disability), may need to appoint GAL for defendant.
    
    • Appoint GAL for defendant from Rule 608 civil appointment list at hearing.
    • If additional evidence to find incompetence is needed, request required evidence and date of submission to court and parties in probable cause order.
  • Appointment of GAL for defendant may be included in probable cause order or handled in a separate order if it is more practical and efficient for appointed attorney’s information to be in a separate order.  

• Question non-custodial parent, if present, to determine if suitable, fit, and willing to serve as placement for child.
• If after consideration, noncustodial parent is not selected, question any other relatives who are present and proposed as placement resources.
• Inquire whether DSS complied with § 63-7-640 and convened, if possible, "a meeting with the child’s parents or guardian, extended family, and other relevant persons to address the family’s problems that led to intervention and possible corrective actions, including placement of the child."
• Determine if placement is being sought out of state and, if so:
  
  • Include Interstate Compact for the Placement of Children (ICPC) compliance, and
  • Determine whether ICPC Regulation 7 order for expedited home study is applicable.
  • If applicable, include necessary language in court order and follow ICPC Regulation 7 procedures.  

Paternity must be resolved if (1) mother is unmarried; (2) paternity has been questioned by parties; or (3) putative father denies paternity.

• Place mother under oath to testify regarding paternity. Questions to ask mother include:
  
  • Who does she believe is the father of her child?
  • Is there anyone else who potentially could be the father of her child?
  • Who is listed as her child’s father on the birth certificate (copy of birth certificate may be provided to the court)?
  • Has she ever been married or been divorced? (Confirm mother's marital status at time of birth.)
  • Birth date of her child (was child born prematurely)?
  • City, county and state and hospital of child’s birth?
• Place putative father under oath to confirm paternity and explain rights and responsibilities.
  
  • Inform him of the right to an attorney;
  • Inform him of his right to request a paternity test; and
  • Inform him that if he acknowledges paternity then an adjudication of that fact will take place today and will bar him from revoking that acknowledgement in the future.
  • Ask whether he acknowledges or denies paternity.
  • If he acknowledges paternity, issues should be adjudicated at the hearing. If there is dispute by another party as to paternity or if the court has reason to question paternity, the court should order paternity testing regardless of putative father’s acknowledgement.
  • If the putative father denies paternity, proceed with paternity testing.
• Order paternity testing.
  
  • Explain to parties the steps they are to take to cooperate with testing, including where and when they are to appear.
  • Place in order which party will be responsible for payment of paternity testing and when such payment is due.
• Amend complaint to add putative fathers.
  
  • If mother names potential fathers, add them as parties to the case.Order paternity testing on putative fathers.
  • Serve putative fathers with order if they are present in courtroom.
  • If putative fathers are not in courtroom, add names to the case. Serve original summons and complaint for probable cause hearing along with probable cause order on father.
• Amend complaint to add John Does.
  
  • If mother does not name father, add John Doe as putative father; and
  • Request by written or oral motion an order of publication.

• If the court finds at the probable cause hearing that DSS made reasonable efforts to prevent removal and that continuation in the home would be contrary to the child’s welfare, the court may order expedited placement with a relative of the 1st or 2nd degree. § 63-7-730.
  
  • Court shall consider totality of the circumstances including the individual's suitability, fitness, and willingness to serve as a placement.
  • A parent who complies with these requirements must be the first relative considered by the court for expedited placement.
• Court shall require DSS to conduct records check.
• Court may hold court records open for 24 hours to receive reports.
• Court may order a full home study of the relative’s home before placement if requested by DSS.
• The relative with whom the court orders expedited placement of the child may be added as a party to the action for the duration of the case or until further order of the court. § 63-7-730.
• If the relative is not licensed as a foster parent, court must find 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, before approving the placement. § 63-7-735(B).
• If the court finds DSS complied with the requirements of §§ 63-7-735, -2320(C),  (E), and -2330, and the relative indicates to the court that the relative does not wish to pursue licensure as a foster parent, the court may approve the placement. § 63-7-735(C).
• If the court orders expedited relative placement, consider need for provisions concerning the parent’s contact with the child and any restrictions needed to protect the child and ensure stability of the placement. Consider authorizing DSS to move the child from the placement without an additional court order, if necessary (Best Legal Practices).

• Court may order person be entered in the Central Registry if there is sufficient evidence to support the findings required by § 63-7-1940(A). § 63-7-1940(B).

• 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.
  
  • Home studies for short-term or emergency placements should be done within 24 hours of placement (Best Legal Practices).
• If placement is being sought out of state, 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.
• Home studies for short-term or emergency placements should, at a minimum, include:
  
  • SLED criminal records check;
  • Sex offender registry check (See § 63-7-990);
  • DSS CAPSS system for child protection check for every adult living in the home (See § 63-7-2350);
  • Documentation of a walk-through of alternate caregiver’s home;
  • Assessment of whether the caregiver can meet the child’s needs and protect child; and
  • Whether a family meeting occurred within 24 hours, to discuss the safety and protection plan with the alternate caregivers and parents (from Best Legal Practices).

• 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.