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Joseph F. Rice School of Law

Termination of Parental Rights Hearing


The best interest of the child is served by achieving permanency for the child. Termination of parental rights cases arising from child abuse and neglect are the most difficult and challenging that parties can face in a child protection proceeding. When a determination has been made that the home is not and cannot be made safe for the return of the children within a reasonable amount of time, the court should seek a permanent and secure new home. It is critical that the TPR process is completed without delay. 

Termination of parental rights hearings are a new and separate action from the prior merits case. There must be a new appointment order for the defense attorney, the child’s GAL, and the attorney for the child’s GAL. It is in the court’s discretion to reappoint the defense attorney and the GAL for the child from the merits case to serve in the TPR case.

Quick View

  • Appoint/reappoint counsel and guardians ad litem for parents and child as required.
  • Make sure service and notice requirements have been met.
  • Determine whether there are statutory grounds for TPR and whether TPR is in child’s best interest.
  • Must be held within 120 days of filing of TPR complaint. § 63-7-2530(C).
  • Court has discretion to grant continuance, upon a party’s request; if granted, court must issue a written order scheduling the case for trial on a date and time certain. § 63-7-2530(C).
  • Summons and complaint for TPR must be filed and served on:
    • the child if 14 or older;
    • the child’s GAL if child is under 14;
    • the parents; and
    • the agency with custody of the child. § 63-7-2550.
  • Right to notice of unmarried biological father, is governed by § 63-9-730(B) and § 63-9-820.
  • Clear and convincing evidence
    • "A ground for TPR must be proved by clear and convincing evidence." Greenville County DSS v. Bowes, 313 S.C. 188, 193, 437 S.E.2d 107, 110 (1993).
  • If ICWA applies, the burden of proof is beyond a reasonable doubt. 

Best Legal Practices:

  • Plaintiff should present testimony on alleged TPR ground(s) and child’s best interest.
  • Plaintiff should provide the burden of proof of clear and convincing evidence to the court.
  • All parties may utilize the exhibits as evidence to support their positions.

Hearing Checklist

  • Determine timeliness of hearing. Is hearing being held within 120 days of date the TPR petition was filed? § 63-7-2530(C).
  • Explain purpose of hearing.
  • Identify parties and other persons present.
  • Determine if all necessary parties are present or if additional parties are necessary.
  • Resolve paternity issues
  • Review due diligence efforts by DSS to locate and serve all necessary parties.
  • Determine child’s citizenship.
  • Determine if the Indian Child Welfare Act (ICWA) applies.
    • 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 a termination of parental rights action is beyond a reasonable doubt. 25 U.S.C.A. §1912(f).
  • Address the need for interpreters.
  • Advise parties of their due process rights.
  • Appoint counsel and guardians ad litem (GAL) as required. § 63-7-2560.
    • Parents, guardians, or other persons subject to TPR actions are entitled to legal counsel; those unable to afford legal representation must be appointed counsel by the family court, unless in default.
    • The child must be appointed a GAL.
    • An attorney must be appointed for the GAL if:
      • The GAL is not an attorney and the case is contested;
      • The GAL is not an attorney and finds appointment of counsel necessary to protect the child’s rights and interests.
      • The GAL is an attorney and the judge determines counsel is required for the GAL. Such determination is on a case-by-case basis.
  • Make sure DSS has complied with service and notice Due Process requirements.
  • Best Legal Practices regarding Due Process requirements of DSS
    • Personally serve summons and complaint on parties (child, parents, and agency with custody of child).
      • Personally serve the child if 14 or older; service to the GAL is sufficient for children younger than 14.
      • Serve the unmarried biological father if he meets one or more of the following exceptions:
        1. Has been adjudicated by a court in SC to be the child’s father;
        2. Is recorded on the child’s birth certificate as the father;
        3. Is openly living with the child or the child’s mother, or both, at the time the proceeding is initiated and is holding himself out to be the child’s father; or
        4. Has been identified as the child’s father by the mother in a sworn, written statement or under oath.
      • If the father is unknown, conduct a search of the Responsible Father Registry by providing written request including the following information if known: mother’s name, address, and date of birth; child’s date and place of birth; and the date, county, and state of conception.
        1. If a claim is found, serve registrant within 10 days of receipt of the name and address. § 63-9-820(N).
        2. If no claim is found, file certificate of diligent search, issued by DSS, within 10 days of receipt. No further efforts to locate father are necessary. § 63-9-820(O).
      • The Responsible Father Registry eliminates DSS’s obligations to name John Doe as a party in TPR proceedings. Additionally, DSS is not required to name or serve any biological father for whom DSS has a name if he does not meet one of the above exceptions. § 63-9-820(D) and (K).
    • Personally serve pendent lite motion notice and/or pre-trial hearing notice on parties.
      • After the parties are served the summons and complaint for TPR, a separate document should be filed and served on parties to notify them of a brief hearing to allow for resolution of certain issues prior to the TPR trial.
      • This hearing can be utilized as needed to do the following:
        1. Appoint an attorney for defendant and a GAL for the child;
        2. Resolve paternity issues; remove certain John Does from named parties;
        3. Determine whether parent needs a GAL;
        4. Determine if any attorneys have a conflict with their clients;
        5. Obtain HIPPA releases from the parents;
        6. Share witness lists;
        7. Determine the need for translators; and
        8. Resolve whether the Indian Child Welfare Act (ICWA) applies so those procedures can be followed when necessary
      • This list of possible issues is not exhaustive. The parties should utilize this hearing to resolve as many issues by agreement as possible.
    • DSS may, but is not required to, prepare a TPR packet to serve on parties prior to the pendent lite or pre-trial hearing
      • The DSS attorney and caseworker should prepare a packet of documents related to the case to forward to all parties prior to the pendent lite motion or pre-trial hearing.
      • The DSS attorney should note for the record that all parties have received this packet and all parties should sign an acknowledgement of receipt of the packet.
      • This packet should include, but is not limited to, the following:
        1. Visitation chart;
        2. Treatment compliance log with date of referral, date of service, and when party completed;
        3. Drug screen log;
        4. Psychological evaluations;
        5. Incident reports;
        6. Foster Care Review Board recommendations;
        7. Correspondence log with parents;
        8. Reports of the child’s GAL in the underlying abuse and neglect action and in the TPR action;
        9. Information regarding the need for interpreters if applicable; and
        10. Information regarding non-citizenship of defendant, if applicable.
  • Determine admissibility of voluntary relinquishment of parental rights if applicable.
    • Question the DSS witness regarding whether the consent or relinquishment was voluntary and knowledgeable.
    • Ensure compliance with § 63-9-330 (Form and content of consent and relinquishment) and § 63-9-340 (Signing consent and relinquishment).

The court may order TPR upon a finding that one or more of the statutory grounds for TPR exists, AND a finding that TPR is in the child’s best interest. § 63-7-2570.

  1. Severity or repetition of abuse or neglect makes it unlikely that home can be made safe within 12 months. § 63-7-2570(1).
    • Parent’s previous abuse or neglect of the child or another child may be considered in determining likelihood that home can be made safe.
  2. Failure to remedy conditions which caused removal; and child has been out of home for 6 months following adoption of placement plan. § 63-7-2570(2).
  3. Willful failure to visit for 6 months. § 63-7-2570(3).
    • Incidental visitations may be given little or no weight.
    • It must be shown that parent was not prevented from visiting by the party with custody or court order.
    • Consideration must be given to distance between child’s placement and parent’s home when determining the ability to visit.
  4. Willful failure to support for 6 months. § 63-7-2570(4).
    • Failure to support means parent has failed to make a material contribution to the child’s care.
    • A material contribution consists of either financial contributions or contributions of food, clothing, shelter, or other necessities for the child’s care
    • The court may consider all relevant circumstances including requests for support by the custodian and the parent’s ability to provide support.
  5. Presumptive legal father is not child’s biological father, and child’s welfare can best be served by TPR. § 63-7-2570(5).
  6. Diagnosable condition unlikely to change within a reasonable time makes parent unlikely to provide minimally acceptable care of child. § 63-7-2570(6).
    • Diagnosable conditions include addiction to alcohol or drugs, or prescription medication abuse.
    • There is a presumption that the parent’s condition is unlikely to change if the parent has failed 2 or more times to successfully complete a treatment program for alcohol or drug addiction required by DSS or court order or has refused at 2 or more meetings with DSS to participate in a treatment program.
    • DSS must not terminate parental rights of a parent or legal guardian with a disability solely on the basis of the disability.
  7. Abandonment. § 63-7-2570(7).
    • "Abandonment" means a parent or guardian willfully deserts or surrenders physical possession of a child without making adequate arrangements for the child’s needs or continuing care. § 63‑7‑20(1).
  8. Child in foster care for 15 of most recent 22 months. § 63-7-2570(8).
  9. The physical abuse of a child of the parent resulted in the death or admission to the hospital for in patient care of that child and the abuse is the act for which the parent has been convicted of or pled guilty or nolo contendere to committing, aiding, abetting, conspiring to commit, or soliciting an offense against the person as provided for in Chapter 3, Title 16, criminal domestic violence as defined in § 16 25 20, criminal domestic violence of a high and aggravated nature as defined in § 16 25 65, or an assault and battery offense as provided in Article 7, Chapter 3, Title 16. § 63-7-2570(9).
  10. Parent is convicted or pleads guilty or no contest to murder of the other parent. § 63-7-2570(10).
  11. Conception of a child as a result of biological parent’s criminal sexual conduct, unless the sentencing court makes a specific finding that the conviction was based on consensual sex when neither the victim nor the actor were younger than 14 nor older than 18. § 63-7-2570(11).
  12. The parent of the child pleads guilty or nolo contendere to or is convicted of murder, voluntary manslaughter, or homicide by child abuse, of another child of the parent.
  • If the court finds that a ground for TPR exists, the court may issue an order forever terminating parental rights to the child. § 63-7-2580(A).
    • If DSS is the petitioner, the court shall place the child in the custody of DSS or other child placing agency for adoption and shall require the submission of a plan for permanent placement of the child within 30 days.
    • Within an additional 60 days, DSS shall submit a report to the court and GAL on the implementation of the plan. The court, on its own motion, may schedule a hearing to review the progress of the implementation of the plan.
  • If the court finds that no ground for TPR exists and the child is in DSS custody, the order denying TPR must specify a new permanent plan for the child or order a hearing on a new permanent plan. § 63-7-2580(B).
  • If the court determines an additional permanency hearing is not needed, the court may order: § 63-7-2580(C) 
    • the child returned to the child's parent if the parent has counterclaimed for custody and the court determines that the return of the child to the parent would not cause an unreasonable risk of harm to the child's life, physical health or safety, or mental well being.
      • The court may order a specified period of supervision and services not to exceed 12 months.
    • a disposition provided for in § 63-7-1700(E) if the court determines that the child should not be returned to a parent.
  • If the court determines an additional permanency hearing is required, the court's order shall schedule a permanency hearing to be held within 15 days of the date the order is filed. § 63-7-2580(D).
    • The court's order must be sufficient to continue jurisdiction over the parties without any need for filing or service of pleadings by DSS.
    • The permanency hearing must be held before the TPR trial if reasonably possible.
    • At the hearing, DSS shall present a proposed disposition and permanent plan in accordance with § 63-7-1700. No supplemental report may be required. The hearing and any order issuing from the hearing shall conform to § 63-7-1700.
    • If the court approves retention of the child in foster care pursuant to § 63-7-1700(E), any new plan for services and placement of the child must conform to the requirements of § 63-7-1680, which requires the plan to address conditions that necessitated removal of the child, but the plan approved pursuant to this subsection shall address conditions that necessitate retention of the child in foster care.

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