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Joseph F. Rice School of Law

Adjudicatory Hearing


The adjudicatory hearing is the trial presided over by a family court judge who determines whether the facts stated in the petition are supported by evidence. During the adjudicatory hearing, all elements of the offense must be proven beyond a reasonable doubt before guilt is established. Following a finding of guilt in the adjudicatory hearing, the court may move straight into disposition and sentence the child; the court may also continue the case to make the sentencing decision at a dispositional hearing following an evaluation of the child’s background and treatment needs. If the court finds the child not guilty of the alleged offenses, the court will dismiss the charge for lack of evidence.

Children have the following rights at the adjudicatory hearing:

  • The right to an attorney;
  • The right to have witnesses to appear on their behalf;
  • The right to subpoena witnesses to appear;
  • The right to confront and cross-examine witnesses testifying against them; and
  • The right against self-incrimination. 

Quick View

Determine whether there is evidence to prove beyond a reasonable doubt that defendant child engaged in a delinquent act.

The adjudicatory hearing must be scheduled for the “earliest practicable date but no later than 40 days from the filing of the petition unless otherwise delayed by order of the court.”

  • If the hearing is delayed by order of the court, the order must identify the reasons for the delay.
  • Failure to schedule the adjudicatory hearing within 40 days may be a ground for dismissal if there is an “affirmative showing of material prejudice.” Rule 35(a), SCRFC. 
  • Notice must be served on both parents and both must be ordered to be present. If child is not living with parents, notice is to be served on the guardians or persons with whom the child resides. The parent or guardian must be present at the hearing and excused only by the judge upon a showing of sickness or other justifiable cause. Rule 35(b), SCRFC.
  • The child or child's parents or guardian must be given written notice specifying the charge or factual allegations to be considered at the hearing. The notice must be given as soon as practicable and sufficiently in advance to permit preparation. The child or child's parent or guardian must be advised in the notice of their right to be represented by counsel, and if indigent, by appointed counsel. § 63-19-1030(D).
  • In the hearing, the parent and child also must be expressly informed of their right to counsel and specifically required to consider whether they do or do not waive the right of counsel. § 63-19-1030(D). 

The State has the burden of proving beyond a reasonable doubt that the child committed the delinquent act as charged. In re Winship, 397 U.S. 358 (1970).

  • Rules of Evidence apply. Rule 1101, SCRE.
  • Rules of Criminal Procedure apply if practicable and not inconsistent with the statutes and rules governing family court. Rule 37, SCRCrimP.
  • The judge who presided over a waiver hearing where jurisdiction was retained in family court shall not preside over the adjudicatory hearing. SCRFC, Rule 34.
  • Upon any party’s motion, the judge may sequester witnesses from the courtroom prior to hearing any testimony. Rule 615, SCRE.
    • Victims have the right to be informed of and present at any criminal proceedings dispositive of the charges where the defendant has the right to be present. S.C. Const. art. I, § 24. 
    • The definition of a “victim” includes the parents of a minor victim. § 16-3-1510.
    • The decision to sequester witnesses is discretionary with the court.  State v. Tisdale, 527 S.E.2d 389 (S.C. Ct. App. 2000).

The sentencing or dispositional hearing may immediately follow the adjudicatory hearing upon a finding of guilt or may be held at a later date, following an evaluation of the child’s circumstances and treatment needs.

 Hearing Checklist

  • A child has the right to counsel in any case “where the delinquency proceedings may result in commitment to an institution in which the child’s freedom is curtailed.” § 63-19-1030(D); § 17-3-10.
    • The court should require children to be represented by an attorney in all court proceedings to ensure the child’s rights are protected.
    • When determining whether a child qualifies for an appointed attorney, the court considers the parents’ financial ability to hire an attorney for the child. § 63-19-1040.
    • If the parents are able but refuse to hire an attorney, the court is authorized to appoint an attorney and order the parents to reimburse the Indigent Defense Fund or pay the court-appointed attorney in an amount determined by the court. § 63-19-1040. See also § 17-3-100. (Discretionary authority of judge to appoint counsel is not limited; remuneration and reimbursement.)
  • The appointed GAL is responsible for ensuring that the child fully understands the court proceedings and that the child’s rights are being protected. 
  • Appointment of a GAL should be considered when:
    • the child’s parent is the victim;
    • the parent cannot be found or willfully fails to come to court;
    • the parent does not seem to be concerned with the child’s best interests; or
    • the parent cannot understand the proceedings because of mental incapacity.
  • See § 17-1-50(B)(1) (appointment of interpreter for party, witness, or victim unable to sufficiently understand or speak English).
  • See § 15-27-15 (appointment of interpreter for a deaf person).
  • If the court has reason to believe child lacks capacity to understand the proceedings against him or to assist counsel in his defense, the court should order that the child undergo a competency evaluation. § 44-23-410. (See Section 7, Adjudicative Competence.)
  • A competency evaluation may be warranted if the child:
    • is 12 or younger;
    • exhibits irrational behavior in court;
    • does not appear to understand questions posed by attorney or judge, or what is happening during the attorney/client conferences or court proceedings;
    • has a history of mental health problems, has been in and out of hospitals, or is or has been on medication; or
    • is in learning disabled (LD), emotionally handicapped (EH), or other special education classes.
  • If there are indicators that the child is being abused or neglected, the child may need to be taken into emergency protective custody (EPC) by the court and placed with Department of Social Services (DSS).
    • If allegations of abuse or neglect are initially raised during a DJJ hearing, the court will assess whether the child should be placed into EPC or whether a report should be made to DSS with instructions to investigate. If the court determines it would be contrary to the child’s welfare to remain in the parents’ home and that it might be necessary for the child to be placed into EPC, DSS shall immediately be notified and appropriate staff members shall immediately respond to the courtroom. Best Legal Practices in Child Abuse and Neglect Cases.
    • If a determination is made that a child should be removed from the home, any order which places the child into DSS custody shall contain the Title IV-E language of “contrary to the child’s welfare.” That order shall also determine whether DSS must schedule a 72-hour hearing in the removal action or whether the DJJ hearing will suffice. Best Legal Practices in Child Abuse and Neglect Cases.
  • A DSS home investigation should be ordered if:
    • there are signs of abuse or neglect; or
    • the child’s parent appears to have issues affecting her or his ability to properly care for the child, such as a substance abuse problem or a severe mental illness.
    • DSS should not decline an investigation because a child is in a “safe” place. DJJ supervision/placement is temporary. The child should not have to return to a dangerous environment before DSS investigates allegations. Best Legal Practices in Child Abuse and Neglect Cases.
  •  If the child is struggling in school, is in regular classes, and has never been tested for learning disabilities, the judge may order that the school perform a psychoeducational evaluation to assess whether the child is properly placed or is in need of special education or related services. 
  • The order should include an amount of time in which to have the evaluation completed to ensure a timely response.
  • ICWA applies whenever an Indian child is the subject of a State child custody proceeding as defined by the Act. ICWA also applies to proceedings involving status offenses or juvenile delinquency proceedings if any part of those proceedings results in the need for placement of the child in a foster care, preadoptive or adoptive placement, or termination of parental rights. Bureau of Indian Affairs Guidelines for State Courts in Indian Child Custody Proceedings, A.3(a).
  • ICWA inquiries must begin immediately at the beginning of a case, as failure to make such inquiries can cause a case to be reversed and the process begun again, delaying permanence for the child.
  • If applicable, see ICWA checklist.  Abuse and Neglect Benchbook, Section 10, accessible on Children’s Law Center website. 
  • If a child appears before the court wearing instruments of restraint, such as handcuffs, chains, irons, or straightjackets, the court in any proceeding may not continue with the child required to wear instruments of restraint unless the court first finds that the use of restraints is necessary because (1) the child poses a threat of serious harm to himself or others; (2) the child has a demonstrable recent record of disruptive courtroom behavior that has placed others in potentially harmful situations; or (3) there is reason to believe the child is a flight risk; and there are no less restrictive alternatives that will prevent flight or physical harm to the child or another person.
    • The court shall provide the child’s attorney an opportunity to be heard before ordering the use of restraints.
    • If restraints are ordered, the court shall make findings of fact in support of the order.

Challenges to Closed Court Proceedings

  • If a judge’s decision to close any court proceeding is challenged by the public or the press, it must be supported by findings explaining the balancing of interests and the need for closure of the proceeding. Ex parte Columbia Newspapers, 333 S.E. 2d 337 (S.C. 1985).
    • The 1st Amendment provides that "Congress shall make no law…abridging the freedom of…the press" (made applicable to the states by the 14th Amendment).
    • S.C. Const. art. I, § 2 provides that the “General Assembly shall make no law…abridging the freedom of…the press.”
    • In Ex parte Columbia Newspapers, the court held that S.C. Const. art. I, § 9 (“all courts shall be public”) does not render § 63-3-590 (“general public must be excluded and only persons the judge finds to have a direct interest in the case or in the work of the court may be admitted.”) unconstitutional.  The court found “the public, which includes the press, has a right of access to juvenile court proceedings subject to a balancing of interests with the parties involved.” See also, Steinle v. Lollis, 307 S.E.2d 230 (S.C. 1983).
    • The "free press" right of access to court proceedings claim is generally based upon the 1st and 14th Amendments to the US Constitution and S.C. Const. art. I, § 2 which prohibit the making of laws which would diminish the freedom of the press.
    • A defendant who opposes the public’s right of access to court proceedings bears the burden of proof to justify closure. This is in line with the general rule that "[c]losed proceedings...must be rare and only for cause shown that outweighs the value of openness." Ex parte The Island Packet, 417 S.E.2d 575 (S.C. 1992).

Release of Information to Newspaper, TV, or Radio Station

  • The name, identity, or picture of a child under the court’s jurisdiction must not be provided to a  newspaper or radio or television station unless:
    • authorized by court order;
    • the solicitor has petitioned the court to waive the child to circuit court;
    • the child has been waived to adult court;  or
    • the child has been adjudicated delinquent for a violent crime, grand larceny of a motor vehicle; a crime in which a weapon was used; or distribution or trafficking in unlawful drugs. § 63-19-2040(A).
  • Determine whether the State has met its burden of proving beyond a reasonable doubt that the defendant committed the alleged offense.
    • On the defendant’s or its own motion, the court shall direct a verdict in the defendant's favor after the evidence on either side is closed if insufficient to prove the charge in the petition. In ruling on the motion, the judge only considers the existence or non-existence of evidence and not the weight of the evidence. Rule 19(a), SCRCrimP.  
    • The judge must view the evidence in the light most favorable to the State, when determining if there is any “direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced.” State v. Williams,400 S.E.2d 131, 132 (S.C. 1991).
    • If the directed verdict motion is granted, the trial ends and the child is found not guilty. Rule 19(b), SCRCrimP.
    • If defendant's motion for directed verdict at the close of the evidence offered by the State is not granted, defendant may offer evidence without having reserved the right. Rule 19(b), SCRCrimP. 
  • Allow defense to cross-examine State's witnesses.
  • Since the judge is trier of law and fact in family court cases, if opening statements are made, they are usually brief. The hearing generally begins with the solicitor presenting the State’s case against the child by presenting witnesses to testify.
  • Hear evidence presented by the state.
  • Identify parties and other persons present.
    • If the case involves a victim who is not present, the judge must ask the solicitor to verify that a reasonable attempt was made to notify the victim sufficiently in advance to attend. If timely notice was not made, the hearing must be delayed for a reasonable time to allow notice. § 16-3-1550(D). 
  • Explain purpose of hearing.
  • Hear evidence presented by defense attorney.
  • Allow solicitor to cross-examine defense witnesses.
  • Hear closing arguments.
    • Article I, § 14 of the S.C. Constitution, as well as the 6th Amendment of the U.S. Constitution, guarantees an accused the right "to be fully heard in his defense by himself or by his counsel or by both."  
    • In State v. Ballenger, 24 S.E.2d 175 (S.C. 1943), the court held our Constitution guarantees the accused the right to present arguments to the jury. The application of this right in bench trials was affirmed in In the Matter of Bazzle, 279 S.E.2d 370 (S.C 1981).
    • Judge may reasonably limit the length of arguments, but may not preclude them in their entirety. In the Matter of Bazzle, 279 S.E.2d 370 (S.C. 1981).
  • Make a ruling as to guilt.
    • If defendant sufficiently raised the affirmative defense of insanity, or when sufficient evidence of a mental illness of defendant is admitted into evidence, the court shall find whether defendant is: (1) guilty; (2) not guilty; (3) not guilty by reason of insanity; or (4) guilty but mentally ill. § 17-24-30.
  • If verdict is not guilty, child is released from the court's jurisdiction.
  • If verdict is guilty, decide whether to move straight into disposition and rule on sentencing or order child to undergo a predisposition evaluation.
    • Before committing a child to DJJ, the court must order child to undergo a predisposition evaluation. § 63-19-1440(C).
      • There are two types of predisposition evaluations: community evaluation - child remains at home or in alternative placement in the community while undergoing evaluation; and residential evaluation - child is committed to DJJ for not more than 45 days while undergoing evaluation. § 63-19-1440(C).
      • Children under 12 may not be committed to a residential evaluation center. § 63-19-1440(A).
      • If the court orders a child adjudicated delinquent for a status offense, a misdemeanor offense, or violation of probation or contempt for any offense to undergo a residential evaluation, DJJ may allow child to undergo a community evaluation unless the committing judge finds and concludes in the order for evaluation that “a community evaluation must not be conducted because the child presents an unreasonable flight or public safety risk to his home community.” § 63-19-1440(C).
    • The court may waive the predisposition evaluation in writing and move straight into disposition of the case if the child:
      • has already undergone a community or residential evaluation and the evaluation report is available to the court;
      • has been released from DJJ within the past year and the child’s previous evaluation or other equivalent information is available to the court; or
      • receives a sentence of probation or if committed to DJJ, it is for a determinate sentence of 90 days or less. § 63-19-1440(C).
  •  Notify child of record expungement requirements and process. § 63-19-2050.
    • Child may petition the court for expungement order if found not guilty in adjudicatory hearing.
      • Court shall grant the order regardless of child's age.
      • Granting of this order is nondiscretionary.
      • No fee may be charged for expungement.
    • Child may petition the court for expungement order if taken into custody for, charged with, or adjudicated delinquent for a status offense.
      • Granting of order is nondiscretionary if criteria are met.
      • Court shall not grant the order unless it finds the child is at least 18, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
    • Child may petition the court for expungement order if taken into custody for, charged with, or adjudicated delinquent for multiple status offenses or for a nonviolent crime.
      • The granting of this order is discretionary with the court.
      • The court shall not grant the order unless it finds the child is at least 18, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
    • Child may not petition the court for expungement order if child has a prior adjudication for an offense that would carry a maximum of 5 or more years if committed by an adult.
    • The solicitor or law enforcement may file an objection to the expungement based on ineligibility of the charges or additional pending charges, and the expungement must then be heard by the court. 
  • Determine whether the evidence presented proves beyond a reasonable doubt that the child committed the offense alleged in the petition.
    • “The constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault - notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination." In re Winship, 397 U.S. 358 (1970).
    • Due process precludes court from exercising subject matter jurisdiction to adjudicate child for charge not alleged in petition unless adjudication is for lesser included offense or there has been a waiver of notice. In the Interest of Jason T., 531 S.E.2d 544 (S.C. Ct. App. 2000). 

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