• Hearing must be held within 48 hours from the time the child was taken into custody, excluding weekends and holidays. § 63-19-830(A).

• The child must be represented by an attorney in this hearing and may only waive this right after consulting with an attorney at least once. § 63-19-830(A). A valid waiver of counsel requires compliance with Faretta. In re Christopher H., 596 S.E.2d 500 (S.C. Ct. App. 2004).
  • “The court shall appoint counsel for the child if none is retained.” § 63-19-820(A).
  • The court shall determine the parents’ financial ability to retain counsel for the child. § 63-19-1040.
  • If the court determines the parents are able but refuse to retain counsel for the child and the court appoints counsel, the court may 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.

• The court must appoint a guardian ad litem (GAL) for the child if the child’s parents are not located prior to the hearing. Rule 32, SCRFC.
• 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 also be considered when:
  • the child’s parent is the victim;
  • 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.

• 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.

• Your local DJJ representatives are trained on the interstate compact and should be able to handle any situation involving a child who comes under the ICJ. You may also contact Mia Pressley, ICJ Commissioner / Coordinator for DJJ at (803) 896-9351 or mlrich@scdjj.net for assistance.
• Additional information, including required and optional forms and the Benchbook for Judges and Court Personnel that provides a complete list of the ICJ Rules, can be found at http://www.juvenilecompact.org/. 

• 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).
  • 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.
    • 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.”
  • 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).

• This hearing may be held without the child's parents or guardian if they cannot be located after a reasonable effort; if they are not located prior to the hearing, the court must appoint a guardian ad litem for the child. Rule 32, SCRFC.
• 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. § 16-3-1525(J)(2).

• The privilege against self-incrimination and the right of cross-examination must be preserved. § 63-3-590.
• "In all cases where required by law, the child must be accorded all rights enjoyed by adults, and where not required by law, the child must be accorded adult rights consistent with the best interests of the child." § 63-3-590.

• Any evidence relevant to the necessity for detaining the child is admissible. Rule 32, SCFCR.
• Review the report submitted by DJJ stating the facts of the case and DJJ’s recommendation regarding continued detention. § 63-19-830(A).
  • The DJJ representative may testify regarding the child’s prior court history and school records and present DJJ’s recommendation regarding continued detention.

§ 16-3-1525.

to believe the child committed the alleged offense, the court should dismiss the charge and release the child.

the child must be released to a parent, guardian, or other responsible person. § 63-19-830(A).

• The court must impose conditions of release sufficient to protect the victim from harassment or intimidation. § 16-3-1525(J)(3).

• Additional extensions not to exceed 7 days each may be made by subsequent orders of the court. Rule 31, SCRFC.
• If taken into custody for a status offense, child cannot be ordered detained for more than 24 hours. § 63-19-820(E).
• If taken into custody for a violating a valid court order (for an underlying status offense) notifying child that violation of the order may result in detention, child cannot be ordered detained for more than 72 hours, excluding weekends and holidays. § 63-19-820(E).
• Determine if there are any special needs of the child that need to be addressed while in detention.

• The 4th Amendment requires a timely judicial determination of probable cause as a prerequisite to detention. Gerstein v. Pugh, 420 U.S. 103 (1975).
• The probable cause standard is defined as whether there is probable cause to believe that a crime was committed and that the child was involved. Gerstein v. Pugh, 420 U.S. 103 (1975).

• As with adults, children charged with crimes are presumed innocent, and it is a violation of the due process clause to use pretrial detention as punishment for children. Bell v. Wolfish, 441 U.S. 520 (1979).
• "Preventive detention” may be justified if there is a legitimate state interest in protecting the community or the child. Schall v. Martin, 467 U.S. 253 (1984).
• Written order for continued detention must include finding that detention is necessary to protect the public or serve the child’s best interest.  Rule 31, SCRFC.
• A child is eligible for detention in a secure juvenile detention facility only if the child: 
  1. is charged with a violent crime as defined in § 16-1-60;
  2. is charged with a felony or a misdemeanor other than a violent crime, and the child:
     • is already detained or on probation or conditional release or is awaiting adjudication in connection with another delinquency proceeding;
     • has a demonstrable recent record of willful failures to appear at court proceedings;
     • has a demonstrable recent record of violent conduct resulting in physical injury to others;  OR                       
     • has a demonstrable recent record of adjudications for other felonies or misdemeanors;  AND
       • there is reason to believe the child is a flight risk or poses a threat of serious harm to others;  OR
       • the instant offense involved the use of a firearm;
  3. is a fugitive from another jurisdiction;
  4. requests protection in writing under circumstances that present an immediate threat of serious physical injury;
  5. had in his possession a deadly weapon;
  6. has a demonstrable recent record of willful failure to comply with prior placement orders including, but not limited to, a house arrest order;
  7. has no suitable alternative placement and it is determined that detention is in the child's best interest or is necessary to protect the child or public, or both;  OR
  8. is charged with an assault and battery or an assault and battery of a high and aggravated nature on school grounds or at a school‑sponsored event against any person affiliated with the school in an official capacity. § 63-19-820(B).
• Child must be at least 11 to be incarcerated in a jail or detention facility for any reason. § 63-19-820(F).
• Children 11 or 12 taken into custody for a criminal offense or for violating conditions of probation for a criminal offense may only be incarcerated in a jail or detention facility by family court order. § 63-19-820(F).
• Detention is not mandatory for a child meeting the criteria if that child can be adequately supervised at home or in a less secure setting. § 63-19-820(B).
  • Detention alternatives should be strongly considered to avoid the negative impact secure detention has on children.

• Find whether continuation in the home would be contrary to child’s welfare. § 63-7-720(A)
• Find whether reasonable efforts were made to prevent removal. § 63-7-720(A).
• The child’s health and safety must be the paramount concern. § 63-7-1640(A).
• Questions to ask:
• What services were offered to the family before DSS assumed custody and when were those services offered?
• How did those services relate to the family’s needs?
• What effort did DSS make to provide services before assuming legal custody?
• Why did those efforts fail to eliminate the need for DSS to assume custody?
• Was a family meeting held? If so, who attended and what was the outcome? If not, why not?
• What efforts has DSS made to place the child with a known relative or in another familiar environment?

The following alternatives to secure detention provide for the supervision and safety of a child while reducing the negative impact on the child and the costs associated with detention. Most counties have multiple options available that can be combined to best suit the needs of the child and family.

• Question the DJJ representative regarding efforts by DJJ to comply with the requirement of § 63-19-820 to make a "diligent effort to place the child in an approved home, program, or facility, other than a secure juvenile detention facility, when these alternatives are appropriate and available."
• Ask parent/guardian if there is a noncustodial parent or relatives who may be able to provide the supervision deemed necessary by the court.
• The court may arrange for the use of private homes (DAPs) for detention subject to the supervision of the court or other agency. § 63-19-840.
• The court may place the child in the temporary care and custody of an institution or agency. § 63-19-840.
• If the court orders that the child be released from detention pending the adjudicatory hearing, the court can impose conditions on the child such as a curfew, house arrest with or without electronic monitoring, and/or a restraining order.