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Joseph F. Rice School of Law

Hearings General


§ 63-19-20(9). Definitions (Status Offense)
§ 63-3-510. Exclusive original jurisdiction.
§ 63-3-520. Traffic and wildlife jurisdiction.
§ 63-3-540. Cooperation of agencies, government entities, and institutions.
§ 63-3-550. Standing to institute a proceeding regarding delinquent child.
§ 63-3-560. Venue.
§ 63-3-570.  Service of summons.
§ 63-3-580.  Failure to obey summons.
§ 63-3-590. Conduct of hearings.
§ 63-3-600. Rules for conduct of hearings.
§ 63-3-610.  Prosecutorial functions.
§ 63-3-620.  Penalties for adult violating title.
§ 63-3-630.  Appeals.
§ 63-3-640.  Post-conviction proceedings.
§ 63-3-650.  Power to issue writ of habeas corpus.
§ 63-19-1020. Instituting Proceedings.
§ 63-19-1030. Prehearing inquiry.
§ 63-19-1040. Indigent defense.
§ 63-19-1435. Use of restraints on juveniles in court.
§ 63-19-2040. Release of information.
§ 16-3-1550. Restriction on employers of victims and witnesses; rights of victims and witnesses.
§ 17-1-50. Interpreters in criminal proceedings.
§ 17-3-10. Persons entitled to counsel shall be so advised; when counsel shall be provided.
§ 17-3-50. Determination of fees for appointed counsel and public defenders; maximum amounts; authorization to exceed maximum; payment for certain services.
§ 17-3-80. Appropriation for expenses of appointed counsel; restrictions and limitations.
§ 17-3-100. Discretionary authority of judge to appoint counsel is not limited; remuneration and reimbursement.
§ 44-23-410. Determining fitness to stand trial; time for conducting examination; extension; independent examination; competency distinguished.

  • The family court has exclusive original jurisdiction over any action concerning a child living or found within the geographical limits of its jurisdiction:
    • whose behavior places himself or others at risk of danger.
    • who is beyond the control of his parent/custodian.
    • who is alleged to have violated or attempted to violate any state or local law or municipal ordinance except as provided in § 63-3-520 (traffic and wildlife jurisdiction). § 63-3-510.
      • The circuit court must immediatelytransfer any case to family court involving a child erroneously charged as an adult for committing a criminal offense. § 63-19-1210(1).
      • A 17-year-old charged as an adult for a Class A, B, C or D felony, or a felony which provides for a maximum term of imprisonment of 15 years or more, can be remanded to the family court at the solicitor’s discretion. § 63-19-20(1).
    • who is 18 or older and allegedly violated or attempted to violate any state or local law or municipal ordinance before reaching 18.
  • The family court also has exclusive original jurisdiction and shall be the sole court for initiating action: 
    • for the treatment or commitment to any mental institution of a mentally disordered or emotionally disturbed child, if it does not conflict with the probate court’s authority; and
    • for the detention of a child charged with a criminal offense when detention in a secure facility is found to be necessary. § 63-3-510.
  • The family court has concurrent jurisdiction with the magistrate and municipal courts for the trial of children charged with traffic or Title 50 (relating to fish, game, and watercraft) violations. All adjudications for moving traffic violations and other violations affecting a child’s driving privileges, including drug and alcohol violations, must be reported to the DMV by the court.  All adjudications for Title 50 violations must be reported to the SC DNR. § 63-3-520.

  • Post-conviction proceedings, including habeas corpus actions, are instituted in the court in which the original action was concluded. However, the family court also has original jurisdiction of habeas corpus actions if the person who is the subject of the action would otherwise be within its jurisdiction. § 63-3-640.

  • Jurisdiction attaches from the time child is taken into custody. § 63-19-810(A).

  • Jurisdiction continues as long as the court finds it necessary to retain jurisdiction for the “correction or education” of child. § 63-3-510(B).

  • The court retains jurisdiction over any adjudicated child placed on probation until the term of probation expires, which may not exceed child’s 18th birthday. § 63-3-510(B).

  • Jurisdiction terminates upon commitment to the custody of DJJ. State v. Robinson, 249 S.E.2d 907 (S.C. 1978).

  • Jurisdiction terminates on child’s 22nd  birthday if not sooner. § 63-3-510(B).

  • The court may dismiss the petition or otherwise terminate its jurisdiction on motion of either party or its own motion. § 63-19-1440(A)(7).

  • Venue of family court actions "shall be in such county as provided by law."  Family court trials are to be held in the county of venue, unless a change of venue is granted as provided by law. § 63-3-560.
  • Pre-adjudicatory Transfer. Upon the filing of a petition involving a child who is a resident of another county in the State, the judge may direct immediate transfer of the case to the child's county of residence if child has returned home and petitioner and local witnesses will not be inconvenienced. Rule 33(a), SCRFC.
  • Post-adjudicatory Transfer. If the judge decides that an immediate transfer should not be made, and an adjudicatory hearing is held and the case is not dismissed, the judge may order its transfer to the county of child's residence for disposition. Rule 33(b), SCRFC.
  • Hearings must be conducted in a formal manner.  § 63-3-590.
  • The 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.§ 63-3-590.
    • S.C. Const. art. I, § 9 ("all courts shall be public") does not render § 63-3-590 unconstitutional. "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." Ex parte Columbia Newspapers, 333 S.E.2d 337 (S.C. 1985); See also, Steinle v. Lollis, 307 S.E.2d 230 (S.C. 1983).
  • Child’s presence in court may be waived by the court at any stage of the proceedings.  § 63-3-590.
  • SC Rules of Evidence are applicable, except as otherwise provided by rule or statute. Rule 1101(a) SCRE.
    • Not applicable in dispositional hearings. Rule 1101, SCRE.
  • SC Rules of Criminal Procedure are applicable when feasible if not inconsistent with the statutes and rules governing family court. Rule 37, SCRCrimP.
  • SC Rules of Criminal Procedure applicable under Rule 2(b), SCRFC:
    • Disclosure in criminal cases. Rule 5, SCRCrimP.
    • Chemical analysis and chain of custody. Rule 6, SCRCrimP.
    • Expert testimony. Rule 24, SCRCrimP.
    • Post-trial motions. Rule 29, SCRCrimP.
  • The following documents and written statements are admissible in evidence without requiring that the persons or institution issuing the documents or statements be present in court under Rule 7, SCRFC:
    • Written statement of a child's attendance at school signed by the principal or authorized school official;
    • School report card showing a child's attendance, grades, and other pertinent information, if such report is released at periodic intervals by the school;
    • Physician’s written statement showing a patient was treated at certain times and the type of ailment;
    • Written report of DSS or other agency, reporting the home investigation or any other report required by the court (unless the agency is party); and
    • Employer’s written statement showing wages, W-2 statement, income tax returns, and other similar reports.
  • Hearings shall be conducted in accordance with the rules of court and the court may consider and receive as evidence the result of any investigation by the probation counselor; provided that either party may examine the probation counselor under oath thereon. § 63-3-600.
  • In every delinquency proceeding, notice of the child’s right to counsel, appointed counsel if parents are indigent, shall be served upon the child, his parents, guardians, or persons with whom the child resides. Rule 36, SCRFC.
    • The court may appoint counsel for the child and assess costs against the parents if appropriate.
  • In a case where the delinquency proceedings may result in commitment to an institution in which the child's freedom is curtailed, the child or the child's parents or guardian must be given written notice with particularity of the specific charge or factual allegations to be considered at the hearing. § 63-19-1030(D).
    • The notice must be given as soon as practicable and sufficiently in advance to permit preparation.
    • The child or the child's parent or guardian must be advised in the notice of their right to be represented by counsel, including court-appointed counsel if indigent.
    • In the hearing, the parent and child also must be expressly informed of their right to counsel and must be specifically required to consider whether they do or do not waive the right of counsel. § 63-19-1030(D).
  • If the delinquency proceedings may result in commitment to an institution in which the child’s freedom is curtailed, 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.
  • The family court judge must recognize and protect the rights of victims and witnesses as diligently as those of the defendant. § 16-3-1550(D).
  • Before proceeding with a trial, plea, sentencing, or other dispositive hearing in a case involving a victim, the judge must ask the solicitor to verify that a reasonable attempt was made to notify the victim sufficiently in advance to attend a detention hearing, trial, or sentencing. If notice was not given in a timely manner, the hearing must be delayed for a reasonable time to allow notice. § 16-3-1550(D).
  • The court must treat sensitively witnesses who are very young, elderly, handicapped, or who have special needs by using closed or taped sessions when appropriate. The prosecuting agency or defense attorney must notify the court when a victim or witness deserves special consideration. § 16-3-1550(E).
  • Under certain conditions, the court has discretion to order a psychological examination of a child victim. In the Interest of Michael H., 602 S.E.2d 729 (S.C. 2004).

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).
    • 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).

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