Introduction
A child charged with violating the terms or conditions of probation is entitled to a hearing on whether the child should be found in contempt of court. The proceedings are initiated by a rule to show cause for contempt of court which must be based on a supporting affidavit or verified petition.
Quick View
- Determine whether child should be found in contempt of court for violating conditions of probation.
- The rule to show cause, and the supporting affidavit or verified petition, must be served at least 10 days before the hearing, unless a different notice period is fixed by the issuing judge within the RTSC. Rule 14(d), SCRFC.
- The 10-day notice period may be reduced by the issuing judge in an emergency situation. Rule 14(d), SCRFC.
- Beyond a reasonable doubt. Poston v. Poston, 502 S.E.2d 86 (S.C. 1998); State v Bowers, 241 S.E.2d 409 (1978).
- Contempt of court proceedings shall be initiated only by a rule to show cause (RTSC) issued by a family court judge and served with the supporting affidavit or verified petition. Rule 14(a),(b),(e), SCRFC.
- RTSC must be signed and dated by issuing judge and require the child to appear in court at clearly stated date, time, and place, to show cause why child should not be held in contempt and why permissible relief requested by the moving party should not be granted. Rule 14(b), SCRFC.
- RTSC must be based upon and supported by an affidavit or verified petition, unless issued by the judge sua sponte. The affidavit or petition must identify the court order for probation, the specific act(s) or omission(s) which constitute contempt, and the specific relief being requested. Such court order must be attached to the affidavit or petition. Rule14(c), SCRFC.
- Rules of Evidence apply, except as modified by the Family Court Rules. Rule 14(g), SCRFC.
- At the contempt hearing, the moving party must establish a prima facie case of willful contempt by showing the existence of the probation order and the facts showing the child’s noncompliance. Once the moving party establishes a prima facie case, the child may present evidence of a defense or inability to comply with the order. If requested, the court may allow reply testimony. The court may impose sanctions provided by law upon proper showing and finding of willful contempt. Rule 14(g), SCRFC.
- 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.
Hearing Checklist
- See Preliminary Matters in Section 1, Hearings General/Hearing Checklist.
- Explain purpose of hearing.
- Identify parties and other persons present.
- Advise child of his or her due process rights.
- Person charged with probation violation has right to counsel and must be informed of this right pursuant to court rules and case law. Barlet v. State, 343 S.E.2d 620, 621 (1986); Rule 602(a), SCACR; Rule 36, SCRFC.
- “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.
- Receive all relevant evidence to make required determinations and findings.
- Moving party must establish prima facie case of willful contempt by showing the existence of the probation order and the facts showing child’s noncompliance. Rule 14(g), SCRFC.
- Once moving party establishes prima facie case, respondent may present evidence of a defense or inability to comply with the order. Rule 14(g), SCRFC.
- If requested, the court may allow reply testimony. Rule 14(g), SCRFC.
- Make required determinations and findings.
- If the court finds child did not violate the probation order, the charge is dismissed.
- If the court finds child in contempt, decide whether to move straight into disposition and rule on sentencing, or if deemed necessary, order child to undergo a predisposition evaluation if one has not been previously conducted.
- Determine if moving party has established prima facie case of willful contempt by showing the existence of the probation order and the facts showing child's noncompliance. Rule 14(g), SCRFC.
- Determine if the evidence proves beyond a reasonable doubt that the child is in willful violation of the terms of probation and should be found in contempt of court.
- Court has authority to revoke probation only where based on violation of a judicially imposed condition. State v. Stevens, 646 S.E.2d 870 (S.C. 2007); State v. Archie, 470 S.E.2d 380 (S.C. Ct. App. 1996) (holding that only a court, and not a state probation agency, may exercise the judicial function of imposing or modifying conditions of probation).
- Court must make a finding on the record that failure to pay a fine or restitution was willful in order to violate probation for failure to pay; the court must also make certain findings of fact regarding the willfulness of the failure to pay. State v. Spare, 647 S.E.2d 706 (Ct.App.2007); State v. Coker, 723 S.E.2d 619 (Ct. App. 2012). See also Barlet v. State, 343 S.E.2d 620 (S.C. 1986), citing Bearden v. Georgia, 461 U.S. 660 (1983) (judge must determine on the record that probationer failed to make a bona fide effort to pay).
- Even though a party is found to have violated a court order, the question of whether or not to impose sanctions remains a matter for the court's discretion. Lindsay v. Lindsay, 491 S.E.2d 583 (S.C. Ct. App. 1997) (citing Sutton v. Sutton, 353 S.E.2d 884, 888 (S.C. Ct. App. 1987).
- If underlying adjudicated offense was a status offense, commitment to DJJ can only be for a determinate sentence of up to 90 days. In the Interest of Tonisha G., 520 S.E.2d 807 (S.C. 1999).
- Parole guidelines for a child committed to DJJ for a probation violation are based on severity of the underlying offense, not severity of the probation.