Family Law

S.C. Court of Appeals Finds that Incarcerated Parents Entitled to Be Present at Trial

By Ben Stevens

The South Carolina Court of Appeals issued a decision last week in Department of Social Services v. Laura D that it is necessary for incarcerated parents to be present at hearings, particularly when the Family Court has already issued an Order requiring the Department of Corrections to transport that parent to the hearing.

After the child of Mother tested positive for cocaine, the child was taken into emergency protective custody and Mother was ordered to complete a treatment plan. Prior to a scheduled judicial review hearing, Mother was incarcerated. Although the family court ordered the Department of Corrections to transport Mother to the hearing, it failed to do so.

At the hearing, Mother's counsel moved for a continuance based on Mother's absence but the trial court denied the motion, finding Mother to be at fault for her absence based on her incarceration. The Mother appealed, and the Court of Appeals reversed and remanded for a new hearing with Mother present.

The Court of Appeals held that Mother was a necessary and proper party to the action and that the Family Court's refusal to grant her motion for a continuance denied her meaningful access to the courts. The Family Court's reliance on Mother's incarceration preventing her from being present at the hearing was misplaced because she was entitled to be present at the hearing under the court's order of transport.

You can read the full text of this opinion by clicking HERE.

Full post as published by SC Family Law Blog on December 07, 2009 (boomark / email).