Children and the State Flashcards
Minors and the state
The welfare of children is the ultimate responsibility of the state. The state may intervene for the welfare of the children and the state in cases of abuse or neglect.
Effect of termination : A TPR order divests the parents of all rights and responsibilities toward the child, except the right of the child to inherit from the parent. A child’s right of inheritance is terminated only by a final order of adoption.
Termination
Termination of parental rights : The family court may order the termination of parental rights (TPR) if it serves the best interests of the child and the court finds any of the following:
(1) the child has been harmed, and the home cannot be safe within 12 months
(2) the presumptive legal father is not the biological father, and the welfare of the child can best be served by termination of the parental rights of the presumptive legal father
(3) the child has been taken into protective custody, has been out of the home for 6 months, and the parent has not remedied the conditions for which he was removed
(4) the child has lived outside the home of either parent for a period of 6 months, and during that period, the parent willfully failed to visit the child
(5) the child has lived outside the home for a period of 6 months, and either parent has failed to support the child.
(6) child has been in foster care under the responsibility of the state for 15 of the last 22 months
(7) the parent has a diagnosable condition (like alcoholism) that is unlikely to change within a reasonable time and that makes the parent unlikely to provide minimally acceptable care for the child
(8) the parent has wildully abandoned or surrendered physical possession of the child without making adequate arrangements for the child’s needs and care
(9) there was physical abuse of the child resulting in death or admission to the hospital for in-patient care, and the parent has been convicted or plead nolo to committing the offense against the child, CDV, or common law assault and battery of a high and aggravated nature.
(10) A guilty or nolo plea or a conviction for the murder of the child’s other parent.
Procedure for Termination
A TPR action can be brought by DSS or any interested person, but there must be service on the parent.
Publication will suffice if no other service can be made.
TPR requires clear and convincing evidence.
In TPR actions,
(1) parents must be represented by counsel, and if they cannot afford representation, the court must appoint an attorney for the parent.
(2) A GAL must be appointed for the child (and a non-attorney GAL may request appointment of an attorney).
(3) In a contested case, the GAL must have counsel, even if the GAL is an attorney.
Crimes
Crimes against persons—no family immunity : No general principle of immunity applies in criminal prosecutions of parents and spouses for crimes against family members.
Crimes against property—no family immunity : No general principle of immunity applies to criminal prosecution for parents and spouses for crimes against property of family members.
Interspousal Wiretapping
Interspousal wiretapping illegal under federal law. Illegally recorded tapes are nonetheless admissible for impeachment in SC
