PARENT'S RIGHTS NOW!

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause. We vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause. We vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

In South Carolina, family court judges can throw indigent parents behind bars for non-payment of child support even if they cannot afford attorneys.

The Palmetto State is one of only five states that don’t guarantee indigent parents the right to counsel in civil contempt hearings that can result in jail time, the S.C. Supreme Court said in a March 29 ruling (Price v. Turner, opinion no. 26793), which was ignored by other media outlets.

"We recognize that … we are adopting the minority position," Chief Justice Jean Toal, writing for the court, said in a footnote in the ruling. "However, we are persuaded that the minority position held by Florida, Maine, New Hampshire and New Mexico is sound and in keeping with controlling precedent."

The U.S. Supreme Court, however, in a 1981 ruling involving a North Carolina termination of parent rights case, said that the right of an indigent defendant to have an appointed attorney isn’t just reserved for criminal cases, noting that the "defendant’s interest in personal freedom … triggers the right to appointed counsel."

The five-member S.C. Supreme Court unanimously ruled against a coalition of state and national legal groups that submitted a joint legal brief urging the justices to set aside an Oconee County Family Court judge’s civil contempt order in 2008.

The groups included the S.C. office of the American Civil Liberties Union, the S.C. Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the National Legal Aid & Defender Association, and the Brennan Center for Justice at the New York University School of Law.

"The South Carolina Family Court nevertheless has imprisoned hundreds, and likely thousands, of indigent defendants for nonpayment of support without appointed counsel," the groups said in their friend-of-the-court brief.

"These defendants languish in modern-day debtors’ prisons after patently unfair proceedings, many of which lack any factual findings," the brief added. "Often the courts do not even inquire into the defendant’s ability to pay their support obligation."

The number of indigent parents imprisoned statewide on contempt charges is unknown, as are child support collection rates for that group. Neither the S.C. Judicial Department nor the state Department of Social Services keeps records on those numbers, according to spokeswomen for the agencies.

Total statewide child support collection rates are barely above 50 percent, DSS records show.

Victoria Middleton, executive director of the S.C. ACLU, told The Nerve last week that imprisoning indigent parents can wind up costing taxpayers more in the long run.

"The state really needs to adequately fund and administer a public defender system," she said.

The S.C. Supreme Court in recent years has been pressured by the S.C. Bar, the state’s professional organization for lawyers, to change the way private attorneys are appointed by courts to represent indigents because of shortfalls in state funds to pay those lawyers.

Greenville attorney Derek Enderlin, who handled the appeal of Michael Turner – the parent at the center of the Supreme Court ruling – told The Nerve last week that his client likely will appeal the March 29 decision.

Turner was sentenced by Oconee Family Court Judge Timothy Cain on Jan. 3, 2008, to one year in jail after he was found in civil contempt for failing to pay $5,728.76 in child support, court records show.

Turner, who appeared by himself, was not informed by Cain of his right to an attorney, according to the legal brief submitted by the ACLU and other legal groups.

Turner presented evidence that he was indigent, telling Cain he had broken his back and was seeking disability, though the judge made no finding on his indigent status, the groups said in their brief.

Turner served the full year in jail and has since served another six months, Enderlin told The Nerve, adding he was out for only a few months before he was ordered back to jail.

Turner in court papers contended his constitutional rights to an attorney and due process were violated. But the Supreme Court in its ruling said he wasn’t entitled to a lawyer because he was found in civil contempt, as opposed to criminal contempt.

"The purpose of civil contempt is to coerce the defendant to comply with the court’s order," the justices wrote. "In contrast, criminal contempt is intended to punish a party for disobedience and disrespect. … A (person) imprisoned for civil contempt is said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do."

The ACLU and other legal groups in their brief said that "whether the proceeding is deemed civil rather than criminal in nature does not diminish the defendant’s Sixth Amendment right to appointed counsel, because the defendant’s liberty interest is the preeminent factor."

"If this Court does not immediately address this obvious constitutional violation, it will be giving the lower courts carte blanche to imprison South Carolina citizens without ever providing them the benefit of an attorney to safeguard their rights," the groups said.

If imprisoning indigent parents improves collection rates, it’s hard to tell that by looking at the overall numbers. For last fiscal year, a total of $174.1 million in child support was collected in South Carolina out of $339.7 million owed, or a collection rate of 51.25 percent, according to DSS records.

Last year’s collection rate was slightly higher than in fiscal year 2008, though that rate was more than 10 percentage points below the national collection rate, records show.

Last July, the Regional Detention Center was cited for housing sentenced and pre-trial inmates together. Other violations cited were the lack of two-way emergency intercom systems in individual cells and failure to give inmates required outdoor exercise time due to staffing shortages.

The state fire marshal’s office also cited the detention center for potential fire hazard violations, including the storage of combustible materials in rooms with electrical equipment. S.C. Department of Labor, Licensing and Regulation spokesman Jim Knight said Monday the fire marshal’s office is scheduled to re-inspect the facility.

Many of the inmates who sued in federal court are being held for non-payment of child support.

Child support inmates usually make up half or more of the total population, which averages about 400 inmates.

One complains he is in jail for child support, “and they got me lock down like a hard criminal for 18 hours a day. Do you think that’s fair to a person that don’t have no charge just in here for child support? Can’t go out to work because the jail charge you $5 dollars a day when you go out if you go out. Child support still running when you in jail it never stops ...

Almost every state in the Southeast had determined that it is improper to hold a delinquent parent in jail if he or she lacks the capacity to pay the full amount owed. Ex parte Rojo, 925 S.W.2d 654 (Tex. 1996); Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982); In Re Nichols, 749 So. 2d 68 (Miss. 1999); McMiller v. McMiller, 77 N.C.App. 436, 335 S.E.2d 187 (1985); Lee v. Lee, 78 N.C. App. 632, 337 S.E.2d 690 (1985); Lynch v. Lynch, 342 Md. 509, 677 A.2d 584 (1996).

A legislative committee will release a report by Feb. 1 that will call for changes in the punishments for dozens of crimes and will suggest using more alternative sentences for non-violent criminals.

The state's overcrowded prisons are a driving force behind the report, which is the result of more than a year of study by the S.C. Sentencing Reform Commission.

"I wouldn't say it's the number one reason, but it's an issue," said Sen. Gerald Malloy, D-Darlington, the commission chairman. "In order to continue on the path we're headed, we're going to have to build more prisons, and we don't have the funds to do that."

The commission hopes its recommendations ensure public safety by sending high-risk, violent offenders to jail for longer terms, Malloy said. At the same time, the state will need to reduce the prison time for other crimes.

The commission also will recommend that the state beef up its Department of Probation, Parole and Pardon Services to better supervise criminals once they are released from prison.

The commission will present draft legislation based on the report, Malloy said. The challenge will be finding money in a strapped state budget to implement some of the recommendations.

"The real answer to this is to build a new prison," said Laura Hudson, S.C. Crime Victims Council executive director.

Lisa Miller, who was ordered by a court in Vermont to turn over her child to her former partner, has missed the 1pm EST January 1st deadline. A Vermont judge had ordered Lisa Miller to turn over daughter Isabella to Janet Jenkins at 1 p.m. Friday at the Falls Church, Va., home of Jenkins' parents.

This case has drawn worldwide attention as Miller and Janet Jenkins were lesbian partners. After a civil union ceremony in 2000, Miller was artificially inseminated and gave birth to a daughter. In 2003, the couple separated and Miller (the birthmother) renounced her homosexuality and became an evangelical Christian.

Years of court battles ensued with U.S. Supreme Court opting note to hear the case. The Virginia Supreme Court ruled in favor of Jenkins who argued that Miller had not allowed her to visit with their daughter and ignored the custody rules set down by the Vermont Family Court.

On November 20th, the Vermont court reversed a prior custody arranged ordering full custody to Jenkins. The court also ruled that on January 1st, Lisa Miller, the birth mother, must return the child over to Janet Jenkins.

She is alleged mistress #11 in the ongoing saga of Tiger Woods' apparent affairs and she's wanted by the Department of Social and Health Services.

The television show "Inside Edition" claims Tiger's latest alleged mistress is Joslyn James who could be seen dancing at an adult entertainment convention in Las Vegas last year.

Her real name is Veronica Siwik-Daniels and she appears on the "30 most wanted" list of Washington State's DSHS.

The Web site claims she owes more than $12,000 in child support for her 10-year-old daughter. It lists Daniels' hometown as Las Vegas.

Those demanding the incarceration of fathers in arrears on child support should themselves be jailed for their own overdue payments to their creditors. After all, what's good for the goose is good for the gander. Discriminately incarcerating one class of people (fathers) for overdue financial obligations in a society, and not incarcerating others who are guilty of the same, amounts to a state-sanctioned discriminatory inquisition.

Perhaps all single mothers with delinquent and outstanding medical bills for treatment of their children should be summarily jailed? If a father becomes involuntarily unemployed following massive layoffs, and is without income and therefore "refuses" (or so he's accused) to pay his child support should be jailed for being a "deadbeat," then it logically follows that a mother who "refuses" to seek medical treatment for a sick child simply because she is without the means to pay is also without a valid excuse and should be locked up as well.