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.

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.

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).

How many times does the family court have to be “reminded” of the Rules of Family Court before someone–puts their foot down—and does something about these mongrels?

http://www.sccourts.org/opinions/unpublishedopinions/HTMLFiles/COA/2009-UP-008.htm Fuller v. Fuller, App. Ct. 2009-UP-008[3] Although we have affirmed the appealed order based on our own findings from our review of the evidence, we take this opportunity to remind the family court bench that, under the South Carolina Rules of Family Court, “[a]n order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.” Rule 26(a), SCRFC.

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.

Since 2004, the [Florida] Legislature has required courts to support their operating expenses substantially, through fees collected by county clerks. Some of the clerks use collection agents, while about a third use the Collections Courts, state officials said. Here in Leon County alone, 839 people were arrested and jailed in the year ended last September over court debts or failure to appear at Collections Court, according to a study by the Brennan Center. Other Florida counties have less stringent policies.

Around Leon County, there are some 5,400 outstanding “blue writs” — the civil equivalent of an arrest warrant for failing to appear and pay fees. Some people come in and pay when they receive their summons; others spend a night or more in jail, often having been arrested when the writ pops up during incidents like routine traffic stops.

Financially pressed people...are representing themselves more and more in court, according to judges, lawyers and courthouse officials across the country, raising questions of how just the outcomes are and clogging courthouses already facing their own budget woes as clerks spend more time helping people unfamiliar with forms, filings and fees.

We all know that the numbers are through the roof,” said James K. Borbely, a circuit court judge in Vermilion County, Ill. “You just look at the courtrooms.”

Judges complain that people miss deadlines, fail to bring the right documents or evidence and are simply unprepared for legal proceedings. Such mistakes make it more likely they will fare poorly — no matter the merit of their cases.

Reliable numbers for people representing themselves in noncriminal cases are hard to come by. Nationally there is no tracking system, and each state’s court system follows its own rules. Many people hire a lawyer for one phase of a proceeding but then drop them later. (In criminal cases, of course, defendants have a right to an appointed lawyer.)

Records of New York’s family courts, in which a vast majority of people appear without a lawyer, are imperfect. But in the first six weeks of this year, nearly 95 percent of litigants in paternity and support cases did not have a lawyer, compared with 88 percent in all of 2008 (emphasis added).