The S.C. Supreme Court is considering procedural changes in child support contempt hearings in the wake of a U.S. Supreme Court ruling that rejected the way a case involving an Upstate indigent father was handled.
In a written response last week to The Nerve, Rosalyn Frierson, the state court administration director, said the June 20 ruling in Turner v. Rogers “suggests that there may be a need for form revisions regarding certain notifications to the non-custodial parent.”
“We are in the process of reviewing our forms for revisions necessary to satisfy the due process requirements,” Frierson said. “After the revisions have been reviewed and approved by our Family Court Advisory Committee and the (S.C.) Supreme Court, the information will be made available to the public.”
Frierson did not offer specifics on the proposed changes.
The Nerve submitted written questions to S.C. Supreme Court Chief Justice Jean Toal, but Frierson said Toal “will not be commenting on this case in light of potential ongoing litigation in this matter.”
The Nerve also left a phone message for Charleston County Family Court Judge Jocelyn Cate, president of the S.C. Family Court Judges Association, but she did not respond.
The U.S. Supreme Court in a 5-4 ruling said Oconee Family Court Judge Timothy Cain violated the constitutional rights of Michael D. Turner by ordering him in 2008 to serve a year in jail for failing to pay $5,728 in back child support without first determining whether he had the ability to pay.
The majority of justices, made up of the liberal wing of the court and Justice Anthony Kennedy, who often is the critical swing vote, said states aren’t automatically required to provide court-appointed attorneys to indigent parents facing possible jail time in civil contempt proceedings in child support cases.
But states have to offer “alternative procedural safeguards,” the majority said, including:
- Adequate notice of the importance of the ability to pay;
- A fair opportunity to present, and to dispute, relevant information; and
- Specific court findings as to the supporting parent’s ability to comply with the court order.
“The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described,” Justice Stephen Breyer wrote for the majority. “Under these circumstances, Turner’s incarceration violated the Due Process Clause.”
Under prior U.S. Supreme Court rulings, indigent criminal defendants have a right to court-appointed attorneys, who typically are paid with tax dollars. But the nation’s top court hasn’t granted similar sweeping rights in civil proceedings that could result in jail time and declined to do so again in the Turner case.
In finding that Turner’s rights were violated, however, the justices set aside a unanimous March 2010 ruling by the S.C. Supreme Court against Turner and sent the case back to South Carolina for “further proceedings not inconsistent with this opinion,” though they didn’t offer specifics.
Contacted last week by The Nerve, Greenville attorney Derek Enderlin, one of Turner’s lawyers involved with the appeal, said because his client already has served the one-year jail sentence, “no further (court) action is likely to take place in this case.”
Still, Enderlin said he believes that his client’s case isn’t isolated.
“I have heard judges are doing 100 cases in a single morning,” Enderlin said in a written response. “That means there are only a few minutes for each case. … Considering these circumstances, it is impossible to determine which individuals truly cannot pay and which ones can.”
“In my experience,” Enderlin continued, “a lawyer can identify some of these problems and offer alternative strategies. Maybe the client needs vocational rehabilitation, help with a disability, instruction on how to prove he is actively seeking employment, a reduction in child support, or a variety of things many of us may deem simple, but for an indigent uneducated parent facing incarceration seem complex.”
In his 2008 hearing before Judge Cain, Turner, who represented himself, contended that a drug problem and a broken his back had left him unable to work.
At any given time in South Carolina, there are about 1,500 people in jail for non-payment of child support, the vast majority of whom were sentenced for civil contempt, according to research in 2005 and 2009 by Elizabeth “Libba” Patterson, a University of South Carolina law professor and former director of the S.C. Department of Social Services. Patterson co-authored a friend-of-the-court brief supporting Turner’s appeal to the U.S. Supreme Court.
Patterson told The Nerve last week that if the U.S. Supreme Court’s ruling is “implemented in the spirit with which it was handed down … it should result in far fewer people being sent to jail.”
“I’m hopeful they (the S.C. Supreme Court) will respond by recognizing that they must provide some kind of protection” to indigent parents facing possible jail time, Patterson said.
Patterson said she believes that the nation’s top court left open the possibility that court-appointed attorneys would be required in cases in which the parent owed child support payments to the state instead of to the custodial parent. In South Carolina, custodial parents who receive welfare must assign their right to collect child support payments to DSS for reimbursement of their welfare payments, she said.
In the Turner ruling, the U.S. Supreme Court said that appointing attorneys for non-custodial parents in cases in which custodial parents represented themselves “could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”
“To me, they (the U.S. Supreme Court justices) are implying that the result would be different if the state would be the opposing party,” Patterson said.
In the end, that could mean the nation’s top court might again consider another child support case from the Palmetto State.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org.