Did supervision by South Carolina's Foster Care Review Board inherently compromise volunteer guardians ad litem?

Plain-English summary

In November 2003, South Carolina's Attorney General declined to give an absolute answer on whether placing the State Volunteer Guardian ad Litem Program under the Foster Care Review Board created a conflict or prevented guardians from meeting their duties. The office said each program's statutory role and objectivity had to remain intact, and one program could not be allowed to override the other's responsibilities.

The opinion recommended cooperation to prevent particular conflicts. If a concrete disagreement arose, it said a court should resolve it.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Program administrators and guardians

The AG emphasized the guardian's independent assessment, continuing representation of the child, and court reporting. The board arrangement could not diminish those statutory functions or objectivity.

Common questions

Did the AG call the arrangement automatically conflicted?
No. It said there was no absolute answer to that question.

Could the Foster Care Review Board override a guardian's statutory role?
The opinion said the arrangement could not infringe the guardian's duties or objectivity.

Who would decide a dispute in a particular case?
The AG recommended that a court resolve a specific conflict.

Background and statutory framework

A legislator asked about two programs merged in 2003. The AG reviewed the statutes defining each program and the guardian's responsibilities, and cited mechanisms by which courts could assess guardian bias or performance.

Citations and references

The opinion discussed S.C. Code Ann. Section 20-7-121 and S.C. Code Ann. Section 20-7-122.

Official title

Questioning if there is a conflict of interest for the South Carolina Volunteer Guardian ad Litem program to be under the supervision of the Foster Care Review Board and can the program fulfill its statutory mandate while under the supervision of the Foster Care Review Board.

Requester

The Honorable Ted Pitts, Jr., Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-3-2003-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/03nov-3-Pitts.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATIDRNEY GENERAL

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November 3, 2003

The Honorable Ted Pitts, Jr.
Member, House of Representatives
112 Addison Court
Lexington, South Carolina 29072
Dear Representative Pitts:
In a letter to this office you referenced that the State Volunteer Guardian ad Litem program was merged with the Foster Care Review Board in May, 2003. Referencing such you requested an opinion regarding two questions:

1. Is there a conflict of interest for the South Carolina Volunteer Guardian ad Litem
   program to be under the supervision of the Foster Care Review Board?

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2. Can the State Volunteer Guardian ad Litem Program fulfill its statutory mandate
   while under the supervision of the Foster Care Review Board? As set forth in S.C. Code Ann. Section 20-7-121 (Supp. 2002)

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There is created the South Carolina Guardian ad Litem Program to serve as a statewide system to provide training and supervision to volunteers who serve as court-appointed special advocates for children in abuse and neglect proceedings within the family court, pursuant to Section 20-7-110. This program must be administered by the Office of the Governor. Pursuant to S. C. Code Ann. Section 20-7-110 (Supp. 2002), the family court must appoint a guardian ad litem for a child in all child abuse and neglect proceedings. The responsibilities of a guardian ad litem as set forth in S.C. Code Ann. Section 20-7-122 (Supp. 2002) are to: (I) represent the best interests of the child; (2) advocate for the welfare and rights of a child involved in an abuse or neglect proceeding; (3) conduct an independent assessment of the facts, the needs of the child, and the available resources within the family and community to meet those needs; (4) maintain accurate, written case records;

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BUil.DJNG • POST OFFICE Box 11549 • CoWMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FAcsIMII.E: 803-253-6283

The Honorable Ted Pitts, Jr.
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November 3, 2003

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(5) provide the family court with a written report, consistent with the rules of evidence and the rules of the court, which includes without limitation evaluation and assessment of the issues brought before the court and recommendations for the case plan, the wishes of the child, if appropriate, and subsequent disposition of the case; (6) monitor compliance with the orders of the family court and to make the motions necessary to enforce the orders of the court or seek judicial review; (7) protect and promote the best interests of the child until formally relieved of the responsibility by the family court. Pursuant to S.C. Code Ann. Section 20-7-124 a guardian ad litem is charged ''with the duty of representation of the child's best interests." By that same provision, specific duties and obligations are imposed on the guardian ad litem. As stated in such provision and as recognized by the court in South Carolina Department of Social Services v. Pritcher, 329 S.C. 242, 249, 495 S.E.2d 242, 245 (Ct. App. 1997), the obligation is " ... a continuing one and continues until formally relieved by the court." S.C. Code Ann. Section 20-7-2379 (Supp. 2002) provides for the creation " ... as part of the Office of the Governor, the Division for Review of the Foster Care of Children." A seven member State board is authorized. Pursuant to S.C. Code Ann. Section 20-7-2385 (Supp. 2002) sixteen local boards are authorized "for review of cases of children receiving foster care". S.C. Code Section 207-23 76 (Sup. 2002) outlines the various functions and powers of the local foster care review boards. As to your questions regarding whether there is a conflict of interest for the Guardian ad Litern program to be under the supervision of the Foster Care Review Board and whether the Guardian ad Litem program can fulfill its statutory mandate while under the supervision ofthe Foster Care Review Board, there are no absolute answers to your questions. An opinion of this office dated September 12, 2000 opinion dealt with the issue of whether one who serves as a foster parent would be improperly biased in separate proceedings while serving as a guardian ad !item. The opinion concluded that there did not appear to be any authority suggesting that one who serves as a foster parent would be improperly biased in separate proceedings while serving as a guardian ad litern. The opinion citing Fleming v. Asbill, 326 S.C. 49, 483 S.E.2d 751 (1997) commented that Court have recognized that accountability ofthe guardian ad !item is ensured through other mechanisms, ... such as: (1) the cross examination of the guardian ad !item by opposing counsel for any potential biases; (2) the appointing court's oversight of the guardian's performance; (3) the prerogative of the court to reject the guardian's findings; (4) the parents' right to move for termination of the guardian; and (5) judicial review of court findings based on guardian recommendations. Both the Guardian ad Litem program and the Foster Care Review Board have their own statutorily created functions and responsibilities and, as such, care should be taken by both entities so as not to infringe or interfere with the duties and responsibilities of the other. Each program must

The Honorable Ted Pitts, Jr.
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November 3, 2003

be allowed to carry out its statutorily mandated functions and the objectivity of each program should be recognized and accommodated. As a result, placement of the Guardian ad Litem program under the Foster Care Review Board must not result in infringement of the duties of a guardian ad litem as expressed in Section 22-7-122. The General Assembly made a conscious decision to place both entities under the Governor's office but such placement does not indicate that the duties of a guardian ad litem can be sacrificed or compromised or the guardian's objectivity infringed. Cooperation between the two programs is obviously warranted so as to avoid conflict in any specific case and to prevent one program from being subservient to the other. As to any specific area of disagreement, I can only recommend that a court resolve any conflict.

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With kind regards, I am,

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Charles H. Richardson
Senior Assistant Attorney General