Could South Carolina's Governor place the volunteer guardian ad litem program under the Foster Care Review Board?

Plain-English summary

In November 2003, South Carolina's Attorney General said the Governor's office could administratively place the volunteer Guardian ad Litem Program under the Foster Care Review Board. The legislature had placed both programs in the Governor's office, leaving their internal administration to that office unless the legislature changed the statutory arrangement.

The opinion did not give a blanket answer that the merger was conflict-free or that every guardian could fulfill the role unaffected. Each program's statutory duties and objectivity had to be preserved. The AG said a court should resolve any specific dispute that arose between the programs.

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 foster-care boards

The AG distinguished internal supervision by the Governor's office from removing the guardian program from that office by law. Administrative placement could not let one program override the other's statutory responsibilities.

Guardians and family courts

The opinion emphasized a guardian's independent assessment and continuing duty to represent a child's interests. It left questions about a particular conflict or interference for judicial resolution.

Common questions

Did the Governor need a new statute for this internal placement?
The AG said no, because both programs were already assigned to the Governor's office.

Did the AG find that no conflicts could arise?
No. It gave no absolute answer and said the two programs' duties and objectivity had to be protected.

Who would decide a specific clash between the programs?
The opinion recommended court resolution of a particular dispute.

Background and statutory framework

A legislator asked about the 2003 merger and its effect on child-advocacy duties. The AG compared the statutes placing the programs in the Governor's office and setting out the guardian's responsibilities.

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, can the program fulfill its statutory mandate while under the supervision of the Foster Care Review Board and can the Governor’s office or any other entity in state government legally put the Volunteer Guardian ad Litem program under the supervision of another agency or group without legislative authority.

Requester

The Honorable Herb Kirsh, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-3-2003-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2003/11/03nov-3-Kirsh.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATIDRNEY GENERAL

November 3, 2003

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The Honorable Herb Kirsh
Member, House of Representatives
Box 31
Clover, South Carolina 29710
Dear Representative Kirsh:
In a letter to this office you indicated that the State Volunteer Guardian ad Litem Program was merged with the Foster Care Review Board in May, 2003. Referencing such you have raised the following questions:

1. Is there a conflict of interest for the Volunteer Guardian ad Litem program to be
   under the supervision of the Foster Care Review Board?
2. Can the Volunteer Guardian ad Litem program fulfill its statutory mandate while
   under the supervision of the Foster Care Review Board?
3. Can the Governor's office or any other entity in state government legally put the
   Volunteer Guardian ad Litem program under the supervision of another agency or group without legislative authority? As set forth in S.C. Code Ann. Section 20-7-121(Supp.2002) 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: (1) represent the best interests of the child;

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~E19"C. DENNis BUilDING • Posr OFFICE Box 11549 • COLUMBIA, s.c. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMll..E: 803-2:53-6283 ( o/';

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The Honorable Herb Kirsh
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November 3, 2003

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(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; (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."

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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. Pursuantto S.C. Code Ann. Section20-7-2385 (Supp. 2002) sixteen local boards are authorized "for review of cases of children receiving foster care". S.C. Code Section 207-2376 (Sup. 2002) outlines the various functions and powers of the local foster care review boards. As to your question as to whether the Governor's office or any other entity in state government can legally place the Guardian ad Litem program under the supervision of another agency or group without legislative authority, as set forth, both the Guardian ad Litem program and the Foster Care Review Board have been statutorily placed by the General Assembly within the Governor's office. An opinion of this office dated September 12, 2000 indicated that " ... the office of Governor does have the authority to administer the Guardian ad Litem Program." As to the placement of the Guardian ad Litem program under the Foster Care Review Board, such is a matter within the administrative discretion of the Governor's office since both entities are placed within his office. Of course, the legislature could statutorily remove the Guardian ad Litem program from the Governor's office's but absent such removal, it would be a matter within the discretion of that office as to how the Guardian ad Litem program would be administratively handled. As to your questions regarding whether there is a conflict of interest for the Guardian ad Litem 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 of the Foster

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The Honorable Herb Kirsh
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November 3, 2003
Care Review Board, there are no absolute answers to your questions. The previously noted 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 litem. 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 litem. 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 litem is ensured through other mechanisms, ... such as: (1) the cross examination of the guardian ad litem by opposing counsel for anypotentiaJ 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 tennination 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 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. With kind regards, I am, Very truly yours,

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Charles H. Richardson
Senior Assistant Attorney General