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South Carolina Dept. of Social Services v. Tharp, 312 S.C. 243, 439 S.E.2d 854

Facts

Mother, a paranoid schizophrenic, had her two children in DSS custody since 1984. When it became clear that she could not adequately care for them, Family Court ordered DSS to initiate termination of parental rights proceedings. The court appointed an attorney and a GAL to represent Mother. Following the termination of parental rights, the Family Court ordered DSS to pay the fees for both the attorney and the GAL, which DSS appealed.

Mother is a paranoid schizophrenic whose two children, ages 13 and 11, have been in DSS custody since 1984. When it became apparent that Mother would never be capable of adequately caring for the children, Family Court ordered that DSS institute termination of parental rights (TPR) proceedings. It ordered, further, that Janne Berry Osborne (Attorney) be appointed to represent Mother; M. Elizabeth Rhoad was appointed Mother's GAL.

Issue

1. Was the assessment of GAL fees against DSS proper? 2. Was the assessment of attorney's fees against DSS proper? 3. Does the appointment of counsel to represent, without compensation, an indigent parent in a TPR proceeding constitute a 'taking'?

1. Was assessment of GAL fees against DSS proper? 2. Was assessment of attorney's fees against DSS proper? 3. Does appointment of counsel to represent, without compensation, an indigent parent in a TPR proceeding constitute a “taking”?

Rule

The Family Court has the authority to appoint guardians ad litem and determine their compensation, fees, and costs, which can be assessed against any party involved in the action. Attorney's fees are not recoverable unless authorized by contract or statute, and the prevailing party in a civil action brought by the State cannot have fees assessed against it.

Exclusive jurisdiction of Family Court to hear and determine TPR cases is conferred by subsection (4) of S.C.Code Ann. § 20–7–420 (1992). Specifically, subsection (37) of § 20–7–420 vests Family Court with authority: To appoint guardians ad litem and determine their compensation, fees, and costs and to assess as compensation, fees, and costs against the person represented by the guardian ad litem or against any other person or party involved in the action.

Analysis

The court found that the Family Court had the authority to assess GAL fees against DSS as it was a party involved in the action. However, the court agreed with DSS that there was no statutory authority to assess attorney's fees against it, as DSS was the prevailing party in the termination of parental rights proceedings. The court also noted that the appointment of counsel for the indigent mother did not constitute a taking without just compensation.

Here, Family Court ordered that DSS pay $1,702.50. On the present record, however, there is no evidence that this amount is reasonable and, accordingly, we remand for a hearing de novo and development of a full record.

Conclusion

The Supreme Court affirmed the Family Court's assessment of GAL fees but reversed the assessment of attorney fees against DSS, concluding that DSS was the prevailing party and thus not liable for those fees.

We affirm Family Court's assessment of GAL fees but remand for redetermination of an appropriate amount. We reverse the assessment of Mother's attorney's fees against DSS.

Who won?

The South Carolina Department of Social Services (DSS) prevailed in the case as it successfully terminated the parental rights of the mother and father. The court ruled that since DSS was the prevailing party, it was not liable for the attorney fees.

The South Carolina Department of Social Services (DSS) was successful in terminating the parental rights of Kathleen Tharp (Mother) and Albert Tharp (Father).

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