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South Carolina
JUDICIAL DEPARTMENT
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2005-02-02-01
The Supreme Court of South Carolina

The Supreme Court of South Carolina

South Carolina Department of Social Services, Respondent,

v.

Melissa Downer, Frederick Downer, Sr., and Mary Jones, Defendants,

Of Whom Frederick Downer, Sr. is Appellant.


ORDER


This matter came before the family court for a permanency planning hearing pursuant to S.C. Code Ann. § 20-7-766 (Supp. 2004). The Department of Social Services (DSS) sought to have the family court adopt a permanent plan which, based on previous findings of abuse and/or neglect against appellant, appellant’s failure to complete treatment goals, and his current incarceration for violation of probation relating to an earlier drug conviction, provides that (1) Appellant shall have no visitation or contact with the eight minor children until he has completed all previously ordered treatment goals and petitions the family court for a change in visitation and contact provisions; (2) Appellant shall pay Defendant Melissa Downer child support; (3) DSS is relieved of providing services to Appellant; (4) all cases consolidated for purposes of the hearing and order shall close on December 6, 2004 unless any party files an objection to case closure prior to that date; and (5) on December 6, 2004, all appointed counsel and the children’s guardian ad litem shall be relieved of further duty or obligation in this case. By order dated October 18, 2004, the family court adopted the plan with one modification that Appellant begin paying child support fourteen days after he is released from jail.

Counsel for Appellant filed a notice of appeal. He also filed a “Motion to be Relieved as Counsel or in the alternative Petition for Guidance from the Court of Whether to Proceed Under Cauthen”. [1] Therein, counsel states Appellant directed him to file an appeal from the family court order. Counsel moves to be relieved as counsel. In the alternative, he petitions for guidance as to whether a Cauthen affidavit would be appropriate since he is “unable to find any guiding authority on this issue.”

The Court of Appeals has now submitted the case to this Court for possible certification under Rule 204(b), SCACR, to resolve the issue of whether the procedure set forth in Ex parte Cauthen, 291 S.C. 465, 354 S.E.2d 381 (1987), to be followed when an indigent person appeals from an order terminating his parental rights, can also be used when an indigent person appeals from an order imposing other measures based on child abuse and neglect, such as in the case at hand.

We hereby certify this appeal to this Court for the sole purpose of ruling on counsel’s motion and providing guidance as to whether the procedure set forth in Cauthen can be used in other appeals involving the removal of a child from the custody of an indigent parent based on child abuse and neglect. We deny counsel’s motion to be relieved as counsel; however, we expand the procedure set forth in Cauthen to situations, such as the one at hand, where an indigent person appeals from an order imposing other measures short of termination of parental rights, such as removal, based on child abuse and neglect. Accordingly, counsel may follow the procedure set forth in Cauthen, as he has done up to this point, in perfecting this appeal. Having made this determination, we hereby transfer this appeal back to the Court of Appeals.

IT IS SO ORDERED.

s/Jean H. Toal                                      C.J.

s/James E. Moore                                   J.

s/John H. Waller, Jr.                                 J.

s/E. C. Burnett, III                                      J.

s/Costa M. Pleicones                              J.

Columbia , South Carolina
 February 2, 2005

[1] Counsel also filed a “Petition to Proceed In Forma Pauperis”.