South Carolina Statutes Relevant to Juvenile Justice

This electronic resource is designed to provide DJJ staff and the general public with an efficient method to access South Carolina statutes, organized by topic area, that impact children in SC's juvenile justice system.  Each topic listed below contains the relevant statutory law for that topic area (not including case law) and is current as of the 2008 legislative session.  The legal office plans to update these topic areas on an annual basis at the conclusion of the legislative session.  If you need to reference a statue that is beyond the scope of these topic areas, you can access the entire SC Code on the SC legislative website at www.scstatehouse.net.

PARENT-CHILD RELATIONSHIP

LEGAL CAPACITY OF MINORS

JURISDICTION OF THE FAMILY COURT

IDENTIFYING AND REPORTING CHILD ABUSE AND NEGLECT

GENERAL PROVISIONS OF JUVENILE JUSTICE CODE

DEPARTMENT OF JUVENILE JUSTICE

YOUTH INDUSTRIES PROGRAM

JUVENILE PAROLE BOARD

CUSTODY AND DETENTION

INTAKE AND INITIATION OF PROCEEDINGS

TRANSFER OF JURISDICTION / WAIVER

DISPOSITIONAL POWERS OF THE COURT

DEPARTMENT’S COMMITMENT RESPONSIBILITIES

RELEASE AUTHORITY / PAROLE AND AFTERCARE

JUVENILE RECORDS / CONFIDENTIALITY

EXPUNGEMENT OF JUVENILE RECORDS

INTERSTATE COMPACT ON JUVENILES

OFFENSES INVOLVING MINORS

SEX OFFENDER REGISTRY

JESSICA’S LAW / ACTIVE ELECTRONIC MONITORING

STATE DNA DATABASE

SEXUALLY VIOLENT PREDATOR ACT

COMMITMENT OF CHILDREN IN NEED OF MENTAL HEALTH TREATMENT

COMPULSORY ATTENDANCE

 

PARENT‑CHILD RELATIONSHIP

 

SECTION 63-5-30. Rights and duties of parents regarding minor children.

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children's school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

 

SECTION 63-5-50. Parental immunity in cases of incorrigibility of seventeen year old.

A parent, guardian, or other person responsible for the care and support of a child may not be charged with unlawful neglect of a child, cruelty to a child, failure to provide reasonable support of a child, or a similar offense based on the exclusion from the home of a seventeen-year-old child where there is a demonstrable record that the child is incorrigible (beyond the control of parents).

 

SECTION 63-5-60. Parental civil liability for damage to state property.

(A) The State of South Carolina, a political subdivision of the State including, but not limited to, a school district, or any other person including, but not limited to, an individual, a religious organization, a corporation, a partnership, or other entity, whether incorporated or unincorporated, is entitled to recover damages in an amount not to exceed five thousand dollars in a civil action in a court of competent jurisdiction from the parents or legal guardian of the person of a minor under the age of eighteen years and residing with the parents or the legal guardian of the person who maliciously or wilfully causes personal injury to the individual or destroys, damages, or steals property, real, personal, or mixed, belonging to the State of South Carolina, the political subdivision of the State including, but not limited to, a school district, or other person including, but not limited to, an individual, religious organization, corporation, partnership, or other entity, whether incorporated or unincorporated.

(B) Recovery under this section is limited to actual damages.

(C) Nothing in this section limits the application of the family purpose doctrine.

(D) The liability of parents or legal guardians under subsection (A) is joint and several with the minor for the injury or the destruction, damage, or theft, as the case may be, as long as the minor would have been liable for the injury or the destruction, damage, or theft if the minor had been an adult. Nothing in this section may be construed to relieve the minor from personal liability for the injury or the destruction, damage, or theft. The liability in this section is in addition to and not in lieu of other liability which may exist by law.

(E) This section does not apply to persons having custody or charge of a minor under the authority of a state agency or a county social services department or to state agencies or county departments of social services which have legal custody or charge of a minor.

 

SECTION 63-5-70. Unlawful conduct towards child.

(A) It is unlawful for a person who has charge or custody of a child, or who is the parent or guardian of a child, or who is responsible for the welfare of a child as defined in Section 63-7-20 to:

(1) place the child at unreasonable risk of harm affecting the child's life, physical or mental health, or safety;

(2) do or cause to be done unlawfully or maliciously any bodily harm to the child so that the life or health of the child is endangered or likely to be endangered; or

(3) wilfully abandon the child.

(B) A person who violates subsection (A) is guilty of a felony and for each offense, upon conviction, must be fined in the discretion of the court or imprisoned not more than ten years, or both.

 

SECTION 63-5-80. Cruelty to children.

Whoever cruelly ill-treats, deprives of necessary sustenance or shelter, or inflicts unnecessary pain or suffering upon a child or causes the same to be done, whether the person is the parent or guardian or has charge or custody of the child, for every offense, is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or fined not more than two hundred dollars, at the discretion of the magistrate.

 


LEGAL CAPACITY OF MINORS

 

SECTION 63-5-310. Ratification of minor's contracts.

No action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy or upon any ratification after full age of any promise (except upon contracts for necessaries) made during infancy unless such promise or ratification shall be made by some writing signed by the party to be charged therewith.

 

SECTION 63-5-320. Minor's capacity to borrow for higher education.

Notwithstanding any other provisions of law to the contrary, any person who, not having attained his majority, contracts to borrow money to defray the expenses of attending any institution of higher learning, shall have full legal capacity to act in his own behalf and shall have all the rights, powers and privileges and be subject to the obligations of persons of full age with respect to any such contracts.

 

SECTION 63-5-330. Married minors consent to health procedures.

The consent of a married minor or, if a married minor be unable to give consent by reason of physical disability, then the consent of the spouse of the married minor to the performance by any licensed medical, surgical or dental practitioners, or any hospital, or their agents or employees, of any lawful diagnostic, therapeutic surgical or postmortem procedure upon or in respect to such minor or any minor child of such minor, shall, notwithstanding the minority of such minor, be valid and legally effective for all purposes and shall be binding upon such minor, his parents, spouse, heirs, executors and administrators as effectively as if such minor or the spouse of such minor were eighteen years of age.

 

SECTION 63-5-340. Minor's consent to health services.

Any minor who has reached the age of sixteen years may consent to any health services from a person authorized by law to render the particular health service for himself and the consent of no other person shall be necessary unless such involves an operation which shall be performed only if such is essential to the health or life of such child in the opinion of the performing physician and a consultant physician if one is available.

 

SECTION 63-5-350. Health services to minors without parental consent.

Health services of any kind may be rendered to minors of any age without the consent of a parent or legal guardian when, in the judgment of a person authorized by law to render a particular health service, such services are deemed necessary unless such involves an operation which shall be performed only if such is essential to the health or life of such child in the opinion of the performing physician and a consultant physician if one is available.

 

SECTION 63-5-360. Minor parent consent to health services for child.

Any minor who has been married or has borne a child may consent to health services for the child.

 

SECTION 63-5-370. Consent not subject to disaffirmance.

Any consent given pursuant to this article shall not be subject to disaffirmance because of minority when such minor reaches majority.

 


JURISDICTION OF THE FAMILY COURT

 

SECTION 63-3-510. Exclusive original jurisdiction.

(A) Except as otherwise provided herein, the court shall have exclusive original jurisdiction and shall be the sole court for initiating action:

(1) Concerning any child living or found within the geographical limits of its jurisdiction:

(a) who is neglected as to proper or necessary support or education as required by law, or as to medical, psychiatric, psychological or other care necessary to his well-being, or who is abandoned by his parent or other custodian;

(b) whose occupation, behavior, condition, environment or associations are such as to injure or endanger his welfare or that of others;

(c) who is beyond the control of his parent or other custodian;

(d) who is alleged to have violated or attempted to violate any state or local law or municipal ordinance, regardless of where the violation occurred except as provided in Section 63-3-520;

(e) whose custody is the subject of controversy, except in those cases where the law now gives other courts concurrent jurisdiction. In the consideration of these cases, the court shall have concurrent jurisdiction to hear and determine the issue of custody and support.

(2) For the treatment or commitment to any mental institution of a mentally defective or mentally disordered or emotionally disturbed child. Provided, that nothing herein is intended to conflict with the authority of probate courts in dealing with mental cases.

(3) Concerning any child seventeen years of age or over, living or found within the geographical limits of the court's jurisdiction, alleged to have violated or attempted to violate any State or local law or municipal ordinance prior to having become seventeen years of age and such person shall be dealt with under the provisions of this title relating to children.

(4) For the detention of a juvenile in a juvenile detention facility who is charged with committing a criminal offense when detention in a secure facility is found to be necessary pursuant to the standards set forth in Section 63-19-820 and when the facility exists in, or is otherwise available to, the county in which the crime occurred.

(B) Whenever the court has acquired the jurisdiction of any child under seventeen years of age, jurisdiction continues so long as, in the judgment of the court, it may be necessary to retain jurisdiction for the correction or education of the child, but jurisdiction shall terminate when the child attains the age of twenty-one years. Any child who has been adjudicated delinquent and placed on probation by the court remains under the authority of the court only until the expiration of the specified term of his probation. This specified term of probation may expire before but not after the eighteenth birthday of the child.

 

SECTION 63-3-520. Traffic and wildlife jurisdiction.

(A) The magistrate courts and municipal courts of this State have concurrent jurisdiction with the family courts for the trial of persons under seventeen years of age charged with traffic violations or violations of the provisions of Title 50 relating to fish, game, and watercraft when these courts would have jurisdiction of the offense charged if committed by an adult.

(B) The family court shall report to the Department of Motor Vehicles all adjudications of a juvenile for moving traffic violations and other violations that affect the juvenile's privilege to operate a motor vehicle including, but not limited to, controlled substance and alcohol violations as required by other courts of this State pursuant to Section 56-1-330 and shall report to the Department of Natural Resources adjudications of the provisions of Title 50.

 

SECTION 63-3-540. Agencies cooperation.

The court is authorized to seek the cooperation of all societies or organizations, public or private, having for their object the protection or aid of delinquent or neglected children, to the end that the court may be assisted in every reasonable way to give to the children the care, protection, and assistance which will conserve their welfare. Every state, county, town, or municipal official or department shall assist and cooperate within his or its jurisdictional power to further the objects of this title. All institutions, associations, or other custodial agencies in which a child may be, coming within the provisions of this title, are required to give information to the court, or an officer appointed by it, the court or officer requires for the purposes of this title.

 

SECTION 63-3-550. Standing to institute a proceeding regarding neglected or delinquent child.

The parent or custodian of any child, an official of a child welfare board, any public official charged by law with the care of the poor, the recognized agents of any duly authorized agency, association, society or institution, any person having knowledge or information of a nature which convinces such person that a child is neglected or delinquent or that a child, by reason of its condition, environment or its own acts, is, in accordance with the provisions of this article, subject to the jurisdiction of the court or any person who has suffered injury through the delinquency of any such child or is concerned in its guardianship or adoption or an officer having an arrested child in charge may institute a proceeding respecting such child.

 

SECTION 63-3-560. Venue.

Venue of actions in the family courts shall be in such county as may be provided by law. Trial of such actions shall be in such county unless a change of venue is granted as provided by law.

 

SECTION 63-3-570. Service of summons.

Service of summons and any process of the court shall be made as provided by law for service in the court of common pleas. Provided, that if the judge is satisfied that it is impracticable to serve personally the summons or the process, he may order service by registered or certified mail, addressed to the last known address, or by publication thereof, or both. It shall be sufficient to confer jurisdiction if service is effected at least forty-eight hours before the time fixed in the summons or process for the return thereof.

Service of summons, process or notice required by this title may be made by any suitable person under the direction of the court, and upon request of the court shall be made by any peace officer.

 

 

 

SECTION 63-3-580. Failure to obey summons.

If any person summoned as herein provided shall, without reasonable cause, fail to appear, he may be proceeded against for contempt of court. In case the summons or process cannot be served, or the parties served fail to obey the same, or in any case when it shall be made to appear to the judge that the service will be ineffectual, or that the welfare of the child requires that he be brought forthwith into custody of the court, a warrant may be issued for the child, parent or guardian of the child, or any person who may have control or possession of the child, to immediately bring the child before the court.

 

SECTION 63-3-590. Conduct of hearings.

All cases of children must be dealt with as separate hearings by the court and without a jury. The hearings must be conducted in a formal manner and may be adjourned from time to time. The general public must be excluded and only persons the judge finds to have a direct interest in the case or in the work of the court may be admitted. The presence of the child in court may be waived by the court at any stage of the proceedings. Hearings may be held at any time or place within the county designated by the judge. In any case where the delinquency proceedings may result in commitment to an institution in which the child's freedom is curtailed, the privilege against self-incrimination and the right of cross-examination must be preserved. In all cases where required by law, the child must be accorded all rights enjoyed by adults, and where not required by law the child must be accorded adult rights consistent with the best interests of the child.

 

SECTION 63-3-600. Rules for conduct of hearings.

Hearings shall be conducted in accordance with the rules of court, and the court may consider and receive as evidence the result of any investigation had or made by the probation counselor; provided, that either party shall be entitled to examine the probation counselor under oath thereon. The court may adjourn the hearing from time to time for proper cause. Where a petitioner's needs are so urgent as to require it, the court may make a temporary order for support pending a final determination.

 

SECTION 63-3-610. Prosecutorial functions.

All prosecutorial functions and duties in the family courts shall be a responsibility of and be vested in the solicitor of the circuit wherein the court is located.

 

SECTION 63-3-620. Penalties for adult violating title.

An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court, or who violates any provision of this title, may be proceeded against for contempt of court. An adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them. An adult sentenced to a term of imprisonment under this section may earn good time credits pursuant to Section 24-13-210 and work credits pursuant to Section 24-13-230 and may participate in a work/punishment program pursuant to Section 24-13-910 unless his participation in any of these programs is prohibited by order of the sentencing judge.

 

SECTION 63-3-630. Appeals.

(A) Any appeal from an order, judgment, or decree of the family court shall be taken in the manner provided by the South Carolina Appellate Court Rules. The right to appeal must be governed by the same rules, practices, and procedures that govern appeals from the circuit court.

(B) The pendency of an appeal or application may not suspend the order of the family court regarding a child, nor shall it discharge the child from the custody of that court or of the person, institution, or agency to whose care the child shall have been committed; nor shall it suspend payments for support and maintenance of the wife and child.

 

SECTION 63-3-640. Post conviction proceedings.

Post conviction proceedings, including habeas corpus actions, shall be instituted in the court in which the original action was concluded; provided, however, that the family courts shall also have original jurisdiction of habeas corpus actions if the person who is the subject of the action would otherwise be within the jurisdiction of the family court.

 

SECTION 63-3-650. Power to issue writ of habeas corpus.

Any judge shall have the power to issue a writ of habeas corpus to produce any person under the age of seventeen in court where necessary.


IDENTIFYING AND REPORTING CHILD ABUSE AND NEGLECT

 

SECTION 63-7-20. Definitions.

When used in this chapter or Chapter 9 or 11 and unless the specific context indicates otherwise:

(1) "Abandonment of a child" means a parent or guardian wilfully deserts a child or wilfully surrenders physical possession of a child without making adequate arrangements for the child's needs or the continuing care of the child.

(2) "Affirmative determination" means a finding by a preponderance of evidence that the child was abused or neglected by the person who is alleged or determined to have abused or neglected the child and who is mentioned by name in a report or finding. This finding may be made only by:

(a) the court;

(b) the Department of Social Services upon a final agency decision in its appeals process; or

(c) waiver by the subject of the report of his right to appeal. If an affirmative determination is made by the court after an affirmative determination is made by the Department of Social Services, the court's finding must be the affirmative determination.

(3) "Child" means a person under the age of eighteen.

(4) "Child abuse or neglect" or "harm" occurs when the parent, guardian, or other person responsible for the child's welfare:

(a) inflicts or allows to be inflicted upon the child physical or mental injury or engages in acts or omissions which present a substantial risk of physical or mental injury to the child, including injuries sustained as a result of excessive corporal punishment, but excluding corporal punishment or physical discipline which:

(i) is administered by a parent or person in loco parentis;

(ii) is perpetrated for the sole purpose of restraining or correcting the child;

(iii) is reasonable in manner and moderate in degree;

(iv) has not brought about permanent or lasting damage to the child; and

(v) is not reckless or grossly negligent behavior by the parents.

(b) commits or allows to be committed against the child a sexual offense as defined by the laws of this State or engages in acts or omissions that present a substantial risk that a sexual offense as defined in the laws of this State would be committed against the child;

(c) fails to supply the child with adequate food, clothing, shelter, or education as required under Article 1 of Chapter 65 of Title 59, supervision appropriate to the child's age and development, or health care though financially able to do so or offered financial or other reasonable means to do so and the failure to do so has caused or presents a substantial risk of causing physical or mental injury. However, a child's absences from school may not be considered abuse or neglect unless the school has made efforts to bring about the child's attendance, and those efforts were unsuccessful because of the parents' refusal to cooperate. For the purpose of this chapter "adequate health care" includes any medical or nonmedical remedial health care permitted or authorized under state law;

(d) abandons the child;

(e) encourages, condones, or approves the commission of delinquent acts by the child and the commission of the acts are shown to be the result of the encouragement, condonation, or approval; or

(f) has committed abuse or neglect as described in subsections (a) through (e) such that a child who subsequently becomes part of the person's household is at substantial risk of one of those forms of abuse or neglect.

(5) "Child protective investigation" means an inquiry conducted by the department in response to a report of child abuse or neglect made pursuant to this chapter.

(6) "Child protective services" means assistance provided by the department as a result of indicated reports or affirmative determinations of child abuse or neglect, including assistance ordered by the family court or consented to by the family. The objectives of child protective services are to:

(a) protect the child's safety and welfare; and

(b) maintain the child within the family unless the safety of the child requires placement outside the home.

(7) "Court" means the family court.

(8) "Department" means the Department of Social Services.

(9) "Emergency protective custody" means the right to physical custody of a child for a temporary period of no more than twenty-four hours to protect the child from imminent danger.

Emergency protective custody may be taken only by a law enforcement officer pursuant to this chapter.

(10) "Guardianship of a child" means the duty and authority vested in a person by the family court to make certain decisions regarding a child, including:

(a) consenting to a marriage, enlistment in the armed forces, and medical and surgical treatment;

(b) representing a child in legal actions and to make other decisions of substantial legal significance affecting a child; and

(c) rights and responsibilities of legal custody when legal custody has not been vested by the court in another person, agency, or institution.

(11) "Indicated report" means a report of child abuse or neglect supported by facts which warrant a finding by a preponderance of evidence that abuse or neglect is more likely than not to have occurred.

(12) "Institutional child abuse and neglect" means situations of known or suspected child abuse or neglect where the person responsible for the child's welfare is the employee of a public or private residential home, institution, or agency.

(13) "Legal custody" means the right to the physical custody, care, and control of a child; the right to determine where the child shall live; the right and duty to provide protection, food, clothing, shelter, ordinary medical care, education, supervision, and discipline for a child and in an emergency to authorize surgery or other extraordinary care. The court may in its order place other rights and duties with the legal custodian. Unless otherwise provided by court order, the parent or guardian retains the right to make decisions of substantial legal significance affecting the child, including consent to a marriage, enlistment in the armed forces, and major nonemergency medical and surgical treatment, the obligation to provide financial support or other funds for the care of the child, and other residual rights or obligations as may be provided by order of the court.

(14) "Mental injury" means an injury to the intellectual, emotional, or psychological capacity or functioning of a child as evidenced by a discernible and substantial impairment of the child's ability to function when the existence of that impairment is supported by the opinion of a mental health professional or medical professional.

(15) "Party in interest" includes the child, the child's attorney and guardian ad litem, the natural parent, an individual with physical or legal custody of the child, the foster parent, and the local foster care review board.

(16) "Person responsible for a child's welfare" includes the child's parent, guardian, foster parent, an operator, employee, or caregiver, as defined by Section 63-13-20, of a public or private residential home, institution, agency, or childcare facility or an adult who has assumed the role or responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child. A person whose only role is as a caregiver and whose contact is only incidental with a child, such as a babysitter or a person who has only incidental contact but may not be a caretaker, has not assumed the role or responsibility of a parent or guardian. An investigation pursuant to Section 63-7-920 must be initiated when the information contained in a report otherwise sufficient under this section does not establish whether the person has assumed the role or responsibility of a parent or guardian for the child.

(17) "Physical custody" means the lawful, actual possession and control of a child.

(18) "Physical injury" means death or permanent or temporary disfigurement or impairment of any bodily organ or function.

(19) "Preponderance of evidence" means evidence which, when fairly considered, is more convincing as to its truth than the evidence in opposition.

(20) "Probable cause" means facts and circumstances based upon accurate and reliable information, including hearsay, that would justify a reasonable person to believe that a child subject to a report under this chapter is abused or neglected.

(21) "Protective services unit" means the unit established within the Department of Social Services which has prime responsibility for state efforts to strengthen and improve the prevention, identification, and treatment of child abuse and neglect.

(22) "Subject of the report" means a person who is alleged or determined to have abused or neglected the child, who is mentioned by name in a report or finding.

(23) "Suspected report" means all initial reports of child abuse or neglect received pursuant to this chapter.

(24) "Unfounded report" means a report made pursuant to this chapter for which there is not a preponderance of evidence to believe that the child is abused or neglected. For the purposes of this chapter, it is presumed that all reports are unfounded unless the department determines otherwise.

 

SECTION 63-7-310. Persons required to report.

(A) A physician, nurse, dentist, optometrist, medical examiner, or coroner, or an employee of a county medical examiner's or coroner's office, or any other medical, emergency medical services, mental health, or allied health professional, member of the clergy including a Christian Science Practitioner or religious healer, school teacher, counselor, principal, assistant principal, social or public assistance worker, substance abuse treatment staff, or childcare worker in a childcare center or foster care facility, police or law enforcement officer, undertaker, funeral home director or employee of a funeral home, persons responsible for processing films, computer technician, or a judge must report in accordance with this section when in the person's professional capacity the person has received information which gives the person reason to believe that a child has been or may be abused or neglected as defined in Section 63-7-20.

(B) If a person required to report pursuant to subsection (A) has received information in the person's professional capacity which gives the person reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by acts or omissions that would be child abuse or neglect if committed by a parent, guardian, or other person responsible for the child's welfare, but the reporter believes that the act or omission was committed by a person other than the parent, guardian, or other person responsible for the child's welfare, the reporter must make a report to the appropriate law enforcement agency.

(C) Except as provided in subsection (A), any person who has reason to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse and neglect may report in accordance with this section.

(D) Reports of child abuse or neglect may be made orally by telephone or otherwise to the county department of social services or to a law enforcement agency in the county where the child resides or is found.

 

SECTION 63-7-320. Notification and transfer.

(A) Where reports are made pursuant to Section 63-7-310 to a law enforcement agency, the law enforcement agency shall notify the county department of social services of the law enforcement's response to the report at the earliest possible time.

(B) Where a county or contiguous counties have established multicounty child protective services, the county department of social services immediately shall transfer reports pursuant to this section to the service.

 

SECTION 63-7-330. Confidentiality of information.

(A) The identity of the person making a report pursuant to this section must be kept confidential by the agency or department receiving the report and must not be disclosed except as provided for in subsection (B) or (C) or as otherwise provided for in this chapter.

(B) When the department refers a report to a law enforcement agency for a criminal investigation, the department must inform the law enforcement agency of the identity of the person who reported the child abuse or neglect. The identity of the reporter must only be used by the law enforcement agency to further the criminal investigation arising from the report, and the agency must not disclose the reporter's identity to any person other than an employee of the agency who is involved in the criminal investigation arising from the report. If the reporter testifies in a criminal proceeding arising from the report, it must not be disclosed that the reporter made the report.

(C) When a law enforcement agency refers a report to the department for an investigation or other response, the law enforcement agency must inform the department of the identity of the person who reported the child abuse or neglect. The department must not disclose the identity of the reporter to any person except as authorized by Section 63-7-1990.

 

SECTION 63-7-340. Previous reports.

When a report is referred to the department for an investigation or other response, the department must determine whether previous reports have been made regarding the same child or the same subject of the report. In determining whether previous reports have been made, the department must determine whether there are any suspected, indicated, or unfounded reports maintained pursuant to Section 63-7-930 regarding the same child or the same subject of the report.

 

SECTION 63-7-350. Reports for lack of investigation.

If the department does not conduct an investigation as a result of information received pursuant to this subarticle, the department must make a record of the information and must classify the record as a Category IV unfounded report in accordance with Section 63-7-930. The department and law enforcement are authorized to use information recorded pursuant to this section for purposes of assessing risk and safety if additional contacts are made concerning the child, the family, or the subject of the report.

 

SECTION 63-7-360. Mandatory reporting to coroner.

A person required under Section 63-7-310 to report cases of suspected child abuse or neglect, including workers of the department, who has reason to believe a child has died as the result of child abuse or neglect, shall report this information to the appropriate medical examiner or coroner. Any other person who has reason to believe that a child has died as a result of child abuse or neglect may report this information to the appropriate medical examiner or coroner. The medical examiner or coroner shall accept the report for investigation and shall report his findings to the appropriate law enforcement agency, circuit solicitor's office, the county department of social services and, if the institution making a report is a hospital, to the hospital.

 

SECTION 63-7-370. Domestic violence reporting.

The law enforcement officer upon receipt of a report of domestic violence may report this information to the Department of Social Services. The department may treat the case as suspected report of abuse and may investigate the case as in other allegations of abuse in order to determine if the child has been harmed.

 

SECTION 63-7-380. Photos and x-rays without parental consent.

A person required to report under Section 63-7-310 may take, or cause to be taken, color photographs of the areas of trauma visible on a child who is the subject of a report and, if medically indicated, a physician may cause to be performed a radiological examination or other medical examinations or tests of the child without the consent of the child's parents or guardians. Copies of all photographs, negatives, radiological, and other medical reports must be sent to the department at the time a report pursuant to Section 63-7-310 is made, or as soon as reasonably possible after the report is made.

 

SECTION 63-7-390. Reporter immunity from liability.

A person required or permitted to report pursuant to Section 63-7-310 or who participates in an investigation or judicial proceedings resulting from the report, acting in good faith, is immune from civil and criminal liability which might otherwise result by reason of these actions. In all such civil or criminal proceedings, good faith is rebuttably presumed. Immunity under this section extends to full disclosure by the person of facts which gave the person reason to believe that the child's physical or mental health or welfare had been or might be adversely affected by abuse or neglect.

 

SECTION 63-7-400. DSS immunity from liability.

An employee, volunteer, or official of the Department of Social Services required or authorized to perform child protective or child welfare-related functions or an individual with whom the department has contracted to convene family group conferences or a law enforcement officer required or authorized to perform child protective or child welfare related functions is immune from civil or criminal liability which might otherwise result by reason of acts or omissions within the scope of the official duties of the employee, volunteer, convener, officer, or official, as long as the employee, volunteer, convener, officer, or official acted in good faith and was not reckless, wilful, wanton, or grossly negligent. In all such civil or criminal proceedings good faith is rebuttably presumed. This grant of immunity is cumulative to and does not replace any other immunity provided under the South Carolina Tort Claims Act.

 

SECTION 63-7-410. Failure to report; penalties.

A person required to report a case of child abuse or neglect or a person required to perform any other function under this article who knowingly fails to do so, or a person who threatens or attempts to intimidate a witness is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than six months, or both.

 

SECTION 63-7-420. Abrogation of privileged communication; exceptions.

The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client or clergy member, including Christian Science Practitioner or religious healer, and penitent, is abrogated and does not constitute grounds for failure to report or the exclusion of evidence in a civil protective proceeding resulting from a report pursuant to this article. However, a clergy member, including Christian Science Practitioner or religious healer, must report in accordance with this subarticle except when information is received from the alleged perpetrator of the abuse and neglect during a communication that is protected by the clergy and penitent privilege as provided for in Section 19-11-90.

 

SECTION 63-7-430. Civil action for bad faith reporting.

(A) If the family court determines pursuant to Section 63-7-2000 that a person has made a report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 63-7-440, the department may bring a civil action to recover the costs of the department's investigation and proceedings associated with the investigation, including attorney's fees. The department also is entitled to recover costs and attorney's fees incurred in the civil action authorized by this section. The decision of whether to bring a civil action pursuant to this section is in the sole discretion of the department.

(B) If the family court determines pursuant to Section 63-7-2000 that a person has made a false report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 63-7-440, a person who was subject of the false report has a civil cause of action against the person who made the false report and is entitled to recover from the person who made the false report such relief as may be appropriate, including:

(1) actual damages;

(2) punitive damages; and

(3) a reasonable attorney's fee and other litigation costs reasonably incurred.

 

SECTION 63-7-440. Knowingly making false report.

(A) It is unlawful to knowingly make a false report of abuse or neglect.

(B) A person who violates subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than ninety days, or both.

 

SECTION 63-7-450. DSS to provide information to public.

(A) The Department of Social Services Protective Services shall inform all persons required to report under this subarticle of the nature, problem, and extent of child abuse and neglect and of their duties and responsibilities in accordance with this article. The department also, on a continuing basis, shall conduct training programs for department staff and appropriate training for persons required to report under this subarticle.

(B) The department, on a continuing basis, shall inform the public of the nature, problem, and extent of the child abuse and neglect and of the remedial and therapeutic services available to children and their families. The department shall encourage families to seek help consistent with Section 63-7-30.

(C) The department, on a continuing basis, shall actively publicize the appropriate telephone numbers to receive reports of suspected child abuse and neglect, including the twenty-four hour, statewide, toll-free telephone service and respective numbers of the county department offices.


GENERAL PROVISIONS OF JUVENILE JUSTICE CODE

 

SECTION 63-19-10. Short title.

This chapter may be cited as the "Juvenile Justice Code".

 

SECTION 63-19-20. Definitions.

When used in this chapter and unless otherwise defined or the specific context indicates otherwise:

(1) "Child" or "juvenile" means a person less than seventeen years of age. "Child" or "juvenile" does not mean a person sixteen years of age or older who is charged with a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more. However, a person sixteen years of age who is charged with a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more may be remanded to the family court for disposition of the charge at the discretion of the solicitor. An additional or accompanying charge associated with the charges contained in this item must be heard by the court with jurisdiction over the offenses contained in this item.

(2) "Court" means the family court.

(3) "Criminal justice purpose" means:

(a) the performance of any activity directly involving the detection, apprehension, capture from escape or elopement, detention, pretrial release, post-trial release, prosecution, adjudication, supervision, or rehabilitation of accused or adjudicated persons or criminal offenders; or

(b) the collection, storage, and dissemination of child offense history records.

(4) "Department" means the Department of Juvenile Justice.

(5) "Guardian" means a person who legally has the care and management of a child.

(6) "Judge" means the judge of the family court.

(7) "Parent" means biological parent, adoptive parents, step-parent, or person with legal custody.

(8) "Parole board" means the Board of Juvenile Parole under the Department of Juvenile Justice.

(9) "Status offense" means an offense which would not be a misdemeanor or felony if committed by an adult including, but not limited to, incorrigibility or beyond the control of parents, truancy, running away, playing or loitering in a billiard room, playing a pinball machine, or gaining admission to a theater by false identification.

 

SECTION 63-19-30. Other state agencies; preexisting obligations.

(A) It is the duty of other state agencies providing financial assistance and other children's services related to the purposes of this chapter to cooperate with the department in carrying out its responsibilities to children and their families.

(B) Nothing in this chapter may be construed to relieve a state or local unit of government of any preexisting legal obligation to provide payments, services, or facilities.


DEPARTMENT OF JUVENILE JUSTICE

 

SECTION 63-19-310. Department created.

There is created the South Carolina Department of Juvenile Justice.

 

SECTION 63-19-320. Director; removal of director; bond.

(A) The Governor shall appoint a director of the department with the advice and consent of the Senate who shall possess qualifications necessary to manage the affairs of the department. If a vacancy occurs in the office when the Senate is not in session, the Governor may appoint a director to fill the vacancy until the Senate acts upon the appointment.

(B) The director is subject to removal by the Governor as provided for in Section 1-3-240.

(C) The director must execute a good and sufficient bond payable to the State in the sum of fifty thousand dollars, conditioned for the faithful performance of the duties of the director's office and the accurate accounting for all monies and property coming into the director's hands. The bond must be executed by a surety company authorized to do business under the laws of this State, and the premium on the bond must be paid by the State out of the department's appropriations.

 

SECTION 63-19-330. Policy-setting responsibilities of director; executive responsibilities of director.

(A) The director is the chief executive officer of the department. The director may appoint and employ officers and employees necessary to perform the duties and responsibilities of the department and shall ensure that the department's organizational structure differentiates between separate divisions, the community-based services and institutional services of the department.

(B) The director is vested with the exclusive responsibility for policy of the department to carry out the responsibilities, duties, and privileges provided for in this chapter.

 

SECTION 63-19-340. Annual report.

An annual report of the department must be prepared by the director which shall include an account of all funds received and expended, persons served by the department including a report of the state and condition of the correctional institutions, and community programs operated by the department.

 

SECTION 63-19-350. Community services.

The department shall provide community services as the director shall assign to it which shall include, but are not limited to:

(1) family court intake screening and referral counseling;

(2) serving, advising, and counseling children placed on probation by the family court;

(3) serving, advising, and counseling children in institutions as may be necessary for the placement of the children in a proper environment after release and for the placement of children in suitable jobs where necessary and proper;

(4) supervising and guiding children released or conditionally released from institutions;

(5) counseling children released or conditionally released from its commitment facilities;

(6) coordinating the activities of supporting community agencies which aid in the social adjustment of children released from its commitment facilities;

(7) providing or arranging for necessary services leading to the rehabilitation of delinquents either within the department or through cooperative arrangements with other appropriate agencies;

(8) providing counseling and supervision for a child under twelve years of age who has been adjudicated delinquent or convicted of a crime or who has entered a plea of guilty or nolo contendere, when other suitable personnel is not available and upon request of the court;

(9) providing detention screening services when a child is taken into custody for violation of a law or ordinance as provided for in this chapter;

(10) providing prevention services including short- and long-range planning, establishing statewide priorities and standards, developing public awareness programs, and providing technical assistance to local government in the development of prevention programs;

(11) developing secure and nonsecure alternatives to jail;

(12) providing a variety of community-based programs to augment regular probation services including, but not limited to, volunteer services, restitution, community-work programs, family counseling, and contract probation with specific sanctions for various types of behavior;

(13) providing a variety of community-based programs to serve as alternatives to institutions including, but not limited to, halfway houses, work release, intensive supervision services, restitution, forestry and wilderness camps, marine science programs, and other residential and nonresidential programs;

(14) providing programs to divert juveniles, where proper and appropriate, from the juvenile justice system;

(15) juveniles must be assigned to intensive probation or aftercare services by the Department of Juvenile Justice. Juveniles assigned to these intensive supervision services must be those juveniles who require enhanced supervision, monitoring and contacts, or a higher level of treatment services. Intensive supervision must be provided by the department in all regions of the State. In conjunction with establishing these intensive supervision services, the department shall develop an array of graduated sanctions and impose these sanctions on offenders being provided intensive supervision services for technical rule violations and minor infractions, whenever feasible to do so, in lieu of re-incarceration of the juvenile in a secure correctional facility. The array of graduated sanctions developed by the department may include, as a condition of probation or parole, placement of a juvenile in a staff or environmentally secure residential program. Case workers selected to monitor, supervise, and serve juveniles assigned to intensive supervision services shall have caseloads of no more than twenty juveniles.

 

SECTION 63-19-360. Institutional services.

The department shall provide institutional services which include, but are not limited to:

(1) providing correctional institutional services for juveniles committed under this chapter;

(2) managing, operating, and supervising Birchwood, Willow Lane, John G. Richards, and other facilities as the director may establish;

(3) establishing and maintaining residential and nonresidential reception and evaluation centers at which all children committed to its custody by a circuit or family court must be received, examined, and evaluated before assignment to one of its institutions or before other disposition or recommendation is made concerning the child. The commitment of a child to a reception and evaluation center or youth correctional institution of the department may be made only after the child has been adjudicated delinquent. The evaluation conducted by the reception and evaluation centers includes, but is not limited to:

(a) a complete social, physical, psychological, and mental examination;

(b) an investigation and consideration of family and community environment and other facts in the background of the person concerned that might relate to the person's delinquency;

(c) a determination of the correctional or custodial care that would be most appropriate. The department shall create facilities and employ personnel as will enable the centers to conduct the necessary physical, mental, and psychological examinations required by this section;

(4) providing juvenile detention services for juveniles charged with having committed a criminal offense who are found, after a detention screening or detention hearing, to require detention or placement outside the home pending an adjudication of delinquency or dispositional hearing. Detention services provided by the department for the benefit of the counties and municipalities of this State must include secure juvenile detention centers. The size and capacity of the juvenile detention facilities needed must be determined by the department after its consideration and review of minimum standards for local detention facilities in South Carolina for the design, construction, and operation of juvenile detention centers. These recognized state standards must be met or exceeded by the department in determining the size and capacity of the juvenile detention centers and in planning for the construction and operation of the facilities. The department shall determine and announce the anticipated maximum operational capacity of each facility and shall contact each county and municipal governmental body in this State for the purpose of determining which counties or municipalities anticipate utilizing these facilities upon each facility becoming operational. The department shall inform each county and municipal governmental body of the existing state and federal laws regarding the confinement of juveniles charged with committing criminal offenses, of each county's and municipality's ability to develop its own facility or to contract with other counties or municipalities for the development of a regional facility, and of the availability of the department's facilities. This notice must be provided to each county and municipality for the purpose of determining which county governmental bodies desire to enter into an intergovernmental agreement with the department for the detention of juveniles from their particular community who are charged with committing a criminal offense for which pretrial detention is both authorized and appropriate. No later than September 1, 1993, the department shall report to the Budget and Control Board on the strategy of each county to comply with requirements of counties under this chapter. The department must include with its report a plan for the construction and the operation of those facilities which are projected to be necessary for the preadjudicatory detention of juveniles in this State. No later than September first of each subsequent year, the department shall report to the board on the status of all preadjudicatory juvenile detention facilities known to be operational or planned, regardless of ownership or management. Beginning with the report to the board which is due no later than September 1, 1996, the department must include an annual status report on the numbers of juveniles in pretrial detention who are awaiting disposition in general sessions court, whether they have been waived by the family court or whether they qualify due to the offense with which they are charged. The board then will coordinate with all responsible and affected agencies and entities to ensure that adequate funding is identified to prevent the detention or incarceration of juveniles who are awaiting disposition by, or who are under the jurisdiction of, the family court in adult jails anywhere within the State of South Carolina and to prevent the detention of juveniles who are awaiting disposition by general sessions court in facilities which do not provide actual sight and sound separation from adults who are in detention or custody. Upon completion of each facility and upon the determination by the Jail and Prison Inspection Division of the Department of Corrections that each facility is staffed in accordance with relevant standards and can be operated in accordance with these standards, the division shall determine and announce the rated capacity of each facility. A facility operated by the Department of Juvenile Justice for the preadjudicatory detention of juveniles must be maintained and continued in operation for that purpose until approved for conversion or closure by the Budget and Control Board. However, a county or municipality which decides to maintain its own approved facilities or which has entered into a regional intergovernmental agreement, which has provided secure facilities for preadjudicatory juveniles, and which meets the standards set forth above, may continue to operate these facilities. County and regionally operated facilities are subject to inspection by the Jail and Prison Inspection Division of the Department of Corrections for compliance with the standards set forth above and those created pursuant to Section 24-9-20. The division has the same enforcement authority over county, municipal, and regionally operated secure juvenile detention facilities as that which is provided in Section 24-9-30. In Department of Juvenile Justice operated facilities, the department shall determine an amount of per diem for each child detained in a center, which must be paid by the governing body of the law enforcement agency having original jurisdiction where the offense occurred. The per diem paid by the governing body of the law enforcement agency having original jurisdiction where the offense occurred must be based on the average operating cost among all preadjudicatory state facilities. The Department of Juvenile Justice must assume one-third of the per diem cost and the governing body of the law enforcement agency having original jurisdiction where the offense occurred must assume two-thirds of the cost. Per diem funds received by the department must be placed in a separate account by the department for operation of all preadjudicatory state facilities. Transportation of the juvenile to and from a facility is the responsibility of the law enforcement agency having jurisdiction where the offense was committed. Transportation of juveniles between department facilities, if necessary, is the responsibility of the department;

(5) each secure facility which detains preadjudicatory youth longer than forty-eight hours, excluding weekends and state holidays, regardless of ownership or management, must have sufficient personnel to provide uninterrupted supervision and to provide administrative, program, and support requirements. Each of these facilities must have a minimum of two juvenile custodial officers on duty each shift, fully dressed, awake, and alert to operate the facility. At least one person shall directly supervise the juveniles at all times. At least one female juvenile custodial officer must be present and available to the female detention population at all times. Staff on duty must be sufficient to provide for a juvenile-staff ratio adequate for custody, control, and supervision, and to provide full coverage of all designated security posts, excluding administrative, program, and other support staff. Staff shall prepare further a facility schedule of preplanned, structured, and productive activities. Schedules must be developed which include designated times for sleeping, dining, education, counseling, recreation, visitation, and personal time. Daily schedules should minimize idleness and promote constructive use of the juvenile's day. The Department of Juvenile Justice shall provide educational programs and services to all preadjudicatory juveniles in its custody. County, municipal, and regionally operated facilities shall provide these services to all preadjudicatory juveniles under the jurisdiction of the family court and all pretrial juveniles awaiting general sessions court who are detained locally for more than forty-eight hours, excluding weekends and state holidays, by contracting with the Department of Juvenile Justice or by arranging the services through the local school district in which the facility is located. It shall be the responsibility of the school district where a local detention center which has been approved to detain juveniles is located to provide adequate teaching staff and to ensure compliance with the educational requirements of this State. Students housed in approved local detention centers are to be included in the average daily membership count of students for that district and reimbursement by the Department of Education shall be made accordingly. Services which are arranged locally must be approved by the Department of Juvenile Justice as meeting all criteria developed under the authority of Section 63-19-380. Special needs students who are detained locally shall have all services required by federal and state laws and regulations;

(6) a county, municipality, or regional subdivision may provide temporary holdover facilities for juveniles only if the facilities comply with this section and with all standards created under the provisions of Section 24-9-20, which must be monitored and enforced by the Jail and Prison Inspection Division of the South Carolina Department of Corrections pursuant to its authority under Sections 24-9-20 and 24-9-30. The standards shall provide for the regulation of temporary holdover facilities with regard to adequate square footage, juvenile accommodations, access to bathroom facilities, lighting, ventilation, distinctions between secure and nonsecure temporary holdover facilities, staffing qualifications, and additional requirements as may be specified. These facilities may hold juveniles during the period between initial custody and the initial detention hearing before a family court judge for a period up to forty-eight hours, excluding weekends and state holidays. Preadjudicatory juveniles who are subsequently transferred to a juvenile detention center may be housed in a temporary holdover facility when returned to the community for a court appearance. However, the temporary housing shall not exceed forty-eight hours.

 

SECTION 63-19-370. Inter-departmental agreements; retention of grant revenues.

The department may enter into agreements with the governing bodies of other state departments or institutions for the purpose of effecting a more efficient and economical management of any institution or program under its supervision. The department is authorized to make contracts and expend public funds as required to carry out the functions prescribed for it in this chapter within the limits of appropriated funds.

All revenues generated from United States Department of Agriculture grants, the Education Finance Act, the Detention Center, and Medicaid federal funding may be retained, carried forward, and expended by the Department of Juvenile Justice, in accordance with applicable regulations, for the costs associated with related programs.

functions prescribed for it in this article within the limits of appropriated funds.

 

SECTION 63-19-380. Special school district designation.

(A) The Department of Juvenile Justice is designated as a special school district which shall operate a continuous progress education program on a twelve-month basis. There is created within the department the Education Division which shall provide academic and vocational training at the Reception and Evaluation Center, Birchwood High School, Willow Lane Junior High School, and all other institutions operating under the department. Academic and vocational training provided pursuant to this section shall meet all educational standards prescribed by law and by the Department of Education for public schools of the State including, but not limited to, compliance with and operation under the provisions of the Education Finance Act, the Defined Minimum Program, teacher and superintendent certification laws and regulations, and other laws or regulations governing the education of children. The department may prescribe additional requirements as it may from time to time deem necessary.

(B) The State Superintendent of Education shall administer the standards related to the school programs. Reports from the Department of Education evaluating the educational program at all juvenile corrections institutions and indicating whether or not the program meets the standards as prescribed, must be made directly to the director. Department of Education supervisory personnel as considered appropriate must be utilized for evaluating the programs and for reporting to the director.

(C) Schools operated by the department shall receive funds from the Department of Education under the same provisions as other public schools in the State. Funds previously received by the Department of Juvenile Justice from the South Carolina Department of Education for programs now being consolidated under the Education Finance Act shall be disbursed to the Department of Juvenile Justice by the Department of Education from the appropriation provided in the annual general appropriations act and entitled "Education Finance Act". The amount to be disbursed to the Department of Juvenile Justice must be sufficient to produce funds equal to the product of the number of students served by the Department of Juvenile Justice weighted according to the criteria established by the South Carolina Department of Education under the provisions of the Education Finance Act and the state portion of the appropriated value statewide of the base student cost, adjusted for operation of the department's twelve-month continuous progress education program using a base of two hundred thirty-five instructional days instead of one hundred ninety instructional days. The amount includes, but is not limited to, all funding for teacher salary supplements, instructional purposes, or any other funds disbursed to the Department of Juvenile Justice school district's twelve-month continuous progress educational program. The Department of Juvenile Justice shall comply with the provisions of subsection (4) of Section 59-20-50 and subsections (1), (2), (3)(a), (4)(b), (c), (d), (e), and (f) of Section 59-20-60. The South Carolina Department of Education annually shall determine that these provisions are being met and include its findings in the report mandated in subsection (5)(e) of Section 59-20-60. If the accreditation standards set forth in the Defined Minimum Program for the Department of Juvenile Justice as approved by the State Board of Education are not met, funds by this section shall be reduced the following fiscal year according to the provisions set forth in the Education Finance Act.

(D) The director shall operate as the trustee for schools under the department's jurisdiction for all administrative purposes, including the receipt and expenditure of funds appropriated or granted to the schools for any purpose. The director shall employ a full-time superintendent of schools for the special school district. The superintendent shall hold a valid superintendent's certificate from the Department of Education and shall serve as the head of the Education Division.

(E) In lieu of classification by the Division of State Personnel, the employment status of the superintendent of schools for the department and all instructional personnel operating under the Education Division of the department must be governed by the laws of the State regarding employment of instructional personnel and regulations of the Department of Education.

 

SECTION 63-19-390. Peace officers and constables.

Juvenile correctional employees of the department, while performing their officially assigned duties relating to the custody, control, transportation, or recapture of a juvenile offender within the jurisdiction of the department, and other employees of the department authorized by the director to perform similar functions as part of their official duties, have the status of peace officers anywhere in this State in a matter relating to the custody, control, transportation, or recapture of the juvenile. Employees of the department's Division of Public Safety, on proper training and certification from the Criminal Justice Academy and after having taken the oath of office prescribed by law and the Constitution of this State, must continue to be commissioned as state constables pursuant to Section 23-1-60.

 

SECTION 63-19-400. Gifts.

The department may accept gifts, donations, or contributions and may receive devises and bequests. These acquisitions must be used for the purposes specified by the donors.

 

SECTION 63-19-410. Fees.

(A) The department may charge and collect fees for evaluation and treatment services provided for a person referred or temporarily committed to its facilities either at the evaluation center in Columbia or any center or other facility of the department. Fees may be charged to a parent or guardian or to the public or private agency responsible for the temporary commitment or referral. In cases where insurance coverage is available, fees of treatment or evaluation may be charged to the insurer. No fees may be charged to a person who is finally committed to a custodial facility of the department, and no person may be denied treatment or evaluation services because of inability to pay for the services.

(B) The director shall approve and periodically review, a schedule of maximum charges for the services of the department, including residential care. The department shall adopt procedures to determine ability to pay and may authorize its designees to reduce or waive charges based upon their findings. No charge for services rendered by the department may exceed the actual cost of the services at the facility rendering the services.

(C) The department shall establish a hearing and review procedure so that parents or legal guardians of a person under the department's jurisdiction may appeal charges made for services or may present to the departmental officials information or evidence which, in their opinion, needs to be considered in establishing charges.

(D) The department may utilize all legal procedures to collect lawful claims. All funds collected pursuant to this section must be deposited with the State Treasurer for use of the department in defraying the cost of services for which the fees may be collected.

 

SECTION 63-19-420. Natural resource sales.

The director is authorized to sell mature trees, other timber, and farm products and commodities from lands owned by the department. Before the sale of timber, the director shall consult with the State Forester to determine the economic feasibility of and obtain approval for the sales. Funds derived from the sales must be credited to the account of the department to be used for capital improvements subject to the approval of the State Budget and Control Board.

 

SECTION 63-19-430. Bumper sticker sales.

The department may print or purchase for resale bumper stickers and other informational material prepared to publicize and educate the public concerning activities of the department. All these materials must have "South Carolina" inscribed on the material. After the costs of the materials have been recovered, all proceeds from the sale of the materials must be deposited in the student welfare fund of the department and used for the purposes prescribed for that fund.

 

SECTION 63-19-440. Goldsmith Center.

The department's reception and evaluation center located in Columbia is designated "The William J. Goldsmith Reception and Evaluation Center".

 

YOUTH INDUSTRIES PROGRAM

 

SECTION 63-19-450. Youth Industries Program.

(A) The director of the Department of Juvenile Justice may establish a Youth Industries Program, consistent with all applicable state and federal child labor laws, employing juveniles committed to the department. This program may include:

(1) providing services to private industries including, but not limited to:

(a) packing, assembling, handling, reconditioning or restoring products, goods, wares, or merchandise;

(b) contracting with private industry for the manufacturing and processing of goods, wares, or merchandise;

(c) contracting with other profit or nonprofit businesses or commercial enterprises to provide the services enumerated in subitems (a) and (b) within the department's Sheltered Workshop Program;

(2) manufacturing or processing industry or service which utilizes juveniles in the manufacture or production of goods, wares, merchandise, articles, or products or in providing services which may be needed for the construction, operation, maintenance, or use of any office, department, institution, or agency supported in whole or in part by this State or a political subdivision of this State; or

(3) otherwise engaging juveniles in paid work opportunities within the department, consistent with the general welfare of the department's mission of rehabilitation and treatment.

(B) To implement the Youth Industries Program the director may enter into contracts in the manner provided by law to implement its Youth Industries Program. A contract may include rental or lease agreements for state land or buildings or portions of state buildings on the grounds of an institution or a facility of the Department of Juvenile Justice and if the contract contains such rental or lease agreements, it must provide the business entity with reasonable access to and egress from these grounds, buildings, and facilities.

(C) In conducting the Youth Industries Program, the department may purchase equipment, raw materials, and supplies in the manner provided by law and may engage necessary supervisory personnel.

(D) The prices of articles or products manufactured or produced or services rendered under the Youth Industries Program must be uniform and nondiscriminating and must be as near to the usual market price for these articles, products, or services as is practicable.

(E) All monies collected by the department from the sale or disposition of articles and products manufactured or produced or from services rendered by juveniles in the Youth Industries Program must be deposited into a special account designated "Youth Industries Account". The monies collected and deposited into this account must be used solely for the purchasing of manufacturing supplies, equipment, machinery, and buildings for the Youth Industries Program to pay the wages of the juveniles employed in the program and the salaries of the necessary personnel in the program, and to defray the necessary expenses of the program. The director must deduct from wages paid to a juvenile:

(1) state, federal, and local taxes;

(2) allocations for support of children pursuant to law, court order, or agreement by the committed juvenile; and

(3) contributions to any fund established by law to compensate the victims of crime of not more than twenty percent and not less than five percent of gross wages.

These deductions may not exceed eighty percent of gross wages.

 

SECTION 63-19-460. Voluntary participation in program.

(A) A juvenile may participate in the Youth Industries Program established pursuant to Section 63-19-450 only on a voluntary basis and only after the juvenile has been informed of the conditions of the employment.

(B) A juvenile participating in the Youth Industries Program:

(1) providing services to private industry must be compensated commensurate with the prevailing wage for work of a similar nature in the private sector;

(2) is not considered an employee of the State and is not eligible for unemployment compensation upon termination from the program; however, a juvenile is entitled to all other work benefits, including worker's compensation or its equivalent.

(C) The wages of a juvenile authorized to work in the Youth Industries Program, if paid other than by the department, must be paid directly to the Department of Juvenile Justice and credited to the juvenile's account. If the wages are paid by an entity other than the department, these wages must be paid directly to the department, and the department shall credit the wages to the juvenile's account. The director must deduct from wages paid to a juvenile:

(1) state, federal, and local taxes;

(2) allocations for support of children pursuant to law, court order, or agreement by the committed juvenile; and

(3) contributions to any fund established by law to compensate the victims of crime of not more than twenty percent and not less than five percent of gross wages.

These deductions may not exceed eighty percent of gross wages.

(D) Juvenile participation in the Youth Industries Program must not result in the displacement of employed workers in the State and must not impair existing contracts.

 

SECTION 63-19-470. Sale of goods prohibited.

It is unlawful to sell or offer for sale on the open market of this State goods, wares, or merchandise manufactured or produced wholly or in part by juvenile offenders in this or another state. However, this subsection does not apply to:

(1) articles produced by juveniles on parole or probation or in community supervision;

(2) products sold by the Department of Juvenile Justice made by juveniles in its arts and crafts programs;

(3) articles or products sold to nonprofit corporations incorporated under Article 1, Chapter 31, Title 33 or to organizations operating in this State which have been granted an exemption under Section 501(c) of the Internal Revenue Code of 1986;

(4) articles or products made in the Youth Industries Program pursuant to Section 63-19-450, through contracts with private sector businesses which provide work and vocational training opportunities for juvenile offenders with physical or mental disabilities or who are mentally retarded if the compensation is paid by the private sector business to the juvenile offender on a piece rate basis;

(5) products sold intrastate or interstate produced by juveniles employed in the Youth Industries Program;

(6) services provided by juveniles in the Youth Industries Program including, but not limited to, restoration and reconditioning activities, the packaging and handling of goods, wares, or merchandise, or the dismantling and reassembling of products.

 

SECTION 63-19-480. Compensation of victims of crime fund.

There is created a fund within the Department of Juvenile Justice for the compensation of victims of crime. All contributions deducted from a juvenile's wages pursuant to Section 63-19-450(E)(3) or 63-19-460(C)(3) must be deposited into this fund. Of the amount contributed to the fund by each juvenile, ninety-five percent must be paid by the department on behalf of the juvenile as restitution to the victim or victims of the juvenile's adjudicated crime as ordered by the family court or the releasing entity, and five percent must be submitted to the South Carolina Victims' Compensation Fund. If the amount of restitution ordered has been paid in full or if there is no victim of the juvenile's adjudicated crime, the juvenile's contributions must be submitted to the South Carolina Victims' Compensation Fund.

 

SECTION 63-19-490. Authority to promulgate regulations.

The Department of Juvenile Justice in consultation with this state's regulatory agencies may promulgate regulations which are necessary to implement Sections 63-19-450 and 63-19-460.

 


JUVENILE PAROLE BOARD

 

SECTION 63-19-610. Board.

(A) There is created under the Department of Juvenile Justice the Board of Juvenile Parole. The parole board is composed of ten members appointed by the Governor with the advice and consent of the Senate. Of these members, one must be appointed from each of the six congressional districts and four members must be appointed from the State at large. If a vacancy occurs on the parole board when the Senate is not in session, the Governor may appoint a member to fill the vacancy and the appointee is a de facto member until the Senate acts upon the appointment.

(B) Members of the parole board shall serve four-year terms and until their successors are appointed and qualify and these terms expire on June thirtieth of the appropriate year.

(C) No member may be reappointed to the parole board until two years after the expiration of a full four-year term.

 

SECTION 63-19-620. Removal of member.

A member of the parole board is subject to removal by the Governor as provided for in Section 1-3-240(C).

 

SECTION 63-19-630. Officers; rules and procedures.

The parole board shall elect from among its members a chairman who shall serve a one-year term and who may not succeed himself as chairman. The parole board may elect a vice-chairman and secretary and shall fix the time and place of meetings. Rules and procedures for parole board meetings, as considered advisable, must be adopted by the parole board. Six members of the parole board constitute a quorum for the transaction of business.

 

SECTION 63-19-640. Compensation.

The members of the parole board must be reimbursed for actual expenses incurred in attending parole board meetings and shall receive as compensation the same per diem as provided by law for members of state boards, committees, and commissions.


CUSTODY AND DETENTION

 

SECTION 63-19-810. Taking a child into custody.

(A) When a child found violating a criminal law or ordinance is taken into custody, the taking into custody is not an arrest. The jurisdiction of the court attaches from the time of the taking into custody. When a child is taken into custody, the officer taking the child into custody shall notify the parent, guardian, or custodian of the child as soon as possible. Unless otherwise ordered by the court, the person taking the child into custody may release the child to a parent, a responsible adult, a responsible agent of a court-approved foster home, group home, nonsecure facility, or program upon the written promise, signed by the person, to bring the child to the court at a stated time or at a time the court may direct. The written promise, accompanied by a written report by the officer, must be submitted to the South Carolina Department of Juvenile Justice as soon as possible, but not later than twenty-four hours after the child is taken into custody. If the person fails to produce the child as agreed, or upon notice from the court, a summons or a warrant may be issued for the apprehension of the person or of the child.

(B) When a child is not released pursuant to subsection (A), the officer taking the child into custody shall immediately notify the authorized representative of the Department of Juvenile Justice, who shall respond within one hour by telephone or to the location where the child is being detained. Upon responding, the authorized representative of the department shall review the facts in the officer's report or petition and any other relevant facts and advise the officer if, in his opinion, there is a need for detention of the child. The officer's written report must be furnished to the authorized representatives of the department and must state:

(1) the facts of the offense;

(2) the reason why the child was not released to the parent. Unless the child is to be detained, the child must be released by the officer to the custody of his parents or other responsible adult upon their written promise to bring the child to the court at a stated time or at a time the court may direct. However, if the offense for which the child was taken into custody is a violent crime as defined in Section 16-1-60, the child may be released only by the officer who took the child into custody. If the officer does not consent to the release of the child, the parents or other responsible adult may apply to any judge of the family court within the circuit for an ex parte order of release of the child. The officer's written report must be furnished to the family court judge. The family court judge may establish conditions for such release.

(C) When a child is charged by a law enforcement officer for an offense which would be a misdemeanor or felony if committed by an adult, not including a traffic or wildlife violation over which courts other than the family court have concurrent jurisdiction as provided in Section 63-3-520, the law enforcement officer also shall notify the principal of the school in which the child is enrolled, if any, of the nature of the offense. This information may be used by the principal for monitoring and supervisory purposes but otherwise must be kept confidential by the principal in the same manner required by Section 63-19-2220(E).

(D) Juveniles may be held in nonsecure custody within the law enforcement center for only the time necessary for purposes of identification, investigation, detention, intake screening, awaiting release to parents or other responsible adult, or awaiting transfer to a juvenile detention facility or to the court for a detention hearing.

 

SECTION 63-19-820. Out-of-home placement.

(A) When the officer who took the child into custody determines that placement of a juvenile outside the home is necessary, the authorized representative of the Department of Juvenile Justice shall make a diligent effort to place the child in an approved home, program, or facility, other than a secure juvenile detention facility, when these alternatives are appropriate and available.

(B) A child is eligible for detention in a secure juvenile detention facility only if the child:

(1) is charged with a violent crime as defined in Section 16-1-60;

(2) is charged with a crime which, if committed by an adult, would be a felony or a misdemeanor other than a violent crime, and the child:

(a) is already detained or on probation or conditional release or is awaiting adjudication in connection with another delinquency proceeding;

(b) has a demonstrable recent record of wilful failures to appear at court proceedings;

(c) has a demonstrable recent record of violent conduct resulting in physical injury to others; or

(d) has a demonstrable recent record of adjudications for other felonies or misdemeanors; and

(i) there is reason to believe the child is a flight risk or poses a threat of serious harm to others; or

(ii) the instant offense involved the use of a firearm;

(3) is a fugitive from another jurisdiction;

(4) requests protection in writing under circumstances that present an immediate threat of serious physical injury;

(5) had in his possession a deadly weapon;

(6) has a demonstrable recent record of wilful failure to comply with prior placement orders including, but not limited to, a house arrest order;

(7) has no suitable alternative placement and it is determined that detention is in the child's best interest or is necessary to protect the child or public, or both; or

(8) is charged with an assault and battery or an assault and battery of a high and aggravated nature on school grounds or at a school-sponsored event against any person affiliated with the school in an official capacity.

A child who meets the criteria provided in this subsection is eligible for detention. Detention is not mandatory for a child meeting the criteria if that child can be supervised adequately at home or in a less secure setting or program. If the officer does not consent to the release of the child, the parents or other responsible adult may apply to the family court within the circuit for an ex parte order of release of the child. The officer's written report must be furnished to the family court judge who may establish conditions for the release.

(C) No child may be placed in secure confinement or ordered detained by the court in secure confinement in an adult jail or other place of detention for adults for more than six hours. However, the prohibition against the secure confinement of juveniles in adult jails does not apply to juveniles who have been waived to the court of general sessions for the purpose of standing trial as an adult. Juveniles placed in secure confinement in an adult jail during this six-hour period must be confined in an area of the jail which is separated by sight and sound from adults similarly confined.

(D) Temporary holdover facilities may hold juveniles during the period between initial custody and the initial detention hearing before a family court judge for a period up to forty-eight hours, excluding weekends and state holidays.

(E) A child who is taken into custody because of a violation of law which would not be a criminal offense under the laws of this State if committed by an adult must not be placed or ordered detained in an adult detention facility. A child who is taken into custody because of a violation of the law which would not be a criminal offense under the laws of this State if committed by an adult must not be placed or ordered detained more than twenty-four hours in a juvenile detention facility, unless an order previously has been issued by the court, of which the child has notice and which notifies the child that further violation of the court's order may result in the secure detention of that child in a juvenile detention facility. If a juvenile is ordered detained for violating a valid court order, the juvenile may be held in secure confinement in a juvenile detention facility for not more than seventy-two hours, excluding weekends and holidays. However, nothing in this section precludes a law enforcement officer from taking a status offender into custody.

(F) Children ten years of age and younger must not be incarcerated in a jail or detention facility for any reason. Children eleven or twelve years of age who are taken into custody for a violation of law which would be a criminal offense under the laws of this State if committed by an adult or who violates conditions of probation for such an offense must be incarcerated in a jail or detention facility only by order of the family court.

(G) For purposes of this section, "adult jail" or other place of detention for adults includes a state, county, or municipal police station, law enforcement lockup, or holding cell. "Secure confinement" means an area having bars or other restraints designed to hold one person or a group of persons at a law enforcement location for any period of time and for any reason. Secure confinement in an adult jail or other place of detention does not include a room or a multipurpose area within the law enforcement center which is not secured by locks or other security devices. Rooms or areas of this type include lobbies, offices, and interrogation rooms. Juveniles held in these areas are considered to be in nonsecure custody as long as the room or area is not designed for or intended for use as a residential area, the juvenile is not handcuffed to a stationary object while in the room or area, and the juvenile is under continuous visual supervision by facility staff while in this room or area which is located within the law enforcement center. Secure confinement also does not include a room or area used by law enforcement for processing "booking" purposes, irrespective of whether it is determined to be secure or nonsecure, as long as the juvenile's confinement in the area is limited to the time necessary to fingerprint, photograph, or otherwise "book" the juvenile in accordance with state law.

 

SECTION 63-19-830. Detention hearings; screenings.

(A) If the officer who took the child into custody has not released the child to the custody the child's parents or other responsible adult, the court shall hold a detention hearing within forty-eight hours from the time the child was taken into custody, excluding Saturdays, Sundays, and holidays. At this hearing, the authorized representative of the department shall submit to the court a report stating the facts surrounding the case and a recommendation as to the child's continued detention pending the adjudicatory and dispositional hearings. The court shall appoint counsel for the child if none is retained. No child may proceed without counsel in this hearing, unless the child waives the right to counsel and then only after consulting at least once with an attorney. At the conclusion of this hearing, the court shall determine whether probable cause exists to justify the detention of the child and the appropriateness of, and need for, the child's continued detention. If continued detention of a juvenile is considered appropriate by the court and if a juvenile detention facility exists in that county which meets state and federal requirements for the secure detention of juveniles or if that facility exists in another county with which the committing county has a contract for the secure detention of its juveniles and if commitment of a juvenile by the court to that facility does not cause the facility to exceed its design and operational capacity, the family court shall order the detention of the juvenile in that facility. A juvenile must not be detained in secure confinement in excess of ninety days except in exceptional circumstances as determined by the court. A detained juvenile is entitled to further and periodic review:

(1) within ten days following the juvenile's initial detention hearing;

(2) within thirty days following the ten-day hearing; and

(3) at any other time for good cause shown upon motion of the child, the State, or the department.

If the child does not qualify for detention or otherwise require continued detention under the terms of Section 63-19-820(A) or (B), the child must be released to a parent, guardian, or other responsible person.

(B) A juvenile ordered detained in a facility must be screened within twenty-four hours by a social worker or if considered appropriate by a psychologist in order to determine whether the juvenile is emotionally disturbed, mentally ill, or otherwise in need of services. The services must be provided immediately.

 

SECTION 63-19-840. Detention homes; temporary care and custody.

Provisions must be made for a detention home or homes for the temporary detention of children to be conducted by the court or, subject to the approval and supervision of the court, by an appropriate public agency; or the court may arrange for the use of private homes for detention, subject to the supervision of the court or other agency, or may arrange with an institution or agency to receive for temporary care and custody children within the jurisdiction of the court.

 

SECTION 63-19-850. Transportation to detention facility.

No child may be transported to a juvenile detention facility in a police vehicle which also contains adults under arrest. When a child is to be transported to or from a juvenile detention facility following a detention screening review conducted by the Department of Juvenile Justice or after a detention order has been issued by the court, the local law enforcement agency which originally took the child into custody shall transport this child to or from the juvenile detention facility. Transportation of juveniles between department facilities, if necessary, is the responsibility of the department.


INTAKE AND INITIATION OF PROCEEDINGS

 

SECTION 63-19-1010. Intake and probation.

(A) The Department of Juvenile Justice shall provide intake and probation services for juveniles brought before the family courts of this State and for persons committed or referred to the department in cooperation with all local officials or agencies concerned. The role and function of intake is to independently assess the circumstances and needs of children referred for possible prosecution in the family court. Recommendations by the department as to intake must be reviewed by the office of the solicitor in the circuit concerned, and the final determination as to whether or not the juvenile is to be prosecuted in the family court must be made by the solicitor or by the solicitor's authorized assistant. Statements of the juvenile contained in the department's files must not be furnished to the solicitor's office as part of the intake review procedure, and the solicitor's office must not be privy to these statements in connection with its intake review.

(B) Where circumstances do not warrant prosecution in the discretion of the solicitor, the intake counselor shall offer referral assistance for services as appropriate for the child and family. In the event that a juvenile is adjudicated to be delinquent or found by the family court to be in violation of the terms of probation, the intake counselor shall offer appropriate dispositional recommendations to the family court for its consideration and determination of the disposition of the case.

 

SECTION 63-19-1020. Instituting proceedings.

The parent or custodian of a child, an official of a child welfare board, a public official charged by law with the care of the poor, the recognized agents of an agency, association, society, or institution, a person having knowledge or information of a nature which convinces the person that a child is delinquent or that a child, by reason of his own acts in accordance with this chapter, is subject to the jurisdiction of the court, any person who has suffered injury through the delinquency of a child, or an officer having an arrested child in charge, may institute a proceeding respecting the child.

 

SECTION 63-19-1030. Pre-hearing inquiry.

(A) Whenever a person informs the court that a child is within the purview of this chapter, the court shall make preliminary inquiry to determine whether the interest of the public or of the child requires that further action be taken. Thereupon, the court may make an informal adjustment as is practicable without a petition or may authorize a petition to be filed by any person.

(B) The petition and all subsequent court documents must be entitled:

"In the Family Court of ____ County.

In the Interest of ___, a child under seventeen years of age."

The petition must be verified and may be upon information and belief. It shall set forth plainly:

(1) the facts which bring the child within the purview of this chapter;

(2) the name, age, and residence of the child;

(3) the names and residences of the child's parents;

(4) the name and residence of a legal guardian, if there is one, of the person or persons having custody of or control of the child, or of the nearest known relative if no parent or guardian can be found. If any of these facts are not known by the petitioner, the petition shall state that.

(C) Before the hearing of a case of a child, the judge shall cause an investigation of all the facts pertaining to the issue to be made. The investigation shall consist of an examination of the parentage and surroundings of the child, the child's age, habits and history, and also shall include inquiry into the home conditions, habits and character of the child's parents or guardian, if that is necessary in the discretion of the court. In these cases the court, if advisable, shall cause the child to be examined as to the child's mentality by a competent and experienced psychologist or psychiatrist who shall make a report of the findings. Before the hearing in the case of a child, if the child attends school, a report on the child must be obtained from the school which the child attends. The school officials shall furnish the report upon the request of the court or its probation counselor. The court, when it is considered necessary, shall cause a complete physical examination to be made of the child by a competent physician.

(D) In a case where the delinquency proceedings may result in commitment to an institution in which the child's freedom is curtailed, the child or the child's parents or guardian must be given written notice with particularity of the specific charge or factual allegations to be considered at the hearing. The notice must be given as soon as practicable and sufficiently in advance to permit preparation. The child or the child's parent or guardian also must be advised in the notice of their right to be represented by counsel and that, if they are unable to employ counsel, counsel will be appointed to represent them. In the hearing, the parent and child also must be expressly informed of their right to counsel and must be specifically required to consider whether they do or do not waive the right of counsel.

 

SECTION 63-19-1040. Indigent defense.

Notwithstanding Title 17, Chapter 3, Defense of Indigents, in determining indigence for the purpose of appointing legal counsel for a child in a delinquency proceeding, the court shall determine the financial ability of the child's parents to retain counsel for the child. If the court determines that the parents are able to retain counsel for the child but the parents refuse to retain counsel and the court appoints counsel, the court may order the parents to reimburse the Indigent Defense Fund or pay the court-appointed attorney in an amount to be determined by the court.


TRANSFER OF JURISDICTION / WAIVER

 

SECTION 63-19-1210. Transfer of jurisdiction.

In accordance with the jurisdiction granted to the family court pursuant to Sections 63-3-510, 63-3-520, and 63-3-530, jurisdiction over a case involving a child must be transferred or retained as follows:

(1) If, during the pendency of a criminal or quasi-criminal charge against a child in a circuit court of this State, it is ascertained that the child was under the age of seventeen years at the time of committing the alleged offense, it is the duty of the circuit court immediately to transfer the case, together with all the papers, documents, and testimony connected with it, to the family court of competent jurisdiction, except in those cases where the Constitution gives to the circuit court exclusive jurisdiction or in those cases where jurisdiction has properly been transferred to the circuit court by the family court under the provisions of this section. The court making the transfer shall order the child to be taken immediately to the place of detention designated by the court or to that court itself, or shall release the child to the custody of some suitable person to be brought before the court at a time designated. The court then shall proceed as provided in this chapter. The provisions of this section are applicable to all existing offenses and to offenses created in the future unless the General Assembly specifically directs otherwise.

(2) Whenever a child is brought before a magistrate or city recorder and, in the opinion of the magistrate or city recorder, the child should be brought to the family court of competent jurisdiction under the provisions of this section, the magistrate or city recorder shall transfer the case to the family court and direct that the child involved be taken there.

(3) When an action is brought in a circuit court which, in the opinion of the judge, falls within the jurisdiction of the family court, he may transfer the action upon his own motion or the motion of any party.

(4) If a child sixteen years of age or older is charged with an offense which, if committed by an adult, would be a misdemeanor, a Class E or F felony as defined in Section 16-1-20, or a felony which provides for a maximum term of imprisonment of ten years or less, and if the court, after full investigation, considers it contrary to the best interest of the child or of the public to retain jurisdiction, the court, in its discretion, acting as committing magistrate, may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offense if committed by an adult.

(5) If a child fourteen or fifteen years of age is charged with an offense which, if committed by an adult, would be a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more, the court, after full investigation and hearing, may determine it contrary to the best interest of the child or of the public to retain jurisdiction. The court, acting as committing magistrate, may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offenses if committed by an adult.

(6) Within thirty days after the filing of a petition in the family court alleging the child has committed the offense of murder or criminal sexual conduct, the person executing the petition may request in writing that the case be transferred to the court of general sessions with a view to proceeding against the child as a criminal rather than as a child coming within the purview of this chapter. The judge of the family court is authorized to determine this request. If the request is denied, the petitioner may appeal within five days to the circuit court. Upon the hearing of the appeal, the judge of the circuit court is vested with the discretion of exercising and asserting the jurisdiction of the court of general sessions or of relinquishing jurisdiction to the family court. If the circuit judge elects to exercise the jurisdiction of the general sessions court for trial of the case, he shall issue an order to that effect, and then the family court has no further jurisdiction in the matter.

(7) Once the family court relinquishes its jurisdiction over the child and the child is bound over to be treated as an adult, Section 63-19-2020 dealing with the confidentiality of identity and fingerprints does not apply.

(8) When jurisdiction is relinquished by the family court in favor of another court, the court shall have full authority and power to grant bail, hold a preliminary hearing and any other powers as now provided by law for magistrates in such cases.

(9) If a child fourteen years of age or older is charged with a violation of Section 16-23-430(1), Section 16-23-20, assault and battery of a high and aggravated nature, or Section 44-53-445, the court, after full investigation and hearing, if it considers it contrary to the best interest of the child or the public to retain jurisdiction, acting as committing magistrate, may bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offenses if committed by an adult.

(10) If a child fourteen years of age or older is charged with an offense which, if committed by an adult, provides for a term of imprisonment of ten years or more and the child previously has been adjudicated delinquent in family court or convicted in circuit court for two prior offenses which, if committed by an adult, provide for a term of imprisonment of ten years or more, the court acting as committing magistrate shall bind over the child for proper criminal proceedings to a court which would have trial jurisdiction of the offense if committed by an adult. For the purpose of this item, an adjudication or conviction is considered a second adjudication or conviction only if the date of the commission of the second offense occurred subsequent to the imposition of the sentence for the first offense.


DISPOSITIONAL POWERS OF THE COURT

 

SECTION 63-19-1410. Adjudication.

(A) When a child is found by decree of the court to be subject to this chapter, the court shall in its decree make a finding of the facts upon which the court exercises its jurisdiction over the child. Following the decree, the court by order may:

(1) cause a child concerning whom a petition has been filed to be examined or treated by a physician, psychiatrist, or psychologist and for that purpose place the child in a hospital or other suitable facility;

(2) order care and treatment as it considers best, except as otherwise provided in this section and may designate a state agency as the lead agency to provide a family assessment to the court. The assessment shall include, but is not limited to, the strengths and weaknesses of the family, problems interfering with the functioning of the family and with the best interests of the child, and recommendations for a comprehensive service plan to strengthen the family and assist in resolving these issues.

The lead agency shall provide the family assessment to the court in a timely manner, and the court shall conduct a hearing to review the proposed plan and adopt a plan as part of its order that will best meet the needs and best interest of the child. In arriving at a comprehensive plan, the court shall consider:

(a) additional testing or evaluation that may be needed;

(b) economic services including, but not limited to, employment services, job training, food stamps, and aid to families with dependent children;

(c) counseling services including, but not limited to, marital counseling, parenting skills, and alcohol and drug abuse counseling; and

(d) any other programs or services appropriate to the child's and family's needs.

The lead agency is responsible for monitoring compliance with the court-ordered plan and shall report to the court as the court requires. In support of an order, the court may require the parents or other persons having custody of the child or any other person who has been found by the court to be encouraging, causing, or contributing to the acts or conditions which bring the child within the purview of this chapter to do or omit to do acts required or forbidden by law, when the judge considers the requirement necessary for the welfare of the child. In case of failure to comply with the requirement, the court may proceed against those persons for contempt of court;

(3) place the child on probation or under supervision in the child's own home or in the custody of a suitable person elsewhere, upon conditions as the court may determine. A child placed on probation by the court remains under the authority of the court only until the expiration of the specified term of the child's probation. This specified term of probation may expire before but not after the eighteenth birthday of the child. Probation means casework services during a continuance of the case. Probation must not be ordered or administered as punishment but as a measure for the protection, guidance, and well-being of the child and the child's family. Probation methods must be directed to the discovery and correction of the basic causes of maladjustment and to the development of the child's personality and character, with the aid of the social resources of the community. As a condition of probation, the court may order the child to participate in a community mentor program as provided for in Section 63-19-1430. The court may impose monetary restitution or participation in supervised work or community service, or both, as a condition of probation. The Department of Juvenile Justice, in coordination with local community agencies, shall develop and encourage employment of a constructive nature designed to make reparation and to promote the rehabilitation of the child. When considering the appropriate amount of monetary restitution to be ordered, the court shall establish the monetary loss suffered by the victim and then weigh and consider this amount against the number of individuals involved in causing the monetary loss, the child's particular role in causing this loss, and the child's ability to pay the amount over a reasonable period of time. The Department of Juvenile Justice shall develop a system for the transferring of court-ordered restitution from the child to the victim or owner of property injured, destroyed, or stolen. As a condition of probation the court may impose upon the child a fine not exceeding two hundred dollars when the offense is one in which a magistrate, municipal, or circuit court judge has the authority to impose a fine. A fine may be imposed when commitment is suspended but not in addition to commitment;

(4) order the child to participate in a community mentor program as provided in Section 63-19-1430;

(5) commit the child to the custody or to the guardianship of a public or private institution or agency authorized to care for children or to place them in family homes or under the guardianship of a suitable person. Commitment must be for an indeterminate period but in no event beyond the child's twenty-first birthday;

(6) require that a child under twelve years of age who is adjudicated delinquent for an offense listed in Section 23-3-430(C) be given appropriate psychiatric or psychological treatment to address the circumstances of the offense for which the child was adjudicated; and

(7) dismiss the petition or otherwise terminate its jurisdiction at any time on the motion of either party or on its own motion.

(B) Whenever the court commits a child to an institution or agency, it shall transmit with the order of commitment a summary of its information concerning the child, and the institution or agency shall give to the court information concerning the child which the court may require. Counsel of record, if any, must be notified by the court of an adjudication under this section, and in the event there is no counsel of record, the child or the child's parents or guardian must be notified of the adjudication by regular mail from the court to the last address of the child or the child's parents or guardian.

(C) No adjudication by the court of the status of a child is a conviction, nor does the adjudication operate to impose civil disabilities ordinarily resulting from conviction, nor may a child be charged with crime or convicted in a court, except as provided in Section 63-19-1210(6). The disposition made of a child or any evidence given in court does not disqualify the child in a future civil service application or appointment.

 

SECTION 63-19-1420. Driver's license suspension.

(A) If a child is adjudicated delinquent for a status offense or is found in violation of a court order relating to a status offense, the court may suspend or restrict the child's driver's license until the child's seventeenth birthday.

(B) If a child is adjudicated delinquent for violation of a criminal offense or is found in violation of a court order relating to a criminal offense or is found in violation of a term or condition of probation, the court may suspend or restrict the child's driver's license until the child's eighteenth birthday.

(C) If the court suspends the child's driver's license, the child must submit the license to the court, and the court shall forward the license to the Department of Motor Vehicles for license suspension. However, convictions not related to the operation of a motor vehicle shall not result in increased insurance premiums.

(D) If the court restricts the child's driver's license, the court may restrict the child's driving privileges to driving only to and from school or to and from work or as the court considers appropriate. Upon the court restricting a child's driver's license, the child must submit the license to the court and the court shall forward the license to the Department of Motor Vehicles for reissuance of the license with the restriction clearly noted.

(E) Notwithstanding the definition of a "child" as provided for in Section 63-19-20, the court may suspend or restrict the driver's license of a child under the age of seventeen until the child's eighteenth birthday if subsection (B) applies.

(F) Upon suspending or restricting a child's driver's license under this section, the family court judge shall complete a form provided by and which must be remitted to the Department of Motor Vehicles.

 

SECTION 63-19-1430. Youth Mentor Act.

(A) This section may be cited as the "Youth Mentor Act".

(B) The Attorney General's Office shall establish a Youth Mentor Program to serve juvenile offenders under the jurisdiction of the family court. The program shall consist of a church mentor program and a community mentor program. Participation in the program may be required as a pretrial diversion option by a solicitor or as an optional, alternative disposition by a family court judge. The circuit solicitor may charge a juvenile offender who participates in the Youth Mentor Program a fee to offset the actual cost of administering the program; however, no juvenile offender is barred from the program because of indigence. This program must be available for juveniles who commit nonviolent offenses. For purposes of this subsection, nonviolent offenses mean all offenses not listed in Section 16-1-60.

(C) When a child is charged with a nonviolent offense which places him under the jurisdiction of the family court and the solicitor is of the opinion that justice would be better served if the child completed a church mentor program, the solicitor may divert the child to such a program. Upon completion of the program, the proceedings in family court must be dismissed.

Participation in the church mentor program is voluntary, and the child or his parents or guardians may refuse to participate based upon their religious beliefs or for any other reason.

The Attorney General must establish guidelines for the program, the mentors, and the churches, mosques, masjids, synagogues, and other religious organizations that participate in the church mentor program.

(D) When a child is adjudicated delinquent for a nonviolent offense in family court, the family court judge may order the child to participate in the community mentor program. When a child is ordered to participate in the community mentor program, he must be assigned to a community organization which shall assign a mentor to the child. The mentor shall monitor the academic and personal development of the child for a minimum period of six months and a maximum period not exceeding one year as ordered by the court. Failure to complete the program shall result in the child being brought before the family court for appropriate sanctions or revocation of suspended commitment.

The Attorney General must establish guidelines for the program, the mentors, and the community organizations that participate in the community mentor program.

 

SECTION 63-19-1440. Commitment.

(A) A child, after the child's twelfth birthday and before the seventeenth birthday or while under the jurisdiction of the family court for disposition of an offense that occurred prior to the child's seventeenth birthday, may be committed to the custody of the Department of Juvenile Justice which shall arrange for placement in a suitable corrective environment. Children under the age of twelve years may be committed only to the custody of the department which shall arrange for placement in a suitable corrective environment other than institutional confinement. No child under the age of seventeen years may be committed or sentenced to any other penal or correctional institution of this State.

(B) All commitments to the custody of the Department of Juvenile Justice for delinquency as opposed to the conviction of a specific crime may be made only for the reasons and in the manner prescribed in Sections 63-3-510, 63-3-520, 63-3-580, 63-3-600, 63-3-650, and this chapter, with evaluations made and proceedings conducted only by the judges authorized to order commitments in this section. When a child is committed to the custody of the department, commitment must be for an indeterminate sentence, not extending beyond the twenty-first birthday of the child unless sooner released by the department, or for a determinate commitment sentence not to exceed ninety days.

(C) The court, before committing a child as a delinquent or as a part of a sentence including commitments for contempt, shall order a community evaluation or temporarily commit the child to the Department of Juvenile Justice for not more than forty-five days for evaluation. A community evaluation is equivalent to a residential evaluation, but it is not required to include all components of a residential evaluation. However, in either evaluation the department shall make a recommendation to the court on the appropriate disposition of the case and shall submit that recommendation to the court before final disposition. The court may waive in writing the evaluation of the child and proceed to issue final disposition in the case if the child:

(1) has previously received a residential evaluation or a community evaluation and the evaluation is available to the court;

(2) has been within the past year temporarily or finally discharged or conditionally released for parole from a correctional institution of the department, and the child's previous evaluation or other equivalent information is available to the court; or

(3) receives a determinate commitment sentence not to exceed ninety days.

(D) When a juvenile is adjudicated delinquent or convicted of a crime or has entered a plea of guilty or nolo contendere in a court authorized to commit to the custody of the Department of Juvenile Justice, the juvenile may be committed for an indeterminate period until the juvenile has reached age twenty-one or until sooner released by the releasing entity or released by order of a judge of the Supreme Court or the circuit court of this State, rendered at chambers or otherwise, in a proceeding in the nature of an application for a writ of habeas corpus. A juvenile who has not been paroled or otherwise released from the custody of the department by the juvenile's nineteenth birthday must be transferred to the custody and authority of the Youthful Offender Division of the Department of Corrections. If not sooner released by the releasing entity, the juvenile must be released by age twenty-one according to the provisions of the juvenile's commitment; however, notwithstanding the above provision, any juvenile committed as an adult offender by order of the court of general sessions must be considered for parole or other release according to the laws pertaining to release of adult offenders.

(E) A juvenile committed to the Department of Juvenile Justice following an adjudication for a violent offense contained in Section 16-1-60 or for the offense of assault and battery of a high and aggravated nature, who has not been paroled or released from the custody of the department by his seventeenth birthday must be transferred to the custody and authority of the Youthful Offender Division of the Department of Corrections. A juvenile who has not been paroled or released from the custody of the department by his nineteenth birthday must be transferred to the custody and authority of the Youthful Offender Division of the Department of Corrections at age nineteen. If not released sooner by the Board of Juvenile Parole, a juvenile transferred pursuant to this subsection must be released by his twenty-first birthday according to the provisions of his commitment. Notwithstanding the above provision, a juvenile committed as an adult offender by order of the court of general sessions must be considered for parole or other release according to the laws pertaining to release of adult offenders.

(F) Notwithstanding subsections (A) and (E), a child may be committed to the custody of the Department of Juvenile Justice or to a secure evaluation center operated by the department for a determinate period not to exceed ninety days when:

(1) the child has been adjudicated delinquent by a family court judge for a status offense, as defined in Section 63-19-20, excluding truancy, and the order acknowledges that the child has been afforded all due process rights guaranteed to a child offender;

(2) the child is in contempt of court for violation of a court order to attend school or an order issued as a result of the child's adjudication of delinquency for a status offense, as defined in Section 63-19-20; or

(3) the child is determined by the court to have violated the conditions of probation set forth by the court in an order issued as a result of the child's adjudication of delinquency for a status offense, as defined in Section 63-19-20 including truancy.

Orders issued pursuant to this subsection must acknowledge:

(a) that the child has been advised of all due process rights afforded to a child offender; and

(b) that the court has received information from the appropriate state or local agency or public entity that has reviewed the facts and circumstances causing the child to be before the court.

(G) A child committed under this section may not be confined with a child who has been determined by the department to be violent.

(H) After having served at least two-thirds of the time ordered by a court, a child committed to the Department of Juvenile Justice for a determinate period pursuant to this section may be released by the department prior to the expiration of the determinate period for "good behavior" as determined by the department. The court, in its discretion, may state in the order that the child is not to be released prior to the expiration of the determinate period ordered by the court.

(I) Juveniles detained in any temporary holding facility or juvenile detention center or who are temporarily committed for evaluation to a Department of Juvenile Justice evaluation center for the offense for which they were subsequently committed by the family court to the custody of the Department of Juvenile Justice shall receive credit toward their parole guidelines, if indeterminately sentenced, or credit toward their date of release, if determinately sentenced, for each day they are detained in or temporarily committed to any secure pre-dispositional facility, center, or program.

 

SECTION 63-19-1450. Commitment of mentally ill or retarded.

(A) No juvenile may be committed to an institution under the control of the Department of Juvenile Justice who is seriously handicapped by mental illness or retardation. If, after a juvenile is referred to the Reception and Evaluation Center, it is determined that the juvenile is mentally ill, as defined in Section 44-23-10, or mentally retarded to an extent that the juvenile could not be properly cared for in its custody, the department through the voluntary admission process or by instituting necessary legal action may accomplish the transfer of the juvenile to another state agency which in its judgment is best qualified to care for the juvenile in accordance with the laws of this State. This legal action must be brought in the juvenile's resident county. The department shall establish standards with regard to the physical and mental health of juveniles whom it can accept for commitment.

(B) When the state agency to which a juvenile is transferred determines that it is appropriate to release from commitment that juvenile, the state agency must submit a request for release to the releasing entity. If the releasing entity does not grant the request to release the juvenile, the juvenile must be placed in an environment consistent with the provisions of this section.

(C) If a juvenile transferred to another state agency pursuant to this section is absent from a treatment facility without proper authorization, any state or local law enforcement officer upon the request of the director, or a designee, of the state agency to which the juvenile has been transferred and without the necessity of a warrant or a court order, may take the juvenile into custody and return the juvenile to the facility designated by the agency director or the designee.

 

SECTION 63-19-1460. Conveyance by sheriff.

A child committed under the terms of this chapter must be conveyed by the sheriff, deputy sheriff, or persons appointed by the sheriff of the county in which the child resides to the custody of the department, and the expense of the conveyance and delivery must be borne by the county. The committing judge may order that the child be transferred to the custody of the department without the attendance of an officer or in a manner as may be advisable.


DEPARTMENT’S COMMITMENT RESPONSIBILITIES

 

SECTION 63-19-1610. Exclusive care; payment by local governments for use of facilities.

From the time of lawful reception of a child by the Department of Juvenile Justice and during the child's stay in custody in a correctional institution, facility, or program operated by the department, the child shall be under the exclusive care, custody, and control of the department. All expenses must be borne by the State except local governments utilizing the juvenile detention services provided by the Department of Juvenile Justice must pay the department a per diem of fifty dollars a day per child. The department may apply the remainder of the funds generated by this item, if any, to operational or capital expenses associated with juvenile services provided by the department. If adequate funding is not received, the department shall have flexibility to use funds from other programmatic areas to maintain an appropriate level of service.

 

SECTION 63-19-1620. Further care; education.

From the time of the lawful reception of a child into custody by the department and during the period of the custody, the department shall provide for, either solely or in cooperation with other agencies, the care, custody, and control of the child, as well as make available instruction as may be suited to the child's years and capacity that will enable the child to learn a useful trade.

 

SECTION 63-19-1630. Institutional transfer.

A child committed to an institution under the provisions of this chapter may be transferred by the department to an institution, facility, or vocational training center under its jurisdiction.

 

SECTION 63-19-1640. Furloughs.

The department may grant furloughs, not to exceed thirty days, under prescribed conditions to children domiciled in its custody unaccompanied by a custodial agent. Failure by the child to return from a furlough as directed must be deemed an escape.

 

SECTION 63-19-1650. Youthful Offender Division transfer.

(A) The Department of Juvenile Justice, when authorized by an order of a circuit judge, must, after notice to the Department of Corrections, temporarily shall transfer to the custody of the Youthful Offender Division a child who has been committed to the custody of the department who is more than seventeen years of age and whose presence in the custody of the Department of Juvenile Justice appears to be seriously detrimental to the welfare of others in custody. The director of the Department of Corrections shall receive these children and shall properly care for them. Each child transferred to the Youthful Offender Division is subject to all the rules and discipline of the division. Children transferred to the Youthful Offender Division pursuant to this section are under the authority of the division but are subject to release Board of Juvenile Parole.

(B) The Youthful Offender Division at least quarterly shall recommend to the parole board possible release of each child transferred to the department or the child's return to institutions of the Department of Juvenile Justice.

 

SECTION 63-19-1660. Interference.

(A) It is unlawful for a person to:

(1) cause, aid, encourage, or influence a child who is a ward of the Department of Juvenile Justice to:

(a) enter or remain in a house of prostitution or a house or lodging place used for immoral purposes or gambling place;

(b) violate a law of this State or ordinance of a city;

(c) indulge in vicious or immoral conduct; or

(d) violate the child's conditional release or run away from the supervision of the Department of Juvenile Justice.

(2) harbor a child who has escaped from authorities or who is running away from their supervision.

(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

 

SECTION 63-19-1670. Contraband.

(A) While on the institutional grounds of the department, it is unlawful to furnish, attempt to furnish, or to possess with the intent to furnish, contraband to a juvenile committed to the custody of the Department of Juvenile Justice. "Juvenile", for purposes of this section, is defined as a person committed to the custody of the Department of Juvenile Justice. It is unlawful for a juvenile committed to the custody of the department to possess contraband.

(B) For purposes of this section, "contraband" is defined as:

(1) a device which may be used as a weapon including, but not limited to, firearms, knives, blades, clubs, or billies;

(2) drugs of any type or description including, but not limited to, marijuana, cocaine, and any other controlled substance as listed in Chapter 53 of Title 44, for which a juvenile does not possess a current lawful prescription;

(3) poisons or other dangerous chemicals which can cause injury or death;

(4) flammable liquids of any type including, but not limited to, gasoline, kerosene, or lighter fluid;

(5) any type of alcohol and any liquid containing any concentration of intoxicating alcohol;

(6) keys, locks, or tools of any description not officially issued to the juvenile by the department; or

(7) any additional items determined to be contraband by the Director of the Department of Juvenile Justice.

(C) If the director determines any additional items to be contraband, a list of these items must be published and posted in conspicuous places so as to be seen readily by a person entering the institutional grounds or on the institutional grounds of the Department of Juvenile Justice.

(D) An adult found violating this section is guilty of a felony and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned for not less than one year nor more than ten years, or both.

SECTION 63-19-1680. Child support payments.

Whenever a child is committed by the court to custody other than that of the child's parents or is given medical, psychological, or psychiatric treatment under order of the court, the solicitor of the county where the child is a resident may petition the court to order the parent or parents of the child to pay child support when the child is committed to or detained in the custody of an approved local detention facility or the Department of Juvenile Justice. If the parents of the child are living apart, the court shall pursue child support payments from both parents. The court, after giving the parent a reasonable opportunity to be heard, may order the parent to pay, in the manner the court directs, in accordance with child support guidelines promulgated by the Department of Social Services to cover in whole or in part the support and treatment of the child. In making its determination whether to order child support, the court shall consider the conduct of the parent in supervising and providing care for the child. If the parent wilfully fails or refuses to pay the amount ordered, the court may proceed against the parent for contempt.


RELEASE AUTHORITY / PAROLE AND AFTERCARE

 

SECTION 63-19-1810. Determination of release.

(A) The release and revocation of release of juveniles adjudicated delinquent and committed to the department must be determined by:

(1) the department for juveniles adjudicated delinquent and committed after March 31, 2007, for an indeterminate period for a status offense or a misdemeanor, other than assault and battery of a high and aggravated nature or assault with intent to kill, and for juveniles who have violated probation for a status offense or a misdemeanor, other than assault and battery of a high and aggravated nature or assault with intent to kill;

(2) the Board of Juvenile Parole for juveniles adjudicated delinquent and committed for an offense other than an offense provided for in item (1).

(B) For purposes of this chapter, "releasing entity" means:

(1) the department for juveniles described in subsection (A)(1);

(2) the Board of Juvenile Parole for juveniles described in subsection (A)(2).

 

SECTION 63-19-1820. Board.

(A)(1) The Board of Juvenile Parole shall meet monthly, and at other times as may be necessary, to review the records and progress of juveniles committed to the custody of the Department of Juvenile Justice, for whom the board is the releasing entity, for the purpose of deciding the release or revocation of release of these juveniles. The board shall make periodic inspections, at least quarterly, of the records of these juveniles and may issue temporary and final discharges or release these juveniles conditionally and prescribe conditions for release into aftercare.

(2)(a) It is the right of a juvenile who has not committed a violent offense, as defined by Section 16-1-60, and for whom the board is the releasing entity, to appear personally before the board every three months for the purpose of parole consideration, but no appearance may begin until the board determines that an appropriate period of time has elapsed since the juvenile's commitment.

(b) The board may waive the quarterly review of juveniles committed to the department, for whom the board is the releasing entity, for the commission of a violent crime, as defined in Section 16-1-60, until the juvenile reaches the minimum parole guidelines the board establishes for the juvenile. At that point, the board may schedule its first review of the juvenile from three months up to twelve months after the juvenile reaches the minimum parole guidelines established by the board. The scheduling of subsequent reviews is in the discretion of the board but must occur within three to twelve months of the juvenile's last appearance.

(3) In order to allow reviews and appearances by juveniles, for whom the board is the releasing entity, the board may assign the members or individuals to meet in panels of not less than three members or individuals, to receive progress reports and recommendations, review cases, meet with juveniles, meet with counselors, and to hear matters and consider cases for release, parole, and parole revocation. Membership on these panels must be periodically rotated on a random basis. At the meetings of the panels, a unanimous vote must be considered the final decision. A panel vote that is not unanimous must not be considered as a final decision, and the matter must be referred to the full parole board, which shall determine the matter by a majority vote of its membership.

(4) The board may conduct parole hearings by means of a two-way, closed circuit television system.

(5) The board shall develop written guidelines for the consideration of parole release of juveniles committed to the department for offenses for which the parole board is the releasing entity.

The board shall provide these guidelines to juveniles, for whom the board is the releasing entity, upon commitment and periodically reviewed with each juvenile to assess the progress made toward achieving release on parole.

(B) In the cases of juveniles for whom the department is the releasing entity, the department shall establish policies and procedures governing the review and release procedures for these juveniles.

(C) In the determination of the type of discharges or conditional releases granted, the releasing entity shall consider the interests of the person involved and the interests of society and shall employ the services of and consult with the personnel of the Department of Juvenile Justice. The releasing entity may from time to time modify the conditions of discharges or conditional releases previously granted.

 

SECTION 63-19-1830. Legal representation before board.

The parole board shall permit legal representation of a juvenile who appears before it for the purpose of parole or parole revocation. The department shall allocate funds to contract with a public defender corporation or similar type legal program for legal assistance for the purpose of appearing before the parole board for a juvenile who desires this service but who cannot either personally or through the juvenile's family afford the assistance.

 

SECTION 63-19-1840. Aftercare investigations.

(A) The department shall conduct aftercare investigations to determine suitable placement for juveniles considered for conditional release from the correctional schools. The department also shall supervise the aftercare program, making revocation investigations and submitting findings to the releasing entity.

(B) The director and such staff as the director shall designate in the performance of their duties of investigation, counseling and supervision, and revocation investigations are considered official representatives of the releasing entity.

(C) The directors and their staff are subject to the regulations for parole and parole revocation promulgated by the releasing entity and shall meet with the releasing entity at its meetings when requested. Community-based counselors, or their supervisors, with assigned clients committed to institutions of the department shall periodically visit the institutions in order to counsel their clients and accomplish the duties as outlined in this subarticle.

(D) Recognizing the need to maintain autonomy and to provide a check and balance system, the parole board shall employ a director of parole and other staff necessary to carry out the duties of parole examinations, victim liaison, and revocation hearings. The director serves at the will and pleasure of the parole board. All staff are employees of the parole board and are directly responsible to the parole board both administratively and operationally. Funds allocated for the functions designated in this section must be incorporated as a line item within the department's budget and are subject to administrative control by the parole board.

(E) The department shall continue to provide the budgetary, fiscal, personnel, and training information resources and other support considered necessary by the parole board to perform its mandated functions.

 

SECTION 63-19-1850. Conditional release.

(A) A juvenile who shall have been conditionally released from a correctional facility shall remain under the authority of the releasing entity until the expiration of the specified term imposed in the juvenile's conditional aftercare release. The specified period of conditional release may expire before but not after the twenty-first birthday of the juvenile. Each juvenile conditionally released is subject to the conditions and restrictions of the release and may at any time on the order of the releasing entity be returned to the custody of a correctional institution for violation of aftercare rules or conditions of release.

(B) As a condition of release, the releasing entity may enforce participation in restitution, work ordered by the court, and community service programs established or approved by the Department of Juvenile Justice.

 

SECTION 63-19-1860. Conditional release violation.

(A) At any time during the period of conditional release, an aftercare counselor or the counselor's supervisor or a probation or parole agent may issue or cause to be issued a warrant for the juvenile to be taken into custody for violating any of the conditions of the release. A police officer or other officer with power to arrest, upon request of an aftercare counselor or a probation or parole agent, may take the juvenile into custody. The arresting officer shall obtain a warrant signed by the aftercare counselor or a probation or parole agent setting forth that the juvenile, in the counselor's judgment, violated the conditions of the release which is authority for the detention of the juvenile in an appropriate place of detention. If an aftercare release revocation is necessary, the aftercare counselor or a probation or parole agent shall submit in writing a thorough report to the releasing entity, showing in what manner the delinquent juvenile has violated the conditional release. A juvenile returned to the custody of a correctional school by aftercare revocation shall have a hearing or review of the juvenile's case by the releasing entity. The releasing entity is the final authority to determine whether or not the juvenile failed to abide by the aftercare rules and conditions of release.

(B) An aftercare counselor or probation or parole agent who has successfully completed Class I or II law enforcement officer training and received a certificate from the Department of Public Safety pursuant to the provisions of Article 9, Chapter 6 of Title 23 has the power, when commissioned by the department, to take a juvenile conditionally released from the custody of the department and subject to the jurisdiction of the releasing entity into custody upon the issuance of a warrant for violating the conditions of his release.

 

SECTION 63-19-1870. Revocation of conditional release.

The order of revocation of a conditional release may be issued and made effective after the period of aftercare supervision prescribed in the release has expired when the violations of the conditions or release occurred during the aftercare supervision period.

 

SECTION 63-19-1880. Probation counselors.

(A) To be eligible for appointment as a probation counselor, an applicant must possess:

(1) a college degree involving special training in the field of social science or its equivalent;

(2) a personality and character as would render the applicant suitable for the functions of the office.

(B) Probation counselors shall live in districts as determined by the director. Each counselor periodically shall visit the schools under the supervision of the Department of Juvenile Justice and become familiar with the records, background, and needs of the children and shall make periodic reports to the school.

(C)(1) The duties of probation counselors include:

(a) conducting an investigation of the child and the child's home as may be required by the court;

(b) being present in court at the hearing of cases;

(c) furnishing to the court information and assistance as the judge may require; and

(d) taking charge of a child before and after hearings as may be directed by the court.

(2) During the probationary period of a child and during the time that the child may be committed to an institution or to the care of an association or person for custodial or disciplinary purposes, the child is always subject to visitation by the probation counselors or other agents of the court.

(D) A probation counselor who has successfully completed Class I or II law enforcement officer training and received a certificate from the Department of Public Safety pursuant to the provisions of Article 9, Chapter 6 of Title 23 has the authority, when commissioned by the department, in the execution of his duties, to take a child under the jurisdiction of the family court into custody pursuant to an order issued by the court directing that the child be taken into custody.

(E) In the performance of the duties of probation, parole, community supervision, and investigation, the probation counselor is regarded as the official representative of the court, the department, and the Juvenile Parole Board.


JUVENILE RECORDS / CONFIDENTIALITY

 

SECTION 63-19-2010. Records.

The court shall make and keep records of all cases brought before it. The records of the court are confidential and open to inspection only by court order to persons having a legitimate interest in the records and to the extent necessary to respond to that legitimate interest. These records must always be available to the legal counsel of the child and are open to inspection without a court order where the records are necessary to defend against an action initiated by a child.

 

SECTION 63-19-2020. Confidentiality.

(A) Except as provided herein, all information obtained and records prepared in the discharge of official duty by an employee of the court or department are confidential and must not be disclosed directly or indirectly to anyone, other than the judge, the child's attorney, or others entitled under this chapter or any other provision of law to receive this information, unless otherwise ordered by the court. The court may order the records be disclosed to a person having a legitimate interest and to the extent necessary to respond to that legitimate interest. However, these records are open to inspection without a court order where the records are necessary to defend against an action initiated by a child.

(B) The director of the department must develop policies providing for the transmission of necessary and appropriate information to ensure the provision and coordination of services or assistance to a child under the custody or supervision of the department. This information must include that which is required for the admission or enrollment of a child into a program of services, treatment, training, or education. The information may be provided to another department or agency of state or local government, a school district, or a private institution or facility licensed by the State as a child-serving organization. This information may be summarized in accordance with agency policy.

(C) The director is authorized to enter into interagency agreements for purposes of sharing information about children under the supervision or in the custody of the department. The agencies entering into these agreements must maintain the confidentiality of the information.

(D) Reports and recommendations produced by the department for the court for the purpose of a dispositional hearing must be disseminated by the agency to the court, the solicitor, and the child's attorney.

(E)(1) The department must notify the principal of a school in which a child is enrolled, intends to be enrolled, or was last enrolled upon final disposition of a case in which the child is charged with any of the following offenses:

(a) a violent crime, as defined in Section 16-1-60;

(b) a crime in which a weapon, as defined in Section 59-63-370, was used;

(c) assault and battery against school personnel, as defined in Section 16-3-612;

(d) assault and battery of a high and aggravated nature committed on school grounds or at a school-sponsored event against any person affiliated with the school in an official capacity; or

(e) distribution or trafficking in unlawful drugs, as defined in Article 3, Chapter 53 of Title 44.

(2) Each school district is responsible for developing a policy for schools within the district to follow to ensure that the confidential nature of a child offense history and other information received is maintained. This policy must provide for, but is not limited to:

(a) the retention of the child offense history and other information relating to the child offense history in the child's school disciplinary file or in some other confidential location;

(b) the destruction of the child offense history upon the child's completion of secondary school or upon reaching twenty-one years of age; and

(c) limiting access to the child's school disciplinary file to school personnel. This access must only occur when necessary and appropriate to meet and adequately address the educational needs of the child.

(F) When requested, the department must provide the victim of a crime with the name of the child and the following information retained by the department concerning the child charged with the crime:

(1) other basic descriptive information, including but not limited to, a photograph;

(2) information about the juvenile justice system;

(3) the status and disposition of the delinquency action including hearing dates, times, and locations;

(4) services available to victims of child crime; and

(5) recommendations produced by the department for the court for the purpose of a dispositional hearing.

(G) The department or the South Carolina Law Enforcement Division, or both, must provide to the Attorney General, a solicitor, or a law enforcement agency, upon request, a copy of a child offense history for criminal justice purposes. This information must not be disseminated except as authorized in Section 63-19-2030. The department and the South Carolina Law Enforcement Division must maintain the child offense history of a person for the same period as for offenses committed by an adult.

(H) Other information retained by the department may be provided to the Attorney General, a solicitor, or a law enforcement agency pursuant to an ongoing criminal investigation or prosecution.

(I) The department may fingerprint and photograph a child upon the filing of a petition, release from detention, release on house arrest, or commitment to a juvenile correctional institution. Fingerprints and photographs taken by the department remain confidential and must not be transmitted to the State Law Enforcement Division, the Federal Bureau of Investigation, or another agency or person, except for the purpose of:

(1) aiding the department in apprehending an escapee from the department;

(2) assisting the Missing Persons Information Center in the location or identification of a missing or runaway child;

(3) locating and identifying a child who fails to appear in court as summoned;

(4) locating a child who is the subject of a house arrest order; or (5) as otherwise provided in this section.

(J) Nothing in this section shall be construed to waive any statutory or common law privileges attached to the department's internal reports or to information contained in the file of a child under the supervision or custody of the department.

 

SECTION 63-19-2030. Law enforcement records.

(A) Except as provided herein, law enforcement records and information identifying children pursuant to this chapter are confidential and may not be disclosed directly or indirectly to anyone, other than those entitled under this chapter to receive the information.

(B) Law enforcement records of children must be kept separate from records of adults. Information identifying a child must not be open to public inspection, but the remainder of these records are public records.

(C) Law enforcement agencies must maintain admission and release records on children held in secure custody, nonsecure custody, or both. The records must include the times and dates of admission and release from secure and nonsecure custody and, if appropriate, the times and dates of transfer from one custody status to another.

(D) Law enforcement information or records of children created pursuant to the provisions of this chapter may be shared among law enforcement agencies, solicitors' offices, the Attorney General, the department, the Department of Mental Health, the Department of Corrections, and the Department of Probation, Parole and Pardon Services for criminal justice purposes without a court order.

(E) Incident reports in which a child is the subject are to be provided to the victim of a crime pursuant to Section 16-3-1520. Incident reports, including information identifying a child, must be provided by law enforcement to the principal of the school in which the child is enrolled when the child has been charged with any of the following offenses:

(1) a violent crime, as defined in Section 16-1-60;

(2) an offense that would carry a maximum term of imprisonment of fifteen years or more if committed by an adult;

(3) a crime in which a weapon, as defined in Section 59-63-370, was used;

(4) assault and battery against school personnel, as defined in Section 16-3-612;

(5) assault and battery of a high and aggravated nature committed on school grounds or at a school-sponsored event against any person affiliated with the school in an official capacity; or

(6) distribution or trafficking in unlawful drugs, as defined in Article 3, Chapter 53 of Title 44.

Incident reports involving other offenses must be provided upon request of the principal. This information must be maintained by the principal in the manner set forth in Section 63-19-2020(E) and must be forwarded with the child's permanent school records if the child transfers to another school or school district.

(F) A child charged with any offense may be photographed by the law enforcement agency that takes the child into custody. If the child is taken into secure custody and detained, the detention facility must photograph the child upon admission. These photographs may only be disseminated for criminal justice purposes or to assist the Missing Persons Information Center in the location or identification of a missing or runaway child.

(G) A child charged with an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult must be fingerprinted by the law enforcement agency that takes the child into custody. If the child is taken into secure custody and detained, the detention facility must fingerprint the child upon admission. In addition, a law enforcement agency may petition the court for an order to fingerprint a child when:

(1) the child is charged with any other offense; or

(2) the law enforcement agency has probable cause to suspect the child of committing any offense.

(H) The fingerprint records of a child must be kept separate from the fingerprint records of adults. The fingerprint records of a child must be transmitted to the files of the State Law Enforcement Division.

(I) The fingerprint records of a child may be transmitted by the State Law Enforcement Division to the files of the Federal Bureau of Investigation only when the child has been adjudicated delinquent for having committed an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult.

(J) The fingerprint records of a child adjudicated delinquent for an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult must be provided by the State Law Enforcement Division or the law enforcement agency who took the child into custody to a law enforcement agency upon request by that agency for criminal justice purposes or to assist the Missing Person Information Center in the location or identification of a missing or runaway child.

(K) The fingerprints and any record created by the South Carolina Law Enforcement Division as a result of the receipt of fingerprints of a child pursuant to this section must not be disclosed for any purpose not specifically authorized by law or court order.

(L) Upon notification that a child has not been adjudicated delinquent for an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult, the South Carolina Law Enforcement Division and the law enforcement agency who took the child into custody must destroy the fingerprints and all records created as a result of such information.

 

SECTION 63-19-2040. Release of information.

(A) The name, identity, or picture of a child under the jurisdiction of the court, pursuant to this chapter, must not be provided to a newspaper or radio or television station unless:

(1) authorized by court order;

(2) the solicitor has petitioned the court to waive the child to circuit court;

(3) the child has been bound over to a court which would have jurisdiction of the offense if committed by an adult; or

(4) the child has been adjudicated delinquent in court for one of the following offenses:

(a) a violent crime, as defined in Section 16-1-60;

(b) grand larceny of a motor vehicle;

(c) a crime in which a weapon, as defined in Section 59-63-370, was used; or

(d) distribution or trafficking in unlawful drugs, as defined in Article 3, Chapter 53 of Title 44.

(B) When a child is bound over to the jurisdiction of the circuit court, the provisions of this section pertaining to the confidentiality of fingerprints and identity do not apply.

(C) The provisions of this section do not prohibit the distribution of information pursuant to the provisions of Article 7, Chapter 3 of Title 23.

 


EXPUNGEMENT OF JUVENILE RECORDS

 

SECTION 63-19-2050. Petition for record destruction.

(A) A person who has been taken into custody for, charged with, or adjudicated delinquent for having committed a status or a nonviolent offense may petition the court for an order destroying all official records relating to:

(1) being taken into custody;

(2) the charges filed against the child;

(3) the adjudication; and

(4) disposition.

The granting of the order is in the court's discretion. However, a person may not petition the court if he has a prior adjudication for an offense that would carry a maximum term of imprisonment of five years or more if committed by an adult. In addition, the court must not grant the order unless it finds that the person who is seeking to have the records destroyed is at least eighteen years of age, has successfully completed any dispositional sentence imposed, and has not been subsequently charged with any criminal offense.

(B) An adjudication for a violent crime, as defined in Section 16-1-60, must not be expunged.

(C) If the expungement order is granted by the court, no evidence of the records may be retained by any law enforcement agency or by any municipal, county, state agency, or department. The effect of the order is to restore the person in the contemplation of the law to the status the person occupied before being taken into custody. No person to whom the order has been entered may be held thereafter under any provision of any law to be guilty of perjury or otherwise giving false statement by reason of failing to recite or acknowledge the charge or adjudication in response to an inquiry made of the person for any purpose.

(D) For purposes of this section, an adjudication is considered a previous adjudication only if it occurred prior to the date the subsequent offense was committed.


INTERSTATE COMPACT ON JUVENILES

 

SECTION 63-19-2220. Interstate Compact for Juveniles.

The State of South Carolina hereby contracts to enter into the "Interstate Compact for Juveniles" according to the terms and in the form substantially as follows:

Subarticle I

Purpose

The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.

It is the purpose of this compact, through means of joint and cooperative action among the compacting states to:

(A) ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;

(B) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected;

(C) return juveniles who have run away, absconded, or escaped from supervision or control or have been accused of an offense to the state requesting their return;

(D) make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;

(E) provide for the effective tracking and supervision of juveniles;

(F) equitably allocate the costs, benefits, and obligations of the compacting states;

(G) establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders;

(H) insure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;

(I) establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact;

(J) establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators;

(K) monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;

(L) coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and

(M) coordinate the implementation and operation of the compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact.

The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

Subarticle II

Definitions

As used in this compact, unless the context clearly requires a different construction:

A. "By-laws" means those by-laws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct.

B. "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission.

C. "Compacting state" means any state which has enacted the enabling legislation for this compact.

D. "Commissioner" means the voting representative of each compacting state appointed pursuant to Subarticle III of this compact.

E. "Court" means any court having jurisdiction over delinquent, neglected, or dependent children.

F. "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission, and policies adopted by the state council under this compact.

G. "Interstate Commission" means the Interstate Commission for Juveniles created by Subarticle III of this compact.

H. "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:

(1) accused delinquent--a person charged with an offense that, if committed by an adult, would be a criminal offense;

(2) adjudicated delinquent--a person found to have committed an offense that, if committed by an adult, would be a criminal offense;

(3) accused status offender--a person charged with an offense that would not be a criminal offense if committed by an adult;

(4) adjudicated status offender--a person found to have committed an offense that would not be a criminal offense if committed by an adult; and

(5) nonoffender--a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.

I. "Noncompacting state" means any state which has not enacted the enabling legislation for this compact.

J. "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.

K. "Rule" means a written statement by the Interstate Commission promulgated pursuant to Subarticle VI of this compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.

L. "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.

Subarticle III

Interstate Commission for Juveniles

A. The compacting states hereby create the "Interstate Commission for Juveniles". The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers, and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.

B. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created hereunder. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.

C. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex-officio (nonvoting) members. The Interstate Commission may provide in its by-laws for such additional ex-officio (nonvoting) members, including members of other national organizations, in such numbers as shall be determined by the commission.

D. Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the by-laws of the Interstate Commission.

E. The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.

F. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the by-laws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee shall oversee the day-to- day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its by-laws and rules, and performs such other duties as directed by the Interstate Commission or set forth in the by-laws.

G. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The by-laws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.

H. The Interstate Commission's by-laws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.

I. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:

1. relate solely to the Interstate Commission's internal personnel practices and procedures;

2. disclose matters specifically exempted from disclosure by statute;

3. disclose trade secrets or commercial or financial information which is privileged or confidential;

4. involve accusing any person of a crime, or formally censuring any person;

5. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

6. disclose investigative records compiled for law enforcement purposes;

7. disclose information contained in or related to examination, operating, or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;

8. disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or

9. specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.

J. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.

K. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection, and data exchange and reporting requirements. Such methods of data collection, exchange and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

Subarticle IV

Powers and Duties of the Interstate Commission

The commission shall have the following powers and duties to:

1. provide for dispute resolution among compacting states;

2. promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;

3. oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any by-laws adopted and rules promulgated by the Interstate Commission;

4. enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the by-laws, using all necessary and proper means, including, but not limited to, the use of judicial process;

5. establish and maintain offices which shall be located within one or more of the compacting states;

6. purchase and maintain insurance and bonds;

7. borrow, accept, hire, or contract for services of personnel;

8. establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Subarticle III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder;

9. elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel;

10. accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it;

11. lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed;

12. sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;

13. establish a budget and make expenditures and levy dues as provided in Subarticle VIII of this compact;

14. sue and be sued;

15. adopt a seal and by-laws governing the management and operation of the Interstate Commission;

16. perform such functions as may be necessary or appropriate to achieve the purposes of this compact;

17. report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission;

18. coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity;

19. establish uniform standards of the reporting, collecting, and exchanging of data; and

20. maintain its corporate books and records in accordance with the by-laws.

Subarticle V

Organization and Operation of the Interstate Commission

A. By-laws

1. The Interstate Commission shall, by a majority of the members present and voting, within twelve months after the first Interstate Commission meeting, adopt by-laws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact including, but not limited to:

a. establishing the fiscal year of the Interstate Commission;

b. establishing an executive committee and such other committees as may be necessary;

c. providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;

d. providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;

e. establishing the titles and responsibilities of the officers of the Interstate Commission;

f. providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;

g. providing "start-up" rules for initial administration of the compact; and

h. establishing standards and procedures for compliance and technical assistance in carrying out the compact.

B. Officers and Staff

1. The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the by-laws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.

2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.

C. Qualified Immunity, Defense, and Indemnification

1. The commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or wilful and wanton misconduct of any such person.

2. The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or wilful and wanton misconduct of any such person.

3. The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the Attorney General of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or wilful and wanton misconduct on the part of such person.

4. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

Subarticle VI

Rulemaking Functions of the Interstate Commission

A. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

B. Rulemaking shall occur pursuant to the criteria set forth in this subarticle and the by-laws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act", 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the commission.

C. When promulgating a rule, the Interstate Commission shall, at a minimum:

1. publish the proposed rule's entire text stating the reason(s) for that proposed rule;

2. allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record, and be made publicly available;

3. provide an opportunity for an informal hearing if petitioned by ten or more persons; and

4. promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.

D. Allow, not later than sixty days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.

E. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.

F. The existing rules governing the operation of the Interstate Compact on Juveniles superceded by this act shall be null and void twelve months after the first meeting of the Interstate Commission created hereunder.

G. Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule.

Subarticle VII

Oversight, Enforcement, and Dispute Resolution by the Interstate Commission

A. Oversight

1. The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.

2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

B. Dispute Resolution

1. The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its by-laws and rules.

2. The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

3. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Subarticle XI of this compact.

Subarticle VIII

Finance

A. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.

B. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.

C. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

D. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its by-laws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

Subarticle IX

The State Council

A. Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.

B. The director of the South Carolina Department of Juvenile Justice, or his designee, must serve as Compact Administrator for the State of South Carolina. The director of the South Carolina Department of Juvenile Justice shall appoint the members of the state council. The state council shall act as an advisory body to the director regarding the activities of the Interstate Compact.

Subarticle X

Compacting States, Effective Date, and Amendment

A. Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands as defined in Subarticle II of this compact is eligible to become a compacting state.

B. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the 35th jurisdiction. Thereafter, it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.

C. The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

Subarticle XI

Withdrawal, Default, Termination, and Judicial Enforcement

A. Withdrawal

1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.

2. The effective date of withdrawal is the effective date of the repeal.

3. The withdrawing state shall immediately notify the Chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof.

4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.

B. Technical Assistance, Fines, Suspension, Termination, and Default

1. If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the by-laws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:

a. remedial training and technical assistance as directed by the Interstate Commission;

b. alternative dispute resolution;

c. fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and

d. suspension or termination of membership in the compact, which shall be only imposed after all other reasonable means of securing compliance under the by-laws and rules have been exhausted and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice, or the Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the by-laws, or duly promulgated rules and any other grounds designated in commission by-laws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination.

2. Within sixty days of the effective date of termination of a defaulting state, the commission shall notify the Governor, the Chief Justice, or Chief Judicial Officer, the Majority and Minority Leaders of the defaulting state's legislature, and the state council of such termination.

3. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.

4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.

5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.

C. Judicial Enforcement

The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and by-laws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.

D. Dissolution of Compact

1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state.

2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the by-laws.

Subarticle XII

Severability and Construction

A. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

B. The provisions of this compact shall be liberally construed to effectuate its purposes.

Subarticle XIII

Binding Effect of Compact and Other Laws

A. Other Laws

1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.

2. All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.

B. Binding Effect of the Compact

1. All lawful actions of the Interstate Commission, including all rules and by-laws promulgated by the Interstate Commission, are binding upon the compacting states.

2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.

3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.

4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.


OFFENSES INVOLVING MINORS

 

SECTION 63-19-2410. Misrepresentation of age for admission to theater.

A minor who gains admission to any theater by falsely claiming to be eighteen years of age or older is guilty of a misdemeanor and, upon conviction, must be fined not more than fifty dollars.

 

SECTION 63-19-2420. Loitering in a billiard room.

It is unlawful for a person under eighteen years of age to loiter in a billiard or pocket billiard room or to play billiards or pocket billiards in a billiard room unless accompanied by the person's parent or guardian or with the written consent of the person's parent or guardian. A person violating this section or Chapter 11 of Title 52 or any billiard room proprietor or manager who permits such a violation must be fined not less than ten nor more than one hundred dollars or be imprisoned not less than two days nor more than thirty days. In the event the keeper of a billiard room is of the opinion that a person desiring admission is under the age of eighteen years the keeper shall require the person to certify the person's age in writing. It is a misdemeanor, punishable by a fine of not less than twenty-five nor more than one hundred dollars, for a minor to make a false certificate of age or use a forged permit from the minor's parent or guardian.

 

SECTION 63-19-2430. Playing pinball.

It is unlawful for a minor under the age of eighteen to play a pinball machine.

 

SECTION 63-19-2440. Beer and wine purchase, consumption, possession.

(A) It is unlawful for a person under the age of twenty-one to purchase, attempt to purchase, consume, or knowingly possess beer, ale, porter, wine, or other similar malt or fermented beverage. Possession is prima facie evidence that it was knowingly possessed. Notwithstanding another provision of law, if the law enforcement officer has probable cause to believe that a person is under age twenty-one and has consumed alcohol, the law enforcement officer or the person may request that the person submit to any available alcohol screening test using a device approved by the State Law Enforcement Division. A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or must be imprisoned for not more than thirty days, or both.

(B) A person who violates the provisions of this section also is required to successfully complete a DAODAS approved alcohol prevention education or intervention program. The program must be a minimum of eight hours and the cost to the person may not exceed one hundred fifty dollars.

(C) A person eighteen years of age and over lawfully employed to serve or remove beer, wine, or alcoholic beverages in establishments licensed to sell these beverages is not considered to be in unlawful possession of the beverages during the course and scope of his duties as an employee. The provisions of this subsection do not affect the requirement that a bartender must be at least twenty-one years of age.

(D) This section does not apply to an employee lawfully engaged in the sale or delivery of these beverages in an unopened container.

(E) The provisions of this section do not apply to a student who:

(1) is eighteen years of age or older;

(2) is enrolled in an accredited college or university and a student in a culinary course that has been approved through review by the State Commission on Higher Education;

(3) is required to taste, but not consume or imbibe, any beer, ale, porter, wine, or other similar malt or fermented beverage as part of the required curriculum; and

(4) tastes a beverage pursuant to item (3) only for instructional purposes during classes that are part of the curriculum of the accredited college or university.

The beverage must remain at all times in the possession and control of an authorized instructor of the college or university who must be twenty-one years of age or older. Nothing in this subsection may be construed to allow a student under the age of twenty-one to receive any beer, ale, porter, wine, or other similar malt or fermented beverage unless the beverage is delivered as part of the student's required curriculum and the beverage is used only for instructional purposes during classes conducted pursuant to the curriculum.

(F) The provisions of this section do not apply to a person under the age of twenty-one who is recruited and authorized by a law enforcement agency to test an establishment's compliance with laws relating to the unlawful transfer or sale of beer or wine to a minor. The testing must be under the direct supervision of a law enforcement agency, and the agency must have the person's parental consent.

 

SECTION 63-19-2450. Alcoholic beverages purchase, consumption, possession.

(A) It is unlawful for a person under the age of twenty-one to purchase, attempt to purchase, consume, or knowingly possess alcoholic liquors. Possession is prima facie evidence that it was knowingly possessed. It is also unlawful for a person to falsely represent his age for the purpose of procuring alcoholic liquors. Notwithstanding another provision of law, if the law enforcement officer has probable cause to believe that a person is under age twenty-one and has consumed alcohol, the law enforcement officer or the person may request that the person submit to any available alcohol screening test using a device approved by the State Law Enforcement Division.

(B) A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or must be imprisoned for not more than thirty days, or both.

(C) A person who violates the provisions of this section also is required to successfully complete a DAODAS approved alcohol prevention education or intervention program. The program must be a minimum of eight hours and the cost to the person may not exceed one hundred fifty dollars.

(D) The provisions of this section do not apply to a student who:

(1) is eighteen years of age or older;

(2) is enrolled in an accredited college or university and a student in a culinary course that has been approved through review by the State Commission on Higher Education;

(3) is required to taste, but not consume or imbibe, any alcoholic liquor as part of the required curriculum; and

(4) tastes the liquor pursuant to item (3) only for instructional purposes during classes that are part of the curriculum of the accredited college or university.

The alcoholic liquor must remain at all times in the possession and control of an authorized instructor of the college or university who must be twenty-one years of age or older. Nothing in this subsection may be construed to allow a student under the age of twenty-one to receive alcoholic liquor unless it is delivered as part of the student's required curriculum, and it is used only for instructional purposes during classes conducted pursuant to the curriculum.

(E) The provisions of this section do not apply to a person under the age of twenty-one who is recruited and authorized by a law enforcement agency to test an establishment's compliance with the laws relating to the unlawful transfer or sale of alcoholic liquors to a minor. The testing must be under the direct supervision of a law enforcement agency, and the agency must have the person's parental consent.

 

SECTION 63-19-2460. Alcoholic beverages in home; religious use exception.

No provision of law prohibiting the use or possession of beer, wine, or alcoholic beverages by minors shall apply to any minor in the home of his parents or guardian or to any such beverage used for religious ceremonies or purposes so long as such beverage was legally purchased.


SEX OFFENDER REGISTRY

 

SECTION 23-3-400. Purpose.

The intent of this article is to promote the state's fundamental right to provide for the public health, welfare, and safety of its citizens. Notwithstanding this legitimate state purpose, these provisions are not intended to violate the guaranteed constitutional rights of those who have violated our nation's laws.

The sex offender registry will provide law enforcement with the tools needed in investigating criminal offenses. Statistics show that sex offenders often pose a high risk of re-offending. Additionally, law enforcement's efforts to protect communities, conduct investigations, and apprehend offenders who commit sex offenses are impaired by the lack of information about these convicted offenders who live within the law enforcement agency's jurisdiction.

 

SECTION 23-3-410. Registry; contents and purpose; cross-reference alias names.

(A) The registry is under the direction of the Chief of the State Law Enforcement Division (SLED) and shall contain information the chief considers necessary to assist law enforcement in the location of persons convicted of certain offenses. SLED shall develop and operate the registry to: collect, analyze, and maintain information; make information available to every enforcement agency in this State and in other states; and establish a security system to ensure that only authorized persons may gain access to information gathered under this article.

(B) SLED shall include and cross-reference alias names in the registry.

 

SECTION 23-3-420. Promulgation of regulations.

The State Law Enforcement Division shall promulgate regulations to implement the provisions of this article.

 

SECTION 23-3-430. Sex offender registry; convictions and not guilty by reason of insanity findings requiring registration.

(A) Any person, regardless of age, residing in the State of South Carolina who in this State has been convicted of, adjudicated delinquent for, pled guilty or nolo contendere to an offense described below, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in any comparable court in the United States, or a foreign country, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in the United States federal courts of a similar offense, or who has been convicted of, adjudicated delinquent for, pled guilty or nolo contendere, or found not guilty by reason of insanity to an offense for which the person was required to register in the state where the conviction or plea occurred, shall be required to register pursuant to the provisions of this article. A person who has been found not guilty by reason of insanity shall not be required to register pursuant to the provisions of this article unless and until the person is declared to no longer be insane or is ordered to register by the trial judge. A person who has been convicted, adjudicated delinquent, pled guilty or nolo contendere, or found not guilty by reason of insanity in any court in a foreign country may raise as a defense to a prosecution for failure to register that the offense in the foreign country was not equivalent to any offense in this State for which he would be required to register and may raise as a defense that the conviction, adjudication, plea, or finding in the foreign country was based on a proceeding or trial in which the person was not afforded the due process of law as guaranteed by the Constitution of the United States and this State.

(B) For purposes of this article, a person who remains in this State for a total of thirty days during a twelve-month period is a resident of this State.

(C) For purposes of this article, a person who has been convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses shall be referred to as an offender:

(1) criminal sexual conduct in the first degree (Section 16-3-652);

(2) criminal sexual conduct in the second degree (Section 16-3-653);

(3) criminal sexual conduct in the third degree (Section 16-3-654);

(4) criminal sexual conduct with minors, first degree (Section 16-3-655(1));

(5) criminal sexual conduct with minors, second degree. If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from consensual sexual conduct, as contained in Section 16-3-655(3) provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, the convicted person is not an offender and is not required to register pursuant to the provisions of this article;

(6) engaging a child for sexual performance (Section 16-3-810);

(7) producing, directing, or promoting sexual performance by a child (Section 16-3-820);

(8) criminal sexual conduct: assaults with intent to commit (Section 16-3-656);

(9) incest (Section 16-15-20);

(10) buggery (Section 16-15-120);

(11) committing or attempting lewd act upon child under sixteen (Section 16-15-140);

(12) peeping, voyeurism, or aggravated voyeurism (Section 16-17-470);

(13) violations of Article 3, Chapter 15 of Title 16 involving a minor;

(14) a person, regardless of age, who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in this State, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in a comparable court in the United States, or who has been convicted, adjudicated delinquent, pled guilty or nolo contendere in the United States federal courts of indecent exposure or of a similar offense in other jurisdictions is required to register pursuant to the provisions of this article if the court makes a specific finding on the record that based on the circumstances of the case the convicted person should register as a sex offender;

(15) kidnapping (Section 16-3-910) of a person eighteen years of age or older except when the court makes a finding on the record that the offense did not include a criminal sexual offense or an attempted criminal sexual offense;

(16) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent;

(17) criminal sexual conduct when the victim is a spouse (Section 16-3-658);

(18) sexual battery of a spouse (Section 16-3-615);

(19) sexual intercourse with a patient or trainee (Section 44-23-1150);

(20) criminal solicitation of a minor if the purpose or intent of the solicitation or attempted solicitation was to:

(a) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5);

(b) perform a sexual activity in the presence of the person solicited (Section 16-15-342); or

(21) administering, distributing, dispensing, delivering, or aiding, abetting, attempting, or conspiring to administer, distribute, dispense, or deliver a controlled substance or gamma hydroxy butyrate to an individual with the intent to commit a crime listed in Section 44-53-370(f), except petit larceny or grand larceny.

(D) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the solicitor.

(E) SLED shall remove a person's name and any other information concerning that person from the sex offender registry immediately upon notification by the Attorney General that the person's adjudication, conviction, guilty plea, or plea of nolo contendere for an offense listed in subsection (C) was reversed, overturned, or vacated on appeal and a final judgment has been rendered.

(F) If an offender receives a pardon for the offense for which he was required to register, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:

(1) as provided by the provisions of subsection (E); or

(2) if the pardon is based on a finding of not guilty specifically stated in the pardon.

(G) If an offender files a petition for a writ of habeas corpus or a motion for a new trial pursuant to Rule 29(b), South Carolina Rules of Criminal Procedure, based on newly discovered evidence, the offender must reregister as provided by Section 23-3-460 and may not be removed from the registry except:

(1) as provided by the provisions of subsection (E); or

(2)(a) if the circuit court grants the offender's petition or motion and orders a new trial; and

(b) a verdict of acquittal is returned at the new trial or entered with the state's consent.

 

SECTION 23-3-440. Notification of sheriff of offender's release, probation or change of residence; juvenile offenders.

(1) Before an offender's release from the Department of Corrections after completion of the term of imprisonment, from the Department of Juvenile Justice after completion of the term of confinement, or being placed on parole, SLED, based upon information provided by the Department of Corrections, the Department of Juvenile Justice, the Juvenile Parole Board, or the Department of Probation, Parole and Pardon Services, shall notify the sheriff of the county where the offender intends to reside that the offender is being released and has provided an address within the jurisdiction of the sheriff for that county. The Department of Corrections, the Department of Juvenile Justice, the Juvenile Parole Board, and the Department of Probation, Parole and Pardon Services shall provide verbal and written notification to the offender that he must register with the sheriff of the county in which he intends to reside within one business day of his release. Further, the Department of Corrections, the Department of Juvenile Justice, and the Juvenile Parole Board shall obtain descriptive information of the offender, including a current photograph prior to release. The offender's photograph must be provided to SLED before he is released.

(2) Based upon information provided by the Department of Probation, Parole and Pardon Services, SLED shall notify the sheriff of the county where an offender is residing when the offender is sentenced to probation or is a new resident of the State who must be supervised by the department. The Department of Probation, Parole and Pardon Services also shall provide verbal and written notification to the offender that he must register with the sheriff of the county in which he intends to reside. An offender who is sentenced to probation must register within one business day of sentencing. Further, the Department of Probation, Parole and Pardon Services shall obtain descriptive information of the offender, including a current photograph that is to be updated annually prior to expiration of the probation sentence.

(3) Based upon information provided by the Department of Juvenile Justice, or the Juvenile Parole Board SLED shall notify the sheriff of the county where an offender is residing when the offender is released from a Department of Juvenile Justice facility or the Juvenile Parole Board, or when the Department of Juvenile Justice or the Juvenile Parole Board is required to supervise the actions of the juvenile. The Department of Juvenile Justice or the Juvenile Parole Board must provide verbal and written notification to the juvenile and his parent, legal guardian, or custodian that the juvenile must register with the sheriff of the county in which the juvenile resides. The juvenile must register within one business day of his release. The parents or legal guardian of a person under seventeen years of age who is required to register under this chapter must ensure that the person has registered.

(4) The Department of Corrections, the Department of Probation, Parole and Pardon Services, and the Department of Juvenile Justice shall provide to SLED the initial registry information regarding the offender prior to his release from imprisonment or relief of supervision. This information shall be collected in the event the offender fails to register with his county sheriff.

 

SECTION 23-3-450. Offender registration with sheriff; sheriff's notification of local law enforcement agencies.

The offender shall register with the sheriff of each county in which he resides, owns real property, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school. To register, the offender must provide information as prescribed by SLED. The sheriff in the county in which the offender resides, owns real property, or attends any public or private school shall forward all required registration information to SLED within five business days. A copy of this information must be kept by the sheriff's department. The county sheriff shall ensure that all information required by SLED is secured and shall establish specific times of the day during which an offender may register. An offender shall not be considered to have registered until all information prescribed by SLED has been provided to the sheriff. The sheriff in the county in which the offender resides, owns real property, or attends any public or private school shall notify all local law enforcement agencies, including college or university law enforcement agencies, within five business days of an offender who resides, owns real property, or attends any public or private school within the local law enforcement agency's jurisdiction.

 

SECTION 23-3-460. Bi-annual registration for life; notification of change of address; notification of local law enforcement agencies.

(A) A person required to register pursuant to this article is required to register bi-annually for life. For purposes of this article, "bi-annually" means each year during the month of his birthday and again during the sixth month following his birth month. The person required to register shall register and must re-register at the sheriff's department in each county where he resides, owns real property, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school. A person determined by a court to be a sexually violent predator pursuant to state law is required to verify registration and be photographed every ninety days by the sheriff's department in the county in which he resides unless the person is committed to the custody of the State, and verification will be held in abeyance until his release.

(B) If a person required to register pursuant to this article changes his address within the same county, that person must send written notice of the change of address to the sheriff within ten days of establishing the new residence. If a person required to register under this article owns or acquires real property within a county in this State, or attends any public or private school, including, but not limited to, a secondary school, adult education school, college or university, and any vocational, technical, or occupational school, he must register with the sheriff in each county where the real property or the public or private school is located within ten days of acquiring the real property or attending the public or private school.

(C) If a person required to register pursuant to this article changes his address into another county in South Carolina, the person must register with the county sheriff in the new county within ten days of establishing the new residence. The person must also provide written notice within ten days of the change of address in the previous county to the sheriff with whom the person last registered.

(D) A person required to register pursuant to this article and who is employed by, attends, is enrolled at, or carries on a vocation at any public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any vocational, technical, or occupational school, must provide written notice within ten days of each change in attendance, enrollment, employment, or vocation status at any public or private school in this State. For purposes of this subsection, " employed and carries on a vocation" means employment that is full-time or part-time for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during a calendar year, whether financially compensated, volunteered, or for the purpose of government or educational benefit; and "student" means a person who is enrolled on a full-time or part-time basis, in a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and a vocational, technical, or occupational school.

(E) If a person required to register pursuant to this article moves outside of South Carolina, the person must provide written notice within ten days of the change of address to a new state to the county sheriff with whom the person last registered.

(F) A person required to register pursuant to this article who moves to South Carolina from another state, establishes residence, acquires real property, attends or is enrolled at, or is employed by or carries on a vocation at a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and a vocational, technical, or occupational school in South Carolina, and is not under the jurisdiction of the Department of Corrections, the Department of Probation, Parole and Pardon Services, the Department of Juvenile Justice, or the Juvenile Parole Board at the time of moving to South Carolina must register within ten days of establishing residence, acquiring real property, attending or enrolling at, or being employed by or carrying on a vocation at a public or private school in this State.

(G) The sheriff of the county in which the person resides must forward all changes to any information provided by a person required to register pursuant to this article to SLED within five business days.

(H) A sheriff who receives registration information, notification of change of address, or notification of change in attendance, enrollment, employment, or vocation status at a public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and a vocational, technical, or occupational school, must notify all local law enforcement agencies, including college or university law enforcement agencies, within five business days of an offender whose address, real property, or public or private school is within the local law enforcement agency's jurisdiction.

(I) The South Carolina Department of Motor Vehicles, shall inform, in writing, any new resident who applies for a driver's license, chauffeur's license, vehicle tag, or state identification card of the obligation of sex offenders to register. The department also shall inform, in writing, a person renewing a driver's license, chauffeur's license, vehicle tag, or state identification card of the requirement for sex offenders to register.

 

SECTION 23-3-465. Residence in campus student housing.

Any person required to register under this article is prohibited from living in campus student housing at a public institution of higher learning supported in whole or in part by the State.

 

SECTION 23-3-470. Failure to register or provide required notifications; penalties.

(A) It is the duty of the offender to contact the sheriff in order to register, provide notification of change of address, or notification of change in attendance, enrollment, employment, or vocation status at any public or private school, including, but not limited to, a kindergarten, elementary school, middle school or junior high, high school, secondary school, adult education school, college or university, and any vocational, technical, or occupational school. If an offender fails to register, provide notification of change of address, or notification of change in attendance, enrollment, employment, or vocation status at any public or private school, as required by this article, he must be punished as provided in subsection (B).

(B)(1) A person convicted for a first offense is guilty of a misdemeanor and may be fined not more than five hundred dollars or imprisoned for not more than thirty days, or both.

(2) A person convicted for a second offense is guilty of a misdemeanor and must be imprisoned for a mandatory period of one year, no part of which shall be suspended nor probation granted.

(3) A person convicted for a third or subsequent offense is guilty of a felony and must be imprisoned for a mandatory period of five years, three years of which shall not be suspended nor probation granted.

 

SECTION 23-3-475. Registering with false information; penalties.

(A) Anyone who knowingly and wilfully gives false information when registering as an offender pursuant to this article must be punished as provided in subsection (B).

(B)(1) A person convicted for a first offense is guilty of a misdemeanor and must be imprisoned for a mandatory period of ninety days, no part of which shall be suspended nor probation granted.

(2) A person convicted for a second offense is guilty of a misdemeanor and must be imprisoned for a mandatory period of one year, no part of which shall be suspended nor probation granted.

(3) A person convicted for a third or subsequent offense is guilty of a felony and must be imprisoned for a mandatory period of five years, three years of which shall not be suspended nor probation granted.

 

SECTION 23-3-480. Notice of duty to register; what constitutes; registration following charge of failure to register not a defense.

(A) An arrest on charges of failure to register, service of an information or complaint for failure to register, or arraignment on charges of failure to register constitutes actual notice of the duty to register. A person charged with the crime of failure to register who asserts as a defense the lack of notice of the duty to register shall register immediately following actual notice through arrest, service, or arraignment. Failure to register after notice as required by this article constitutes grounds for filing another charge of failure to register. Registering following arrest, service, or arraignment on charges does not relieve the offender from the criminal penalty for failure to register before the filing of the original charge.

(B) Section 23-3-470 shall not apply to a person convicted of an offense provided in Section 23-3-430 prior to July 1, 1994, and who was released from custody prior to July 1, 1994, unless the person has been served notice of the duty to register by the sheriff of the county in which the person resides. This person shall register within ten days of the notification of the duty to register.

 

SECTION 23-3-490. Public inspection of offender registry.

(A) Information collected for the offender registry is open to public inspection, upon request to the county sheriff. A sheriff must release information regarding persons required to register under this article to a member of the public if the request is made in writing, on a form prescribed by SLED. The sheriff must provide the person making the request with the full names of the registered sex offenders, any aliases, any other identifying physical characteristics, each offender's date of birth, the home address on file, the offense for which the offender was required to register pursuant to Section 23-3-430, and the date, city, and state of conviction. A photocopy of a current photograph must also be provided. The sheriff must provide to a newspaper with general circulation within the county a listing of the registry for publication.

A sheriff who provides the offender registry for publication or a newspaper which publishes the registry, or any portion of it, is not liable and must not be named as a party in an action to recover damages or seek relief for errors or omissions in the publication of the offender registry; however, if the error or omission was done intentionally , with malice, or in bad faith the sheriff or newspaper is not immune from liability.

(B) A person may request on a form prescribed by SLED a list of registered sex offenders residing in a city, county, or zip code zone or a list of all registered sex offenders within the State from SLED. A person may request information regarding a specific person who is required to register under this article from SLED if the person requesting the information provides the name or address of the person about whom the information is sought. SLED shall provide the person making the request with the full names of the requested registered sex offenders, any aliases, any other identifying physical characteristics, each offender's date of birth, the home address on file, the offense for which the offender was required to register pursuant to Section 23-3-430, and the date, city, and state of conviction. The State Law Enforcement Division may charge a reasonable fee to cover the cost of copying and distributing sex offender registry lists as provided for in this section. These funds must be used for the sole purpose of offsetting the cost of providing sex offender registry lists.

(C) Nothing in subsection (A) prohibits a sheriff from disseminating information contained in subsection (A) regarding persons who are required to register under this article if the sheriff or another law enforcement officer has reason to believe the release of this information will deter criminal activity or enhance public safety. The sheriff shall notify the principals of public and private schools, and the administrator of child day care centers and family day care centers of any offender whose address is within one-half mile of the school or business.

(D) For purposes of this article, information on a person adjudicated delinquent in family court for an offense listed in Section 23-3-430 must be made available to the public in accordance with the following provisions:

(1) If a person has been adjudicated delinquent for committing any of the following offenses, information must be made available to the public pursuant to subsections (A) and (B):

(a) criminal sexual conduct in the first degree (Section 16-3-652);

(b) criminal sexual conduct in the second degree (Section 16-3-653);

(c) criminal sexual conduct with minors, first degree (Section 16-3-655(1));

(d) criminal sexual conduct with minors, second degree (Section 16-3-655(2) and (3));

(e) engaging a child for sexual performance (Section 16-3-810);

(f) producing, directing, or promoting sexual performance by a child (Section 16-3-820); or

(g) kidnapping (Section 16-3-910).

(2) Information shall only be made available, upon request, to victims of or witnesses to the offense, public or private schools, child day care centers, family day care centers, businesses or organizations that primarily serve children, women, or vulnerable adults, as defined in Section 43-35-10(11), for persons adjudicated delinquent for committing any of the following offenses:

(a) criminal sexual conduct in the third degree (Section 16-3-654);

(b) criminal sexual conduct: assaults with intent to commit (Section 16-3-656);

(c) criminal sexual conduct with a minor: assaults with intent to commit (Section 16-3-656);

(d) committing or attempting lewd act upon child under sixteen (Section 16-15-140);

(e) peeping (Section 16-17-470);

(f) incest (Section 16-15-20);

(g) buggery (Section 16-15-120);

(h) violations of Article 3, Chapter 15 of Title 16 involving a minor, which violations are felonies; or

(i) indecent exposure.

(3) A person who is under twelve years of age at the time of his adjudication, conviction, guilty plea, or plea of nolo contendere for a first offense of any offense listed in Section 23-3-430(C) shall be required to register pursuant to the provisions of this chapter; however, the person's name or any other information collected for the offender registry shall not be made available to the public.

(4) A person who is under twelve years of age at the time of his adjudication, conviction, guilty plea, or plea of nolo contendere for any offense listed in Section 23-3-430(C) and who has a prior adjudication, conviction, guilty plea, or plea of nolo contendere for any offense listed in Section 23-3-430(C) shall be required to register pursuant to the provisions of this chapter, and all registry information concerning that person shall be made available to the public pursuant to items (1) and (2).

(5) Nothing in this section shall prohibit the dissemination of all registry information to law enforcement.

(E) For purposes of this section, use of computerized or electronic transmission of data or other electronic or similar means is permitted.

 

SECTION 23-3-500. Psychiatric or psychological treatment for children adjudicated for certain sex offenses.

A court must order that a child under twelve years of age who is convicted of, pleads guilty or nolo contendere to, or is adjudicated for an offense listed in Section 23-3-430(C) be given appropriate psychiatric or psychological treatment to address the circumstances of the offense for which the child was convicted, pled guilty or nolo contendere, or adjudicated.

 

SECTION 23-3-510. Persons committing criminal offenses using sex offender registry information; punishment.

A person who commits a criminal offense using information from the sex offender registry disclosed to him pursuant to Section 23-3-490, upon conviction, must be punished as follows:

(1) For a misdemeanor offense, the maximum fine prescribed by law for the offense may be increased by not more than one thousand dollars, and the maximum term of imprisonment prescribed by law for the offense may be increased by not more than six months.

(2) For a felony offense, the maximum term of imprisonment prescribed by law for the offense may be increased by not more than five years.

 

SECTION 23-3-520. Immunity of public officials, employees, and agencies for acts or omissions under this article; exceptions; duties regarding disclosure of information.

(A) An appointed or elected public official, public employee, or public agency is immune from civil liability for damages for any act or omission under this article unless the official's, employee's, or agency's conduct constitutes gross negligence.

(B) Nothing in this chapter imposes an affirmative duty on a person to disclose to a member of the public information from the sex offender registry other than on those persons responsible for providing registry information pursuant to their official duties as provided for in this chapter.

(C) Nothing in this section may be construed to mean that information regarding persons on the sex offender registry is confidential except as otherwise provided by law.

 

SECTION 23-3-525. Notice by real estate brokerage about obtaining sex offender registry information.

A real estate brokerage and its affiliated licensees is immune from liability for any act or omission related to the disclosure of information under this chapter if the brokerage or its affiliated licensees in a timely manner provides to its clients and customers written notice that they may obtain information about the sex offender registry and persons registered with the registry by contacting the county sheriff. The notice may be included as part of a listing agreement, buyer representation agreement, or sales agreement.

 

SECTION 23-3-530. Protocol manual for sex offender registry; contents.

The State Law Enforcement Division shall develop and maintain a protocol manual to be used by contributing agencies in the administration of the sex offender registry. The protocol manual must include, but is not limited to, the following:

(1) procedures for the verification of addresses by the sheriff's department in the county where the person resides; and

(2) specific requirements for registration and re-registration including, but not limited to, the following:

(a) the name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of permanent residence, address of current temporary residence, within the State or out of state, including rural route address and post office box, which may not be provided instead of a physical residential address, date and place of employment, vehicle make, model, color, and license tag number, fingerprints, and photograph;

(b) the name, address, and county of each institution of higher learning, including the specific campus location, if the person is enrolled, employed, or carries on a vocation there;

(c) the vehicle identification number, license tag number, registration number, and a description, including the color scheme, if the person lives in a motor vehicle, trailer, mobile home, or manufactured home; and

(d) the hull identification number, the manufacturer's serial number, the name of the vessel, live-aboard vessel, or houseboat, the registration number, and a description of the color scheme, if the person lives in a vessel, live-aboard vessel, or houseboat.

 

SECTION 23-3-535. Limitation on places of residence of certain sex offenders; exceptions; violations; local government ordinances; school districts required to provide certain information.

(A) As contained in this section:

(1) "Children's recreational facility" means a facility owned and operated by a city, county, or special purpose district used for the purpose of recreational activity for children under the age of eighteen.

(2) "Daycare center" means an arrangement where, at any one time, there are three or more preschool-age children, or nine or more school-age children receiving child care.

(3) "School" does not include a home school or an institution of higher education.

(4) "Within one thousand feet" means a measurement made in a straight line, without regard to intervening structures or objects, from the nearest portion of the property on which the sex offender resides to the nearest property line of the premises of a school, daycare center, children's recreational facility, park, or public playground, whichever is closer.

(B) It is unlawful for a sex offender who has been convicted of any of the following offenses to reside within one thousand feet of a school, daycare center, children's recreational facility, park, or public playground:

(1) criminal sexual conduct with a minor, first degree;

(2) criminal sexual conduct with a minor, second degree;

(3) assault with intent to commit criminal sexual conduct with a minor; or

(4) kidnapping a person under eighteen years of age.

(C) This section does not apply to a sex offender who:

(1) resided within one thousand feet of a school, daycare center, children's recreational facility, park, or public playground before the effective date of this act;

(2) resided within one thousand feet of a school, daycare center, children's recreational facility, park, or public playground on property the sex offender owned before the sex offender was charged with any of the offenses enumerated in subsection (B);

(3) resides within one thousand feet of a school, daycare center, children's recreational facility, park, or public playground as a result of the establishment of a new school, daycare center, children's recreational facility, park, or public playground;

(4) resides in a jail, prison, detention facility, group home for persons under the age of twenty-one licensed by the Department of Social Services, residential treatment facility for persons under the age of twenty-one licensed by the Department of Health and Environmental Control, or other holding facility, including a mental health facility;

(5) resides in a homeless shelter for no more than one year, a group home for persons under the age of twenty-one licensed by the Department of Social Services, or a residential treatment facility for persons under the age of twenty-one licensed by the Department of Health and Environmental Control, and the site was purchased by the organization prior to the effective date of this act;

(6) resides in a community residential care facility, as defined in Section 44-7-130(6); or

(7) resides in a nursing home, as defined in Section 44-7-130(13).

(D) If upon registration of a sex offender, or at any other time, a local law enforcement agency determines that a sex offender is in violation of this section, the local law enforcement agency must, within thirty days, notify the sex offender of the violation, provide the sex offender with a list of areas in which the sex offender is not permitted to reside, and notify the sex offender that the sex offender has thirty days to vacate the residence. If the sex offender fails to vacate the residence within thirty days, the sex offender must be punished as follows:

(1) for a first offense, the sex offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days, or fined not more than five hundred dollars, or both;

(2) for a second offense, the sex offender is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years, or fined not more than one thousand dollars, or both;

(3) for a third or subsequent offense, the sex offender is guilty of a felony and, upon conviction, must be imprisoned for not more than five years, or fined not more than five thousand dollars, or both.

(E) A local government may not enact an ordinance that contains penalties that exceed or are less lenient than the penalties contained in this section.

(F)(1) At the beginning of each school year, each school district must provide:

(a) the names and addresses of every sex offender who resides within one thousand feet of a school bus stop within the school district to the parents or guardians of a student who boards or disembarks a school bus at a stop covered by this subsection; or

(b) the hyperlink to the sex offender registry web site on the school district's web site for the purpose of gathering this information.

(2) Local law enforcement agencies must check the school districts' web sites to determine if each school district has complied with this subsection. If a hyperlink does not appear on a school district web site, the local law enforcement agency must contact the school district to confirm that the school district has provided the parents or guardians with the names and addresses of every sex offender who resides within one thousand feet of a school bus stop within the school district. If the local law enforcement agency determines that this information has not been provided, the local law enforcement agency must inform the school district that it is in violation of this subsection. If the school district does not comply within thirty days after notice of its violation, the school district is subject to equitable injunctive relief and, if the plaintiff prevails, the district shall pay the plaintiff's attorney's fees and costs.

 


JESSICA’S LAW / ACTIVE ELECTRONIC MONITORING

 

SECTION 23-3-540. Electronic monitoring; reporting damage to or removing monitoring device; penalty.

(A) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, the court must order that the person, upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(B) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for any other offense listed in subsection (G), the court may order that the person upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(C) A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(D) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a term of probation, parole, community supervision, or a community supervision program, may be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(E) A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(F) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a provision of this article, may be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

(G) This section applies to a person who has been:

(1) convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses:

(a) criminal sexual conduct with a minor in the first degree (Section 16-3-655(A));

(b) criminal sexual conduct with a minor in the second degree (Section 16-3-655(B)). If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from illicit consensual sexual conduct, as contained in Section 16-3-655(B)(2), provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, then the convicted person is not required to be electronically monitored pursuant to the provisions of this section;

(c) engaging a child for sexual performance (Section 16-3-810);

(d) producing, directing, or promoting sexual performance by a child (Section 16-3-820);

(e) criminal sexual conduct: assaults with intent to commit (Section 16-3-656) involving a minor;

(f) committing or attempting lewd act upon child under sixteen (Section 16-15-140);

(g) violations of Article 3, Chapter 15 of Title 16 involving a minor;

(h) kidnapping (Section 16-3-910) of a person under eighteen years of age except when the offense is committed by a parent; or

(2) ordered as a condition of sentencing to be included in the sex offender registry pursuant to Section 23-3-430(D) for an offense involving a minor, except that the provisions of this item may not be construed to apply to a person eighteen years of age or less who engages in illicit but consensual sexual conduct with another person who is at least fourteen years of age as provided in Section 16-3-655(B)(2).

(H) The person shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device for the duration of the time the person is required to remain on the sex offender registry pursuant to the provisions of this article, unless the person is committed to the custody of the State. Ten years from the date the person begins to be electronically monitored, the person may petition the chief administrative judge of the general sessions court for the county in which the person was ordered to be electronically monitored for an order to be released from the electronic monitoring requirements of this section. The person shall serve a copy of the petition upon the solicitor of the circuit and the Department of Probation, Parole and Pardon Services. The court must hold a hearing before ordering the person to be released from the electronic monitoring requirements of this section, unless the court denies the petition because the person is not eligible for release or based on other procedural grounds. The solicitor of the circuit, the Department of Probation, Parole and Pardon Services, and any victims, as defined in Article 15, Chapter 3, Title 16, must be notified of any hearing pursuant to this subsection and must be given an opportunity to testify or submit affidavits in response to the petition. If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section. If the court denies the petition or refuses to grant the order, then the person may refile a new petition every five years from the date the court denies the petition or refuses to grant the order. A person may not petition the court if the person is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140.

(I) The person shall follow instructions provided by the Department of Probation, Parole and Pardon Services to maintain the active electronic monitoring device in working order. Incidental damage or defacement of the active electronic monitoring device must be reported to the Department of Probation, Parole and Pardon Services within two hours. A person who fails to comply with the reporting requirement of this subsection is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.

(J) The person shall abide by other terms and conditions set forth by the Department of Probation, Parole and Pardon Services with regard to the active electronic monitoring device and electronic monitoring program.

(K) The person must be charged for the cost of the active electronic monitoring device and the operation of the active electronic monitoring device for the duration of the time the person is required to be electronically monitored. The Department of Probation, Parole and Pardon Services may exempt a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if the Department of Probation, Parole and Pardon Services determines that exceptional circumstances exist such that these payments cause a severe hardship to the person. The payment of the cost must be a condition of supervision of the person and a delinquency of two months or more in making payments may operate as a violation of a term or condition of the electronic monitoring. All fees generated by this subsection must be retained by the Department of Probation, Parole and Pardon Services, carried forward, and applied to support the active electronic monitoring of sex offenders.

(L) A person who intentionally removes, tampers with, defaces, alters, damages, or destroys an active electronic monitoring device is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. This subsection does not apply to a person or agent authorized by the Department of Probation, Parole and Pardon Services to perform maintenance and repairs to the active electronic monitoring devices.

(M) A person who completes his term of incarceration and the maximum term of probation, parole, or community supervision and who wilfully violates a term or condition of electronic monitoring, as ordered by the court or determined by the Department of Probation, Parole and Pardon Services is guilty of a felony and, upon conviction, must be sentenced in accordance with the provisions of Section 23-3-545.

(N) The Department of Corrections shall notify the Department of Probation, Parole and Pardon Services of the projected release date of an inmate serving a sentence, as described in this section, at least one hundred eighty days in advance of the person's release from incarceration. For a person sentenced to one hundred eighty days or less, the Department of Corrections shall immediately notify the Department of Probation, Parole and Pardon Services.

(O) When an inmate serving a sentence as described in this section is released on electronic monitoring, a victim who has previously requested notification and the sheriff's office in the county where the person is to be released must be notified in accordance with the requirements of Article 15, Chapter 3 of Title 16.

(P) As used in this section, "active electronic monitoring device" means an all body worn device that is not removed from the person's body utilized by the Department of Probation, Parole and Pardon Services in conjunction with a web-based computer system that actively monitors and records a person's location at least once every minute twenty-four hours a day and that timely records and reports the person's presence near or within a prohibited area or the person's departure from a specified geographic location. In addition, the device must be resistant or impervious to unintentional or wilful damages. The South Carolina Criminal Justice Academy may offer training to officers of the Department of Probation, Parole and Pardon Services regarding the utilization of active electronic monitoring devices. In areas of the State where cellular coverage requires the use of an alternate device, the Department of Probation, Parole and Pardon Services may use an alternate device.

(Q) Except for juveniles released from the Department of Corrections, all juveniles adjudicated delinquent in family court, who are required to be monitored pursuant to the provisions of this article by the Department of Probation, Parole and Pardon Services, or who are ordered by a court to be monitored must be supervised, while under the jurisdiction of the family court or Board of Juvenile Parole, by the Department of Juvenile Justice. The Department of Probation, Parole and Pardon Services shall report to the Department of Juvenile Justice all violations of the terms or conditions of electronic monitoring for all juveniles supervised by the department, for as long as the family court or Juvenile Parole Board has jurisdiction over the juvenile. If the Department of Juvenile Justice determines that a juvenile has violated a term or condition of electronic monitoring, the department shall immediately notify local law enforcement of the violation.

 

SECTION 23-3-545. Effect of conviction of wilfully violating term or condition of active electronic monitoring.

(A) If a person is convicted of wilfully violating a term or condition of active electronic monitoring pursuant to Section 23-3-540(M), the court may impose other terms and conditions considered appropriate and may continue the person on active electronic monitoring, or the court may revoke the active electronic monitoring and impose a sentence of up to ten years for the violation. A person who is incarcerated for a revocation is eligible to earn work credits, education credits, good conduct credits, and other credits which would reduce the sentence for the violation to the same extent he would have been eligible to earn credits on a sentence of incarceration for the underlying conviction. A person who is incarcerated for a revocation pursuant to the provisions of this subsection is not eligible for parole.

(B) If a person's electronic monitoring is revoked by the court and the court imposes a period of incarceration for the revocation, the person must be placed back on active electronic monitoring when the person is released from incarceration.

(C) A person may be sentenced for successive revocations, with each revocation subject to a ten-year sentence. The maximum aggregate amount of time the person may be required to serve when sentenced for successive revocations may not exceed the period of time the person is required to remain on the sex offender registry.

 

SECTION 23-3-550. Assisting or harboring unregistered sex offender; penalty.

(A) A person who has reason to believe that a person required to register pursuant to the provisions of this article is not complying or has not complied with the requirements of this article, with the intent to assist or harbor the person required to register in eluding a law enforcement agency, is guilty of the offense of assisting or harboring an unregistered sex offender, if the person:

(1) withholds information from or does not notify the law enforcement agency of the noncompliance of the provisions of this article by the person required to register, and, if known, the location of this person;

(2) harbors, attempts to harbor, or assists another person in harboring or attempting to harbor the person required to register;

(3) conceals, attempts to conceal, or assists another in concealing or attempting to conceal the person required to register; or

(4) provides information known to be false to a law enforcement agency regarding the person required to register.

(B) A person who knowingly and wilfully violates the provisions of subsection (A) is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.


STATE DNA DATABASE

 

SECTION 23-3-600. Short title.

This article may be cited as the State Deoxyribonucleic Acid Identification Record Database Act.

 

SECTION 23-3-610. State DNA Database established; purpose.

There is established in the South Carolina Law Enforcement Division (SLED) the State Deoxyribonucleic Acid (DNA) Identification Record Database (State DNA Database). The State Law Enforcement Division shall develop DNA profiles on samples for law enforcement purposes and for humanitarian and nonlaw enforcement purposes, as provided for in Section 23-3-640(B).

 

SECTION 23-3-615. Definitions.

As used in this article:

(A) "DNA sample" means the tissue, saliva, blood, or any other bodily fluid taken at the time of arrest from which identifiable information can be obtained.

(B) "DNA profile" means the results of any testing performed on a DNA sample.

(C) "DNA record" means the tissue or saliva samples and the results of the testing performed on the samples.

 

SECTION 23-3-620. When DNA samples required.

(A) Following a lawful custodial arrest, the service of a courtesy summons, or a direct indictment for:

(1) a felony offense or an offense that is punishable by a sentence of five years or more; or

(2) eavesdropping, peeping, or stalking, any of which are committed in this State, a person, except for any juvenile, arrested or ordered by a court must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database. Additionally, any person, including any juvenile, ordered to do so by a court, and any juvenile convicted or adjudicated delinquent for an offense contained in items (1) or (2), must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database.

This sample must be taken at a jail, sheriff's office that serves a courtesy summons, courthouse where a direct presentment indictment is served, or detention facility at the time the person is booked and processed into the jail or detention facility following the custodial arrest, or other location when the taking of fingerprints is required prior to a conviction. The sample must be submitted to SLED as directed by SLED. If appropriately trained personnel are not available to take a sample from which DNA may be obtained, the failure of the arrested person to provide a DNA sample shall not be the sole basis for refusal to release the person from custody. An arrested person who is released from custody before providing a DNA sample must provide a DNA sample at a location specified by the law enforcement agency with jurisdiction over the offense on or before the first court appearance.

(B) Unless a sample has already been provided pursuant to the provisions of subsection (A), before a person may be paroled or released from confinement, the person must provide a suitable sample from which DNA may be obtained for inclusion in the State DNA Database.

(C) An agency having custody of an offender who is required to provide a DNA sample pursuant to subsection (B) must notify SLED at least three days, excluding weekends and holidays, before the person is paroled or released from confinement.

(D) Unless a sample has already been provided pursuant to the provisions of subsection (A), before a person is released from confinement or released from the agency's jurisdiction, a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided as a condition of probation or parole.

(E) A person required to provide a sample pursuant to this section may be required to provide another sample if the original sample is lost, damaged, contaminated, or unusable for examination prior to the creation of a DNA record or DNA profile suitable for inclusion in the State DNA Database.

 

SECTION 23-3-625. DNA samples of missing persons.

Family members of a missing person may submit DNA samples to the State Law Enforcement Division (SLED). If the person is missing thirty days after a missing person report has been submitted to the Missing Person Information Center, SLED must conduct DNA identification, typing, and testing on the family members' samples. SLED may, within its discretion, conduct DNA identification, typing, and testing on the family members' samples prior to thirty days if SLED determines that such DNA identification, typing, and testing is necessary. If SLED does not have the technology necessary for a particular method of DNA identification, typing, or testing, SLED may submit the DNA samples to a Combined DNA Indexing System (CODIS) laboratory that has the appropriate technology. The results of the identification, typing, and testing must be entered into CODIS.

 

SECTION 23-3-630. Persons authorized to take DNA sample; immunity from liability.

(A) Only an appropriately trained person may take a sample from which DNA may be obtained.

(B) A person taking a sample pursuant to this article is immune from liability if the sample was taken according to recognized procedures. However, no person is relieved from liability for negligence in the taking of a sample.

 

SECTION 23-3-635. DNA identification, typing, and testing of unidentified person's tissue and fluid samples.

Upon notification by the Medical University of South Carolina or other facility preserving the body of an unidentified person that the body remains unidentified after thirty days, the State Law Enforcement Division (SLED) must conduct DNA identification, typing, and testing of the unidentified person's tissue and fluid samples provided to SLED pursuant to Section 17-7-25. SLED may, within its discretion, conduct DNA identification, typing, and testing of the unidentified person's tissue and fluid samples prior to thirty days if SLED determines that such DNA identification, typing, and testing is necessary. The results of the identification, typing, and testing must be entered into the Combined DNA Indexing System.

 

SECTION 23-3-640. Specifications, procedures, and equipment; use of DNA profiles; disposition of samples.

(A) Samples must be taken and submitted to SLED pursuant to specifications and procedures developed by SLED in regulation. SLED must conduct DNA identification testing, typing, and analysis in accordance with regulations promulgated by the State Law Enforcement Division on samples received for the purpose of developing a DNA profile, and SLED must use procedures, equipment, supplies, and computer software that are compatible with those used by the Federal Bureau of Investigation.

(B) The DNA profile on a sample may be used:

(1) to develop a convicted offender database to identify suspects in otherwise nonsuspect cases;

(2) to develop a population database when personal identifying information is removed;

(3) to support identification research and protocol development of forensic DNA analysis methods;

(4) to generate investigative leads in criminal investigations;

(5) for quality control or quality assurance purposes, or both;

(6) to assist in the recovery and identification of human remains from mass disasters;

(7) for other humanitarian purposes including identification of missing persons.

(C) The disposition of all samples obtained pursuant to this article is at the discretion of SLED.

(D) SLED must securely store DNA samples. The samples are confidential and must remain in the custody of SLED or a private laboratory designated by SLED if the laboratory's standards for confidentiality and security are at least as stringent as those of SLED.

 

SECTION 23-3-650. Confidentiality of DNA record and profile; availability; wilful disclosure; penalty.

(A) The DNA record and the results of a DNA profile of an individual provided under this article are confidential and must be securely stored, except that SLED must make available the results to federal, state, and local law enforcement agencies and to approved crime laboratories which serve these agencies and to the solicitor or the solicitor's designee upon a written or electronic request and in furtherance of an official investigation of a criminal offense. These records and results of an individual also must be made available as required by a court order following a hearing directing SLED to release the record or results. However, SLED must not make the DNA record or the DNA profile available to any entity that is not a law enforcement agency unless instructed to do so by order of a court with competent jurisdiction.

(B) To prevent duplications of DNA samples, SLED must coordinate with any law enforcement agency obtaining a DNA sample to determine whether a DNA sample from the person under lawful custodial arrest has been previously obtained and is in the State DNA Database.

(C) A person who wilfully discloses in any manner individually identifiable DNA information contained in the State DNA Database to a person or agency not entitled to receive this information is guilty of a misdemeanor and, upon conviction, must be fined ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than five years, or both.

(D) A person who, without authorization, wilfully obtains individually identifiable DNA information from the State DNA Database is guilty of a misdemeanor and, upon conviction, must be fined ten thousand dollars or three times the amount of any financial gain realized by the person, whichever is greater, or imprisoned not more than five years, or both.

 

SECTION 23-3-660. Expungement of DNA record; grounds for requesting.

(A) A person whose DNA record or DNA profile has been included in the State DNA Database must have his DNA record and his DNA profile expunged if:

(1) the charges pending against the person who has been arrested or ordered to submit a sample:

(a) have been nolle prossed;

(b) have been dismissed; or

(c) have been reduced below the requirement for inclusion in the State DNA Database; or

(2) the person has been found not guilty, or the person's conviction has been reversed, set aside, or vacated.

(B) The solicitor in the county in which the person was charged must notify SLED when the person becomes eligible to have his DNA record and DNA profile expunged. Upon receiving this notification, SLED must begin the expungement procedure.

(C) SLED, at no cost to the person, must purge DNA and all other identifiable record information and the DNA profile from the State DNA Database if SLED receives either:

(1) a document certified:

(a) by a circuit court judge;

(b) by a prosecuting agency; or

(c) by a clerk of court;

that must be produced to the requestor at no charge within fourteen days after the request is made and after one of the events in subsection (A) has occurred, and no new trial has been ordered by a court of competent jurisdiction; or

(2) a certified copy of the court order finding the person not guilty, or reversing, setting aside, or vacating the conviction.

(D) The person's entry in the State DNA Database shall not be removed if the person has another qualifying offense.

(E) The jail intake officer, sheriff's office employee, courthouse employee, or detention facility intake officer shall provide written notification to the person of his right to have his DNA record and DNA profile expunged and the procedure for the expungement pursuant to this section at the time that the person's saliva or tissue sample is taken. The written notification must include that the person is eligible to have his DNA record and his DNA profile expunged at no cost to the person when:

(1) the charges pending against the person are:

(a) nolle prossed;

(b) dismissed; or

(c) reduced below the requirement for inclusion in the State DNA Database; or

(2) when the person has been found not guilty, or the person's conviction has been reversed, set aside, or vacated.

(F) When SLED completes the expungement process, SLED must notify the person whose DNA record and DNA profile have been expunged and inform him, in writing, that the expungement process has been completed.

 

SECTION 23-3-670. Cost of collection supplies for processing samples; processing fees.

(A) The cost of collection supplies for processing a sample pursuant to this article must be paid by the general fund of the State. A person who is required to provide a sample pursuant to this article, upon conviction, pleading guilty or nolo contendere, or forfeiting bond, must pay a two hundred fifty dollar processing fee which may not be waived by the court. However:

(1) if the person is incarcerated, the fee must be paid before the person is paroled or released from confinement and may be garnished from wages the person earns while incarcerated; and

(2) if the person is not sentenced to a term of confinement, payment of the fee must be a condition of the person's sentence and may be paid in installments if so ordered by the court.

(B) The processing fee assessed pursuant to this section must be remitted to the general fund of the State and credited to the State Law Enforcement Division to offset the expenses SLED incurs in carrying out the provisions of this article.

 

SECTION 23-3-680. Promulgation of regulations.

SLED shall promulgate regulations to carry out the provisions of this article.

 

SECTION 23-3-690. Promulgation of regulations for processes regarding samples.

SLED shall promulgate regulations for sample testing and analysis and for sample collection, identification, handling, transporting, and shipment which must be complied with by the agency having jurisdiction over the offender.

 

SECTION 23-3-700. Implementation of article contingent on funding and regulations; implementation of DNA sample collection.

Implementation of this article and the requirements under this article are contingent upon annual appropriations of sufficient funding and upon promulgation of regulations. However, the State Law Enforcement Division shall begin collecting DNA samples for analysis for crimes outlined in this article no later than July 30, 2000.


SEXUALLY VIOLENT PREDATOR ACT

 

SECTION 44-48-10. Short title.

This chapter is known and may be cited as the "Sexually Violent Predator Act".

 

SECTION 44-48-20. Legislative findings.

The General Assembly finds that a mentally abnormal and extremely dangerous group of sexually violent predators exists who require involuntary civil commitment in a secure facility for long-term control, care, and treatment. The General Assembly further finds that the likelihood these sexually violent predators will engage in repeated acts of sexual violence if not treated for their mental conditions is significant. Because the existing civil commitment process is inadequate to address the special needs of sexually violent predators and the risks that they present to society, the General Assembly has determined that a separate, involuntary civil commitment process for the long-term control, care, and treatment of sexually violent predators is necessary. The General Assembly also determines that, because of the nature of the mental conditions from which sexually violent predators suffer and the dangers they present, it is necessary to house involuntarily-committed sexually violent predators in secure facilities separate from persons involuntarily committed under traditional civil commitment statutes. The civil commitment of sexually violent predators is not intended to stigmatize the mentally ill community.

 

SECTION 44-48-30. Definitions.

For purposes of this chapter:

(1) "Sexually violent predator" means a person who:

(a) has been convicted of a sexually violent offense; and

(b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.

(2) "Sexually violent offense" means:

(a) criminal sexual conduct in the first degree, as provided in Section 16-3-652;

(b) criminal sexual conduct in the second degree, as provided in Section 16-3-653;

(c) criminal sexual conduct in the third degree, as provided in Section 16-3-654;

(d) criminal sexual conduct with minors in the first degree, as provided in Section 16-3-655(1);

(e) criminal sexual conduct with minors in the second degree, as provided in Section 16-3-655(2) and (3);

(f) engaging a child for a sexual performance, as provided in Section 16-3-810;

(g) producing, directing, or promoting sexual performance by a child, as provided in Section 16-3-820;

(h) assault with intent to commit criminal sexual conduct, as provided in Section 16-3-656;

(i) incest, as provided in Section 16-15-20;

(j) buggery, as provided in Section 16-15-120;

(k) committing or attempting lewd act upon child under sixteen, as provided in Section 16-15-140;

(l) violations of Article 3, Chapter 15 of Title 16 involving a minor when the violations are felonies;

(m) accessory before the fact to commit an offense enumerated in this item and as provided for in Section 16-1-40;

(n) attempt to commit an offense enumerated in this item as provided by Section 16-1-80; or

(o) any offense for which the judge makes a specific finding on the record that based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

(p) criminal solicitation of a minor, as provided in Section 16-15-342, if the purpose or intent of the solicitation or attempted solicitation was to:

(i) persuade, induce, entice, or coerce the person solicited to engage or participate in sexual activity as defined in Section 16-15-375(5); or

(ii) perform a sexual activity in the presence of the person solicited.

(3) "Mental abnormality" means a mental condition affecting a person's emotional or volitional capacity that predisposes the person to commit sexually violent offenses.

(4) "Sexually motivated" means that one of the purposes for which the person committed the crime was for the purpose of the person's sexual gratification.

(5) "Agency with jurisdiction" means that agency which, upon lawful order or authority, releases a person serving a sentence or term of confinement and includes the South Carolina Department of Corrections, the South Carolina Department of Probation, Parole and Pardon Services, the Board of Probation, Parole and Pardon Services, the Department of Juvenile Justice, the Juvenile Parole Board, and the Department of Mental Health.

(6) "Convicted of a sexually violent offense" means a person has:

(a) pled guilty to, pled nolo contendere to, or been convicted of a sexually violent offense;

(b) been adjudicated delinquent as a result of the commission of a sexually violent offense;

(c) been charged but determined to be incompetent to stand trial for a sexually violent offense;

(d) been found not guilty by reason of insanity of a sexually violent offense; or

(e) been found guilty but mentally ill of a sexually violent offense.

(7) "Court" means the court of common pleas.

(8) "Total confinement" means incarceration in a secure state or local correctional facility and does not mean any type of community supervision.

(9) "Likely to engage in acts of sexual violence" means the person's propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

(10) "Person" means an individual who is a potential or actual subject of proceedings under this act and includes a child under seventeen years of age.

(11) "Victim" means an individual registered with the agency of jurisdiction as a victim or as an intervenor.

(12) "Intervenor" means an individual, other than a law enforcement officer performing his ordinary duties, who provides aid to another individual who is not acting recklessly, in order to prevent the commission of a crime or to lawfully apprehend an individual reasonably suspected of having committed a crime.

 

SECTION 44-48-40. Notification to team, victim and attorney general regarding release, hearing or parole; effective date of parole or release; immunity.

(A) When a person has been convicted of a sexually violent offense, the agency with jurisdiction must give written notice to the multidisciplinary team established in Section 44-48-50, the victim, and the Attorney General at least one hundred eighty days before:

(1) the person's anticipated release from total confinement, except that in the case of a person who is returned to prison for no more than one hundred eighty days as a result of a revocation of any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;

(2) the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;

(3) the anticipated hearing pursuant to Section 17-24-40(C) of a person who has been found not guilty by reason of insanity of a sexually violent offense; or

(4) release of a person who has been found guilty of a sexually violent offense but mentally ill pursuant to Section 17-24-20.

(B) When a person has been convicted of a sexually violent offense and the Board of Probation, Parole and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release, the parole or the conditional release must be granted to be effective ninety days after the date of the order of parole or conditional release. The Board of Probation, Parole and Pardon Services, the Juvenile Parole Board, or the South Carolina Department of Corrections must immediately send notice of the parole or conditional release of the person to the multidisciplinary team, the victim, and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, the person is subject to the provisions of this chapter even though the person has been released on parole or conditional release.

(C) The agency with jurisdiction must inform the multidisciplinary team, the victim, and the Attorney General of:

(1) the person's name, identifying factors, anticipated future residence, and offense history; and

(2) documentation of institutional adjustment and any treatment received.

(D) The agency with jurisdiction, its employees, officials, individuals contracting, appointed, or volunteering to perform services under this chapter, the multidisciplinary team, and the prosecutor's review committee established in Section 44-48-60 are immune from civil or criminal liability for any good-faith conduct under this act.

 

SECTION 44-48-50. Multidisciplinary team; appointments; review of records; membership.

The Director of the Department of Corrections must appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, victim's impact statement, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 44-48-40, must assess whether or not the person satisfies the definition of a sexually violent predator. If it is determined that the person satisfies the definition of a sexually violent predator, the multidisciplinary team must forward a report of the assessment to the prosecutor's review committee and notify the victim. The assessment must be accompanied by all records relevant to the assessment. Membership of the team must include:

(1) a representative from the Department of Corrections;

(2) a representative from the Department of Probation, Parole and Pardon Services;

(3) a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent offenders;

(4) a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and

(5) an attorney with substantial experience in the practice of criminal defense law to be appointed by the Chief Justice to serve a term of one year.

The Director of the Department of Corrections or his designee appointed pursuant to item (1) shall be the chairman of the team.

 

SECTION 44-48-60. Prosecutor's review committee; scope of review; membership requirements.

The Attorney General must appoint a prosecutor's review committee to review the report and records of each person referred to the committee by the multidisciplinary team. The prosecutor's review committee must determine whether or not probable cause exists to believe the person is a sexually violent predator. The prosecutor's review committee must make the probable cause determination within thirty days of receiving the report and records from the multidisciplinary team. The prosecutor's review committee must include, but is not limited to, a member of the staff of the Attorney General, an elected circuit solicitor, and a victim's representative. The Attorney General or his designee shall be the chairman of the committee. In addition to the records and reports considered pursuant to Section 44-48-50, the committee must also consider information provided by the circuit solicitor who prosecuted the person.

 

SECTION 44-48-70. Petition for probable cause determination.

When the prosecutor's review committee has determined that probable cause exists to support the allegation that the person is a sexually violent predator, the Attorney General must file a petition with the court in the jurisdiction where the person committed the offense and must notify the victim that the committee found that probable cause exists. The Attorney General must also notify the victim of the time, date, and location of the probable cause hearing before the court. The petition, which must be filed within thirty days of the probable cause determination by the prosecutor's review committee, must request that the court make a probable cause determination as to whether the person is a sexually violent predator. The petition must allege that the person is a sexually violent predator and must state sufficient facts that would support a probable cause allegation.

 

SECTION 44-48-80. Determination of probable cause; taking person into custody; hearing; evaluation.

(A) Upon filing of a petition, the court must determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines that probable cause exists to believe that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.

(B) Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. This hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). At this hearing the court must:

(1) verify the detainee's identity;

(2) receive evidence and hear arguments from the person and the Attorney General; and

(3) determine whether probable cause exists to believe that the person is a sexually violent predator.

The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.

(C) At the probable cause hearing as provided in subsection (B), the detained person has the following rights in addition to any rights previously specified:

(1) to be represented by counsel;

(2) to present evidence on the person's behalf;

(3) to cross-examine witnesses who testify against the person; and

(4) to view and copy all petitions and reports in the court file.

(D) If the probable cause determination is made, the court must direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert approved by the court at the probable cause hearing.

 

SECTION 44-48-90. Trial; trier of fact; continuation of trial; assistance of counsel; access of examiners to person; payment of expenses.

Within sixty days after the completion of a hearing held pursuant to Section 44-48-80, the court must conduct a trial to determine whether the person is a sexually violent predator. Within thirty days after the determination of probable cause by the court pursuant to Section 44-48-80, the person or the Attorney General may request, in writing, that the trial be before a jury. If such a request is made, the court must schedule a trial before a jury at the next available date in the court of common pleas in the county where the offense was committed. If no request is made, the trial must be before a judge in the county where the offense was committed. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and only if the respondent will not be substantially prejudiced. The Attorney General must notify the victim, in a timely manner, of the time, date, and location of the trial. At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain a qualified expert of his own choosing to perform the examination. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who would like an expert of his own choosing, the court must determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation for the services is reasonable, the court must assist the person in obtaining the expert to perform an examination or participate in the trial on the person's behalf. The court must approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the case or for the same services from any other source.

 

SECTION 44-48-100. Standard for determining predator status; control, care and treatment of person; release; mistrial procedures; persons incompetent to stand trial.

(A) The court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a jury determines that the person is a sexually violent predator, the determination must be by unanimous verdict. If the court or jury determines that the person is a sexually violent predator, the person must be committed to the custody of the Department of Mental Health for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and has been released pursuant to this chapter. The control, care, and treatment must be provided at a facility operated by the Department of Mental Health. At all times, a person committed for control, care, and treatment by the Department of Mental Health pursuant to this chapter must be kept in a secure facility, and the person must be segregated at all times from other patients under the supervision of the Department of Mental Health. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the control, care, and treatment of these persons. A person who is in the confinement of the Department of Corrections pursuant to an interagency agreement authorized by this chapter must be kept in a secure facility and must, if practical and to the degree possible, be housed and managed separately from offenders in the custody of the Department of Corrections. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court must direct the person's release. Upon a mistrial, the court must direct that the person be held at an appropriate secure facility including, but not limited to, a local or regional detention facility until another trial is conducted. A subsequent trial following a mistrial must be held within ninety days of the previous trial, unless the subsequent trial is continued. The court or jury's determination that a person is a sexually violent predator may be appealed. The person must be committed to the custody of the Department of Mental Health pending his appeal.

(B) If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), the court first shall hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, apply. After hearing evidence on this issue, the court must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, the court must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.

 

SECTION 44-48-110. Periodic mental examination of committed persons; report; petition for release; hearing; trial to consider release.

A person committed pursuant to this chapter must have an examination of his mental condition performed once every year. The person may retain or, if the person is indigent and so requests, the court may appoint a qualified expert to examine the person, and the expert must have access to all medical, psychological, criminal offense, and disciplinary records and reports concerning the person. The annual report must be provided to the court which committed the person pursuant to this chapter, the Attorney General, the solicitor who prosecuted the person, and the multidisciplinary team. The court must conduct an annual hearing to review the status of the committed person. The committed person is not prohibited from petitioning the court for release at this hearing. The Director of the Department of Mental Health must provide the committed person with an annual written notice of the person's right to petition the court for release over the director's objection; the notice must contain a waiver of rights. The director must forward the notice and waiver form to the court with the annual report. The committed person has a right to have an attorney represent him at the hearing, but the committed person is not entitled to be present at the hearing. If the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court must schedule a trial on the issue. At the trial, the committed person is entitled to be present and is entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding. The Attorney General must notify the victim of all proceedings. The Attorney General must represent the State and has the right to have the committed person evaluated by qualified experts chosen by the State. The trial must be before a jury if requested by either the person, the Attorney General, or the solicitor. The committed person also has the right to have qualified experts evaluate the person on the person's behalf, and the court must appoint an expert if the person is indigent and requests the appointment. The burden of proof at the trial is upon the State to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and, if released, is likely to engage in acts of sexual violence.

 

SECTION 44-48-120. Petition of release; hearing ordered by court.

If the Director of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the director must authorize the person to petition the court for release. The petition must be served upon the court and the Attorney General. The Attorney General must notify the victim of the proceeding. The court, upon receipt of the petition for release, must order a hearing within thirty days. The Attorney General must represent the State and has the right to have the petitioner examined by experts chosen by the State. The hearing must be before a jury if requested by either the petitioner or the Attorney General. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, that if released, is likely to commit acts of sexual violence.

 

SECTION 44-48-130. Grounds for denial of petition for release.

Nothing in this chapter prohibits a person from filing a petition for release pursuant to this chapter. However, if a person has previously filed a petition for release without the approval of the Director of the Department of Mental Health, and the court determined either upon review of the petition or following a hearing that the petitioner's petition was frivolous or that the petitioner's condition had not changed so that the petitioner continued to be a threat and, if released, would commit acts of sexual violence, the court must deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the director's approval, the court must, whenever possible, review the petition and determine if the petition is based upon frivolous grounds and, if so, must deny the petition without a hearing.

 

SECTION 44-48-140. Restricted release of confidential information and records to agencies and Attorney General.

In order to protect the public, relevant information and records which otherwise are confidential or privileged must be released to the agency with jurisdiction and the Attorney General for the purpose of meeting the notice requirements of Section 44-48-40 and determining whether a person is or continues to be a sexually violent predator.

 

SECTION 44-48-150. Evidentiary records; court order to open sealed records.

Psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter must be part of the record, but must be sealed and opened only on order of the court.

 

SECTION 44-48-160. Registration of persons released from commitment.

A person released from commitment pursuant to this chapter must register pursuant to and comply with the requirements of Article 7, Chapter 3 of Title 23.

 

SECTION 44-48-170. Involuntary detention or commitment; constitutional requirements.

The involuntary detention or commitment of a person pursuant to this chapter must conform to constitutional requirements for care and treatment.


COMMITMENT OF CHILDREN IN NEED OF MENTAL HEALTH TREATMENT

 

SECTION 44-24-10. Definitions.

As used in this chapter:

(1) "Child" means a person under the age of eighteen years.

(2) "Child in need of emergency admission" means a child who is in need of treatment, who poses an imminent danger of seriously harming himself or others if not immediately hospitalized, and for whom immediate hospitalization can be obtained only through an involuntary emergency admission.

(3) "Child in need of judicial admission" means a child who is in need of treatment and for whom treatment can be obtained only through an involuntary judicial admission.

(4) "Child in need of treatment" means a child in need of mental health treatment who manifests a substantial disorder of cognitive or emotional processes, which lessens or impairs to a marked degree that child's capacity either to develop or to exercise age appropriate or age adequate behavior. The behavior includes, but is not limited to, marked disorders of mood or thought processes, severe difficulties with self-control and judgment including behavior dangerous to self or others, or serious disturbances in the ability to care for and relate to others. The presence of epilepsy, mental retardation, organic brain syndrome, physical or sensory handicaps, or brief periods of intoxication caused by alcohol or other substances is not sufficient to meet the criteria for a child in need of treatment but does not exclude a child otherwise determined to fulfill the above criteria.

(5) "Court" means the probate court unless otherwise specified.

(6) "Crisis stabilization" means a short term placement to enable a child who has lost control to regain control in order to be returned to his previous placement or to an appropriate treatment facility or program.

(7) "Department" means the State Department of Mental Health.

(8) "Diagnostic evaluation" means the systematic appraisal of a child's functional level in various domains such as educational, social, and psychological to determine the nature and extent of treatment or services which may be required to meet the needs of the child.

(9) "In-home intervention" means comprehensive, individualized in-home family services which are designed to intervene at times when there is a possibility that the child will have to be removed from the home to a more restrictive environment or to prepare a family for a child's transition back into the home.

(10) "Law enforcement officer" means a state, county, or city police officer, officer of the South Carolina Highway Patrol, sheriff, or deputy sheriff.

(11) "Outpatient counseling" means a regularly scheduled goal-oriented intervention by a competent professional responsive to the needs of the child, for the purposes of assisting the child in solving problems related to educational, vocational, emotional, familial, and social issues through cognitive and affective modes.

(12) "Psychiatric assessment and evaluation" means a systematic appraisal, in accordance with generally accepted medical practices, for the following purposes: specialized psychiatric review of physiological phenomena, psychiatric diagnostic evaluation, psychiatric therapeutic evaluative services, and assessment of the appropriateness of initiating or continuing the use of psychotropic medications in treatment of a child.

(13) "Residential treatment program or facility" means a structured, supportive, and therapeutic residential program for a child in need of treatment.

(14) "Treatment team" means persons drawn from or representing the professional disciplines or service areas included in the development and implementation of a treatment plan.

(15) "Twenty-four hour emergency assessment" means diagnostic evaluation capabilities when necessary to determine a child's clinical status and needs.

 

SECTION 44-24-20. Voluntary admission; notification of guardian ad litem.

(A) If a child is found to be a proper subject for voluntary admission, the director of a treatment program or facility shall admit for treatment an individual who is:

(1) sixteen years of age or older and who applies for admission;

(2) under sixteen years of age if his parent or legal guardian applies for admission on his behalf.

(B) A governmental agency, acting as legal guardian, admitting a child voluntarily, shall notify the child's guardian ad litem within forty-eight hours. If a guardian ad litem has not been appointed, the agency shall petition the court for appointment within seventy-two hours.

 

SECTION 44-24-30. Admission of child sixteen or older as inpatient; determination of voluntariness; appointment of guardian ad litem.

When a child sixteen years of age or older is admitted to an inpatient facility at the department, the probate court of the county in which the child resides or where the child applied for admittance shall appoint a guardian ad litem. The guardian ad litem shall review the case and report to the court whether, in the guardian ad litem's opinion, the child had applied voluntarily or if the application was involuntary. The review may not exceed seven days. During the review the guardian ad litem must have access to relevant information and must be able to interview the parents or guardian of the child. If the guardian ad litem suspects the application was involuntary, the guardian ad litem shall notify the court and facility where the child is held. After notification, the facility shall evaluate further the appropriateness of admission and report the findings to the court. After reviewing the opinion of the guardian ad litem and the facility, if the court determines the:

(1) application was voluntary or involuntary and no need for commitment exists, the child must be discharged immediately;

(2) application was voluntary and admission is necessary, there must be no further action before periodic review;

(3) application was involuntary and admission is necessary, the court shall order the facility to file, within three days exclusive of Saturdays, Sundays, and legal holidays after the date of the order, a petition for judicial admission and to retain the child pending a hearing which must be conducted within fifteen days of the filing of the petition;

(4) child is in need of alternative treatment other than admission to a facility, the local mental health center is responsible for coordinating appropriate services.

 

SECTION 44-24-40. Discharge of voluntarily admitted child; grounds for not effecting discharge.

The director of a treatment program or facility immediately shall discharge to the parent, legal guardian, or agency a voluntarily admitted child who:

(1) is no longer in need of that treatment program or facility; or

(2) requests his own discharge or whose discharge is requested, in writing, by his parent or legal guardian, or other interested person, unless at least one of the following exists:

(a) the child was admitted on his application if sixteen years of age or older, and the request for discharge is made by a person other than the child, in which case, discharge is conditioned upon agreement of the child;

(b) the child, by reason of age, was admitted on the application of another person, in which case, discharge, before becoming sixteen years of age, is conditioned upon three days' notice, exclusive of Saturdays, Sundays, and legal holidays, being given to and consent being obtained from his parent or legal guardian;

(c) the director of the treatment program or facility, within three days, exclusive of Saturdays, Sundays, and legal holidays, after the child or other interested person requests the child's discharge, files with the court of the county in which the child resided or was present immediately before his admission, a petition for judicial commitment pursuant to Section 44-24-90.

 

SECTION 44-24-50. Periodic notification to voluntarily admitted child, and parent or guardian, of right to release.

When admitted to the residential program or facility, thirty days after the date of admission, and every six months after, a voluntarily admitted child must be informed in writing of his right to release in language which is appropriate for his age. The child shall sign a statement to that effect which becomes a part of that child's record. The child's parent or legal guardian or other interested person must be informed also and shall sign a statement to that effect which becomes a part of the child's record.

 

SECTION 44-24-60. Emergency admission of child to inpatient hospital.

(A) A child may be admitted to an inpatient hospital for emergency admission upon:

(1) written application under oath by an interested person stating:

(a) belief that the child is in need of treatment and in danger of harming himself or others as a result of his need for treatment;

(b) the specific type of serious harm thought probable if the child is not hospitalized immediately;

(c) the factual basis for this belief;

(d) the reason why the child cannot obtain treatment voluntarily.

(2) a certification in triplicate by a licensed physician stating that he has examined the child and is of the opinion that he is a child in need of treatment and in need of emergency admission. The certification must contain the grounds for the opinion.

(B) A child for whom a certificate has been issued must not be admitted on the basis of the certificate after the expiration of three calendar days after the date of his examination.

(C) Before the emergency admission of a child to a treatment program or facility of the department, the child must be examined by a licensed physician. The physician shall inform the mental health center in the county where the child resides or where the examination takes place of the mental and physical treatment needs of the child. The physician shall consult with the center regarding the commitment and admission process and the available treatment options and alternatives in lieu of hospitalization at a state psychiatric facility.

(D) The examining physician shall complete a statement that he has consulted with the local mental health center before the admission of the child to a state psychiatric facility. If the physician does not consult with the center, he shall state a clinical reason for his failure to do so. The statement must accompany the physician's certificate and written application for emergency commitment. The department, in its discretion, may refuse to admit a child to its facility if the physician fails to complete the statement required by this chapter.

(E) Within twenty-four hours after his admission, exclusive of Saturdays, Sundays, and legal holidays, the place of admission shall forward the application and certification to the court of the county in which the child resides or where the acts or conduct leading to his admission occurred.

(F) Within forty-eight hours of receipt of the application and certification exclusive of Saturdays, Sundays, and legal holidays, the court shall conduct a preliminary review of the evidence to determine if probable cause exists to continue the emergency detention of the child. If the court finds that probable cause does not exist, it shall issue an order of release for the child. Upon a finding of probable cause, the court shall make a written order detailing its findings and may order the continued detention of the child. The court shall appoint counsel for the child if he has not retained counsel and fix a date for a full hearing to be held within fifteen days from the date of his admission.

(G) With each application and certification, the place of admission also shall provide the court with an examiner appointment form listing the names of two examiners.

(H) If the court appoints these two examiners, the examination must be performed at the place of admission and a report must be submitted to the court within seven days from the date of admission. The court may appoint independent examiners who shall submit a report to the court within five days. In the process of the examination by the examiners, available previous treatment records must be considered. At least one of the examiners appointed by the court must be a licensed physician.

(I) The examiner's report must be available to the child's counsel before the full hearing.

 

SECTION 44-24-70. Taking custody of child needing emergency admission.

If a child in need of emergency admission cannot be examined by a licensed physician pursuant to Section 44-24-60 because his whereabouts are unknown or for any other reason, the petitioner seeking commitment pursuant to Section 44-24-60 shall execute an affidavit stating that he believes the child is in need of emergency admission. The grounds for the belief must be included and a statement that the usual procedure for examination cannot be followed and the reason. Upon presentation of the affidavit, the court may require a law enforcement officer to take the child into custody and transport him for an examination by a licensed physician as provided for in Section 44-24-60. If within the twenty-four hours the child is not examined by a licensed physician or, if upon examination, the physician does not execute the certification provided in Section 44-24-60, the proceedings must be terminated and the child immediately released. Otherwise, proceedings must be held pursuant to Section 44-24-60.

 

SECTION 44-24-80. Transportation of child to hospital; parent's or guardian's request to accompany child.

The certificate provided for in Section 44-24-60(A)(2) requires a law enforcement officer, preferably in civilian clothes, to take the child into custody and transport him to the hospital designated by the certification. Upon request, a law enforcement officer shall transport the child's parent, legal guardian, or other adult family member to accompany the child to the hospital. No child may be taken into custody after the expiration of three days from the date of certification. A friend or relative may transport the individual to the hospital designated in the application, if the friend or relative has read and signed a statement on the certificate which clearly states that it is the responsibility of a law enforcement officer to provide timely transportation for the patient and that the friend or relative freely chooses to assume the responsibility. A friend or relative who chooses to transport the patient is not entitled to reimbursements from the State for the cost of the transportation. No child may be subjected to mechanical restraints during transportation except upon the determination by the law enforcement officer that restraints are necessary to prevent the child's escape or harm to himself or others. An officer acting in accordance with this chapter is immune from civil liability.

 

SECTION 44-24-90. Notification to child and guardian of petition; contents of petition; right to counsel; examination and conclusions.

(A) Proceedings for judicial admission to a treatment program or facility begin by an interested person filing a written petition with the court of the county where the child is present or where the child is a resident. The petition must state the factual basis of the person's belief that:

(1) the child is in need of treatment;

(2) treatment may be obtained only through an involuntary admission.

(B) The petition may be accompanied by a certificate of an examiner stating that he has examined the child and is of the opinion the child is a child in need of treatment. The certificate or written statement must contain the underlying facts upon which the examiner or petitioner bases his conclusions.

(C) Upon receiving a petition the court shall give the child and his legal guardian, the guardian ad litem, if one has been appointed, and other interested persons notice by certified mail of the petition and of the child's right to counsel. Every reasonable effort must be made to notify the child's natural parents of the petition.

(D) Within three days after a petition for judicial commitment is filed, exclusive of Saturdays, Sundays, and legal holidays, the court shall appoint counsel to represent the child if counsel has not been retained in the child's behalf. The court shall appoint two examiners, one of whom must be a licensed physician, to examine the child and report to the court their findings as to the child's mental condition and the need, if any, for treatment. If the child refuses examination, the court may require a law enforcement officer to take the child into custody and to transport him for examination by the two examiners. After the examination, the child must be released. A record of the examination must be made and offered to his counsel. If the conclusions of the examination are that the child is a child in need of treatment, the underlying facts must be recorded as well as the conclusion. The child or his guardian may request an additional examination by an independent examiner. The examination must be conducted at public expense.

 

SECTION 44-24-100. Notice of hearing for emergency or judicial admission.

Notice of the hearing for an emergency admission or a judicial admission must be given to the child or his guardian, his counsel, and other interested persons at least five days before the hearing, exclusive of Saturdays, Sundays, and legal holidays. The notice must include the time, date, and place of the hearing, a clear statement in plain and simple language of the purpose of the proceedings, and the possible consequences to the individual for whom involuntary admission is sought and a copy of the petition or affidavit and supporting certificates of the examining physician.

 

SECTION 44-24-110. Examiners' reports; disposition of child where report does not recommend judicial admission, recommends judicial admission, or is divided.

(A) The written reports filed with the court by the designated examiners must include, but are not limited to, questions relating to whether or not the child poses an imminent danger to himself or others, whether or not recent overt acts are indicative of a child in need of treatment, and whether or not a less restrictive placement is recommended and available.

(B) If the report of the examiners is that the child is not in need of judicial admission, the court shall dismiss the petition and the child must be discharged immediately by the place of admission if the child has been admitted to a treatment facility or program.

(C) If the report of the examiners is that the child is a child in need of judicial admission, the court may order that the child be detained at the place of his admission or in another treatment facility or program.

(D) If the report of the examiners is divided, the court may terminate the proceedings or shall designate a third examiner, who must be a psychiatrist or psychologist trained or experienced in the treatment of children, and order that the three examiners render a majority opinion within three days exclusive of Saturdays, Sundays, and legal holidays.

 

SECTION 44-24-120. Removal of proceedings to another county.

The child or the child's guardian may request removal of the proceedings to another county of the State when the convenience of witnesses and the ends of justice require it. When the place of the proceedings is changed, all other proceedings must be held in the county to which the place of hearing is changed, unless otherwise provided by the filed consent of the parties in writing or order of the court. The papers must be filed or transferred accordingly.

 

SECTION 44-24-130. Hearing; location; testimony; rules of evidence; transcript.

A person to whom notice is required may appear at the hearing, testify and, within the discretion of the court, present and cross-examine witnesses, and the court may receive the testimony of other persons. The court may hold the hearing in a suitable location in the State, without regard to whether the location is in the county of the court conducting the hearing, when the judge is satisfied that the health and welfare of the child concerned is best served by conducting the hearing in a location other than the court. The hearing may be conducted in an informal manner consistent with orderly procedure. The court shall follow the rules of evidence applicable to the probate courts in receiving evidence. The child or his legal guardian may have a free transcript of the record of the proceedings.

 

SECTION 44-24-140. Determination after presentation of evidence.

(A) If the court finds, after presentation of all the evidence, that the child is not in need of judicial admission, the court shall order that he must be discharged if he has been hospitalized before the hearing.

(B) If upon completion of the hearing and consideration of the record the court finds upon clear and convincing evidence that the child is in need of judicial admission, the court may order treatment in the department or at another program or facility that agrees to accept the child.

 

SECTION 44-24-150. Psychiatric evaluations of children; notification of victims.

(A) A family court may order that a child, who is otherwise before the court on another matter, be given a psychiatric evaluation by the appropriate community mental health center. The community mental health center shall schedule the child for the ordered evaluation as soon as possible and shall provide the family court with a written report of the results of the evaluation within five working days following the evaluation.

(B) If the community mental health center reports to the family court that the child is in need of an inpatient psychiatric evaluation, the family court may commit the child to a hospital designated by the department for a psychiatric evaluation. An order of commitment for psychiatric evaluation may not exceed fifteen days. Upon written request by the department to the court, the evaluation period may be extended for no more than an additional fifteen days. Upon notification by the department to the court that the evaluation has been completed, the court shall issue an order to implement the immediate discharge of the child from the hospital.

(C) If a psychiatric evaluation indicates a child is in need of judicial admission, the family court may:

(1) defer to the probate court for purposes of commitment to a range of services; or

(2) commit to a range of services utilizing the procedures and forms applicable to the probate court pursuant to Chapter 23 and Sections 44-24-90 through 44-24-140.

(D) Any victim of a child charged with a crime and held in detention who is ordered to a mental health facility for a psychiatric evaluation must be notified pursuant to Article 15, Chapter 3, Title 16 of the child's transfer to or discharge from a mental health facility.

 

SECTION 44-24-160. Examination and review of child admitted to inpatient program; program of care and treatment.

A child admitted to an inpatient treatment program must be examined by a member of the professional staff of the program promptly after his admission and must be reviewed by the treatment team within seven days after admission. Promptly after the treatment team review, a formal program of care and treatment designed to meet the needs of the child must be instigated. Results of all examinations and an outline of the child's treatment program must be entered in his clinical record. Unless the child or his legal guardian consents in writing, no treatment may be given which is not recognized as standard mental health treatment.

 

SECTION 44-24-170. Right to reexamination; notice of right; proceedings upon petition for reexamination.

(A) A child is entitled to have a reexamination on his own petition or that of another interested person to the court of the county from which he was admitted. The treatment program must inform every child and the child's guardian of the right to petition for reexamination. The notice must be given in writing upon admission to the program and once during the first month of treatment and six months thereafter during the treatment of the child in age appropriate language and in writing.

(B) Upon receipt of the petition the court shall conduct proceedings in accordance with applicable provisions of Sections 44-24-90 through 44-24-140. The proceedings are not required if the petition is filed sooner than six months after the issuance of the order for treatment or sooner than six months after the holding of a hearing pursuant to this section. The costs must be borne by the State.

 

SECTION 44-24-180. Court review of case of child involuntarily admitted.

(A) A child in need of treatment admitted involuntarily to a mental health service which removes him from home, must have his case reviewed by the court within twenty days of admission and every six months. If the review determines the child is no longer in need of mental health services or alternative services, he must be discharged immediately.

(B) A child in need of treatment admitted involuntarily to a mental health service where he remains at home, must have the case reviewed sixty days after admission and every six months. If the review determines the child is no longer in need of mental health services or in need of alternative services, the child must be discharged immediately, or, if necessary, the court shall request the mental health center in which the child is being treated to refer the child to the proper alternative services for the child.

(C) The treatment team may petition the court for review after the initial review.

 

SECTION 44-24-190. Notification to court when child moved to different program; court approval for move to more restrictive program; placement in crisis stabilization.

(A) No child who has been admitted involuntarily to a treatment facility or program may be moved from a less restrictive program to a more restrictive program without court approval. Court approval is not mandatory for moves from more restrictive to less restrictive programs. The court must be notified within twenty-four hours when a child is moved from one program to another.

(B) A child who has been admitted involuntarily to a treatment facility or program may be placed in community crisis stabilization without court approval for not more than five days. The head of the facility in which the child is placed shall inform the court within three days of placement. Court approval is mandatory to extend the period of crisis stabilization beyond the five days and for each successive five- day extension.

(C) If the child has not been returned to an appropriate treatment program or facility within ten days of being placed in crisis stabilization, the court shall hold a review hearing within fifteen days of the crisis stabilization placement to determine and order the appropriate program for the child.

 

SECTION 44-24-200. Unauthorized absence of child from facility or residential program.

(A) If a child committed to an inpatient facility or a residential treatment program is absent without proper authorization, the facility or program director immediately shall notify the appropriate state and local law enforcement officials and the parent or legal guardian of the absence by telephone. The notice also must be confirmed in writing and mailed to the law enforcement officials, parent, or legal guardian within twenty-four hours after the absence is discovered.

(B) A law enforcement officer, upon the request of the facility director or his designee and without necessity of a warrant or a court order, may take the child into custody and return him to the program or facility.

 

SECTION 44-24-210. Unlawful to remove child from inpatient facility or residential program without authorization.

It is unlawful for a person, without prior authorization from the child's attending physician or his designee, to take a child away or cause him to be taken away from the grounds of an inpatient facility or residential treatment program. A person violating the provisions of this section, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than one year, or both.

 

SECTION 44-24-220. Requirement of discharge planning and continuity of service in community.

No child may be discharged by the department or private hospital without appropriate discharge planning. A member of the child's treatment team shall coordinate in advance with the child's parent or legal guardian as well as other service providers to ensure continuity in service for the child in the community.

 

SECTION 44-24-230. Provision of community-based treatment as alternative to hospitalization.

In order to provide community-based treatment as an alternative to hospitalization, the department shall provide or cause to be provided a range of mental health programs for children in each mental health center recognized by the State. Based on available resources and to the extent funds are made available to the department by the General Assembly, the programs must include, but are not limited to:

(1) twenty-four hour emergency assessment;

(2) crisis stabilization;

(3) in-home intervention;

(4) therapeutic foster care;

(5) outpatient counseling, diagnostic evaluation, including psychological testing when required, and psychiatric assessment and evaluation;

(6) consultation with other agencies serving the child.

 

SECTION 44-24-240. Agencies to participate in planning and provision of services; exchange of records.

Agencies providing services to children or holding legal custody of children are accountable within their legislative mandate to participate in the planning and service provision to a child determined to be in need of treatment. Agencies shall exchange and share records of services to the child and the child's background.

 

SECTION 44-24-250. Consultation with parent or guardian; participation in or

cooperation with treatment.

A parent or guardian of a child admitted to a treatment program or facility is entitled and expected to confer at reasonable intervals with the treating physician, psychologist, or other members of the treatment team concerning the child's condition, treatment, or diagnosis. The treatment facility may request that the parent or guardian of a child hospitalized or treated must be available for consultation and cooperation in connection with the treatment process. The treatment facility may request that the court, as part of the relief ordered in the commitment proceedings, order the guardian or parents to cooperate with the treatment process if they have been party to the action.

 

SECTION 44-24-260. Child's right to communicate, consult, or visit with agency or person having custody, with counsel, or with private mental health service provider.

A child who is a patient of a treatment facility at all reasonable times may:

(1) communicate and consult with the agency or individual having legal custody of him;

(2) communicate, consult, and visit with legal counsel and private mental health service providers of his parent's or guardian's choice at his own expense. With the consent of the child, and upon request, legal counsel must be provided with copies of the child's treatment records.

 

SECTION 44-24-270. Personal, civil, and property rights of child in treatment program.

(A) A child who is a patient of a treatment program has the right to:

(1) receive special education and vocational training in addition to other forms of treatment from the State Department of Education as required by law;

(2) participate in play, recreation, physical exercise, and outdoor activity on a regular basis, in accordance with his needs;

(3) keep and use his own clothing and personal possessions under appropriate supervision;

(4) participate in religious worship;

(5) receive assistance as needed in sending and receiving correspondence and in making telephone calls at his own expense;

(6) receive visitors, under appropriate supervision;

(7) have access to individual storage space for his own use.

(B) No right enumerated in subsection (A) may be restricted without a written statement in the child's treatment record by a member of the child's treatment team. This statement must indicate the detailed reason for the restrictions. A written restriction is effective for not more than sixty days and may be renewed only by the child's attending physician. Reason for renewal must be entered in the child's treatment records. Renewed restrictions may not exceed thirty days.

(C) Except as otherwise provided by law, no child may be denied the right to:

(1) hold a driver's license;

(2) marry or divorce.

(D) Unless adjudicated incompetent, no child may be denied any other rights specified by law.

 

SECTION 44-24-280. Use of restraint, seclusion, or physical coercion; corporal punishment prohibited.

No child may be subjected to mechanical or chemical restraints, seclusion, or another form of physical coercion or restraint unless the action is authorized by a physician as being required to prevent a child from taking actions which are dangerous to himself or to others or prevent an imminent and substantial disruption of the therapeutic setting of the facility. The authorization for the action must be entered in the child's record within one hour of the action. The authorizations are not valid for more than eight hours unless approved by the facility director or his designee. No child in an inpatient treatment facility of the department may be subjected to corporal punishment.


COMPULSORY ATTENDANCE

 

SECTION 59-65-10. Responsibility of parent or guardian; notification by school district of availability of kindergarten; transportation for kindergarten pupils.

(A) All parents or guardians shall cause their children or wards to attend regularly a public or private school or kindergarten of this State which has been approved by the State Board of Education or a member school of the South Carolina Independent Schools' Association or some similar organization, or a parochial, denominational, or church-related school, or other programs which have been approved by the State Board of Education from the school year in which the child or ward is five years of age before September first until the child or ward attains his seventeenth birthday or graduates from high school. A parent or guardian whose child or ward is not six years of age on or before the first day of September of a particular school year may elect for their child or ward not to attend kindergarten. For this purpose, the parent or guardian shall sign a written document making the election with the governing body of the school district in which the parent or guardian resides. The form of this written document must be prescribed by regulation of the Department of Education. Upon the written election being executed, that child or ward may not be required to attend kindergarten.

(B) Each school district shall provide transportation to and from public school for all pupils enrolled in public kindergarten classes who request the transportation. Regulations of the State Board of Education governing the operation of school buses shall apply.

 

SECTION 59-65-20. Penalty for failure to enroll or cause child to attend school.

Any parent or guardian who neglects to enroll his child or ward or refuses to make such child or ward attend school shall, upon conviction, be fined not more than fifty dollars or be imprisoned not more than thirty days; each day's absence shall constitute a separate offense; provided, the court may in its discretion suspend the sentence of anyone convicted of the provisions of this article.

 

SECTION 59-65-30. Exceptions.

The provisions of this article do not apply to:

(a) A child who has been graduated from high school or has received the equivalent of a high school education from a school approved by the State Board of Education, or member school of South Carolina Independent Schools' Association, or a private school in existence at the time of the passage of this article;

(b) A child who obtains a certificate from a psychologist certified by the State Department of Education or from a licensed physician stating that he is unable to attend school because of a physical or mental disability, provided there are no suitable special classes available for such child in the school district where he resides;

(c) A child who has completed the eighth grade and who is determined by the court to be legally and gainfully employed whose employment is further determined by such court to be necessary for the maintenance of his home;

(d) [Reserved]

(e) A student who has a child and who is granted a temporary waiver from attendance by the district's attendance supervisor or his designee. The district attendance supervisor may grant a temporary waiver only if he determines that suitable day care is unavailable. The student must consult with the district supervisor or his designee in a timely manner to consider all available day care options or the district shall consider the student to be in violation of this chapter.

(f) A child who has reached the age of sixteen years and whose further attendance in school, vocational school, or available special classes is determined by a court of competent jurisdiction to be disruptive to the educational program of the school, unproductive of further learning, or not in the best interest of the child, and who is authorized by the court to enter into suitable gainful employment under the supervision of the court until age seventeen is attained. However, prior to being exempted from the provisions of this article, the court may first require that the child concerned be examined physically and tested mentally to assist the court to determine whether or not gainful employment would be more suitable for the child than continued attendance in school. The examination and testing must be conducted by the Department of Youth Services or by any local agency which the court determines to be appropriate. The court shall revoke the exemption provided in this item upon a finding that the child fails to continue in his employment until reaching the age of seventeen years.

 

SECTION 59-65-50. Nonattendance reported to court having jurisdiction of juveniles.

If the board of trustees of a school district or its designee is unable to obtain the school attendance of a child in the age group specified in Section 59-65-10, the board or its designee shall report such nonattendance in writing to the juvenile court or such other court in the county as may have jurisdiction of juveniles but exclusive of magistrate's courts notwithstanding the provisions of Section 22-3-540; provided, that no one except the board of trustees or its designee shall have the authority to institute the proceedings herein.

 

SECTION 59-65-60. Procedure upon receipt by court of report of nonattendance.

(a) Upon receipt of such report, the court may forthwith order the appearance before such court of the responsible parent or guardian and if it deems necessary, the minor involved, for such action as the court may deem necessary to carry out the provisions of this article.

(b) The court may, after hearing upon ten days notice, order such parent or guardian to require such child to attend school and upon failure of such parent to comply with such order may punish such parent or guardian as by contempt, provided, that punishment for such contempt cannot exceed fifty dollars or thirty days imprisonment for each offense.

The procedure herein provided shall be alternative to the penalties provided in Section 59-65-20.

 

SECTION 59-65-70. Court empowered to declare child delinquent.

If the court determines that the reported absence occurred without the knowledge, consent or connivance of the responsible parent or guardian or that a bona fide attempt has been made to control and keep the child in school, the court may declare such child to be a delinquent and subject to the provisions of law in such cases.

 

SECTION 59-65-80. Enrollment or attendance of expelled or suspended child not authorized.

Nothing herein shall be construed as granting authority to require enrollment or attendance of a child who has been or may be expelled or suspended by the board of trustees of the district or any other person acting with authority from the board of trustees.

 

SECTION 59-65-90. Rules and regulations.

The State Board of Education shall establish regulations defining lawful and unlawful absences beyond those specifically named in this article and additional regulations as are necessary for the orderly enrollment of pupils so as to provide for uniform dates of entrance. These regulations shall require: (1) that school officials shall immediately intervene to encourage the student's future attendance when the student has three consecutive unlawful absences or a total of five unlawful absences and (2) that the district board of trustees or its designee shall promptly approve or disapprove any student absence in excess of ten days. As used in this section, "intervene" means to identify the reasons for the child's continued absence and to develop a plan in conjunction with the student and his parent or guardian to improve his future attendance.

Provided, However, That nothing within this section shall interfere with the Board's authority to at any time refer a child to a truancy prevention program or to the court pursuant to Section 59-65-50.

 

Regulation 43-274. Student Attendance.

(Statutory Authority: S.C. Code Ann. Sections 59-5-65 (2004) and 59-65-90 (2004))

 

I. Lawful and Unlawful Absences

School districts must adopt policies to define and list lawful and unlawful absences.

(A) Lawful absences include but are not limited to

(1) absences caused by a student's own illness and whose attendance in school would endanger his or her health or the health of others,

(2) absences due to an illness or death in the student's immediate family,

(3) absences due to a recognized religious holiday of the student's faith, and

(4) absences due to activities that are approved in advance by the principal.

(B) Unlawful absences include but are not limited to

(1) absences of a student without the knowledge of his or her parents, or

(2) absences of a student without acceptable cause with the knowledge of his or her parents.

(C) Suspension is not to be counted as an unlawful absence for truancy purposes.

 

II. Truancy

The State Board of Education recognizes that truancy is primarily an educational issue and that all reasonable, educationally sound, corrective actions should be undertaken by the school district prior to resorting to the juvenile justice system.

(A) Truant

A child ages 6 to 17 years meets the definition of a truant when the child has three consecutive unlawful absences or a total of five unlawful absences.

(B) Habitual Truant

A "habitual" truant is a child age 12 to 17 years who fails to comply with the intervention plan developed by the school, the child, and the parent(s) or guardian(s) and who accumulates two or more additional unlawful absences. This child may need court intervention and an initial truancy petition may be filed. The written intervention plan, and documentation of non-compliance, must be attached to the truancy petition asking for court intervention.

(C) Chronic Truant

A "chronic" truant is a child ages 12 to 17 years who has been through the school intervention process, has reached the level of a "habitual" truant, has been referred to Family Court and placed on an order to attend school, and continues to accumulate unlawful absences. Should other community alternatives and referrals fail to remedy the attendance problem, the "chronic" truant may be referred to the Family Court for violation of a previous court order. All school intervention plans existing to this point for this child and family must accompany the Contempt of Court petition as well as a written recommendation from the school to the court on action the court should take.

 

III. Intervention Plans

(A) Each district must develop a policy relating to requirements for intervention. The district plan for improving students' attendance must be in accordance with any applicable statutes.

(B) Once a child is determined to be truant as defined in Section II(A), school officials must make every reasonable effort to meet with the parent(s) or guardian(s) to identify the reasons for the student's continued absence. These efforts should include telephone calls and home visits, both during and after normal business hours, as well as written messages and e-mails. School officials must develop a written "intervention plan" to address the student's continued absence in conjunction with the student and parent(s) or guardian(s).

(C) The intervention plan must include but is not limited to

(1) Designation of a person to lead the intervention team. The team leader may be someone from another agency.

(2) Reasons for the unlawful absences.

(3) Actions to be taken by the parent(s) or guardian(s) and student to resolve the causes of the unlawful absences.

(4) Documentation of referrals to appropriate service providers and, if available, alternative school and community-based programs.

(5) Actions to be taken by intervention team members.

(6) Actions to be taken in the event unlawful absences continue.

(7) Signature of the parent(s) or guardian(s) or evidence that attempts were made to involve the parents(s) or guardian(s).

(8) Documentation of involvement of team members.

(9) Guidelines for making revisions to the plan.

(D) School officials may utilize a team intervention approach. Team members may include representatives from social services, community mental health, substance abuse and prevention, and other persons the district deems appropriate to formulate the written intervention plans.

 

IV. Referrals and Judicial Intervention

At no time should a child ages 6 to 17 years be referred to the Family Court to be placed on an order to attend school prior to the written intervention planning being completed with the parent(s) or guardian(s) by the school. A consent order must not be used as an intervention plan from any local school or school district. Should the parent(s) or guardian(s) refuse to cooperate with the intervention planning to remedy the attendance problem, the school district has the authority to refer the student to Family Court in accordance with S.C. Code Ann. Section 59-65-50 (1990), and a report shall be filed against the parent(s) or guardian(s) with the Department of Social Services in compliance with S.C. Code Ann. Section 20-7-490 (2)(c)(Supp. 2002).

(A) Petition for a School Attendance Order

If the intervention plan is not successful and further inquiry by school officials fails to cause the truant student and/or parent(s) or guardian(s) to comply with the written intervention plan or if the student and/or parent(s) or guardian(s) refuses to participate in intervention and the student accumulates two or more additional unlawful absences, the student is considered an "habitual" truant. Each referral must include a copy of the plan and specify any corrective action regarding the student and/or the parent(s) or guardian(s) that the district recommends that the court adopt as well as any other available programs or alternatives identified by the school district. The intervention plan must be attached to the petition to the Family Court and served on the student and the parent(s) or guardian(s).

(B) Petition for Contempt of Court

Once a school attendance order has been issued by the Family Court and the student continues to accumulate unlawful absences, the student is considered to be a "chronic" truant and school officials may refer the case back to Family Court. The school and district must exhaust all reasonable alternatives prior to petitioning the Family Court to hold the student and/or the parent(s) or guardian(s) in contempt of court. Any petition for contempt of court must include a written report indicating the corrective actions that were attempted by the school district and what graduated sanctions or alternatives to incarceration are available to the court in the community. The school district must include in the written report its recommendation to the court should the student and/or parent(s) or guardian(s) be found in contempt of court.

 

V. Coordination with the South Carolina Department of Juvenile Justice

Each school district should coordinate with the local office of the South Carolina Department of Juvenile Justice to establish a system of graduated sanctions and alternatives to incarceration in truancy cases.

 

VI. Transfer of Plans

If a student transfers to another public school in South Carolina, intervention plans shall be forwarded to the receiving school. School officials will contact the parent(s) or guardian(s) and local team members to review the plan and revise as appropriate. Court ordered plans may be amended through application to the court.

 

VII. Approval of Absences in Excess of Ten Days and Approval of Credit

(A) Approval or Disapproval of Absences

The district board of trustees, or its designee, shall approve or disapprove any student's absence in excess of ten days, whether lawful, unlawful, or a combination thereof, for students in grades K-12.

For the purpose of awarding credit for the year, school districts must approve or disapprove absences in excess of ten days regardless as to whether those absences are lawful, unlawful, or a combination of the two.

(B) High School Credit

In order to receive one Carnegie unit of credit, a student must be in attendance at least 120 hours, per unit, regardless of the number of days missed. Students whose absences are approved should be allowed to make up any work missed in order to satisfy the 120-hour requirement. Local school boards should develop policies governing student absences giving appropriate consideration to unique situations that may arise within their districts when students do not meet the minimum attendance requirements.

Therefore, districts should allow students, whose excessive absences are approved in part 1 of this section, to make-up work missed to satisfy the 120-hours requirement.

Examples of make-up work may include

(1) after-school and/or weekend make-up programs that address both time and academic requirements of the course(s), or

(2) extended-year programs that address both time and academic requirements of the course(s).

All make-up time and work must be completed within thirty days from the last day of the course(s). The district board of trustees or its designee may extend the time for student's completion of the requirements due to extenuating circumstances as prescribed by State Board of Education Guidelines.

 

VIII. Reporting Requirements

The State Department of Education will develop and implement a standard reporting system for the adequate collection and reporting of truancy rates on a school-by-school basis.

 

IX. Guidelines

Additional information relating to the implementation of this regulation will be contained in State Department of Education Guidelines. The State Department of Education will review and update these guidelines as needed.