Agency used false contempt of court threat to ‘scare the crap’ out of parents behind on their child support
For more than 20 years, the South Carolina Department of Social Services employed an effective device to get deadbeat parents into its offices to talk about late child support: The agency would issue a summons to appear for a hearing and pointedly remind the parent that he or she could be held in contempt of court for failure to pay.
There was one little problem with that tactic, though. No judge was present, it wasn’t a judicial proceeding, and nobody could be held in contempt. It was an empty threat. Worse yet, it skirted, if it not violated, all notions of due process, attorneys say.
It’s also a scare tactic that has come to an end, thanks to a lawsuit filed by a father who received one such “summons.”
Gregory Charping sued DSS and its Child Support Enforcement Division for frivolous litigation after it served him last year with a summons and complaint stating that he could be held in contempt during an upcoming court hearing for failure to pay child support.
Charping had lost his job and was struggling with anxiety issues, including post-traumatic stress disorder. When he saw the summons and complaint from DSS he believed he was going to jail, which sent him into a tailspin that led to a panic attack and a trip to the emergency room.
But it turns out that the hearing DSS had referred to was actually an administrative negotiation conference with one of the agency’s child support enforcement attorneys – there would be no judge present and no chance of a contempt order.
“This apparently had become routine practice among the state’s child support attorneys and child support collection offices despite the obvious due process and legal and ethical issues with this approach,” said Charping’s attorney, Kirby R. Mitchell of S.C. Legal Services in Greenville.
DSS has contended that its child support conferences fit the Black’s Law Dictionary definition of a hearing. But under the S.C. Rules of Family Court, a judge must be present during a judicial hearing.
The agency also has asserted that the summons and complaint it served on Charping and others across the state were automatically generated by a computer program from the 1980s, and it is impossible to determine who approved the practice.
“You’re threatening South Carolina citizens with jail. Your attorneys are signing these documents,” Mitchell said. “You’re not taking responsibility for that? You’re nailing that on a computer from the ’80s?”
Calling it a “systemic issue” that has been corrected, William C. Smith, assistant general counsel in the DSS office of general counsel in Columbia, said “the practice itself is not something that is traceable to an individual” at DSS. He and another attorney for DSS, Knox L. Haynsworth III of Brown Massey Evans McLeod & Haynsworth in Greenville, declined to comment further on Charping’s suit.
‘Abusing the process’
Shortly before the lawsuit was set to go to trial July 10, DSS and Charping agreed during a court-ordered mediation session to a settlement deal that will affect child support attorneys and litigants throughout the state.
The agency is now enjoined from issuing a summons for a negotiation conference and can no longer refer to conferences or any other proceedings in which a judge will not be involved as judicial hearings.
It also must file a rule to show cause when initiating a contempt matter and use the Family Court civil coversheet to commence litigation – standard practices that DSS did not follow in Charping’s case, according to Mitchell.
“For the state not to be following the rules of procedure, that was surprising to me,” he said. “This is what predatory lenders and private collection agencies sometimes do, abusing the process and threatening people with jail to collect on a [credit] card and, of course, that’s illegal.”
Finally, DSS will pay $10,000 to S.C. Legal Services to hold continuing legal education seminars for its child support enforcement lawyers, along with more than $2,000 for Charping’s mediation costs and fees.
Under the settlement, Charping agreed to drop a separate civil rights suit against DSS seeking damages for emotional harm and medical costs. His attorney in that case, Stephen J. Henry of Greenville, a former DSS caseworker, said Charping was more concerned with “the greater good.”
“This was a way to scare the crap out of somebody. In this case, they did that and they caused him some injury,” Henry said. “But he agreed that the damages to him were over and decided that he would waive his claim in order to get relief for people in his situation statewide.”
Charping now receives Social Security disability benefits for his anxiety disorders and uses a portion of the payments to cover his child support, according to Mitchell.
DSS had been using the summons and complaint documents that it served on Charping since at least the 1990s and in every Family Court in the state, though the agency stated in a court filing that no one had ever complained before.
“Alleged deadbeat parents often don’t have attorneys. The people it was being practiced on were not in a position to object and so this practice had become common and accepted,” Mitchell said. “This would never have happen between well-represented parties.”
via http://sclawyersweekly.com/ Phillip Bantz Published: July 13, 2012