A. Jurisdiction Over the Juvenile

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

A. JURISDICTION OVER THE JUVENILE

1. Who Is a Child?¹

The South Carolina family courts are statutory courts created by the legislature; thus, their jurisdiction is limited to that conferred by statute.² The South Carolina family courts have exclusive jurisdiction over a child who has violated or attempted to violate "any state or local law or municipal ordinance, regardless of where the violation occurred . . . ."³ Pursuant to South Carolina Code of Laws section 63-19-20, as of July 1, 2019, a child is a person under the age of 18.⁴ Whether a defendant qualifies as a child is determined by the defendant's age at the time of the offense.⁵

Family court protection is not given to children as a matter of right; rather it is given as a privilege.⁶ Therefore, the General Assembly may withhold this protection where it determines "that the best interests of the public or of the juvenile may . . . require that the juvenile be held accountable as an adult for his criminal conduct."⁷ Accordingly, the General Assembly excluded from the definition of "child" a juvenile who is 17 at the time of the offense and who is charged with a Class A, B, C, or D felony⁸ or other felony carrying a maximum term of 15 or more years' imprisonment, which are generally exempt from classification.⁹ "These [juveniles] (who ordinarily are considered juveniles or children . . .) can be charged in circuit court without first bringing the charges in family court and obtaining transfers."¹⁰ The circuit court has the original and exclusive jurisdiction over such a defendant because the South Carolina Constitution vests original jurisdiction over criminal cases in the circuit courts.¹¹ While the circuit court has original and exclusive jurisdiction in such cases, the solicitor, at his discretion, may remand the juvenile to the family court for disposition of the charge.¹² Any accompanying charges must also be remanded to the family court.¹³

If at any time during the pendency of a criminal or quasi-criminal charge in circuit court the State determines that a juvenile was under the age of 18 at the time of the offense, it is the circuit court's duty immediately to transfer to case to the family court.¹⁴ "When an action is brought in 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 on the motion of any party."¹⁵

2. Transfer to Circuit Court¹⁶

"The family court has exclusive jurisdiction over children accused of crimes."¹⁷ "Charges against [a child] which are not one of the specified felonies must begin in family court and may be transferred under some circumstances."¹⁸ In order to transfer a case originating in the family court to the circuit court, the family court must determine whether, after a full investigation, it is "contrary to the best interest of the child or of the public to retain jurisdiction."¹⁹ In making its determination, the family court must weigh the following eight factors, known as the Kent factors:

(1) The seriousness of the offense.²⁰

(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(3) Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.

(4) The prosecutive merit of the complaint.

(5) The desirability of trial and disposition of the entire offense in one court.

(6) The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.

(7) The record and previous history of the juvenile, including previous contacts with law enforcement agencies, juvenile courts, and other jurisdictions, prior periods of probation, or prior commitments to juvenile institutions.

(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available.²¹

When, upon weighing these factors, the family court determines that transfer of the child to the circuit court is appropriate, the family court must provide a sufficient statement of the reasons for the transfer in its waiver of jurisdiction order.²²

Conclusory statements, or a mere recitation of statutory requirements, without further explanation will not suffice. The order should be sufficient to demonstrate the statutory requirement of full investigation has been met and that the question has received full and careful consideration by the family court. The salient facts upon which the order is based are to be set forth in the order.²³

The transfer order will not be overturned on appeal unless the family court has abused its discretion.²⁴ If a defendant has additional or accompanying family court charges associated with the transferred charge, they shall also be transferred to and heard by the circuit court rather than the family court.²⁵

No child younger than 14 may be transferred to the circuit court unless the offense charged is murder or criminal sexual conduct.²⁶ It follows that a child may not be transferred to the circuit court for drug offenses unless he is at least 14 years old. Specifically, if a 16 year old is charged with a Class E or F felony, a misdemeanor, or a felony that is punishable by up to ten years' imprisonment, the child may be transferred to circuit court.²⁷ If a 14 or 15 year old is charged with a Class A, B, C, or D felony²⁸ or other felony carrying a maximum term of15 or more years' imprisonment,²⁹ the child may be transferred to circuit court.³⁰ Likewise, if a child is charged with violating section 44-53-445 (Distribution or PWID within proximity of a school), he may be transferred to the circuit court. In each of the above cases, the family court is required to make a full investigation to determine if "it is contrary to the best interest of the child or of the public to retain jurisdiction."³¹ However, if a child age 14 or older is charged with an offense punishable by ten or more years' imprisonment and if the child has previously been adjudicated delinquent in the family court or convicted in the circuit court for two prior offenses punishable by a term of imprisonment of ten years or more, the family court is required to transfer the child to the circuit court.³² No best interest determination is required.³³

Once a family court has relinquished its jurisdiction over the child, the child is bound over to the circuit court and is treated as an adult.³⁴ The circuit court has full authority and power "to grant bail, hold a preliminary hearing and any other powers as . . . provided by law for magistrates in such cases."³⁵

3. Constitutional Issues in Juvenile Adjudications

Juvenile delinquency hearings must be conducted in accordance with constitutional safeguards.³⁶ In this regard, a juvenile has the right to notice of charges, to counsel, to confrontation, to cross-examination, and to privilege against self-incrimination.³⁷ Likewise, a juvenile must be adjudicated guilty beyond a reasonable doubt.³⁸

"Fairness and due process requirements that ensure an adult criminal defendant will receive sufficient notice of the charges against him also apply to juvenile matters."³⁹ Like an adult criminal defendant, a juvenile is entitled to know the charges against him to enable him to prepare a defense.⁴⁰ While juvenile proceedings do not require the presentment of an indictment to a grand jury, the family court is required to notify the juvenile and his parents of the charges to be considered at the family court hearing.⁴¹ Thus, the family court may not "adjudicate a juvenile delinquent for a charge not alleged in the juvenile petition unless the...