Rule 41.Counsel and guardian ad litem fees in abuse and/or neglect proceedings

Rule 41 is the whole of Section V, and it sets two numbers.

The caps

In all child abuse and neglect proceedings, the court shall grant:

• to legal counsel appointed for the child, a fee not to exceed One Hundred ($100.00) Dollars; and
• to a guardian ad litem appointed for the child, a fee not to exceed Fifty ($50.00) Dollars.

The verb is shall grant, so a fee is awarded; what the rule caps is its size.

The exception, and what it costs to use

If the court determines that extraordinary circumstances require a larger fee, it shall set forth in its order the salient facts upon which the extraordinary circumstances are based and shall award an amount which the court determines to be just and proper.

Two things follow. There is no ceiling on the exception — "just and proper" is the only limit. And the exception has to be explained on the record: the salient facts go in the order, which is the same discipline Rule 26(a) imposes on domestic relations orders and Rule 31 imposes on a detention order.

Which fee this is, and which it is not

South Carolina addresses fees in three separate places, and confusing them is easy:

• Rule 41 — the fee of appointed counsel for the child and of the guardian ad litem, in abuse and neglect proceedings, capped;
• Rule 12 — the fee of an attorney representing a guardian ad litem, discretionary and uncapped;
• Rule 36 — in delinquency proceedings, appointment of counsel for the child with costs assessed against the parents in appropriate cases.

And Rule 28(c) allows a consent order on the appointment of, fees for, or relief of counsel or a guardian ad litem to issue without a hearing.