ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division pursuant to a request for an
appeal by Mr. and Mrs. Donald P. Fisher. Fisher appeals the decision by the Fair Hearing
Committee of the Department of Social Services not to renew their license to operate a foster
home pursuant to S.C. Code Ann. § 20-7-1642 (Supp. 1994). The issue on appeal is whether the
Department properly applied Section 20-7-1642 in deciding not to renew the license.
Jurisdiction on appeal is vested in the Administrative Law Judge (ALJ) pursuant to S.C. Code
Ann. § 20-7-2260 (Supp. 1994). On appeal to the ALJ, the standard of review is limited to the
record presented. The ALJ shall not substitute his judgment for that of the agency unless the
agency's determination is affected by error of law or clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276
S.E.2d 304 (1981).
The facts are as follows: In 1990, the Fishers were foster parents to a child who had been
removed from her family based upon alleged abuse by the parents. While in the Fishers home, she
accused them of abusing her through excessive discipline. The Department intervened, removed
the child from the Fishers' home with their consent, and initiated an intervention petition. The
incident was investigated by the Department and the guardian ad litem. Reports were made to the
Family Court prior to its hearing on the intervention petition. The guardian's report recounted the
facts and stated that there was not sufficient evidence to recommend a finding of physical abuse
but she felt that the Department's action was justified. At the hearing, the Family Court
determined that the only evidence to support the child's story was the presence of moderate to
severe bruises on her buttocks, that the incident was isolated and found that it was appropriate
under the circumstances to remove the child to another placement. Based upon this finding, the
Department viewed this incident as an "indicated" case and placed the Fishers' names on the
Central Registry. The Fishers were not notified that their names were on the registry.
When the Fishers' license came up for renewal in 1992, the Department reviewed the file and
concurred with the county department that the evidence relating to the indicated case was
insufficient reason to revoke the foster home license of Mr. and Mrs. Fisher. The concurrence
was based upon a statement by the Department "it appears the Court has supported continued use
of the foster home pursuant to agreement on methods of discipline." (Letter dated December 30,
1992 to the Director of York County DSS.) In 1993, when the license came up for renewal, it
was denied on the basis that the Fishers had a substantiated history of abuse based upon the family
court order and that Section 20-7-1642 enacted by the legislature in 1993 prohibited the renewal
of the license. The Fishers were notified of the Department's decision and requested a hearing.
The Fair Hearing Committee conducted a hearing and determined that the staff acted properly in
not renewing the license. This appeal followed.
S.C. Code Ann. § 20-7-1642 (Supp. 1994) provides that no child may be placed in foster care
with a person with a substantiated history of child abuse or neglect. The Department sought
revocation of the license because of its intervention and the family court order stating that
intervention was appropriate. The term "substantiated history" as used in Section 20-7-1642 is
not defined. The Department sought clarification on the application of the statute in an opinion
letter request to the Attorney General. In the opinion rendered, the Attorney General ruled that in
construing the term "substantiated history of child abuse or neglect" reference may be made to
Section 20-7-650 which provides for "affirmative determinations" of child abuse or neglect and
for the establishment of a central registry. The opinion states that upon an affirmative
determination, the name is placed on the central registry and therefore, the names on the registry
would appear to have a substantiated history of child abuse or neglect. 1993 Op. Atty. Gen. No.
47 at 117. The standard for an affirmative determination is a determination that more likely than
not a person who is the subject of a report as defined by Section 20-7-690(E) did commit child
abuse or neglect. See S.C. Code Ann. § 20-7-650(G) (Supp. 1992)(current version at S.C. Code
Ann. § 20-7-650(G) (Supp. 1994)).
The standard for an intervention petition is clearly different. Section 20-7-650 (Supp. 1991)
which was in effect at the time the intervention petition was filed, states that where the agency
initiates protective services in cases of indicated physical abuse, the family court shall schedule a
hearing to determine whether the agency had reasonable cause to initiate the services offered; and
whether the services being offered are reasonable in light of the agency's justification for
intervention. S.C. Code Ann. § 20-7-650(H) (Supp. 1991)(current version at S.C. Code Ann. §
20-7-650(H)(Supp. 1994)). The family court does not make a determination of whether abuse
occurred. The family court order did not make a determination that more likely than not the
Fishers abused the child. The Department's own documents indicate that there was no finding of
abuse and that the continued use of the Fishers as foster parents was warranted.
S.C. Code Ann. § 20-7-690(C) (1985)(currently codified at S.C. Code Ann. § 20-7-690(D)(Supp.
1994)) states that any person who is the subject of a report made pursuant to this article shall be
immediately notified of the fact that his name has been recorded by the Department, and the
Central Registry of Child Abuse and Neglect. He shall also be informed of the findings of the
investigation and whether or not his name has been destroyed. Any person who is the subject of a
report shall be informed of his right to inspect the report and any substantiating data or evidence
and his right to challenge any part of its contents. The Fishers were not notified that their name
was on the Central Registry and were never given the opportunity inspect the report and any
substantiating data. Although this section has been amended several times since 1985 this
provision has remained unchanged.
Based upon these reasons, the decision of the Fair Hearing Committee is REVERSED and the
foster care license of Donald and Elizabeth Fisher is reinstated.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
April _____, 1995
Columbia, South Carolina. |