ORDERS:
FINAL ORDER AND DECISION
This contested case was heard by this tribunal on April 6, 2000 at the Administrative Law Judge Division in the Edgar A.
Brown Building, Columbia, South Carolina. The Petitioner protests the South Carolina Department of Social Services'
(DSS) decision to remove four foster children from her home. To preserve confidentiality, the children will not be referred
to by name in this order.
After review of the testimony and exhibits, I have determined that DSS complied with all applicable constitutional, statutory
and regulatory requirements in removing the children.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into
account the credibility and the accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. Linda Outlaw is a foster parent licensed by DSS. She has been licensed since August of 1995. DSS has instituted an
action to revoke Petitioner's foster care license. A fair hearing on the merits of the revocation will be held on May 18,
2000.
2. The record does not reveal the exact date the children were placed with Petitioner, however, each of the four children
were in her care for six months. The children were removed from Petitioner's home on July 19, 1999. At that time, they
ranged in age from three months to seven years old. Petitioner has a natural child who was twelve years of age and also
resided in the home.
3. By way of letters dated July 21 and July 27, 1999, DSS notified Petitioner in writing of its reasons for removing the
children. The event that precipitated the subsequent removal occurred in June of 1999. Petitioner took one of the foster
children to the doctor for an apparent bladder problem. During the course of the visit, the attending physician requested a
urine sample from the child. There is a dispute which resulted as to whether Petitioner substituted her urine for that of the
child. The doctor quotes her as making the following statement to him: "I thought maybe I was at my own doctor's office
giving a sample for my blood sugar, but then decided that couldn't be."(1)
4. As a result of this incident, on July 13, the doctor completed a psychological evaluation of Petitioner and concluded that
she posed a threat of harm to any children placed in her home. As previously stated, DSS removed the children from
Petitioner's home on July 19, 1999, without any advance notice.
5. While Petitioner conceded at the hearing that the removal complied with procedural due process and 27 S.C. Code Ann.
Regs. 114-110 (E)(5) (1976) (requirement of 10 days notice before removal, except when removal is deemed necessary for
child's protection), Petitioner contends that the removal violated her substantive due process rights. She argues that the
decision was arbitrary and capricious.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude as a matter of law the following:
1. The Administrative Law Judge Division, pursuant to the provisions contained in the Administrative Procedures Act,
codified as Chapter 23 of Title I of the 1976 South Carolina Code of Laws, and S.C. Code Ann. § 1-23-600 (B) (Supp.
1999), is empowered to hear this contested case and issue a final decision.
2. The Administrative Law Judge Division does not sit as a substitute for the family court in this proceeding. Jurisdiction
regarding adoption and custody matters is vested solely in the family court. S.C. Code Ann. § 20-7-736 (Supp. 1999).
This tribunal is only concerned with whether the Department properly followed the procedural requirements in regard to
the removal of the children from Petitioner's home.
3. A foster home must first obtain a license before it can receive any children from DSS. To obtain the license, the foster
parent must comply with the provisions of 27 S.C. Code Ann. Regs. 114-550 (1976).
4. A license is a formal permit to carry on business or perform an act, which to do otherwise would be unlawful. See
Simmons v. Robinson, 305 S.C. 428, 429, 409 S.E.2d 381, 382 (1991).
5. Foster care, by its very nature is a temporary living arrangement while permanent placement plans are being formulated
for the involved children. 27 S.C. Code Ann. Regs 114-550(1). Hence, foster care parents have no right to permanent
placement of foster care children in their home.
6. The children that are the subject of this case are in the legal custody of DSS by order of the family court, pursuant to
S.C. Code Ann. § 20-7-736 (Supp. 1999). See S.C. Code Ann. § 20-7-490(23) (Supp. 1996) (definition of "Legal
Custody"). The family court has continuing jurisdiction to review the care and placement of these children, pursuant to
S.C. Code Ann. § 20-7-766 (Supp. 1999).
7. The welfare and best interest of children are the primary, paramount, and controlling consideration of a court in all child
custody controversies. See Cook v. Cobb, 271 S.C. 136, 245 S.E.2d 612 (1978). The matter before this tribunal does not
involve the custody of the children, but the removal of the children from the foster home. In regard to removal of a child
from a foster care home, 27 S.C. Code Ann. Regs. 114-110(C, D & E) (1976) affords foster parents a fair hearing to
protest an agency decision to remove a foster child from their care if the child has resided continuously in the home for six
months.
8. Foster parents may apply to adopt a foster child, and if approved as adoptive parents, will be given first consideration for
the adoption of a foster child under specified conditions. See 27 S.C. Code Ann. Regs. 114-550(M) (1976). Petitioner has
not been approved as an adoptive parent.
9. Because a foster parent has no inherent right to permanent placement of a foster child, and the best interest of the child is
not the issue before this tribunal as this is not a custody dispute, the only matter to be resolved is whether Petitioner was
afforded due process.
10. Due process of law guarantees no particular form of procedure. See Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974).
11. Procedural due process requires adequate notice, opportunity for a hearing, right to introduce evidence, and the right to
confront and cross-examine witnesses. Humellmantel v. Greenville Hosp. Sys., 303 S.C. 549, 402 S.E.2d 489 (1991).
"Substantive due process requires that state action which deprives a person of life, liberty, or property must have a rational
basis, that is, the reason for the deprivation must not be so inadequate that the judiciary will characterize it as arbitrary."
S.C. Dep't of Health and Envt'l Control v. Armstrong, 293 S.C. 209, 359 S.E.2d 302 (Ct. App. 1987) (citation omitted)
(finding that state had substantial interest in maintaining air and water quality and state agency acted rationally in issuing a
cease and desist order to restaurant owner).
12. DSS has properly complied with the fair hearing requirements of 27 S.C. Code Ann. Regs. 114-110 (1976). Further,
Petitioner's substantive due process rights were not violated in the instant case. DSS removed the children primarily
because a licensed medical professional found that Petitioner posed a threat of harm to the children. Whether this assertion
subsequently proves to be unfounded does not invalidate the present rational response by DSS to an ostensible harm to
children in its custody. Under the facts of this case, I do not find that DSS acted arbitrarily, capriciously, or discriminately
in removing the foster children from Petitioner's home. Nevertheless, this decision should not be interpreted to reflect on
the merits of the accusation of the threat of harm to the foster children which are the subject of this case.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, this tribunal finds that the Petitioner was afforded
procedural due process and that no evidence presented established that the Department's decision to remove the foster
children from Petitioner's home was unreasonable, arbitrary, capricious, or discriminatory. Therefore, the Petitioner's
appeal must fail.
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
May 17, 2000
Columbia, South Carolina
1. It should be noted that testimony indicated that testing of the urine sample submitted revealed a high blood sugar content,
such that the doctor hospitalized the child; however, when the child was later tested in the hospital, his blood sugar was
normal. |