ORDERS:
ORDER AND DECISION
This is an appeal by Yulinda Nettles of the decision by the Fair Hearing Committee of the
Department of Social Services (Committee) to revoke the license to operate a foster family
boarding home pursuant to S.C. Code Ann. § 20-7-1642. The issue on appeal is whether the
Department properly applied Section 20-7-1642 in revoking the license. The judgment is
affirmed. Jurisdiction on appeal is vested in the Administrative Law Judge (ALJ) pursuant to S.C.
Code Ann. § 20-7-2260. 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. S.C. Code Ann. § 1-23-380 (Supp. 1993); see State ex
rel Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986).
The facts were stipulated before the Committee. It failed to make specific findings of fact and
failed to specifically adopt the stipulated facts submitted by the parties. It is clear, however, that
the Committee relied on the stipulated facts in reaching its conclusion. The Committee is required
by law to make specific findings of fact. S.C. Code Ann. § 1-23-350 (1986). Although it would
have been better for the Committee to specifically adopt the stipulations of fact, there are no
disputed facts between the parties based upon the stipulation and the Committee did not need to
resolve any disputed facts by making specific findings. Based upon the stipulated facts and briefs
submitted without a hearing, the Committee determined that the Appellant's license was properly
revoked.
The stipulated facts are that Appellant and her husband were issued a license to operate a Foster
Family Boarding Home on January 8, 1990. The license was renewed in 1991, 1992 and 1993.
On July 1, 1993 the Department sent a letter notifying Appellant of the revocation of the license in
accordance with S.C. Code Ann. § 20-7-1642 because of a substantiated case of child neglect
occurring in 1988.
The substantiated case of neglect occurred in March 1988 when a report was received against
Appellant for lack of supervision of her two natural sons, then ages 7 and 8 who were left alone.
Before the social worker could remove the children from the home, Appellant returned and the
children were not removed. Continued visits were made by the social worker over a two month
period. The visits proved satisfactory and the case was closed without the necessity for a
treatment or counseling plan. The Department of Social Services (Department) viewed this case
as an "indicated" case of neglect.
During the licensing process, Department staff were aware of the "substantiated case" but
continued to license Appellant based upon her credentials as a foster parent. The Department
found that the best interest of the children living in the home were served by continuing to license
the Appellant's home.
In June, 1993, the legislature amended Section 20-7-1642 of the 1976 Code which became
effective on July 1,1993. It provides that:
No child may be placed in foster care with a person:
(1) with a substantiated history of child abuse or neglect; or
(2) who has pled guilty or nolo contendere to or who has been convicted of:
(a) an "Offense Against the Person" as provided for in Chapter 3, Title 16;
(b) an "Offense Against Morality or Decency" as provided for in Chapter 15, Title 16; or
(c) contributing to the delinquency of a minor as provided for in Section 16-17-490.
S.C. Code Ann. § 20-7-1642 (Supp. 1993). The Appellant argues that by applying this code
section to her the Department is applying it retroactively. In addition, she argues that regardless
of the interpretation of the statute, in determining placement of children the Department must
consider the best interests of the children and in this case, the parties agree that the best interest of
the children would be continued placement in her home.
The Department cites an opinion of the Attorney General that was issued in response to direct
questioning by the Director about the interpretation and application of Section 20-7-1642. The
Attorney General Opinion states that the General Assembly intended the legislation to have a
retroactive effect without any grandfathering considerations; thereby applying it to existing foster
homes. In light of the prohibition set forth in the legislation it does not appear that children may
continue to reside in the prohibitive situations after July 1, 1993. S.C. Att'y Gen. Op. of June 10,
1993, at 113.
When interpreting a statute, "the legislative intent must prevail if it can be reasonably discovered
in the language used, which must be construed in the light of the intended purpose of the
[s]tatutes. One of the primary rules in a construction of a statute is that the words used ... should
be taken in the ordinary and popular significance, unless there is something in the statute requiring
a different interpretation." Gambrell v. Travelers Insurance Companies, 280 S.C. 69, 310 S.E.2d
814, 816 (1983).
The legislature and the Department have stated the requirements for placement of a child in foster
care. This includes the licensing of a foster family home before a child is placed in the home.
Foster care licenses are effective for one year from the date of issue and are renewed on an annual
basis. S.C. Code Regs. 114-550. The Department may deny the issuance of a license to a foster
family if licensing requirements are not met. S.C. Reg. 114-550 N.(2). One of the criteria enacted
by the legislature is the statute which prohibits the placement of children with a person who has a
substantiated history of child abuse or neglect. The plain meaning and language of the statute is
clear - no child may be placed in foster care with a person who has a substantiated history of child
abuse or neglect. The statute provides that a person with a substantiated history of child abuse or
neglect may not be a foster parent. If the person is legally prohibited from being a foster parent
then a license may not be issued to that person.
Prior to the statute, the Department had discretion in determining whether to issue a foster care
home license to a person with a substantiated history case of child abuse or neglect. S.C. Code
Regs. 114-550 O. The legislature removed the Department's discretion by mandating that a child
not be placed with certain persons. In construing statutes, there is a presumption that statutory
enactments are to be considered prospective rather than retroactive in their operation absent a
specific provision or clear legislative intent to the contrary unless the statute is remedial or
procedural in nature. Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978); Bartley v. Bartley
Logging Company, 293 S.C. 88, 359 S.E.2d 55 (1987). The statute provides both a remedy and
a procedure. The remedy is to protect children in foster homes from potential harm by a person
who has a history of child abuse or neglect. Often, children placed in foster homes are children
who have been removed from their families because of some abuse or neglect by the child's family.
The procedure is simply an additional criteria to be followed in determining the fitness and
suitability for a person to be licensed as a foster parent.
Appellant argues that the statute is applied retroactively because it affects licensed homes and
children already placed in foster homes. To construe the statute in the manner proposed by
Appellant would create an inconsistent and absurd result which is the placement of children with
persons who may have a history of child abuse or neglect in direct contravention of the intent of
the legislature. The legislative intent is clear from the language of the statute - no child may be
placed with a person whose past conduct falls within the purview of the statute. If the legislative
intent was to provide an exception for children already placed in foster homes or to exempt foster
homes already licensed, the legislature would have included wording to effectuate this intent as it
has done with other statutes that affect licensing. It did not.
Appellant also argues that the Department should consider what is in the best interest in the child
in determining custody. As a general rule this is correct, however, in this case the issue is not
custody of the children. The Department is only considering licensing and placement of children
in a foster care environment. In foster care, the custody of the children remains with the
Department and the children are only "placed" in a foster home for care. Appellant's reliance on
the "best interest of the child" is misplaced in this instance which involves licensing of a foster
home.
The wording of the statute is clear and unambiguous. The legislative intent is clear. The statute
is meant to apply to all persons being considered by the Department for the placement of children
in foster care. The Department did not err in its interpretation of the statute.
For the reasons stated, the decision of the Fair Hearing Committee of the Department of Social
Services is AFFIRMED.
_______________________________
ALISON RENEE LEE
Administrative Law Judge
November ____, 1994.
Columbia, South Carolina. |
