South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Fred and Cecelia Elliott vs. SCDSS

AGENCY:
South Carolina Department of Social Services

PARTIES:
Petitioner/Appellant:
Fred and Cecelia Elliott

Respondents:
South Carolina Department of Social Services
 
DOCKET NUMBER:
95-ALJ-18-0010-AP

APPEARANCES:
Thomas M. Neal, III, Esquire, for Appellants

Susan Anderson, Esquire, for Respondent
 

ORDERS:

ORDER AND DECISION

REVERSED, WITH INSTRUCTIONS

This matter comes before the Administrative Law Judge Division ("ALJD") pursuant to a request for an appeal by Fred and Cecelia Elliott ("Appellants"). The Elliotts appeal the decision of the Foster Care Hearing Committee ("Committee") of the Department of Social Services to revoke their foster family home license pursuant to S.C. Code Ann. § 20-7-1642 (Supp. 1994), S.C. Code Regs. 114-550 (N)(3) (Supp. 1994), and S.C. Code Regs. 114-550 (J)(13) (Supp. 1994). The issue on appeal is whether the Committee erred in not summarily reversing the decision of the Respondent to revoke Appellants' license because the issues relied upon at the hearing by Respondent had been previously adjudicated in Appellants' favor.

Jurisdiction on appeal is vested in the ALJD pursuant to S.C. Code Ann. § 20-7-2260 (Supp. 1994). On appeal to the ALJD, the standard of review is limited to the record presented. An administrative law judge shall not substitute his judgment for that of an agency unless the agency's determination is affected by error of law or clearly erroneous in view of the reliable, probative and substantial evidence of the whole record. S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 1994); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

The relevant facts are as follows: On August 13, 1993, Respondent began an investigation of the Appellants which concerned allegations of sexual abuse, physical abuse and neglect, and threat of harm of abuse and neglect pertaining to the Diaz, Elliott and Foster children then living in the Appellants' home. Upon Motions to Dismiss by Appellants, the Family Court conducted a hearing on the above allegations on January 5, 1994. At the commencement of the hearing, Counsel for the Respondent conceded that no allegations of abuse or neglect (sexual or physical) against Fred Elliott, or allegations of physical abuse, physical neglect, or threat of harm of any such abuse or neglect against Cecelia Elliott, had been indicated as required by statute, and consented to Appellants' motion concerning those matters.

In its Order of January 11, 1994, the Family Court made Findings of Fact and rendered Conclusions of Law that Respondent failed to indicate any allegations of sexual and physical abuse, physical neglect, or threat of harm of any such abuse or neglect against Fred Elliott; that Respondent failed to indicate any allegations of physical abuse, physical neglect, or threat of harm of any such abuse against Cecelia Elliott; that the only remaining allegations in the Complaint involved sexual abuse of the Foster children and harm of sexual abuse of the Diaz and Elliott siblings by Cecelia Elliott; and that the allegations in the Complaint involving the Diaz and Elliott siblings were fatally defective under S.C. Code Ann. § 20-7-736 (Supp. 1994). The Family Court then Ordered all allegations of sexual and physical abuse, physical neglect, and threat of harm of any abuse or neglect as to Fred Elliott dismissed with prejudice; all allegations of physical abuse, physical neglect, and threat of harm of any such abuse or neglect as to Cecelia Elliott dismissed with prejudice; and all allegations of threat of harm of sexual abuse of the Diaz and Elliott siblings at the hands of Cecelia Elliott dismissed without prejudice.

On April 11, 1994, Respondent issued Appellants a license to conduct a Foster Care Boarding Home whereby they were authorized to care full-time for a maximum of three children of either sex from birth to eighteen years of age. The license contained two "deficiencies" that the Appellants were to correct by July 11, 1994. One of the deficiencies was a routine fingerprinting matter while the other was the "family court hearing." Thereafter, on May 16, 1994, Respondent forwarded Appellants a letter revoking their license and removing any foster children in their care. This decision was based on an application of provisions contained in S.C. Code Ann. § 20-7-1642 (Supp. 1994), S.C. Code Regs. 114-550 (N)(2) (Supp. 1994), and S.C. Code Regs. 114-550 (N)(3) (Supp. 1994), which authorize revocation of a license if the recipient has a substantiated history of child abuse and neglect or, if it is determined that the foster family failed to maintain minimum licensing standards. The letter stated that there was an "indicated case" against Cecelia Elliott and that the Appellants failed to maintain proper standards of care because they had engaged in inappropriate discipline.

On May 18, 1994, the Family Court heard arguments on Appellants' Motion for an Order enforcing an agreement of the parties to dismiss with prejudice the sexual abuse allegations involving the Foster children. In its Order of June 20, 1994, the Court made Findings of Fact that all parties had agreed this matter would be dismissed without contradiction; that a binding agreement to that effect was entered into by Respondent and the Appellants; and that there were no allegations (nor arguments) by Respondent of new or after-discovered facts or evidence upon which a reversal of position might be predicated. As a result, the Court ordered the matter dismissed with prejudice. Respondent then moved the Court to reconsider its June 20, 1994 Order. After giving the matter careful consideration, the Court denied the Motion in its entirety and issued an Order to that effect on September 8, 1994.

A hearing addressing Respondent's revocation of Appellants' Foster Care Boarding Home license was conducted before the Department's Foster Care Hearing Committee on September 30, 1994. In its Decision rendered December 13, 1994, the Committee made Findings of Fact that, during a prior investigation of abuse and neglect, Cecelia Elliott disclosed that she had used a clothes pin on a child's nose as a form of discipline; that Valerie Foster disclosed that Cecelia Elliott forced her to sleep outside during a thunderstorm, hit her in the nose, and had placed a clothes pin on her nose; that these prior allegations were dismissed in Family Court on January 11, 1994 upon a lack of adequate investigation and a failure to make a final indication within the mandated 60 days; that Cecelia Elliott engaged in inappropriate discipline; and that Respondent properly revoked the Appellants' license due to inappropriate discipline. The Committee rendered Conclusions of Law that a foster home license may be revoked if the foster family fails to maintain proper standards of care and services to children; if it would be detrimental for additional children to be placed in the home; and if cruel, inhumane, and inappropriate discipline is employed. A Decision was rendered stating that Respondent had properly revoked Appellants' license because Cecelia Elliott engaged in inappropriate methods of discipline, and as a result, failed to maintain a proper standard of care for the Foster children.

On January 5, 1995, the Family Court entertained a Motion by the Guardian ad litem for the Diaz children seeking an Order preventing them from being removed from the home of the Appellants. In its Order of January 6, 1995, the Court made Findings of Fact that all allegationsregarding abuse and neglect relating to the Appellants were dismissed with prejudice via the Family Court Orders of January 11, 1994 and June 20, 1994; that the revocation of Appellants' foster family license was based on an indicated case against Cecelia Elliott (the sexual abuse allegations dismissed without prejudice on January 11, 1994 and dismissed with prejudice on June 20, 1994), physical abuse and neglect allegations which had either been unfounded or not indicated by Respondent, and allegations dismissed with prejudice by the Family Court on January 11, 1994; and that Respondent attempted, by collateral means, to thwart and avoid the Orders of the Family Court. The Court made a Conclusion of Law that the Diaz children should remain in the Appellants' home, "whether or not the Elliotts have a foster care license."

COLLATERAL ESTOPPEL

The doctrine of collateral estoppel mandates that the Decision of the Foster Care Hearing Committee to revoke Appellants' license be reversed. Under this doctrine, re-litigation of the same facts or issues necessarily determined in a former proceeding is prohibited. Carman v. South Carolina Alcohol Beverage Control Commission, ___ S.C. ___, 451 S.E.2d 383 (1994); Liberty Mutual v. Employers Ins. of Wausau, 284 S.C. 234, 325 S.E.2d 566 (Ct. App. 1984). Collateral estoppel, or issue preclusion, applies in all tribunals and forums. See Bennett v. South Carolina Department of Corrections, 305 S.C. 310, 408 S.E.2d 230 (1991); 50 C.J.S. Judgments § 691 (1947). When a decision is rendered by an administrative agency in which a party has a full and fair opportunity to litigate issues, and the agency decision is not appealed, the party cannot thereafter re-litigate the same issues in civil or criminal court. Carman, 451 S.E.2d at 386; Bennett, 408 S.E.2d at 231-232. Therefore, logic dictates that the doctrine is applicable when a party brings an action before a civil or criminal court, is given a full opportunity to litigate the issues but does not prevail, and thereafter, rather than appealing that court's decision, seeks to re-litigate the same issues before an administrative tribunal.

The allegations levied against Appellants, stemming from the August 13, 1993 investigation, were necessarily determined in Family Court whereby they could not have been re-litigated at the license revocation hearing conducted December 13, 1994. In the Order of January 11, 1994, the Court determined that all allegations, save the sexual abuse and threat of harm of sexual abuse allegations levied against Cecelia Elliott, were not indicated by Respondent. Upon an affirmative determination, indicated reports are converted to the category of "affirmative determination." S.C. Code Ann. § 20-7-650 (E) (Supp. 1994). As a consequence, reports not indicated should also be converted as such. Furthermore, when allegations are not indicated by the agency, they are deemed "unfounded." S.C. Code Ann. § 20-7-650 (D) (Supp. 1994). Because the Family Court determined that Respondent failed to indicate the allegations, and that they were "unfounded," all allegations (except the above noted allegations versus Cecelia Elliott) were dismissed with prejudice. In the Family Court Order of June 20, 1994, the remaining allegations levied against Appellants were also dismissed with prejudice.

At the license revocation hearing, the Committee made Findings of Fact, Conclusions of Law, and its Decision relying solely on the allegations dismissed with prejudice by the Family Court. No new or after-discovered evidence compiled or acquired subsequent to the September 8, 1994 Order of the Family Court was introduced by Respondent. As a result, all evidence considered in the determination of the Committee concerned matters that had been litigated with finality. The doctrine of collateral estoppel mandates reversal of the Decision on the ground that the Committee committed an error of law in allowing the previously dismissed allegations to be presented as evidence at the revocation hearing. Furthermore, the Decision was clearly erroneous in view of the reliable, probative and substantial evidence of the whole record.

Respondent argues that collateral estoppel does not apply to this case because a state agency cannot be impeded from carrying out its police powers. In support of its position, Respondent relies on South Carolina Department of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1982). After giving due consideration to Respondent's argument, I find it to be manifestly without merit. While Parker makes a general statement regarding the State's immunity from estoppel, case law illustrates that this exemption does not apply where its officers or agents act within the proper scope of their authority. South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987). Additionally, it is undisputed that estoppel is an equitable doctrine, essentially flexible, and should be applied or denied as equities between the parties may preponderate. Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1985).

Clearly, an agency is prohibited from "forum shopping," calculated only to obtain a more favorable result in a different court, as Respondent has done in this case. The issue is not whether the ALJD is bound by the earlier decisions in this matter, but instead, whether Respondent is so bound. While agencies are granted broad latitude in these situations, that latitude clearly has its limitations. Otherwise, review by the ALJD would be no more than a "rubber stamp" for the agency's decision, and would be unnecessary. Respondent has obviously exceeded its authority in this case.

After reviewing the entire record, this Division finds that the Decision of the Foster Care Hearing Committee should be reversed and the foster family home license of the Appellants be reissued, effective upon receipt of this Order. In view of this finding, it is unnecessary to address the remaining issues Appellants raise on appeal.

The judgment is reversed with the following instructions:

1) Appellants shall be issued a foster family home license.
2) Respondent shall issue Appellants a foster family home license immediately upon receipt of this Order.

Reversed, with instructions.

_____________________________

Marvin F. Kittrell

Chief Administrative Law Judge

Columbia, South Carolina

May ___, 1995


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