SC Administrative Law Court Decisions

In this contested case Mary Lee Bradley (Bradley) challenges Berkeley County Department of Social Services' (DSS) decision to remove two foster children from the Bradley home. Jurisdiction vests in the Administrative Law Judge under S.C. Code Ann. § 1-23-600(B) (Supp. 1996). Based on evidence and arguments presented at the hearing held on November 3, 1997, the removal is proper.

Did DSS properly direct the removal of two foster care children from the Bradley home?

1. Positions of Parties:

Bradley argues she has formed a bond with the two children such that removal from the Bardley home is not in the best interest of the children. DSS argues that removal is necessary to carry out the mandate of a family court order directing that the two Bardley foster children be placed in the same home as four other children who are the brothers and sisters of the two Bradley children. To accomplish this directive, DSS argues, removal is appropriate.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. June Young is the biological mother of six children.

2. DSS has legal custody of all six children.

3. Bradley is licensed by DSS as a foster parent.

4. In early 1995, DSS placed two of the children with Bradley in her capacity as a foster parent.

5. A maternal aunt and uncle, Blondell and Wesley Wigfall (Wigfalls) became the foster care providers for the remaining four children.

6. Bradley has a natural child who lives in the Bradley household.

7. Other than the four foster children, the Wigfalls have no other children living in their household.

8. A Family Court order dated January 27, 1997, directed DSS to examine the possibility of placing all six of the biological children of June Young together so long as appropriate and so long as the resources were available.

9. By practice, DSS seeks to place brothers and sisters together in a single home environment whenever possible.

10. By practice, DSS seeks to place children with relatives whenever possible.

11. The Wigfalls agreed to accept all six children.

12. Initially, Bradley expressed no desire to receive all six of the children but later indicated a willingness to do so.

13. In August of 1997, DSS removed the two Bradley children and placed them in the Wigfall home.

14. Since August of 1997, all six children have lived in the Wigfall home.

15. The removal of the two children from the Bradley home to the Wigfall home has not been traumatic.

16. The placement of the two Bradley children with the four siblings in the Wigfall home has fostered a significant degree of bonding for the six children as a family unit.

17. The family bonding provides a stable atmosphere most likely to serve the best interest of the children.

18. Since all six children began residing in the Wigfall home, no ill effects upon the children have been noted.

19. Removing the two children from the Wigfall home would be very disruptive and not in the best interest of the children.

20. Bradley challenged the DSS decision to remove the children.

21. Bradley and DSS executed two contracts, one for each of the two foster children with those contracts governing the care of the two children.

22. Under the contracts, Bradley is paid a "board rate" for the care of the two children.

23. The contracts do not grant the foster parent a specific time period for receiving payment nor does it grant a specific time period for the foster parent to render care to the foster child.

24. DSS retains the right to remove the physical custody of the foster child "at any time the Agency determines that such removal is in the child's best interest."

25. Bradley is not a relative nor has she expressed a strong desire to adopt all six children.

26. The removal from the Bradley home was for the purpose of placing all children with Mrs. Wigfall, a maternal aunt.

27. Wigfall has expressed a willingness to adopt all six children.

3. Discussion:

In this case, DSS has removed two foster children from the Bradley home. Bradley opposed the removal. Considering all of the factors, the removal from the Bradley home was proper.

a. Role of the ALJ

A family court order is required before legal custody of a foster child is placed in DSS. S.C. Code Ann. § 20-7-736 (Supp. 1996). See also, S.C. Code Ann. § 20-7-490(23) (Supp. 1996) (definition of "Legal Custody"). The child's best interest is examined throughout the foster care process since the family court exercises continuing jurisdiction over the foster child and acts to review the care and placement of foster children. S.C. Code Ann. § 20-7-766 (Supp. 1996). Thus, the family court has broad powers over the foster child and ensures the best interest of the child is preserved.

Despite the family court's broad oversight of foster care, a complementary role is performed by the Administrative Law Judge Division (ALJD). In general, an ALJ may have jurisdiction over disputes from agencies that issue a license to citizens authorizing the performance of specified activities. This case concerns foster parents who, before receiving the placement of children from DSS, must first be licensed according to requirements established by regulations. 27 S.C. Code Ann. Regs. 114-550 (1976). Since under Regs. 114-110(B)(8) a foster parent may "appeal" an agency decision to remove a foster child from their home, this matter is before the ALJD. The matter is heard as a contested case since an evidentiary hearing is provided by the regulation and the decision resulting from the hearing will decide the legal rights of the foster parents. See S.C. Code Ann. § 1-23-310(2) (Supp. 1996) (contested case is a proceeding in which legal rights are required to be determined by an agency after a hearing).

b. Legal Right Examined

The legal right to be determined in a foster child removal case is whether the foster parent is entitled to have the child remain in the foster home. The foster parent's right to have the foster child remain in the home is established by a standard contract identified as DSS Form 1531. Bradley and DSS executed two such contracts, one for each of the two foster children.

Under the contract, a foster parent is paid a "board rate" for the foster parent's care of the child. The contract does not grant the foster parent a specific time period for receiving payment nor does it grant a specific time period for the foster parent to render care to the foster child. Rather, DSS specifically retains the right to remove the physical custody of the foster child "at any time the Agency determines that such removal is in the child's best interest." Accordingly, the foster parent is entitled to the continued placement of the child in the foster home until DSS determines the removal is in the child's best interest. Thus, the issue in this case is whether DSS properly concluded the removal of the two children was in the best interest of the children.

c. Best Interest of the Children

Bradley's chief argument for opposing the removal of the children is that bonding has occurred between the two children and her and removal is detrimental to that bonding. While such a factor is significant, bonding is only one of many relevant factors concerning a child's physical or legal custody. See e.g., Moore v Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) (even in a dispute involving third parties seeking to deprive a natural parent of custody of his or her child, bonding is only one of the factors to be considered). In this case, the bonding is insufficient when considered in light of the other evidence.

First, an independent psychological evaluation of the two children demonstrates the removal from the Bradley home to the Wigfall home has not been traumatic. Further, the testimony of the expert psychologist is that removing the two children from the Wigfall home would be very disruptive and not in the best interest of the children.

Second, the policy of DSS is to place siblings together. Again, the testimony confirms that the placement of the two Bradley children with the four siblings in the Wigfall home has fostered a significant degree of bonding for the six children as a family unit. This family bonding is entitled to great weight since it provides a stable atmosphere most likely to serve the best interest of the children.

Finally, the State has a commitment to achieving permanency for children within a reasonable time frame. S.C. Code Ann. § 20-7-480(A)(12) (Supp. 1996). The removal from the Bradley home was for the purpose of placing all children with a maternal aunt who has expressed a willingness to adopt all six children. Bradley is not a relative nor has she expressed a strong desire to adopt all six children. The prospects of a future adoption of the siblings as a family unit by a maternal aunt are compelling facts supporting the removal. Accordingly, the removal by DSS was in the best interest of the children and DSS acted properly.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. A family court order is required before legal custody of a foster child is placed in DSS. S.C. Code Ann. § 20-7-736 (Supp. 1996). See also, S.C. Code Ann. § 20-7-490(23) (Supp. 1996).

2. The child's best interest is examined throughout the foster care process by the family court's continuing jurisdiction over the foster child and the court's duty to review the care and placement of foster children. S.C. Code Ann. § 20-7-766 (Supp. 1996).

3. Jurisdiction in an ALJ may result from disputes involving agencies that issue a license to citizens authorizing the citizen to perform specified activities. S.C. Code Ann. § 1-23-600(B) (Supp. 1996).

4. Foster parents must first be licensed before receiving the placement of children from DSS. 27 S.C. Code Ann. Regs. 114-550 (1976).

5. When DSS decides to remove a foster child from a foster home, a foster parent may "appeal"to the ALJD. S.C. Code Ann. Regs. 114-110(B)(8).

6. The matter before an ALJ is heard as a contested case since an evidentiary hearing is provided by regulation and the decision resulting from the hearing will decide the legal rights of the foster parents. See S.C. Code Ann. § 1-23-310(2) (Supp. 1996).

7. The legal right to be determined in a foster child removal case is whether the foster parent is entitled to have the child remain in the foster home.

8. Bradley's right to have the foster child remain in the home is established by a standard contract. See DSS Form 1531.

9. Bradley's right to the continued placement of the two children in her foster home was removed when DSS determined removing the children was in the child's best interest. See DSS Form 1531.

10. Bonding with the care giver, while a significant factor, is only one of many relevant factors concerning a child's physical or legal custody. See Moore v Moore, 300 S.C. 75, 386 S.E.2d 456 (1989).

11. The bonding between the two children and Bradley is an insufficient basis to deny the removal from the Bradley home.

12. The fact that a psychological evaluation of the two children demonstrates the removal from the Bradley home to the Wigfall home has not been traumatic is a compelling fact supporting the removal.

13. The fact that removing the two children from the Wigfall home would be very disruptive and not in the best interest of the children is a compelling fact supporting removal.

14. The family bonding is a compelling fact supporting removal since the family bonding provides a stable atmosphere most likely to serve the best interest of the children.

15. The State has a commitment to achieving permanency for children within a reasonable time frame. S.C. Code Ann. § 20-7-480(A)(12) (Supp. 1996).

16. The prospects of a future adoption of the siblings as a family unit by a maternal aunt is a compelling fact supporting the removal.

DSS acted properly in removing two children from the foster home provided by Bradley since the removal was in the best interest of the children.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 17th day of November, 1997

Columbia, South Carolina