ORDERS:
ORDER
This contested case was heard by this tribunal on August 27, 1997 at the Administrative Law
Judge Division in the Edgar A. Brown Building, Columbia, South Carolina. The Petitioners protest
the South Carolina Department of Social Services' (DSS) decision to remove a foster child from their
home. To preserve confidentiality, the child will not be referred to by name in this order.
After review of the testimony and exhibits, I have determined that DSS may proceed with
removing the child.
FINDINGS OF FACT
Having carefully considered all testimony 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. Jeremy and Tonya Keller are foster parents licensed by DSS. They have been licensed
since November 1995. DSS has taken no action to revoke or limit their foster care license.
2. The child was placed with the Kellers for purposes of foster care July 16, 1996. On
April 28, 1997, DSS notified the Petitioners that it intended to remove this child and another foster
child from their home. The letter of notice complied with 27 S.C. Code Ann. Regs. 114-110 E (6)
(1976). The Kellers initiated an appeal. They have pursued the appeal as to one of the two children.
3. The child who is the subject of this action was born May 15, 1996. He and his older
brother and sister lived together briefly before coming into DSS' custody.
DSS proposes to place the child in the foster home where his two older siblings reside. These
two children entered foster care at the same time this child entered care.
The child also has another sibling born in 1997 who recently entered DSS' custody. A
custody hearing regarding that sibling has not yet been conducted. He is in a third foster home,
separate from the oldest two siblings.
DSS plans to proceed with a family court case to terminate the rights of the child's parents.
He is not free for adoption at this time.
The foster parents of the two older children are willing to adopt the child who is the subject
of this case and the two older siblings. They are approved adoptive parents. It is DSS' policy to give
siblings the opportunity to grow up together whenever possible. When the child and his brother and
sister first came into foster care, it was not possible for DSS to place all of them in one home. The
Kellers are not interested in making a home for all three children.
4. The Kellers are residents of Aiken County, South Carolina. At the time of the
hearing, they lived in a home that was physically appropriate for the child. They were in the process
of building another home. Mrs. Keller is not employed outside the home, but she uses day care for
the child.
5. The Kellers have cooperated with services from Tri Development Center. The child
has some delays, but has progressed well in the Kellers' care.
6. The Kellers have followed through on necessary medical care for the child. He has
a history of a congenital heart defect, asthma, and common childhood illnesses.
7. The Kellers signed a contract when the child was placed with them. They
acknowledge that the placement was temporary and that they were aware that DSS could remove the
child.
8. The Kellers are not approved as adoptive parents but they have started the process.
The foster parents with whom DSS proposes to place the child have completed the process and
received DSS' approval to be adoptive parents.
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. 1996), 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. 1996). This tribunal is only concerned with
whether the Department properly followed the procedural requirements in regard to the removal of
the child from Petitioners' 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). The Kellers are licensed foster care parents.
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 child that is the subject of this case is in the legal custody of DSS by order of the
family court pursuant to 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 family court has continuing jurisdiction
to review the care and placement of this child pursuant to S.C. Code Ann. § 20-7-766 (Supp. 1996).
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 child, but the
removal of the child from the foster home for placement with prospective adoptive parents.
8. In regard to removal of a child from a foster care home, 27 S.C. Code Ann. Regs. 114-110 C, D, and E afford 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.
9. 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). The Kellers have not been approved as adoptive
parents.
10. Because foster parents have 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 the Kellers were afforded due process.
11. Due process of law guarantees no particular form of procedure. See Mitchell v. W.T.
Grant Co., 416 U.S. 600, 94 S.Ct. 1895 (1974).
12. 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 the government refrain from acts that are unreasonable,
arbitrary, capricious, or discriminatory. Id.
13. DSS has properly complied with the fair hearing requirements of 27 S.C. Code Ann.
Regs. 114-110 (1976).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, this tribunal finds that the
Petitioners were afforded procedural due process and that no evidence presented established that the
Department's decision to remove the foster child from the Petitioners' home was unreasonable,
arbitrary, capricious, or discriminatory. Therefore, the Petitioners' appeal must fail.
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 22, 1997
Columbia, South Carolina
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