SC Administrative Law Court Decisions

As a part of their Prehearing Statement, on August 28, 1997, Herman Ford and Ila Mae Ford (Fords) filed a Motion to Dismiss for lack of subject matter jurisdiction. Subject matter jurisdiction is a question of law. See Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). If facts are necessary to resolve a question of jurisdiction, the court may rely upon the facts placed before it. Woodard v. Westvaco Corp., 315 S.C. 329, 433 S.E.2d 890 (Ct. App. 1993). The parties have provided either information or documents to be used in the merits portion of this dispute. The motion is granted since, under the facts of this case, exclusive jurisdiction rests with the family court.

The family court has exclusive jurisdiction over all proceedings held pursuant to the South Carolina Adoption Act (Act). § 20-7-1680 (Supp. 1996). The instant case, when considered in context, is part of a challenge by the foster parents to an ongoing adoption proceeding facilitated by DSS. Such a context places exclusive jurisdiction in the family court.

Here, DSS has found adoptive parents for the foster child and seeks to remove the child to facilitate the adoption. To complete the adoption process, DSS must remove the child and place her in the prospective home of the adoptive parents. Specifically, the statutory procedure places the child with the prospective parents during the time the adoption is in process. See § 20-7-1740 (Supp. 1996) (before the placement of the child, DSS conducts a preplacement adoption investigation, and after placement, but before the adoption is final, DSS conducts a postplacement investigation). The placement with the prospective parents is a fundamental and integral step in the adoptive process. See § 20-7-1730 (Supp. 1996) (petition for adoption must be filed within sixty days of the date the adoptee is placed with the prospective adoptive parents); See § 20-7-1738 (Supp. 1996) (temporary custody granted to prospective parents upon receiving adoptee in their home and filing of petition for adoption.)

Further, under the facts of this case, the family court has exercised jurisdiction over this foster child. Under the Act, a child may not be adopted until the consent or relinquishment of certain parties, such as a biological parent, is obtained. § 20-7-1690 (Supp. 1996). However, the consent or relinquishment need not be obtained if the parent's rights with reference to the adoptee have already been terminated. § 20-7-1695 (Supp. 1996). Here, the foster child's mother had her parental rights terminated by the family court in an action filed by DSS. Just as with the Act, the family court also has exclusive jurisdiction over all proceedings held to terminate parental rights and may retain that jurisdiction until the child reaches eighteen. § 20-7-1562 (Supp. 1996).

Additionally, the foster child has been the subject of an adoption action filed by the Fords in the family court on July 2, 1996. DSS filed an answer opposing the adoption by the Fords. While no final order resulted due to the action being stricken from the family court's roster of cases, the filing for adoption by the Fords and the opposing answer by DSS underscores the fact that the true nature of this dispute is a disagreement over an adoption. The family court holds exclusive jurisdiction over such matters.

Finally, in addition to the jurisdictional deficiency, the Administrative Law Judge Division (ALJD) is not equipped to resolve adoption disputes. In every adoption proceeding the best interest of the child is the paramount consideration. Chandler v. Merrell, 291 S.C. 227, 353 S.E.2d 135 (1987). The family court is equipped with the expertise, the statutory authority, and the judicial resources to assure the child's interest is given "paramount consideration." Similar protections in the ALJD are either not available or are available only in a less convenient or more costly fashion. Likewise, lack of jurisdiction in the ALJD does not deny the foster parents their "day in court." Foster parents are typically allowed to intervene in adoption disputes in the family court. See McCutcheon v. Charleston County Dept. of Social Services, 302 S.C. 338, 396 S.E.2d 115 (Ct. App. 1990); S.C.Code Ann. § 20-7-2376(E) (Supp.1996) (foster care review board to advise foster parents of their right to petition the family court for termination of parental rights and adoption). In short, both the child's interest and the interest of the foster parents are best protected by a family court forum.

In the instant case, the family court has already acted in the initial stage of the adoption proceeding for the foster child by terminating the mother's parental rights. Further, the family court has been the forum for a previously filed adoption action by the Fords followed by a response by DSS opposing the adoption by the Fords. Now, DSS seeks to remove the child for the sole reason of consummating an adoption already in process. The placement of the child with the prospective adoptive parents is a fundamental step in the adoption process, and the refusal of the foster parents to release the child is an act in derogation of the adoption process. Under these facts, the family court has exclusive jurisdiction of the removal of the child. § 20-7-1680 (Supp. 1996). Accordingly, this matter is dismissed for lack of subject matter jurisdiction.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 22nd day of September, 1997.

Columbia, South Carolina