ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division (ALJD) upon Nathaniel
and Celestine Jones' (Petitioners) request for a fair hearing pursuant to 27 S.C. Code Ann. Regs. 114-110(D) (1992). The Petitioners contest the determination of the South Carolina Department of Social
Services ("DSS") that a foster child (hereinafter referred to as "foster child" as referenced on DSS'
Agency Transmittal Form dated and filed with the Court on February 18, 1998) placed in Petitioners'
custody, be removed from their home. DSS contends that the removal was proper because
Petitioners failed to adequately provide medical attention to the foster child in violation of 27 S.C.
Code Ann. Regs. 114-550(J)(8) (1992). A contested case hearing was held on July 13, 1998, at the
ALJD offices in Columbia, South Carolina. Based on the testimony and arguments presented at the
hearing, removal of the foster child by DSS from Petitioners' home was not improper.
DISCUSSION
The parties in this case seek a determination by this Court of whether the removal of the child
from the foster care home was proper. When DSS removes a foster child from a foster home, the
"[f]oster parents may appeal an agency decision to remove a foster child from their home." 27 S.C.
Code Ann. Regs. 114-110(B)(8) (1992). The case is heard by the ALJD as a "contested case" since
an evidentiary "fair 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. 1997).
The ALJD's jurisdiction is limited in foster care cases. The Family Court has exclusive
jurisdiction over all proceedings held pursuant to petitions brought by DSS for the purpose of
removing a child from the custody of the parent, guardian, or other person legally responsible for the
child's welfare when DSS suspects the child is being abused or neglected. S.C. Code Ann. § 20-7-736 (Supp. 1997). Children who are placed in foster care are in the legal custody of DSS by order
of the family court pursuant to Section 20-7-736. See also, S.C. Code Ann. § 20-7-490(23) (Supp.
1997) (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. 1997). Thus,
the family court has broad powers over the foster child and ensures that the best interest of the child
is preserved.
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. Foster care is a "temporary living
arrangement" authorized by state law to provide for the care of children who have been removed
from their parents "while permanent placement plans are being formulated for the involved children."
27 S.C. Code Ann. Regs. 114-550(A)(1) (1992). There is no expectation or guarantee that foster
parents will enjoy permanent placement of foster children in their home or that they will be able to
adopt the foster children placed in their home. Therefore, in cases involving removal of a child by
DSS from a foster home, the ALJD's jurisdiction is limited to DSS' authority over the foster parents.
The ALJD does not evaluate the best interest of the child, but it does determine whether the foster
parents are complying with the regulatory standards set forth in 27 S.C. Code Ann. Regs. 114-550
(J) (1992).
Regulation 114-550(J) provides that "[f]ailure to comply with one or more of [the]
requirements [of this provision] may result in removal of foster children from the home and
revocation of the foster home license." In this case, DSS removed the foster child from Petitioners'
home upon learning that Petitioners failed to "follow instructions and suggestions of providers of
medical and health related services" in violation of R. 114-550(J)(8). Dr. Mary Parrish, a
pediatrician at Eau Claire Clinic, first saw the foster child on June 27, 1997, and discovered that the
child was anemic. She placed him on iron medication, with instructions to return for a follow-up
visit in one month. When Dr. Parrish saw the foster child in July of 1997, she ordered that the foster
child continue on iron medication and return in two months. Dr. Parrish's records indicate that
Petitioners failed to bring the foster child in for a visit in September as instructed. Dr. Parrish saw
the child for a third visit on December 1, 1997, and ordered blood work to be performed on the foster
child at the Richland Memorial Hospital Lab. When DSS checked with Petitioners on December 3,
1997, to confirm that the blood work had been performed, Petitioners explained that the blood work
was not complete because the lab had been closed. Additionally, the Petitioners failed to notify DSS
of the foster child's illness when he was sick one day in October of 1997.
On December 5, 1998, DSS provided Petitioners with ten days notification that the foster
child would be removed from their home because they failed to adequately provide medical attention
to the child. At the hearing, DSS stipulated that the foster child was removed from the home on
December 9, 1998, citing that "early" removal was in the best interest of the child. See 27 S.C. Code
Regs. 114-110(E)(5)(a) (1992) (providing exception to the ten days advance notification requirement
when "removal is deemed necessary for the protection of the child"). Based on the evidence
presented, Petitioners failed to "follow instructions and suggestions of providers of medical and
health related services" in violation of 27 S.C. Code Ann. Regs. 114-550(J)(8) (1992). DSS properly
removed the foster child from the home of Petitioners pursuant to 27 S.C. Code Ann. Regs. 114-550(J) (1992).
FINDINGS OF FACT
I make the following Findings of Fact by a preponderance of the evidence:
1. Nathaniel and Celestine Jones are foster parents licensed by DSS and have been
licensed since approximately 1992.
2. The foster child was placed with Petitioners for purposes of foster care in December
of 1995. Two other foster children were also placed in Petitioners' care during the time this foster
child was in Petitioners' home.
3. Petitioners took the foster child in early 1996 to the Health Department for a routine
physical examination. The foster child's iron levels were low, indicating anemia, and Petitioners
contacted DSS to learn if the foster child's prior medical records disclosed sickle cell anemia.
4. Dr. Mary Parrish, a pediatrician at Eau Claire Clinic, first saw the foster child on June
27, 1997, for a general exam. Dr. Parrish discovered that the foster child was anemic and placed him
on iron medication, along with instructions to return for a follow-up visit in one month.
5. When Dr. Parrish saw the foster child in July of 1997, she repeated the blood count
and found that the child still was anemic. Dr. Parrish ordered that the foster child continue on iron
medication and return in two months.
6. Petitioners failed to bring the foster child in for a visit in September as instructed.
7. The foster child's case worker, Ervin Bond, made an unannounced, random visit to
the child's day care in October of 1997 and discovered that the foster child was not at day care.
Upon visiting the home, Bond discovered that the foster child was sick and that Petitioners had failed
to notify DSS of the foster child's illness.
8. Petitioners took the foster child for a follow-up blood test on November 15, 1997, and
then called Dr. Parrish's office on November 21, 1997 for the results.
9. Kate Charpentier, a DHEC nurse who works in conjunction with DSS, has been
involved with this foster child's care since March of 1997. Charpentier visited the foster child at the
Petitioners' home once or twice a month to evaluate the child's medical condition and environment.
She performed a brief physical and looked for obvious signs of abuse or neglect.
10. Dr. Parrish notified DSS in November of 1997 that Petitioners and the foster child had
not returned for a follow-up visit in September as instructed.
11. In response to Dr. Parrish's call, Charpentier scheduled an appointment for the foster
child on December 1, 1997, and notified Petitioners in writing of the importance of keeping the
scheduled appointment.
- Dr. Parrish saw the foster child for a third visit on December 1, 1997, and found that
the foster child's iron levels remained low. She advised Petitioners to continue to administer the
child's medication twice each day. Dr. Parrish also ordered blood work to be performed on the foster
child at the Richland Memorial Hospital lab.
- Petitioners failed to get the blood work performed as ordered by Dr. Parrish.
- The Foster Care Review Board held a permanency placement hearing with Petitioners
the first week of December, 1997 to evaluate the foster child's care and make permanency plans for
the next six months. DSS mentioned no problems to Petitioners at this meeting, and there was no
indication that the foster child might be removed from Petitioners' home since the investigation was
incomplete at the time of the review board meeting. At that meeting, any mention of the medical
concerns would have been premature and inappropriate.
15. On December 5, 1997, DSS notified the Petitioners by letter that it intended to remove
the foster child from the Petitioners' home. Although the letter indicated that DSS was providing
Petitioners with at least ten days advance notification of the removal, DSS removed the foster child
on December 9, 1997.
16. Once removed from Petitioners' foster home, the foster child was placed in another
foster home with this two natural siblings.
17. DSS has taken no action to revoke or limit Petitioners' foster care license, and there
are no matters related to this case pending in Family Court.
18. Petitioners protested the decision of DSS to remove the foster child from their care
and requested a contested case hearing to review DSS' decision.
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, is granted jurisdiction to hear this matter pursuant to S.C. Code Ann.
§§ 1-23-310 and 1-23-600(B) (1986 and Supp. 1997).
2. 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. 1997). A family court order is required
before legal custody of a foster child is placed in DSS. See S.C. Code Ann. § 20-7-490(23) (Supp.
1997) (definition of "Legal Custody").
3. A foster home must first obtain a license before it can receive any children from DSS.
27 S.C. Code Ann. Regs. 114-550 (1992) outlines the procedures for the licensing of a foster family
home and the standards that must be met by a foster family to retain physical custody of foster
children. The Jones are licensed foster care parents as defined by 27 S.C. Code Ann. Regs. 114-110(1)(7) (1992).
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)
(1992). Hence, foster care parents have no right to permanent placement of foster care children in
their home.
6. 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. When DSS decides to remove a foster child from a foster
home, a foster parent may "appeal" this decision to the ALJD. 27 S.C. Code Ann. Regs.
114-110(B)(8) (1992).
7. The matter before an administrative law judge 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. 1997). 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. The family court has exclusive jurisdiction over all proceedings held pursuant to
petitions brought by DSS for the purpose of removing a child from the custody of the parent,
guardian or other person legally responsible for the child's welfare when there are allegations of child
abuse or neglect. S.C. Code Ann. § 20-7-736(A) and (B) (Supp. 1997).
9. S.C. Code Ann. § 20-7-480(A)(12) (Supp. 1997) states that "should removal of a child
[from the custody of the child's natural parents] become necessary, the state's foster care system
must be prepared to provide timely and appropriate placements for children with relatives or in
licensed foster care settings and to establish a plan which reflects a commitment by the State to
achieving permanency for the child within reasonable time lines."
10. S.C. Code Ann. § 20-7-766(A) (Supp. 1997) provides that the family court must
review the status of a child placed in foster care upon pleadings filed by DSS to determine a
permanent plan for the child. Further, the family court shall require DSS to file a petition to
terminate parental rights
to the child if the court determines at the permanency planning hearing that the child should not be
returned to the child's parent. S.C. Code Ann. § 20-7-766 (D) (Supp. 1996).
11. 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).
12. 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. 1997).
13. 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. 1997). This tribunal is concerned only with
whether DSS properly followed the procedural requirements in regard to the removal of the child
from Petitioners' home.
14. Because foster parents have no inherent right to permanent placement of the 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 removal of the child from the foster home for
the foster parents' failure to adequately provide medical attention was proper. See, 27 S.C. Code
Ann. Regs. 114-550(J) (1992).
15. Petitioners were aware that the child was anemic and required special medical
attention; however, Petitioners failed to meet scheduled doctors appointments, follow-up on lab work
as instructed, and notify DSS when the child was ill, contrary to the mandate of 27 S.C. Code Ann.
Regs. 114-550(J)(8) (1992) which requires foster parents to "follow instructions and suggestions of
providers of medical and health related services."
16. Pursuant to 27 S.C. Code Ann. Regs. 114-110(E)(5) and 114-550(J) (1992), the
removal of the foster child from Petitioners' home was not improper.
17. Any motions or issues raised during these proceedings not specifically addressed
herein are deemed denied. ALJD Rule 29(c).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, the action of DSS to
remove the foster child from the home of Petitioners pursuant to 27 S.C. Code Ann. Regs. 114-110(E)(5) and 114-550(J) (1992) is upheld.
AND IT IS SO ORDERED.
_______________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July 21, 1998
Columbia, South Carolina |
