ORDERS:
ORDER OF DISMISSAL
In the above-captioned matter, by letter dated April 6, 1998, Petitioners notified this
tribunal that they wish to withdraw their request for a contested case hearing. Petitioners
withdrew their request after learning that this tribunal would limit the scope of the hearing to
whether Petitioners were afforded due process in the Department's decision to remove the foster
children. In their letter, Petitioners stated that "we feel that we will not get the justice as foster
parents we deserve." This tribunal realizes the seriousness of these types of cases. More
importantly, this tribunal recognizes that it has neither jurisdiction nor the resources necessary to
make a determination of this magnitude with regard to the lives of children. Rather, this tribunal
is charged with administrative matters. Therefore, to the extent that licensure is in dispute, this
tribunal is a proper forum. However, even where issues concerning licensure are disputed,
jurisdiction over those issues cannot be used to extend jurisdiction to custody matters. This
jurisdiction remains solely with the family court.
The children that are the subject of this case are 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 these children pursuant to S.C. Code Ann. § 20-7-766 (Supp. 1996). Thus, any issue which involves a custodial decision based on the best
interest of the children is a family court determination.
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.
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 children,
but the removal of the children from the foster home.
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.
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 Verners have been approved as adoptive parents.
However, they have not applied to adopt the children in this case.
Because foster parents have no inherent right to permanent placement of a foster child,
and the best interest of the children is not the issue before this tribunal, as this is not a custody
dispute, the only matter to be resolved would be whether the Verners were afforded due process.
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).
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.
If a hearing were held in this matter, the scope of this tribunal's review would be limited
to determining if DSS has properly complied with the fair hearing requirements of 27 S.C. Code
Ann. Regs. 114-110 (1976). Given this, Petitioners have decided not to contest the Department's
decision to remove the children from their home.
IT IS THEREFORE ORDERED that the above-captioned case is hereby dismissed
with prejudice.
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 9, 1998
Columbia, South Carolina |
