ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter came before me for a contested case hearing at the offices of the Administrative
Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina at 1:00 p.m. on July 7, 1998
upon request of Louise Linen, the Petitioner pursuant to the provision of S. C. Code Regs. 114-110
(D). The Respondent, South Carolina Department of Social Services, had notified the Petitioner of
its decision to remove a foster child, Shomari Williams, from her home. Petitioner seeks a review
of that decision.
After explaining to the parties the limitation on the authority of this court in any inquiry in
this proceeding, i.e....whether the Petitioner was afforded due process in the Respondent's decision
to remove the foster child, the Petitioner felt that it would be proper to request this court to dismiss
this action and proceed in the court of appropriate jurisdiction (Family Court) on any action for
custody or adoption of the child.
Accordingly, upon motion made by the Petitioner, without argument from the Respondent,
the case was dismissed with prejudice.
DISCUSSION
This court realizes the seriousness of this case. More importantly, it 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 court is charged with administrative matters. Only to the
extent that licensure is in dispute is this court the proper forum. However, even where issues
concerning licensure are disputed, jurisdiction over those issues cannot be used to extend jurisdiction
to custody matters. That jurisdiction remains solely with the family court.
The child that is the subject of this case is in the legal custody of the Respondent 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 child 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).
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 Ms. Linen was 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 child from their home.
IT IS THEREFORE ORDERED that the above-captioned case is hereby dismissed with
prejudice.
Marvin F. Kittrell
Chief Judge
July 28, 1998
Columbia, South Carolina
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