ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division (Division or Court) as the result of a request for a hearing
by the Petitioner, Dianna Spencer. The Petitioner appeals the South Carolina Department of Social Services' (DSS or
Department) determination that two foster children placed in the Petitioner's care be removed from her home pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1998), 27 S.C. Code Ann. Regs. 114-110 (1992) and 27 S.C. Code
Ann. Regs. 114-550 (1992). A hearing was held in this matter on November 2, 1999.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the Petitioner and the Respondent, I make the following findings of fact by a
preponderance of evidence:
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). The license is effective for one year from the date of issuance and is annually reviewed on its anniversary date. 27
S.C. Code Ann. Regs. 114-550(L)(1) and (N)(1) (1992). The Petitioner applied for and was granted a license by the
Department allowing her to provide a home for foster children as permitted by S.C. Code Ann. § 43-1-80 (Supp. 1998) and
27 S.C. Code Ann. Regs. 114-550 (1992). Pursuant to that license, the Petitioner acted as foster parent for two minor
children, approximately 3 and 4 years of age, in Marion County, South Carolina. The children were placed with the
Petitioner around two and a half years ago. Supervision of those children is now being handled by the Adoption Division of
the South Carolina Department of Social Services due to the fact that the parental rights of the natural parents were
previously terminated.
On Saturday, June 12, 1999, the Petitioner and the minor children in her custody were at a local McDonald's located in the
Wal-Mart Shopping Center on Highway 76 in Marion, South Carolina. The Petitioner informed the children that she was
ready to leave McDonald's. However, the 4 ½ year old child did not leave the play area upon the Petitioner's request. The
Petitioner stated that she wanted to give the child "a jolt." Therefore, on that Saturday afternoon at approximately 4:20
p.m. she got into her automobile as if she was going to exit the McDonald's parking lot, leaving the child behind. When the
child did not promptly leave McDonald's, the Petitioner began to pull out of the parking lot. The minor child exited
McDonald's and began running behind the Petitioner's vehicle in an attempt to catch up with the Petitioner.
Ms. Sylvia Rogers, a worker with the Marion County Department of Social Services, was just arriving at the McDonald's
when saw the the minor child running after the vehicle. She ran behind the child fearing that other vehicles approaching the
McDonald's parking lot might not see the child. However, the child did not respond to Ms. Rogers calls because the child
was using all of her efforts to catch the vehicle. When the Petitioner stopped at the edge of the McDonald's parking area,
Ms. Rogers caught up with the child. Ms. Rogers then discovered that she was quite familiar with the minor child, because
she had previously supervised the Petitioner and the children.
Though this event was extremely vexing to Ms. Rogers, the Petitioner did not seem to be concerned that the child was
running frantically through the parking lot in pursuit of the vehicle. At that time, Ms. Rogers advised the Petitioner that this
method of teaching the minor child to obey was very dangerous and should not be repeated.
The Marion County Department of Social Services subsequently contacted the Adoption Division in Florence on Monday,
June 14, 1999, as a direct result of this incident. Upon investigation, the Adoption Division decided to remove the children
and notified the Petitioner via U.S. Mail. This letter also advised the Petitioner of her right to appeal this removal within ten
days. The Petitioner subsequently notified the Respondent that she did wish to appeal this decision.
The Petitioner previously applied to adopt these children. However, after the above events, the Department denied the
Petitioner's adoption request. Nevertheless, the Petitioner may still appeal DSS's decision to deny the application for
adoption.
ISSUE
Did the South Carolina Department of Social Services act appropriately in its decision to remove the minor children from
the foster home of the Petitioner?
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
An Administrative Law Judge shall preside over all hearings of contested cases involving departments of the executive
branch of the government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide
such cases. S.C. Code Ann. 1-23-600(B) (Supp. 1998). This Division is granted jurisdiction to hear this matter pursuant to
S.C. Code Ann. §1-23-310 et seq. (1986 and Supp. 1998) and § 1-23-600 (Supp. 1998). Specifically, in this case, the
parties seek a determination by this Court of whether the removal of the children from the foster care home is proper. When
the Department seeks to remove a foster child from a foster home, the "[f]oster parents may appeal an agency decision to
remove a foster child from their home." S.C. Code Ann. Regs. 114-110(B)(8) (1992). The case is heard by the Division as a
"contested case" since an evidentiary "fair hearing" is provided by the above 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. 1998).
However, this Court's jurisdiction is limited in these cases. The family court has exclusive jurisdiction over all proceedings
held pursuant to petitions brought by the Department 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 the Department suspects the child is being abused
or neglected. S.C. Code Ann. §20-7-736 (Supp. 1998). 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. 1998)
(definition of "Legal Custody"). Therefore, in cases involving the Department's removal of a child from a foster home, the
Division's jurisdiction is limited to the Department's authority over the foster parents; in other words, whether the foster
parents are complying with the standards set forth in 27 S.C. Code Ann. Regs. 114-550 (J) (1992).(1)
27 S.C. Code Ann. Regs. 114-550(J) (1992) sets forth the standards which shall be maintained by all foster families in the
State of South Carolina. These standards, along with the overriding standard of what is in the best interest of the minor
children, are the controlling criteria which the Division must consider in rendering its decision. Subsection 13 of Regulation
114-550(J) provides: "[a]ll discipline [by a foster parent] must be reasonable in manner, moderate in degree and responsibly
related to the child's understanding and need." (1992) This subsection further goes on to state that "the discipline should be
constructive or educational in nature" and that "cruel, inhuman or inappropriate discipline is prohibited." Id. Furthermore,
the best interest of the minor children must be kept in mind by this Division and not the degree of affection between the Ms.
Spencer and the minor child. It is obvious that the Petitioner loves the children. Unfortunately, this action is not a question
of love.
The judgment used by the Petitioner in attempting to discipline the minor child in this case was entirely inappropriate. A 4 ½
year old foster child was left running lose in a busy shopping center parking lot on a Saturday afternoon. Although the
Petitioner claims that she had the child in her sights the entire time and that the traffic was not bad, this decision by the foster
mother could have had disastrous results. It was fortunate that a DSS case worker happened to be present and see the child
and stop her before any further damage occurred. Therefore, I conclude that the discipline used by the foster mother in this
case before me was neither reasonable in manner nor moderate in degree and was not responsibly related to the child's
understanding and need, pursuant to Regulation 114-550(J)(13).
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS THEREFORE ORDERED that the decision of the South Carolina Department of Social Services to remove the
minor children from the home of the Petitioner is upheld.
IT IS FURTHER ORDERED that this Decision shall not deny the Petitioner her right to appeal the denial of her
application for adoption of these minor children.
AND IT IS SO ORDERED.
_____________________________
Ralph King Anderson, III
Administrative Law Judge
December 8, 1999
Columbia, South Carolina
1. Regulation 114-550 (J) sets forth 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." |
