ORDERS:
FINAL ORDER AND DECISION
I. Introduction
Willie Tanner (1) (Tanner) seeks an order directing the South Carolina Department of Social Services (DSS) to return a
foster child to Tanner's foster home. DSS asserts the child was properly removed and thus argues the child should not be
returned. (2) After reviewing and evaluating the evidence and applying the applicable law, I conclude that the decision of
DSS must be upheld and DSS will not be ordered to return the child to Tanner's foster care.
II. Issues
Did DSS properly remove a foster child from the Tanners' foster home?
III. Analysis
A. Removal of Foster Child
1. Positions of Parties
Tanner argues that he and his wife were meeting the needs of the foster child in question. DSS argues that the Tanners
failed to follow the instructions of the providers of medical services to the foster child and that such a failure requires
removal of the child.
2. Findings of Fact
I find, by a preponderance of the evidence, the following facts:
Prior to removal, the foster child here under review had been in the Tanners' home virtually from birth until the child was
nine years old. The child was removed after DSS received complaints from medical personnel that the foster child was not
having his medical needs met.
The medical needs of this child are extensive. The child is HIV positive and has AIDS. He requires treatment consisting
of six to ten medications at one time, three or four times a day. The medications must be taken in a precise regimen as to
time of day, amount of dosage, and order of medication.
The Tanners were not able to maintain the medical regimen required. Medical personnel at the treating clinic of the
Greenville Hospital System recorded many late and missed appointments for the foster child. In addition, the child either
ran out of medicine and failed to get more or the child missed required dosages resulting in medication left unused, or if
used, used in an untimely manner. Consistent with the missed medications, the Tanners were unable to maintain the
"medication compliance calendar" which was designed to assure DSS that the child had gotten all required medications.
The inability to care for this foster child was most noticeable beginning in the summer of 1998, the point at which Mrs.
Tanner became ill. Mrs. Tanner's illness required that she be hospitalized on occasion, and during those occasions the
foster child missed several appointments at the clinic for HIV care. During the illness of Mrs. Tanner, on at least one
occasion the foster child incorrectly took medicine prescribed for Mrs. Tanner.
Finally, the evidence establishes that the treating physician asked the Tanners to have the foster child seen for behavioral
and psychiatric evaluation. The Tanners did not comply with the request.
Currently, the foster child is with another foster family. He continues to make progress and has had no physical setbacks
due to his removal from the Tanner home. He is now getting medications on a regular and timely basis, and he has been
seen for psychiatric evaluation.
3. Conclusions of Law
The following Conclusions of Law are entered:
For this case, under the facts proven, the Tanners were not meeting the needs of the foster child in question, and the
Tanners failed to follow the instructions of the providers of medical services to the foster child. Accordingly, the removal
of the foster child by DSS was proper.
a. Introduction
Foster parents must be licensed in compliance with the requirements established by regulations. 27 S.C. Code Ann. Regs.
114-550 (1992). As a part of DSS's duties concerning licensed foster parents, DSS is sometimes called upon to decide
whether to remove a child from a foster home. In this case, DSS made the decision to remove a nine year old foster child
from the Tanner home.
The removal and resulting Tanner's disagreement to that decision places this matter before the ALJD because a foster
parent may "appeal" an agency decision to remove a foster child from their home. Regs. 114-110(B)(8). The matter is
heard by the ALJD as a contested case since an evidentiary hearing is provided by the regulation and the decision resulting
from the hearing decides the legal rights of the foster parents. See S.C. Code Ann. § 1-23-310(2) (Supp. 2000) (a contested
case is a proceeding in which legal rights are required to be determined by an agency after a hearing).
b. Legal Rights Examined
While DSS has the right of legal custody for a foster child (see S.C. Code Ann. § 20-7-736), the foster care program places
physical custody of a child in a foster home. The foster family is entitled to have the child remain, but the foster parents
are reminded that "[f]ailure to comply with [regulatory] . . . requirements may result in removal of foster children from the
home." 27 S.C. Code Ann. Regs. 114-550(J).
Two regulations are relevant to the removal in this case. First, Regs. 114-550(J)(8) requires that "[f]oster parents shall
follow instructions and suggestions of providers of medical and health related services." Second, Regs. 114-550(I)(1)(g)(ii)
requires that foster parents "be capable of meeting the needs of foster children and provide adequate foster care services."
The issue in this case is whether the Tanners failed to follow the instructions of the providers of medical services to the
foster child and whether the Tanners demonstrate an inability to meet the needs of the foster child.
c. Medical Providers' Instructions and Inability to Meet Needs
To properly examine the question of whether a failure to follow the instructions of medical providers or an inability to meet
needs is a basis for removal, a preliminary point must be addressed. That preliminary point is that Tanner's primary
opposition to removal is that a high degree of bonding has occurred between the child and Tanner and that removal is not in
the best interest of the child.
It is true that the child has been in the Tanner home virtually from birth. Thus, bonding is certainly a factor. However,
while such a factor is significant, bonding is only one of many factors concerning a child's physical or legal custody. See
e.g., Moore v Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) (even in a dispute involving third parties seeking to deprive a
natural parent of custody of his or her child, bonding is only one of the factors to be considered). Considering all of the
factors in this case, bonding is an insufficient basis for denying removal of the child. Such is certainly true when considered
in light of the other evidence.
Here, the evidence confirms that the child involved is HIV positive and has AIDS. Such a condition requires treatment
with a large number of medications. A normal day of medication consists of six to ten medications at one time with that
procedure repeated three to four times each day. Further, the medications must be taken in a precise regimen as to time of
day, amount of dosage, and order of medication. The evidence shows Tanner did not display the ability to maintain the
medical regimen required.
For example, the primary physician treating the foster child testified to a number of late and missed appointments at the
treating clinic. In addition, medicines that should have "run out" by specific dates apparently had not run out since the
pharmacy had not been contacted for refills. Thus, the child had either run out of medicine and failed to get more, or the
child had missed required dosages which left medication unused. Both situations support a view that the Tanners had
disregarded medical instructions for this HIV positive child and were unable to meet the child's needs. Consistent with the
missed medications, the evidence shows a lack of ability to maintain the "medication compliance calendar."
The inability to care for this foster child became most noticeable beginning in the summer of 1998, the point at which Mrs.
Tanner became ill. Mrs. Tanner's illness required that she be hospitalized on occasion, and such resulted in the foster child
missing several appointments at the clinic for HIV care. The evidence establishes that during the illness of Mrs. Tanner,
the foster child had on at least one occasion taken medicine prescribed for Mrs. Tanner.
Finally, the evidence establishes that the treating physician asked the Tanners to have the foster child seen for behavioral
and psychiatric evaluation. The Tanners did not comply with the request.
The removal has not been detrimental to the foster child. The foster child is now with another foster family where he is
receiving medications on a regular and timely basis. In addition, he has been seen for psychiatric evaluation. Finally, the
foster child continues to make progress and has had no physical setbacks due to his removal from the Tanner home.
d. Conclusion
The Tanners were not meeting the needs of the foster child and the Tanners failed to follow the instructions of the providers
of medical services to the foster child. Accordingly, the removal of the foster child by DSS was proper.
IV. Order
Based on the above Findings of Fact and Conclusions of law, the DSS decision to remove the foster care child was proper.
Thus, the request for an order directing the South Carolina Department of Social Services (DSS) to return the foster child to
Tanner's foster home is denied.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: February 7, 2001
Columbia, South Carolina
1. Janice Tanner is now deceased. Willie Tanner continues this matter in his capacity as a foster parent.
2. Tanner's disagreement with DSS's determination places jurisdiction in the Administrative Law Judge Division (ALJD).
S.C. Code Ann. § 1-23-600 (B) (Supp. 2000). See S. C. Code Ann. § 1-23-310(2) (Supp. 2000). |