ORDERS:
ORDER OF DISMISSAL
FACTUAL BACKGROUND
On November 19, 1999, the Department of Social Services (Department) initiated an investigation
concerning possible abuse of the Petitioner's child. As a result of that investigation, on December 30, 1999,
the Department decided that the case was "indicated" for a threat of harm of physical abuse pursuant to S.C.
Code Ann. § 20-7-650 (Supp. 2000). The Petitioner was notified of this decision through his counsel on
February 16, 2000. However, the Department did not pursue placing the Petitioner on the Central Registry of
Child Abuse through the family court.
On May 4, 2001, the Petitioner filed a Petition with the Administrative Law Judge Division (Division)
seeking a contested case hearing claiming that the Department denied him a Fair Hearing as provided by its
statutes and regulations. After review of the Petition, this Division requested briefs from the parties focusing
on the issue of whether the Division has subject matter jurisdiction to hear this matter. The Respondent filed
an Answer in response to the Petition on May 24, 2001, and filed its Brief on June 4, 2001. The Petitioner
filed a Brief as requested on June 8, 2001. Based on the Petition, the Briefs, and research undertaken by this
Division, I find that the Administrative Law Judge Division does not have subject matter jurisdiction to hear
this case.
DISCUSSION
When the Department undertakes an investigation concerning child abuse, the finding
must fall into one of four categories: Suspected, Unfounded, Indicated, or Affirmative Determination. S.C.
Code Ann. §20-7-650 (Supp. 2000). "Indicated findings must be based upon a finding of the facts available
to the department that abuse or neglect is supported by a preponderance of evidence." S.C. Code Ann. §
20-7-650(F) (Supp. 2000). The Department may also petition the family court to place the perpetrator of the
abuse on the Central Registry of Child Abuse. S.C. Code Ann. §20-7-680 (Supp. 2000). Additionally, all
reports that are not indicated must be classified as "unfounded" pursuant to Section 20-7-650(G).
The Department contends that because it chose not to petition the family court for an order to place the
Petitioner's name on the Central Registry, the Petitioner was not entitled to the appeals process as provided
by § 20-7-655 (Supp. 2000). (1) The Department further contends that the only time the appeals process of
Section 20-7-655 applies is in institutional abuse cases because those perpetrators are placed on the Central
Registry without an order from the family court. This contention is without merit.
S.C. Code Ann.§ 20-7-655 (A) (Supp. 2000) provides that, "[t]he Department of Social Services shall
provide a child protective services appeals process for review of indicated reports not otherwise being
brought before the family court for disposition." Moreover, Section 20-7-655 (D) repeats nearly the same
language, providing that:
If the department determines that a report of suspected child abuse or neglect is indicated and the case will
not be brought before the family court for disposition, the department must provide notice of the case
decision to the subject of the report by certified mail. The notice must inform the subject of the report of the
right to appeal the case decision and that, if he intends to appeal the decision, he must notify the local child
protection agency of his intent in writing within thirty days of receipt of the notice.
Therefore, the plain language of the statute provides for an appeals process in exactly the factual situation of
this case.
However, this Division lacks jurisdiction to grant a contested case hearing on the matter. In finding that
Section 20-7-655 applies in this case, the Division must look to its provisions on the question of subject
matter jurisdiction. Section 20-7-655 (F) provides, in part, that "[i]f the appeals committee affirms the case
determination, the subject has the right to judicial review in the family court of the jurisdiction in which the
case originated." Even though there is no affirmation of the case determination by the appeals committee in
this case, it is reasonable to assume from this statute that the legislature intended to keep jurisdiction of these
matters in the family court. Furthermore, S.C. Code Ann. § 20-7-400 (1976 and Supp. 2000) provides
exclusive jurisdiction to the family court for matters concerning children. Therefore, this Division does not
acquire jurisdiction over matters dealing with children unless that jurisdiction is specifically granted by the
General Assembly.
I therefore conclude that this Division does not have jurisdiction over this matter and that jurisdiction over
this matter properly rests in the family court.
IT IS THEREFORE ORDERED THAT this matter be dismissed.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson III
Administrative Law Judge
July 24, 2001
Columbia, South Carolina
1. The process used for child protection cases is the Fair Hearing Procedures set out in 27 S.C. Code Ann.Regs. 114-170 (Supp.
2000). |