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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Carl Eric von Kleist, III vs. SCDSS

AGENCY:
South Carolina Department of Social Services

PARTIES:
Petitioners:
Carl Eric von Kleist, III

Respondents:
South Carolina Department of Social Services
 
DOCKET NUMBER:
01-ALJ-18-0214-IJ

APPEARANCES:
Carl Eric von Kleist, III, Pro Se Petitioner

Rose Mary McGregor, Esquire, for Dept. of Social Services
 

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).


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