Joubert v. SOUTH CAROLINA DSS

• Citation: 534 S.E.2d 1,341 S.C. 176
• Decision Date: 05 June 2000
• Docket Number: No. 3181.,3181.
• Parties: Cornelius JOUBERT, Appellant, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES and McCormick County Department of Social Services, Respondents. The Pines of McCormick, Inc., Appellant, v. South Carolina Department of Social Services and McCormick County Department of Social Services, Respondents.
• Court: South Carolina Court of Appeals

341 S.C. 176

534 S.E.2d 1

Cornelius JOUBERT, Appellant, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES and McCormick County Department of Social Services, Respondents.

The Pines of McCormick, Inc., Appellant, v. South Carolina Department of Social Services and McCormick County Department of Social Services, Respondents.

No. 3181.

Court of Appeals of South Carolina.

Heard May 8, 2000.

Decided June 5, 2000.

Rehearing Denied September 2, 2000.

Fletcher C. Mann, Sr., of Leatherwood, Walker, Todd & Mann, of Greenville, for Appellant.

Stephen D. Baggett and Robert W. Cone, both of Burns, McDonald Bradford, Patrick & Tinsley, of Greenwood, for Respondents.

ANDERSON, Judge:

The trial court granted summary judgment to defendants South Carolina Department of Social Services and McCormick County Department of Social Services (collectively "DSS") under the statute of limitations provision of the state Tort Claims Act. Plaintiffs Cornelius Joubert and The Pines of McCormick, Inc. appeal. We affirm.

FACTS/PROCEDURAL BACKGROUND

DSS issued a group foster care license to Cornelius Joubert, the Director of The Pines, a residential treatment facility for emotionally disturbed teenaged girls in McCormick. Legal custody of the teenagers remained with DSS, but Joubert, his wife Genevieve, and The Pines staff supervised them twentyfour hours a day. On December 28, 1993, DSS transferred Edwina Daniels, a deeply-troubled seventeen-year-old, from a "maximum security" foster care facility to the less-restrictive facility run by Joubert. In addition to anti-social behavior and "attitude" problems, Daniels had a long history of running away from various placements.

On January 30, 1994, slightly more than a month after her arrival, Daniels ran away from The Pines for an eight-day period. Joubert permitted her conditional return with the understanding she would not be readmitted if she fled the facility again. A few days later, Daniels threatened a fellow resident with a pair of scissors and proclaimed her intent to burn The Pines down. On February 14, one week after returning to the facility, Daniels again left The Pines without permission. She surfaced two days later in the custody of the local sheriff's department.

Joubert informed DSS on February 16 that Daniels had returned from this unauthorized absence, but she would not be readmitted to The Pines out of concern for the other girls' safety. Because her foster-care worker was in the midst of changing jobs, DSS pleaded with Joubert to keep Edwina until the following morning. Although the substance of the parties' eventual agreement remains in controversy, it is undisputed Joubert's son drove Daniels and another seventeen-year-old runaway to a local motel, where they remained overnight without adult supervision. The following day, they were returned to The Pines to collect their belongings and turned over to a DSS caseworker.

DSS received a report on March 18, which alleged neglect and lack of supervision against Joubert stemming from this incident. During the subsequent DSS investigation, Joubert admitted leaving the juveniles at the motel and stated he saw nothing wrong in doing so. On April 29, DSS found the case "indicated" for neglect and lack of supervision. DSS advised Joubert of its decision on May 18, and on May 24, Joubert requested a "fair hearing."

By letter dated June 15, a DSS appeals examiner notified Joubert that a fair hearing had been scheduled for July 20, 1994 at 10:00 am. Joubert appeared on the appointed day, but he was advised the hearing had been continued. Thereafter, on August 10, Joubert received a subpoena to appear for the re-scheduled hearing at 10:00 am on August 31.

In the interim, on June 21, 1994, DSS informed Joubert by letter it was denying his application for renewal of his license to operate a residential group care facility. This decision, issued without notice or an opportunity to be heard, violated S.C.Code Ann. § 20-7-2260 (1985 & Supp.1999) ("The Department [of Social Services] may revoke the license of any child welfare agency which fails to maintain the proper standards of care and service to children in its charge or which violates any provision of this subarticle. No license shall be revoked or its renewal refused except upon thirty days' written notice thereof. Upon appeal from such revocation or refusal to renew a license, the Department shall, after thirty days' written notice thereof, hold a hearing, at which time the agency shall be given an opportunity to present testimony and confront witnesses.").

A DSS appeals examiner held an institutional abuse hearing as scheduled on August 31, concerning the indicated report and subsequent entry of Joubert's name in the DSS Central Registry of Child Abuse and Neglect. At the hearing, Joubert appeared with his attorney and, in addition to objecting to the "indicated" finding of abuse by DSS, objected to "the refusal of this [Department] to renew the license as of April the 1st, 1994." DSS counsel responded: "The issues or anything about the revocation of a license, is not before this hearing examiner today. The only, this is pursuant to the Joubert's appeal of their indicated case of, excuse me, Mr. Joubert's appeal, of this indicated case of neglect and lack of supervision."

On September 6, 1994, Joubert's attorney wrote the Director of DSS, Samuel Griswold, outlining the procedural problems experienced by Joubert in obtaining a hearing and reiterating Joubert's intent to appeal the non-renewal of his operating license. Leo Richardson, DSS Director of Individual and Provider Rights, answered by letter dated September 23, which stated: "I have noted that all of the objections and concerns you raised were also part of the [hearing] record. Therefore, all of your concerns will be directly addressed in the fair hearing decision." The same day, however, the appeals examiner from the August 31 hearing replied with a separate letter: "Your letter dated September 6, 1994 has been considered as the written request for a fair hearing involving the denial of relicensure for the Pines of McCormick. As you have thirty (30) days from June 21, 1994 (the date you were informed that the Pines of McCormick was denied relicensure) to file an appeal request, I must deny this request." Joubert's attorney, responded to Richardson and the hearing examiner with another letter to Griswold stating that he had advised Joubert to "seek legal redress in another appropriate forum."

On December 19, 1994, a DSS Child Protective Services Committee issued a final administrative decision upholding both the "indicated" report of abuse and Joubert's inclusion on the Central Registry for neglect and lack of supervision of Edwina on February 16. The decision made no mention of the relicensing issue.

Pursuant to S.C.Code Ann. § 20-7-655(F) & (G) (Supp. 1999), on January 17, 1995, Joubert petitioned the family court for judicial review of the administrative decision and the denial of The Pines' relicensing application. On September 22, 1995, the family court reversed all prior DSS decisions and ordered the agency to expunge Joubert's name and all identifying information from the Central Registry of Child Abuse and Neglect. DSS did not appeal the court's decision, but responded with a letter, dated October 12, 1995, stating it had removed Joubert's name and identifying information from the Central Registry and was endeavoring to comply with the family court's order regarding reinstatement of The Pines' license to operate.

On February 14, 1997, Joubert and The Pines filed separate tort actions against DSS alleging gross negligence and intentional failure to renew The Pines' operational license or afford a "fair hearing" on the matter. Joubert's complaint also asserted a claim for damages arising from the period of time his name appeared on the Central Registry of Child Abuse and Neglect. DSS filed identical motions for summary judgment on February 11, 1998. On January 20, 1999, the circuit court held a hearing on the motions. By orders dated February 10, 1999, the court granted summary judgment on both motions based upon the expiration of the applicable statute of limitations. This appeal followed.

ISSUES

I. Does S.C.Code Ann. § 15-78-70(b) render inapplicable the statute of limitations found in § 15-78-110?

II. Did the trial court err in granting summary judgment because the action was brought within two years of the Family Court's order?

III. Did Appellant make a "verified claim" as required by S.C.Code Ann. § 15-78-80, thus extending the statute of limitations to three years instead of two?

IV. Did the failure to grant a pre-deprivation hearing deprive Appellants of Due Process?

V. Did Respondent fail to comply with the terms of the family court order, thus creating an additional claim not barred by the statute of limitations?

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (Ct.App.1999); Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); Rule 56(c), SCRCP; see also Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998)

(trial court should grant motion for summary judgment when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists such as to preclude summary judgment, the evidence and all inferences reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504...