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Wardlaw v. South Carolina Department of Social Services

Court of Appeals of South Carolina

May 29, 2019

Darius Wardlaw, Respondent,
South Carolina Department of Social Services, Appellant. Appellate Case No. 2017-000425

          Heard May 6, 2019

          Appeal From Greenville County Alex Kinlaw, Jr., Family Court Judge

          Christopher C. Jackson and Shawn L. Reeves, both of Columbia, for Appellant.

          Bruce W. Bannister and Luke A. Burke, both of Bannister, Wyatt & Stalvey, LLC, of Greenville, for Respondent.

          SHORT, J.

         South Carolina Department of Social Services (DSS) appeals the order of the family court that granted Darius Wardlaw a temporary restraining order (TRO) requiring DSS to remove Wardlaw from the Central Registry of Child Abuse and Neglect (Registry) pending further administrative review. DSS argues (1) the family court's order is not moot, (2) the family court was without subject matter jurisdiction to entertain Wardlaw's motion for temporary relief prior to the exhaustion of administrative remedies, (3) the family court was without authority to issue its order, and (4) the order is void ab initio because it was issued in violation of Rule 65(c), SCRCP. We affirm.


         DSS initiated an investigation into an incident of alleged physical abuse by Wardlaw at the Avalonia Group Home, a home for high-risk minors, and indicated physical abuse based on its administrative review of the claim. DSS found the student suffered bruises and abrasions to his face. Upon this administrative finding of physical abuse on September 22, 2016, DSS immediately entered Wardlaw's name on the Registry, and Wardlaw was terminated from his employment. Wardlaw appealed to the DSS Office of Administrative Appeals pursuant to South Carolina Code Section 63-7-1230 (2010). His hearing was not set until January 2017. While the administrative appeal was pending, Wardlaw filed this action in family court, moving for a TRO and writ of mandamus.[1]

         At a December 12, 2016 hearing before the family court, Wardlaw alleged the student involved had attempted suicide the day prior to the day of the alleged abuse. On the day in question, the student refused to sit in the center of the group room away from the walls, which he could use to self-injure. Per DSS regulatory requirements, Wardlaw used restraint to pull the student away from the wall. According to Wardlaw, the student was then checked for injuries and released.

         Wardlaw argued DSS's failure to set the administrative hearing until January violated his due process rights and section 63-7-1230, which requires expedited appellate review. DSS argued because Wardlaw also raised the constitutionality of the statute, he was required to serve the South Carolina Attorney General's Office, and his failure to do so was "fatal going forward." Wardlaw argued the hearing was not on the merits, but merely for temporary relief pending the resolution of his administrative appeal; therefore, the constitutionality of the statute was not at issue.

         DSS next argued the statute does not define "expedited" as it is defined in other instances, such as the revocation of a passport due to the failure to pay child support, which requires a hearing within thirty days. The family court asked DSS, "[Y]ou would agree that . . . this Court has the discretion to make a determination at least on a temporary basis as to what is deemed expedited . . . ?" DSS responded, "[Y]ou're the judge and you make the decision." DSS later argued it was a "jurisdictional issue because of the statutory requirement . . ." and there was no jurisdiction until the exhaustion of administrative appeals.

         Wardlaw argued his appeal was not expedited as required under the statute. The incident occurred on August 5, 2016, and the investigative finding was made on September 26, 2016. Wardlaw's name was entered on the Registry on the date of the investigative finding, and he was immediately terminated from his job. The hearing was not set until January 2017. DSS argued that considering DSS's "huge number of cases" and the limited number of hearing officers, the appeal was expedited.

         By order filed January 18, 2017, the family court found it had subject matter jurisdiction. The court declined to address the issue of the constitutionality of section 63-7-1230. The court found DSS did not set the date of Wardlaw's review until 82 days after his request for review. The court further found, "82 days between a request and a scheduled hearing is too lengthy a gap in time to be considered expeditious as required by the statute." Thus, the family court found DSS failed to provide expedited review pursuant to section 63-7-1230. The court granted a TRO, restraining DSS from keeping Wardlaw's name on the Registry until the allegation of physical abuse was substantiated.

         The DSS initial finding of physical abuse was reversed on administrative appeal. DSS appealed the family ...

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