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2004-UP-437 - South Carolina Department of Social Services v. Almeida

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


South Carolina Department of Social Services, Respondent,

v.

Angela Almeida and Bright Ideas Child Development Center, Defendants,

of whom Bright Ideas Child Development Center is Appellant.


Appeal From Lexington County
 Richard W. Chewning, III, Family Court Judge


Unpublished Opinion No. 2004-UP-437
Heard June 9, 2004 – Filed July 26, 2004


VACATED


Jack B. Swerling, Robert “Sam” Phillips, and Harry L. Goldberg, all of Columbia, for Appellant.

Montford Shuler Caughman, of Lexington, for Respondent.

PER CURIAM:  Bright Ideas Child Development Center (“Bright Ideas”) appeals a family court order permanently enjoining its operation as a child daycare facility on the ground the injunction is unsupported by any evidence.  We agree and vacate the order of the family court imposing the permanent injunction.

FACTS

On January 28, 2003, Angela Almeida, the owner and director of Bright Ideas, left the toddler room unattended to run errands.  At the same time, three of the five remaining caregivers left their individual rooms unattended. [1]   A toddler was injured in Almeida’s absence. [2]   Bright Ideas also had a history of repeated regulatory infractions, many concerning staff training and supervision of children.

On February 3, 2003, the Lexington County Department of Social Services initiated an action to enjoin Bright Ideas and Angela Almeida from providing daycare services.  Prior to the scheduled hearing, however, DSS and Bright Ideas reached an accommodation allowing the daycare to continue operating.  The parties agreed that if Angela Almeida was enjoined from participating in any daycare activities, Bright Ideas could continue to operate with a new owner and director.  Angela Almeida’s husband, Tim, was named owner/operator and an existing employee became the director.  It was also agreed that Bright Ideas, DSS, and their attorneys would ensure appropriate child-to-staff ratios and staffing compliance, including reductions in child population as deemed necessary and that DSS would monitor the facility every day.  By order dated February 4, 2003, the family court adopted the agreement.  The order also stated, the “[r]uling on injunction shall be held in abeyance pending strictest and fullest compliance with above agreement or this matter will be brought back before the Court.”

A dispute soon arose as to appropriate child-to-staff ratios, and Bright Ideas declined to sign a corrective action plan requiring it to limit the number of children under the age of two and reduce its overall child daycare population.  On February 11, 2003, DSS moved for a hearing on the original request for injunctive relief because Bright Ideas failed to comply with the agreement respecting reductions in child daycare population.

After a hearing, the family court issued an order finding Bright Ideas posed a substantial threat of harm to the public and children of Lexington County in its “former or present configuration.” As a result, the court permanently enjoined Angela Almeida and Bright Ideas from providing daycare services. [3]    Bright Ideas appeals.

STANDARD OF REVIEW

The decision to grant injunctive relief rests within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. City of Columbia v. Pic-A-Flick Video, Inc., 340 S.C. 278, 282, 531 S.E.2d 518, 520-21 (2000). “An abuse of discretion occurs when a trial court’s decision is unsupported by the evidence or controlled by an error of law.” County of Richland v. Simpkins, 348 S.C. 664, 668, 560 S.E.2d 902, 904 (Ct. App. 2002).

DISCUSSION

Bright Ideas argues the family court erred in entering a permanent injunction barring the daycare from future operations because there is no evidence to support the injunction.  As the basis for this assertion, Bright Ideas claims it has complied with the DSS requirements by severing all ties with Angela Almeida and by operating without incident under its new management. 

In analyzing this issue, it is instructive to consider the underlying purpose for injunctions.  The inherent purpose behind the equitable remedy of a temporary injunction is to preserve the status quo.  Simpkins, 348 S.C. at 671, 560 S.E.2d at 905 (“‘[A] temporary injunction is [used] to preserve the subject of controversy in the condition which it is at the time of the Order until opportunity is offered for full and deliberate investigation and to preserve the existing status during litigation.’” (quoting County Council of Charleston v. Felkel, 244 S.C. 480, 483-84, 137 S.E.2d 577, 578 (1964))).  In contrast, “[a] permanent injunction is issued primarily to prevent future acts of harm and, unless specified otherwise in the order, is unlimited in respect of time.”  Bear v. Iowa Dist. Court for Tama County, 540 N.W.2d 439, 441 (Iowa 1995);  see 42 Am. Jur. 2d Injunctions § 2 (2000) (“Injunctive relief is designed to meet a real threat of a future wrong or a contemporary wrong of a nature likely to continue or recur.  Whether interlocutory or final, injunctive relief is ordinarily preventive or protective in character and restrains actions that have not yet been taken.  It is generally not intended to redress, or punish for, past wrongs.”).  Furthermore, “[p]ermanent injunctions ‘are permanent so long as the conditions which produce the injunction remain permanent.’”  Bear, 540 N.W.2d at 441 (quoting Condura Constr. Co. v. Milwaukee Bldg. & Constr. Trades Council AFL, 99 N.W.2d 751, 755 (Wis. 1959)).  

This distinction is significant when compared with the terms of the statute that was the basis for the injunction.  DSS is authorized by section 20-7-3010 to seek injunctive relief to prohibit the operation of a childcare facility “(1) when a facility is operating without a license or statement of registration; (2) when there is any violation of this subarticle or of the regulations promulgated by the department which threatens serious harm to children in the childcare facility; (3) when an operator has repeatedly violated this subarticle or the regulations of the department.”  S.C. Code Ann. § 20-7-3010 (Supp. 2003).  In cases where, as here, the injunction sought is specifically authorized by statute and the party seeking the injunction is a government entity, the government entity must simply show (1) there is a statutory provision covering the situation; and (2) that there is a violation of that provision. Simpkins, 348 S.C. at 669, 560 S.E.2d at 905. “In such circumstances, no showing of irreparable harm need be made by the party seeking the injunction, nor must the court consider whether the injunction is in the public interest.” Id. at 669, 560 S.E.2d at 905 (quoting 42 Am. Jur. 2d Injunctions § 23 (2000)).

In order to obtain its requested injunction against Bright Ideas, DSS needed to show evidence which would tend to establish any one of the three enumerated grounds prescribed by section 20-7-3010.  As evidenced by the family court’s order, DSS pursued the injunction under the second subsection, “when there is any violation of this subarticle or of the regulations promulgated by the department which threatens serious harm to children in the childcare facility.”  S.C. Code Ann. § 20-7-3010 (2) (Supp. 2003) (emphasis added).  By using the term “threatens,” we believe the General Assembly intended to abate future misconduct.  This interpretation is consistent with the purpose of a permanent injunction, i.e., to prevent future acts of harm.  See Strother v. Lexington County Recreation Comm’n, 332 S.C. 54, 62, 504 S.E.2d 117, 121 (1998) (“The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible.”); Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992) (stating the words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation).   

With these principles in mind, we turn to the facts of the instant case.  During the period after DSS and Bright Ideas entered into the agreement for bringing the center into compliance with DSS standards and regulations, which were incorporated into an order of the family court, there is no evidence that Bright Ideas failed to comply with DSS instructions or that the DSS inspections indicated any problems with the quality of care provided at Bright Ideas.  Indeed, the testimony of the DSS officials in the record before us indicates the contrary.  When asked if there were any problems after Bright Ideas began operating under the strict oversight of DSS, the DSS investigators and other officials all indicated that the center was in full compliance with the safety plan.  The only witness who could articulate a reason why Bright Ideas, in its operation under the safety plan, should not be allowed to remain open, was Helen Lebby, assistant director for childcare licensing and regulation at DSS.  She testified that “things [at Bright Ideas] are going to be fine as long as [the Bright Ideas owner and operators] know that [DSS] will be out there every day the way [we] are now . . . .”  However, this concern that Bright Ideas would lapse out of compliance with the safety plan if routine daily inspections were discontinued is based solely on speculation.  There is no evidence in the record to establish that Bright Ideas, under the current management, will operate in violation of section 20-7-3010.

Considering the terms of the statute and the purpose of a permanent injunction, we find no evidence to support the family court’s finding that Bright Ideas’ “present configuration poses a substantial threat of harm to the public at large and the children of Lexington County.”  Significantly, the court did not mention that Bright Ideas violated the terms of the parties’ agreement, but instead, appears to have relied solely on Almeida’s actions on January 28, 2003.  Because Bright Ideas terminated Almeida as the director and complied with DSS requirements, the “taint” of that incident was cured and there was no longer a nexus between the present operation and the threat of harm.

Our decision should in no way be interpreted that we minimize the misconduct on the part of Bright Ideas.  To be sure, we find deeply disturbing the carelessness and disregard for safety on the part of the Bright Ideas’ staff that contributed to the injury of a child entrusted to their care.  We note, however, that DSS did not immediately pursue an injunction based on this egregious incident. [4]   If the paramount concern was the threat of harm to the children attending Bright Ideas at the time of the incident, DSS could have sought the injunction to cease any further operation. Instead, DSS held in abeyance its action for an injunction and permitted Bright Ideas to continue operating, with some of the original staff, based upon the agreement guidelines.  Relying on the assurances of this agreement, Bright Ideas complied with its terms and took substantial corrective action.  Although Bright Ideas refused to sign the corrective action plan, signing the plan was not a requirement of the original agreement.

In light of the procedural posture of the injunction at issue, our inquiry must be confined to the question of the adequacy of the findings underlying the permanent injunction with respect to the “present configuration” of Bright Ideas, not the “former configuration” at the time of the incident.  On that narrow question alone, the lack of any evidence that Bright Ideas failed to comply with the DSS-imposed and court-approved safety plan compels us to find the injunction was improvidently granted. 

For these reasons, the family court’s order permanently enjoining Bright Ideas from operation as a daycare center is

VACATED.

HEARN, C.J., STILWELL, J., and CURETON, A.J., concur.


[1] Two of the caregivers who left their rooms unattended were released from their jobs.  A third caregiver was placed on administrative leave pending resolution of her employment status by DSS.

[2]  The child received at least thirteen bites to the head and face.

[3]   Bright Ideas has been closed since April 11, 2003.

[4]   If DSS had immediately moved after the incident to enjoin the operation of Bright Ideas, we would be presented with an entirely different case.  This incident alone would have been sufficient to enjoin the operation of the daycare center.  Bright Ideas would have then been required to establish a change of circumstances sufficient for the family court to vacate or modify the injunction.  See Brady v. Anders, 294 S.C. 342, 343, 364 S.E.2d 467, 468 (1988) (“A continuing injunction is subject to modification upon a showing of significantly changed factual circumstances . . . . When evidence of a change in facts or the law is presented, the court which rendered the permanent injunction has the inherent power or authority to vacate or modify the injunction.”) (citations omitted).