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Unpublished Opinion No. 2004-UP-437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 Almeidas 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 Almeidas 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 courts 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 courts
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 Commn, 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 statutes 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 courts
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 Almeidas 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 courts 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).