
    Norma HARRIS v. STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES.
    No. 93 CA 1365.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1994.
    A.J. Jones, Jr. and S. Douglas Busari, Tallulah, for plaintiff-appellee Norman Harris.
    Brent C. Frederick, Baton Rouge, for defendant-appellant Dept, of Social Services Office of Community Services.
    Susan Skidmore, Monroe, for defendant-appellant State of Louisiana Through Dept, of Social Services.
    Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.
   RLOTTINGER, Chief Judge.

This is a proceeding to decertify plaintiffs home as a foster home. From a district court judicial review reversing the administrative decertification, the State of Louisiana, Department of Social Services (State) appeals.

FACTS

Norma Hams, plaintiff, was certified as a foster parent in June of 1989. Prior to that time, Ms. Harris had been caring for a child, K.W., who later became a foster child once the State assumed custody of K.W. and her sibling, S.W. These two foster children lived in Harris’ home until April 13,1992, at which time the State removed the children.

The foster children were removed only after the State received, investigated and validated a complaint that Harris had been driving a vehicle while under the influence of alcohol with the two foster children as passengers and that plaintiff was a heavy drinker. As a result of the investigation, other deficiencies were found, namely that Harris failed to use child restraints in her vehicle, failed to meet agency income requirements, and failed to use appropriate alternate child care. After the report was validated, Harris’ home was decertified as a foster home, and the foster children were removed.

Harris sought review administratively within the Department of Social Services. Eventually an administrative appeal hearing officer found the decertification proper. Harris then sought judicial review pursuant to La.R.S. 49:964. The trial court concluded that both the removal of the children and the decertification violated Ms. Harris’ constitutional rights. However, the trial court concluded it did not have subject matter jurisdiction over the children so as to place them with Ms. Harris, but the trial court did certify Ms. Harris as a “foster/adoptive parent effective April 16, 1993 and is retroactive to date of original certification.”

DISCUSSION

Rather than discussing the assignments of error, we must regretfully point out that, after a very careful reading of the administrative hearing transcript, we must 13conclude that there is no competent evidence to substantiate the charges against Ms. Harris. Hearsay evidence is admissible at administrative hearings, but it is well settled that hearsay evidence is not competent evidence, and it is competent evidence that proves the case. State witnesses refused to divulge evidence on the basis of the confidentiality rule of La.R.S. 46:56. We do not take issue with La.R.S. 46:56; however, to prove its ease, the State cannot rely totally on hearsay evidence which it cannot be compelled to divulge pursuant to La.R.S. 46:56. When faced with this kind of a dilemma, the state must independently develop direct evidence which can be used to prove its case. We are, however, not called upon to decide in this case whether this type of evidence can be divulged and is admissible, nor do we suggest how this type of evidence is to be developed. As stated above, we conclude there is no competent evidence to substantiate the charges against Ms. Harris.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at the cost of the Louisiana Department of Social Services in the amount of $335.03.

AFFIRMED.

SHORTESS, J., concurs with reasons.

| iSHORTESS, Judge,

concurring.

Appellant must prove its case by a preponderance of the evidence. Hearsay, while admissible in administrative hearings, may not form the only basis for an administrative decision. The State must use competent evidence before an administrative tribunal in order to satisfy its burden of proof. This elementary evidentiary requirement directly conflicts with Louisiana Revised Statute 46:56(F)(1), which provides, in pertinent part:

F. The following information shall not be subject to waiver and shall not be released to applicants, recipients, or outside sources ...:
(1) Records pertaining to foster care of children, investigations of abuse and neglect of children, and other child welfare services. For the purposes of this Paragraph, case records of children in abuse and neglect and foster care cases may be reviewed by attorneys who are appointed by a court of juvenile jurisdiction to represent the sole interest of the children, and pursuant to court order, such ease records may be reviewed by Courts Appointed Special Advocates appointed pursuant to Article 23.1 of the Code of Juvenile Procedure. However, in no instance shall the name or identifying information regarding a complainant in neglect and abuse cases or the case records of the foster parents be subject to such réview.

(Emphasis added.)

Here, the legislature has attempted to balance the rights of foster parents with the rights of children and determined that potential child abuse complaints are paramount to the extent that persons who complain about children being abused or neglected are to be shielded. However, shielding the identity of state employees who independently develop evidence may not carry the same weight in that balancing test.

I respectfully concur.  