January 24, 1977

Dr. Frithjof O. M. Westby, Secretary 
Department of Social Services 
State Office Building 
Pierre, South Dakota 57501

Official Opinion No. 77-11

Child Abuse and Neglect Prevention and Treatment Act

Dear Dr. Westby:

You have requested a follow-up opinion to Official Opinion No. 76-75 in regard to the following two matters:

QUESTIONS: 

1.  Is threatened harm, per se, reportable under South Dakota law?  An example of threatened harm would be a parent standing over a child's crib with an axe and saying that he was going to kill the child.  So the question is, is this type of situation reportable before the child is injured?  Your earlier opinion of August 18, 1976, in regard to threatened harm seems to imply that actual harm must have occurred before threatened harm is reportable. 
    
2.  If child protective judicial proceedings can arise outside of the reporting law, is it mandatory that counsel be appointed for the child, as a matter of law, in every case?  An example of such a situation would be where a wife would charge or file suit against her husband for the abuse of their child.  The law, as you stated in your August 18, 1976, opinion, requires the court to appoint counsel to represent the child after the state's attorney has commenced action.  Would the above situation fall outside of this provision if the state's attorney himself has not “commenced” the proceedings?

You state in your letter that these clarifications are necessary to establish South Dakota's eligibility for funds under P.L. 93-247.

IN RE QUESTION NO. 1:

In regard to your first question, it is important to note the provisions of SDCL 26-8-6 which define “neglected or dependent child.”  That statute provides: 
    
In this chapter, unless the context otherwise plainly requires “neglected or dependent child” means a child: whose parent, guardian, or custodian has abandoned him or has subjected him to mistreatment or abuse; who lacks proper parental care through the actions or omissions of the parent, guardian, or custodian; whose environment is injurious to his welfare; whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being; or who is homeless, without proper care, or not domiciled with his parent, guardian, or custodian through to fault of his parent, guardian, or custodian. Provided however, notwithstanding any other provision of this chapter, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to have been neglected within the purview of this chapter.

Although the above definition of “neglected or dependent child” refers to Chapter 26-8, it is my opinion that the principles set forth in that statute would also apply to SDCL 26-10-12.2. Therefore, it is permissible for any person who knows, suspects, or has reason to believe that a child is neglected (as defined by SDCL 26-8-6) to make a report pursuant to SDCL 26-10-12. Accordingly, it seems obvious that the answer to your first question is that such a situation is reportable.

In addition to the above, the fact situation you present would likely constitute a criminal offense under Chapter 22-18.

IN RE QUESTION NO. 2:

In regard to your second question, I am not aware of any provision in the law which would require the court to appoint counsel to represent the child in such a situation as you present. It is my judgment, however, based on a personal observation plus discussion with circuit court judges who sit on cases such as this, that courts would appoint counsel to represent the child's interests in a case such as you present, even though the state's attorney had not commenced an action.

Respectfully submitted,

William J. Janklow
Attorney General

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