January 21, 1976

Mr. Thomas C. Todd, Superintendent
Elementary and Secondary Education
Department of Education and
  Cultural Affairs
New State Office Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-6

Children who reside in a group care center or group home having school residence in the school district where the care center or home is located

Dear Mr. Todd:

You have requested an opinion based upon the following factual situation:

SDCL 13-28-11.1 and 13-28-11.2 makes reference to private non­profit child care institutions and group homes. See also subdivision (1) of SDCL 26-6-14. These types of care centers and group homes are of course located within the confines of a given school district. In most instances the children who reside in such care centers and group homes come from within an area outside the area of the school district wherein the home or care center is located.

Based upon the above facts you ask:

1. Does the person who is responsible for the care and custody of the children in the group care center or group home qualify as a "person in loco parentis" as provided for in SDCL 13-28-9?

2. If the answer to No. 1 is yes, would the school district be eligible for the tuition payments as provided for in SDCL 13-28-11.l?

SDCL 13-28-9 provides:

School residence for the purpose of claiming free school privileges shall mean the legal residence or domicile of the student's parents, legal guardian, or other person in loco parentis to the student; however, the student, his parents, legal guardian or other person in loco parentis to the student shall not establish school residence and be exempt from the payment of tuition where the residence of the parents, legal guardian or person in loco parentis to the student was acquired solely or principally for the purpose of obtaining free schooling. When a child is enrolled in a school in a school district, the school residence of such child as determined at the time of such enrollment shall not change during such school fiscal year, unless such child ceases to be an enrolled member of a school within such district.

SDCL 13-28-11.1 reads as follows:

Notwithstanding § 13-28-11, the state shall pay tuition for all children under the care and custody of the division of social welfare, county welfare, probation and parole departments, li­censed voluntary agencies, and children who are under the respon­sibility of the federal bureau of Indian affairs for placement and supervision through a tribal court order who reside in private, non­profit child care institutions, or group homes, or both and who at­tended educational programs approved by the state superintendent of public instruction, or who reside in a foster home and who are assigned to a private, nonprofit institution or group home, or both for attendance in such educational programs.

SDCL 13-28-11 reads as follows:

When a child is residing in a charitable or in a state institution which provides care and custody for children who are not living with their parents or guardian, the school residence of such child shall be the school district wherein such child resided immediately prior to the time such child entered such institution and such residence continues until such time as such child ceases to reside in such institution.

Black's Law Dictionary, Revised Fourth Edition, defines "in loco parentis" as follows:

in the place of a parent; instead of a parent; charged, factitiously, with a parent's rights, duties, and responsibilities."

The term "in loco parentis" is a term referring to one who means to put himself in the situation of a lawful father of the child, or a person assuming the parental character or discharging parental duties. Fitzpatrick v. Hudson Coal Company, 46 A. 2d 589. It has also been referred to in regard to one who puts himself in the situation of a lawful parent by assuming the obliga­tions incident to the parental relation, without going through the formalities necessary to a legal adoption. Meisner v. United States, 285 F. 866, 868.

It is my understanding from conversations with interested people in the education department that a great majority of the children in group homes such as that referred to in your letter, are in the group home because of the child's involvement with the juvenile court. It is also my understanding that parental rights to these children have not in most instances been terminated.

To contend that children in a group home are not "in loco parentis" to the director of the home and that consequently such children are not residents of the school district wherein the home is located, is, in effect to contend that group homes can only serve children from the school district wherein the group home is located. Obviously, a group home in Pierre, South Dakota can not have a child in a group home situation and at the same time send the child back to some distant point in the state for his education. This is particularly absurd in view of the fact that many if not most of the children placed in group homes are placed there by our juvenile courts.

In view of the above considerations, it appears that SDCL 13-28-9 should be construed liberally so as to enable children placed in group homes to be "in loco parentis" to the administrator of the group home for purposes of school residence. The school district in which the group home is located does not suffer financially from this position inasmuch as SDCL 13-28-11.1, cited above, makes the school district eligible for reimburse­ment from the state for group home children who attend the public schools in the district.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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