August 18, 1976
Dr. Frithjof Westby, Secretary
Department of Social Services
State Office Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-75
Child Abuse and Neglect Prevention and Treatment Act
Dear Doctor Westby:
You have requested an opinion from this office based upon the following facts:
FACTS:
After a thorough review of South Dakota law the National Center on Child Abuse and Neglect (NCCAN), the Department of H.E.W. found the state conditionally eligible to receive funds under the Child Abuse and Neglect Prevention and Treatment Act (P.L. 93-247). The funding will be received only after the conditions are met and we have until September 1, 1976, to provide satisfactory documentation that the state is indeed eligible. Several questions which NCCAN raised can be addressed only by an official opinion of the Attorney General.
Based on the facts you ask:
QUESTIONS:
1. Does SDCL 26-10-10 provide that permissive reporters may report threatened harm of child abuse and neglect, and does "willful neglect" in the permissive reporting provision in SDCL 26-10-10 incorporate the neglect defined in SDCL 26-8-6?
2. Does SDCL 26-10-12.1 or any other South Dakota law provide that counsel shall be appointed for the child in all cases of child neglect as well as child abuse?
3. Is it mandatory that counsel be appointed for the child in all cases initiated by the Department of Social Services?
4. If it is not mandatory that counsel be appointed for the child in all cases of neglect and/or in all cases initiated by the Department of Social Services, then can such appointments be made?
In regard to your first question, SDCL 26-10-10 provides that permissive reports may be made if a person "knows," "suspects," or "has reason to believe" that a child has received physical or emotional injury as a result of abuse or willful neglect. In my opinion, this clearly includes threats of physical or emotional harm if in fact the child has already suffered physical or emotional injury. If an individual is not certain as to whether or not a child has suffered physical or emotional injury, one must remember that all the statute requires is that there is a "suspicion" or "reason to believe," that such physical or emotional injury has occurred as a result of threats and harm. SDCL 26-10-10 does not require that physical or emotional injury be a certainty before the permissive report may be filed. "Knowledge," "suspicion," or "reason to believe" that a child has received physical or emotional injury as a result of abuse or willful neglect is sufficient.
With respect to the relationship of SDCL 26-10-10 and SDCL 26-8-6, it is a fundamental rule of statutory construction that statutes "in pari materia" are to be construed together. Although SDCL 26-8-6 refers to Chapter 26-8, there can be little doubt that the "neglect" therein described is also contemplated by the "neglect" referred to in SDCL 26-10-10. Both statutes deal with neglected children; they must be interpreted together in this respect.
In regard to your second question, SDCL 26-10-12.1 specifically refers to SDCL 26-10-12, which by its terms specifically refers to SDCL 26-10-10 and 26-10-11. Specifically enumerated in SDCL 26-10-10 is "neglect" as defined by SDCL 26-8-6. This specific statutory relationship and internal reference, leads me to conclude that SDCL 26-10-12.1 does provide for counsel in cases of child "neglect" as well as child "abuse." Child "abuse" in SDCL 26-10-12.1 seems to me to clearly contemplate child "neglect" being a part of the larger picture of child abuse. SDCL 26-10-1 is consistent with this analysis.
In response to your third question, it is my judgment that once the state's attorney has commenced an action under SDCL 26-10-12.1, the statute requires the court to appoint counsel to represent the child. The meaning of the word "shall" in this context seems to me to make this appointment mandatory. The answer to this question, therefore, is "Yes," presuming by "case" you mean that formal charges have been filed by the state's attorney under SDCL 26-10-12.1. [I would also here refer you to SDCL 23-3-3 and 23-3-5 wherein the Office of Attorney General has concurrent jurisdiction with the state's attorney in any and all criminal proceedings in the courts of this State. SDCL 1-11-1(5) also provides that it is a duty of the Attorney General to consult with, advise, and exercise supervision over the several state's attorneys of the State in matters pertaining to the duties of their office.]
In regard to your fourth question, it is not necessary that that question be addressed in view of the conclusion reached on question No.3.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dk
