November 30, 1976

Mr. R. R. Gerlach
McCook County State's Attorney
Salem, South Dakota 57058

OFFICIAL OPINION NO. 76-112

Liability of parent for support and medical expenses of indigent child

Dear Mr. Gerlach:

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

FACTS:

"X," then age 20, was involved in a one-car accident in October 1961. He suffered a broken back and severed spinal cord as a result of the accident, and extensive hospitalization was necessary, for which his parents were unable to pay, and asked medical aid from McCook County. He is still paralyzed from the waist down. At the time of the accident, he was employed by a roofing company in
Sioux Falls. He had not lived at home for about five years since he did not attend high school. His parents lived on an 80 acre farm near Salem. The father, who died October 15, 1964, was on Social Security and unable to work. Besides a small government pension from a son killed in Korea and Soil Bank payments on the land, the
Social Security was their only income. "X" lived at home only on weekends and received no money from his parents.

Based on the above factual situation you ask the following questions:

QUESTIONS:

1. Would "X" be emancipated under SDCL 25-5-17 and thereby prevent a county aid lien from being filed against the mother's estate, or would SDCL 25-5-20 legally obligate the mother in the absence of an emancipation agreement?

2. Is the lien limited to his inheritable share of the mother's estate?

IN RE QUESTION 1:

Although the issue of the emancipation of "X" is certainly subject to inter­pretation, based on the facts presented, it is my opinion that SDCL 25-7-6, and not the cited emancipation statutes, imposes liability upon the parents of "X." Therefore, a determination as to whether "X" was emancipated is unnecessary.

SDCL 25-7-6 provides:

It is the duty of the father, the mother, and the children, of any poor person who is unable to maintain himself by work, to main­tain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding.

The South Dakota Supreme Court has interpreted this provision on several occasions. In Sanborn County v. Lutter, 193 N.W. 55, the Court stated:

This section does not limit the liability of a father or mother to the support of minor children, nor does it make any exception of children, minors or adults, who may be insane. It makes both parent and children liable for the support of each other under the conditions named, regardless of the age of the children.

Likewise, the case of Haakon County v. Staley, 243 N. W. 671, points out that:

This section (SDCL 25-7-6) innovates the common law to the extent that thereunder it is the duty of the children to maintain their poor father and mother "to the extent of their ability," and the duty of the father and mother to maintain their poor adult children "to the extent of their ability."

AT 1941-42 AGR 94, the directly related question of whether a father was liable for the support and medical expenses of a minor son who was married was asked. That opinion held that although the normal support obligations had been terminated pursuant to SDCL 25-5-17 a continuing obligation to support resulted from SDCL 25-7-6, provided the father has the ability to furnish such support.

In my opinion, the parents of "X" have the same continuing obligation to furnish and support "X" to the extent they are able.

IN RE QUESTION 2:

SDCL 28-14-5 provides:

Whenever any county within this state shall become obligated to, and does pay for the care, support, and maintenance, and burial expenses of any poor person as defined in §28-14-3, the county in such cases shall have a lien upon all the property, both real and per­sonal, including joint tenancy and homestead interests belonging to the poor person, or to be thereafter acquired by the poor person, or in which the poor person has any interest, for all sums of money ex­pended therefor by any county, such lien to become effective as between the county and the poor person and other persons having actual knowledge of such payments to the poor person, immediate­ly upon the payment made by any county, to or for the benefit of such poor person, and each additional payment made for such poor person shall be added to the amount of the lien. (Emphasis added.)

The above provision is the only applicable statutory lien of which I am aware.

The county lien attaches to property of the poor person, or property to be thereafter acquired by the poor person, or in which the poor person has any interest. In my opinion, this does not include all the property of parents of "X." The hereinbefore discussed statutory obligation of said parents to support "X" gives rise to a cause of action against them during their lifetime and a judgment may be obtained. (See McCook County v. Kammoss, 64 N.W. 1123.) However, such a judgment and subsequent lien thereunder is distinguishable from the lien imposed under SDCL 28-14-5. Therefore, the lien in your factual situation would be limited to the property of "X" or that property thereafter acquired.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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