December 16, 1976
Mr. Robert E. Leach
Program Administrator
Department of Social Services
New State Office Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-119
South Dakota's child abuse reporting and registry laws
Dear Mr. Leach:
You have requested an opinion from this office concerning the interpretation of South Dakota's child abuse reporting and registry laws. You have asked the following questions:
QUESTIONS:
1. SDCL 26-10-12.2 states that "The court shall make a report to the office of the department of social services which shall include . . . the suspected or proved physical or emotional abuse. . . . Such report shall be filed within ten days of any judgment or order." The questions are: (1) are State courts required to register individuals under this statute in abuse actions: (2) are dependency actions under SDCL 28-6-8 subject to inclusion to registry; and (3) are courts subject to violations under SDCL 26-10-13 for nonreporting?
2. May the Department register individuals in the Child Abuse Registry reported by citizens prior to or after an investigation without judicial intervention?
3. Does the legislation intend that the Department register individuals based only on allegations or suspected abuse without a judicial proceeding? Does "reporting" neglect or abuse need to be distinguished from "registering" individuals in the Abuse Registry? If this discrimination exists, what are legal criteria for registering an individual in the State Registry?
4. May the Department register individuals in the Abuse Registry based on orders establishing abuse in tribal courts?
Before answering your specific questions, the terms "report" and "register" must be clarified. According to Black's Law Dictionary 1464 (rev. 4th ed. (968), a "report" is "an official statement of fact." To "register," however, means "to enter precisely on a list." Black's 1448.
IN RE QUESTION NO.1:
In regard to the first part of your question, SDCL 26-10-12.2 states that the court shall make a report to the Department of Social Services, and that the Department of Social Services shall be the central registry. The courts then are required to report the names, and the Department enters them on the list, or, in other words, registers the names.
The second part of your question concerns the reporting of SDCL dependency actions. All statutes in "pari materia" are to be construed together. SDCL 26-10-10 requires certain professionals to report suspected cases of child abuse, including those children who have been neglected as defined in SDCL 26-8-6. In my opinion, since these cases are to be reported, they should be included in the registry. The registry, however, should distinguish between information received under SDCL 26-10-12.2 and reports filed pursuant to SDCL 26-10-10.
The third part of your question asks whether the courts are subject to the penalties of SDCL 26-10-13. The statute states that anyone who knowingly and willfully fails to make the required report shall be guilty of a misdemeanor. SDCL 26-10-11 and 26-10-12 list those people who are to report suspected abuse cases. The list does not include the courts. A criminal statute must be strictly construed, as due process requires that a person have notice as to proscribed conduct. Also, SDCL 26-10-12.2 does not prescribe sanctions, if the court fails to make the required report. Therefore, the court is not subject to the sanctions of SDCL 26-10-13.
IN RE QUESTION NO.2:
In regard to question two, SDCL 26-10-12 states:
The report required by §§26-1O-1O and 26-10-11 shall be made orally and immediately by telephone or otherwise to the state's attorney of the county in which the child resides or is present or to the department of social services.
The statutes speak in terms of "suspected" abuse, not "proved" abuse. Further, the underlying purpose of the reporting statutes is to protect children by identifying repeated abuses of the same child or of children in the same family. Therefore, in my opinion, the Department may register individuals even though no judicial action is taken.
However, since an allegation of child abuse carries serious consequences for the individual, the Department should have some method for ascertaining the veracity of the reports, and for purging those which are unsubstantiated. The Department, in my opinion, therefore, should register individuals only after an investigation which has determined that there is merit to the charge.
IN RE QUESTION NO.3:
Question number 3 is answered by the first two questions.
IN RE QUESTION NO.4:
As to question number four, since the purpose of the registry is to help all children, in my opinion, the Department of Social Services should also include those cases of abuse based on tribal court orders.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:JCG:mhb
