July 19, 1988
Lee Schoenbeck
Day County States Attorney
P.O. Box 181
Webster, South Dakota 57274-0181
Official Opinion No. 88-30
Financial responsibility for minors in temporary custody
Dear Mr. Schoenbeck:
You have requested my official opinion on poor liens for expenditures made in placing a child in temporary or protective custody before a court order is issued.
You present the following factual situation:
FACTS:
On two occasions Day County has picked up children and immediately placed them at the New Beginnings Center in Aberdeen. Both placements were with the consent of their parents. One child was a runaway upon whom a CHINS was subsequently filed. The other child was a runaway who was taken into custody as a CHINS but after several days the parents arranged privately for their child to be placed in a facility, and the CHINS petition was never filed.
Day County has been billed by the New Beginnings Center in Aberdeen for 11 nights prior to private placement on the one child, and for four nights prior to adjudication and disposition on the other child. Both SDCL § § 26-7-2 and 26-8-28 reflect on the county's responsibility to provide detention. The recent Attorney General's Opinion (77-96) does not indicate if a county is precluded from seeking a poor relief lien for funds expended.
You ask the following question:
Can a county record a poor lien against juveniles and their parents for funds expended by a county to an institution that took emergency placement of an apparent child in need of supervision, and then billed the county for the services provided prior to adjudication and disposition of the child?
Official Opinion 77-96 concerns itself with a situation where proceedings have been instituted, and asks under what circumstances the county or the state would be liable for payment. The opinion holds that expenses incurred in a delinquency proceeding are a proper county, as opposed to a state expense, except that since 1977 the unified judicial system has financial responsibility for the cost of care of a minor while under court custody.
During the period of time following the filing of a dependency delinquency or neglect petition and prior to adjudication, counties have the responsibility for child care. SDCL 26-8-28 requires counties with a population of thirty thousand or over to make arrangements and provision, by contract or otherwise, for the care and detention of such children, pending the final disposition of the children under order of the court. Counties having a population of less than thirty thousand may make such arrangements and provision.
It is my opinion that this statute merely provides a method by which a county handles the situation, that is, by contract or otherwise. The fact that it may not choose to provide by contract or otherwise, does not limit or remove the liability of the county for care and detention of juveniles.
The procedures for the initial handling of children are spelled out in SDCL § § 26-8-19 to 26-8-22.13. A law enforcement officer may take a child into temporary or protective custody without order of the court when, among other things, there are reasonable grounds to believe that he has run away or escaped from his parents, guardian, or custodian SDCL 26-8-19.1(3). The cases you describe were runaways.
When the child under these circumstances is taken into temporary or protective custody, the officer must notify the parents, etc., without delay, and must inform them of the child's rights. The child is released to the care of his parents unless his immediate welfare, life or safety would be threatened. The officer must also notify the state's attorney at the earliest opportunity with the reason why the child was not released to his parents as provided in SDCL 26-8-19.2. The states attorney must then promptly notify the court of the action, SDCL 26‑8‑19.5.
If a child is taken into protective custody he or she shall be turned over the department of social services, which is responsible for the child's shelter and care at state expense, SDCL 26-8-19.8.
When the court system assumes responsibility for the cost of care while a minor is under its legal custody, the court may order persons liable for the care and support of the child to reimburse the unified judicial system for that cost, SDCL 26‑8‑40.8.
There is also a statutory lien upon the property of persons, including the parents of a minor child, for whom legal counsel or a public defender has been appointed, SDCL 23A-40-11.
There is no doubt but that parents have certain support obligations. SDCL ch. 25-7 places an obligation on the parents for the "... necessary maintenance, education, and support of the child ...". Enforcement of these obligations is the function of a court of competent jurisdiction as provided in SDCL 25-7-7.
While the expenditure you describe could be collected by the county from the parents, these obligations do not create a direct lien upon property.
Payment of public assistance to or for the benefit of any dependent child creates a debt due to the state by the person or persons who are responsible for support of the children, SDCL 25-7A-2. I am unaware of current provisions or procedures which provide for the assigning of these "debts" to a county for collection. In any event, no direct lien upon property would be created. The department of social services handles matters relating to collection of debts due to the state when it has become involved in the proceedings, SDCL 25-7A-5. In the case you have presented, neither the court nor the department of social services was involved during the period of time in question.
SDCL ch. 28-14 addresses itself to reimbursement of county poor relief expenditures and provides in SDCL 28-14-5 that,
Whenever any county within this state shall become obligated to, and does pay for the care, support, and maintenance, ... of any poor person; [a poor person being defined as one for whom the county is obligated to, and does pay for the care, support, etc.] ... the county in such cases shall have a lien upon all the property ... belonging to the poor person ...
Thus the lien which the county has for poor relief, and the lien of the county in the facts you have presented attaches to the property of the children to whom the support was given. No such lien necessarily attaches to the property of the parents. This Office pointed out in Official Opinion No. 76-112,
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.
The lien in your factual situation would similarly be limited to the property of the children, or property they thereafter acquired.
My predecessor held in 1952-53 AGR 457:
Public aid and Poor Liens are creatures of statute and are governed by and find their efficiency within the provisions of their foundation, and their validity is entirely dependent on the terms of the statute ... The statute is silent relative to the situation where the person receiving benefits is a child and makes no provisions for a lien against the property of the parents. I conclude that there is no lien against the property of the parents as liens by implication are not favored.
I concur with those conclusions by my predecessor. Therefore, the answer to your question is no although, as noted above, alternative methods of collection do exist.
Having thus expressed my opinion as to the law of this State, I call to your attention to a program administered by the South Dakota Association of County Commissioners under the Federal Juvenile Justice Act 42, U.S.C. 5601 et seq. This program is called the Juvenile Justice Project Jail/Detention Removal Reimbursement Pool. Through the Association, counties which have the obligation for care and detention of certain juveniles may seek reimbursement under conditions established by the administrators of the fund. I am enclosing a copy of the project reimbursement application. Other counties may obtain information by contacting the County Commissioners' Association.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
