Attorney General Headshot

Attorney General Marty Jackley

Attorney General Seal

OFFICIAL OPINION NO. 71-25, States Attorneys' duty to represent the State Department of Public Welfare in adoptions

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 13, 1971

Mr. Elmer E. Gemar
States Attorney, Bon Homme County
Tyndall, South Dakota 57066

OFFICIAL OPINION NO. 71-25

States Attorneys' duty to represent the State Department of Public Welfare in adoptions

Dear Mr. Gemar:

We have received your letter stating the following:

Request is herewith made as to the states attorneys' responsibility to perform as directed by the Department of Public Welfare. Initially, I was under the impression that a states attorney is an advisor and does prosecute the criminal aspect for the county, and that as far as civil matters are concerned the status of the public official changes somewhat. In particular, I am wondering whether it is mandatory and so far have not found it that the states attorney must do all of the legal work for the Department of Public Welfare in petitioning the courts in any matters they so desire, such as adoptions, acquiring children by adoption, releases and other proceedings necessary thereto.

As his title implies, the states attorney is not just a county attorney. He is a county constitutional officer with official duties running to the state as well as to the county. SDCL 7-16-9 states: "It shall be the duty of the state's attorney to appear in all courts of his county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party." (emphasis supplied)

The State Department of Public Welfare is an agency of the state which the states attorney must represent. Likewise, the Division of Child Welfare, which is a branch of the State Department of Public Welfare, is entitled to legal representation of the states attorney.

Adoption is a civil procedure in which the state is not a named party. However, the Division of Child Welfare must make a recommendation as to the desirability of an adoption. The division has the right to appear in the proceeding the same as a party in interest and may request a postponement when additional time is needed for investigation. SDCL 25-6-11. The states attorney must represent the Division for this purpose.

In any actions involving the adoption of a dependent or delinquent child, the states attorney is not obliged to represent the state unless requested by the Court. SDCL 26-8-22.4.

Respectfully submitted,

Gordon Mydland
Attorney General