STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 23, 1975

Dr. Orval Westby, Secretary
Department of Social Services
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-179

Whether or not members of the professions listed in SDCL 26-10-10 are required to report emotional injury

Dear Doctor Westby:

This opinion is in response to your question as to whether or not members of the professions listed in SDCL 26-10-10 are required to report emotional injury.

SDCL 26-10-10 and 26-10-12.2 provide:

26-10-10. Any physician, surgeon, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, psychologist, social worker, hospital intern or resident, law enforcement officer, teacher, school counselor, school official, nurse, or coroner, having reasonable cause to suspect that any child under the age of eighteen years, examined by such person either for care or treatment or noticed in their usual and ordinary contact with the child has been starved or has had serious physical injury or injuries inflicted upon him by abuse or willful neglect other than by accidental means, by any person including parent or other person responsible for his care, shall report or cause reports to be made in accordance with the provisions of §§ 26-10-11 and 26-10-12. Any person who knows, suspects, or has reason to believe that a child has received physical or emotional injury or injuries as the result of abuse or willful neglect may make a report as provided by law.

26-10-12.2. The court shall make a report to the office of the division of social welfare which shall include the name and address of the child, the name and address of the parents, guardian or responsible persons, the date and place of birth of the child, the date of the report, the suspected or proven physical or emotional abuse or willful neglect and the disposition of the proceedings ....

SDCL 26-10-10 requires certain professional people to make reports of cases of suspected physical abuse. But other people may make reports as to physical and emotional abuse.

SDCL 26-10-12.2 states what information is to be included in the report that the court makes to the Department of Social Services.

Among the requirements is "the suspected or proven physical or emotional abuse." The last sentence of 26-10-10 also includes both physical and emotional injuries. This indicates that it was the intent of the Legislature that the word "emotional" be included in this statute, such that certain professionals are required to report emotional injury. The fact that among the various professions required to make reports are social workers, psychologists and school counselors, people trained to take care of the emotional well-being of children (and people) in a position to spot mental abuse of a child, also indicates that it was the intent of the Legislature to include "emotional" injury in the mandatory reporting requirements of SDCL 26-10-10.

Abuse is not specifically defined by South Dakota law, but SDCL 26-10-1, which is entitled "Cruelty to or abuse of child unlawful-Deprivation of necessities," indicates acts which constitute abuse of a child.

It shall be unlawful for any person willfully, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or willfully neglect any child under eighteen years of age or deprive such child of necessary food, clothing, shelter or medical attendance.

The words "torture," "torment," "cruelly punish" and "willfully neglect" indicate mental harm to a child. This statute indicates that emotional mistreatment is included in the concept of "abuse."

Emotional mistreatment is also included in the phrase "willful neglect," which is found in SDCL 26-10-10. A "neglected child" is defined at SDCL 26-8-6, in connection with neglected or dependent child.

It means a child

whose parent, guardian, or custodian has abandoned him or has subjected him to mistreatment or abuse; who lacks proper parental care through the acts or omissions of the parent, guardian, or custodian; whose environment is injurious to his welfare; whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being; ...

The phrases "lacks proper parental care through omissions," "whose environment is injurious to his welfare," "fails to provide ... care necessary for his ... welfare" indicates that physical harm to a child is not the sole basis for finding a child "neglected." The Supreme Court of the State of South Dakota agreed with this conclusion in the case of In re K.D.E., 87 S.D. 501, 210 N.W. 2d 907 (1973). The court found the child, K.D.E., to be neglected, even though no actual physical harm to the child had been proven. "The state as parens patriae takes a necessarily strong interest in the care and treatment of every child within its borders." 210 N. W. 2d 907 at 910.

This state's interest in the well-being of children as parens patriae is demonstrated by other South Dakota statutes.

SDCL 26-8-27.12 authorizes medical and psychological examinations of dependent and neglected children. SDCL 26-8-40.4 authorizes medical and psychiatric treatment of these dependent and neglected children. These laws indicate a strong interest in the emotional as well as physical well-being of the minor children of South Dakota. Therefore, the interpretation of SDCL 26-10-10, which is most in conformity with the public policy of the State of South Dakota towards its minors, is that mental abuse of children must be reported by those professions listed in the statute.

In summary, then, the Legislature intended to include "emotional" in the mandatory reporting requirement of SDCL 26-10-10, as "emotional injury" is implied in the same part of this statute by the words "abuse" and "willful neglect." It is also the public policy of the State of South Dakota that those professions listed in the statute be required to report emotional injury, as the cases and statutes demonstrate.

It is my opinion that the professions listed in SDCL 26-10-10 are required to report emotional injury.

Respectfully submitted,

William Janklow
Attorney General

WJJ:JG:dk