STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 26, 1969

Matthew Furze, State Director
Department of Public Welfare
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-21

Child in need of supervision may be sent to State Training School only after other provisions of the law have failed

Dear Mr. Furze:

You have requested an official opinion based upon the following factual situation:

"A female child, now sixteen years of age, was adjudicated to be a dependent child by the County Court of X County approximately seven years ago, and was placed in the custody and control of the Division of Child Welfare, with guardianship and full right to consent to adoption. Adoption being unfeasible, the child has been maintained in foster care with various families. In each case, the child has run away from the home of the foster parents, and is presently in the State Hospital at Yankton upon a voluntary admission for observation and treatment.

"It presently appears that the Division of Child Welfare cannot suitably provide for this child in foster care and that any such placements will result in repeated escape attempts; further that the State Hospital will soon discharge her with the recommendation that institutional care and training be arranged.

"No facts are known which would justify a determination that this child is delinquent, under the new Juvenile Code, although she would be a child in need of supervision."

The question you have asked involves the interpretation of Section 13 of Chapter 164 of the 1968 Session Laws:

"May this provision be construed to authorize disposition of a child found in need of supervision by commitment to the State Training School at Plankinton, after other efforts have been made to suitably control the child, without necessitating an adjudication of delinquency?"

This opinion will be concerned only with the legality of your question and not the desirability of such treatment of the child.

A child in need of supervision is defined by Chapter 164, 1968 Session Laws as: "any child who is an habitual truant from school; who has run away from home or is otherwise beyond the control of his parent, guardian, or other custodian; or whose behavior or condition is such as to endanger his own or others' welfare."

Section 13 of the aforementioned law provides that when a child has been adjudicated as being in need of supervision, the court may enter a decree of disposition of the child. The court then lists six different provisions including transfer of legal custody of the child to the Department of Public Welfare and examination or treatment by a physician, surgeon, psychiatrist, or psychologist, or other special care, including hospitalization for such purposes. The final paragraph contains the sentence: "no child committed under the provisions of this section shall be placed initially in the State Training School at Plankinton or any other training school."

The time honored rule of statutory construction is that consideration must be given to the ordinary sense of the words used and to the context in which they are used. Clearly, the Legislature intended that a child may be placed in the State Training School at Plankinton after one or more of the other provisions of the statute has been used.

The answer to your question is, therefore, in the AFFIRMATIVE. However, the factual situation given states that the child in question has only been adjudicated to be a dependent child A dependent child is one whose parents or guardians have abandoned, neglected, or mistreated him.

Before this provision in question can be used, the child must be adjudicated as being in need of supervision. Then the court shall enter a decree using one or more of the six provisions listed. Then, only after an attempt to rehabilitate the child using these provisions, has failed, may the child be placed in the State Training School, and only in the discretion of the Judge.

Respectfully submitted,

Gordon Mydland
Attorney General