July 17, 1980

Mr. Robert A. Amundson 
Attorney at Law 
Post Office Box 898 
Lead, South Dakoa 57754

Official Opinion No. 80-45

Free School Privileges for Child in Foster Home

Dear Mr. Amundson:

You have requested, on behalf of the Belle Fourche School District 9-1, an official opinion from this office in regard to the following factual situation:

FACTS: 

A minor child moved into the district from out of state to live with a sister.  Free school privileges were requested for the child.  Recently, the child moved in with another unrelated family in Belle Fourche.  The persons with whom the child is now living state that the child is living in a 'foster home.'

Based on the above facts, you have asked the following question:

QUESTION: 

Since SDCL 13-28-10 provides no definition of what constitutes a foster home, is the child entitled to free school privileges under 13-28-10?

SDCL 13-28-10 provides: 

When a child is residing in a foster home on a temporary or permanent basis, such child has school residence in the school district wherein such foster home is located.  Such child may be living in such foster home by choice of the child, with or without the sanction of the parents, or because the child was placed there by a court of competent jurisdiction, or because the child was placed there by the department of social services or by the board of pardons and paroles because of their jurisdiction over the child or  as a result of assisting the parents or guardian of the child in finding and placing said child in the foster home.  Such child, placed in such foster home, shall also have school residence in the school district wherein such foster home is located.

My predecessors have been consistent in holding that it is not the function of the Attorney General to decide school residence questions.  See 1959-60 A.G.R. 268; 1961-62 A.G.R. 53; 1963-64 A.G.R. 40, 80.  I concur in the opinions expressed by my predecessors. Reference to those reports will reveal that this office has consistently held that school residence is not difficult to achieve and requires little or no formalities.  Prior opinions have also pointed out that SDCL 13-28-9 provides the only legal basis for denying free school privileges based on residency.

SDCL 13-28-9 provides: 

School residence for the purpose of claiming free school privileges shall mean the legal residence or domicile of the student's parents, legal guardian, or other person in loco parentis to the student; however, the student, his parents, legal guardian or other person in loco parentis to the student shall not establish school residence and be exempt from the payment of tuition where the residence of the parents, legal guardian or person in loco parentis to the student was acquired solely or principally for the purpose of obtaining free schooling.  When a child is enrolled in a school in  a school district the school residence of such child as determined at the time of such enrollment shall not change during such school fiscal year, unless such child ceases to be an enrolled member of school within such district.

In the case you present, since no definition of 'foster home' is provided, it is my opinion that the statute clearly provides that a child living in a home other than his parents is entitled to free school privileges unless SDCL 13-28-9 precludes this.  The final result in these cases is that the school board must decide and any persons aggrieved by the Board's decision may appeal to courts pursuant to SDCL 13-46.

Respectfully submitted,

Mark V. Meierhenry
Attorney General