When a child is placed in a private nonprofit group home or child care institution, is the home's administrator the child's 'person in loco parentis' for school residence purposes, and does the local school district get paid by the state for educating that child?
Plain-English summary
Mr. Todd, working in state education, faced a recurring administrative puzzle. Private nonprofit group homes for children sat in particular school districts (say, Pierre). Most of the children in those homes came from somewhere else in the state, often placed there by a juvenile court order. When a Pierre group home admitted a teenager from a different county, where did the child go to school, and which district got paid for it?
Janklow's answer cut the knot. SDCL 13-28-9 defined "school residence" as the legal residence of the parents, legal guardian, or "other person in loco parentis to the student." Black's Law Dictionary defined "in loco parentis" as one who stands in the place of a parent, assumes parental duties, and discharges the parental role without going through formal adoption. Fitzpatrick v. Hudson Coal and Meisner v. United States applied that doctrine across various legal contexts.
A group home director who feeds, supervises, disciplines, and arranges for the medical and educational needs of a juvenile-court-placed child is doing the things a parent does. Janklow concluded the director qualifies as "in loco parentis" for school residence purposes. That meant the child's school residence was the district where the group home was located, and the child enrolled in the local public school there.
To answer Todd's second question, Janklow looked at SDCL 13-28-11.1. That statute said the state would pay tuition for children in private nonprofit child care institutions or group homes when those children were in the custody of social welfare, county welfare, probation and parole, licensed voluntary agencies, or under the BIA's placement and supervision through a tribal court order. So the local school district that took in the group-home child wasn't out of pocket: the state reimbursed.
Janklow also batted away the alternative reading, which would have required group homes to send children back to their home districts for school. He called that "absurd": a group home in Pierre cannot operate as a residential placement while simultaneously busing the child each day to a school in some distant county. The whole point of the placement is to give the child stability, education, and structure in one place.
Currency note
This opinion was issued in the late 1970s. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The statutes on school residence (SDCL chapter 13-28) and state tuition reimbursement have been amended over the decades since this opinion. The Department of Social Services and the agencies referenced in SDCL 13-28-11.1 have been reorganized. Anyone administering a group home or school district reimbursement today should check the current statutes and Department of Education rules rather than relying on the 1970s framework Janklow analyzed.
What the opinion meant at the time
For school district business managers, the opinion was reassuring on two fronts. First, it confirmed that the district had to enroll group-home children as residents (not as out-of-district tuition students subject to billing the originating district). Second, it confirmed that the state, not the originating district, would pay the local district for educating those children, so taking in group-home placements was not a budgetary burden.
For group home administrators, the opinion gave a clear answer that the home director's role was legally recognized as that of a parent substitute. That answer mattered not just for school enrollment but for the broader administrative work of authorizing medical care, signing permission slips, and acting on behalf of the child in ways a parent would.
For juvenile court judges and Department of Social Services caseworkers, the opinion confirmed that placement in an out-of-county group home would not strip the child of school services or create a billing dispute between districts. The receiving district enrolled the child, the state paid, and the originating district was off the hook.
Common questions
Q: Does this rule apply to foster homes?
A: SDCL 13-28-11.1 also covers a child who resides in a foster home but who is "assigned to a private, nonprofit institution or group home... for attendance in such educational programs." So the state tuition reimbursement reaches foster placements that involve a connected group-home educational program.
Q: What about children placed by the federal Bureau of Indian Affairs?
A: SDCL 13-28-11.1 expressly covers children "under the responsibility of the federal bureau of Indian affairs for placement and supervision through a tribal court order." So a BIA placement through a tribal court order triggers state tuition.
Q: Can a parent who still has parental rights override the group home director's in-loco-parentis status?
A: Janklow noted that in most placements parental rights have not been terminated. The opinion treats the group home director as in loco parentis for the practical educational purposes set out in chapter 13-28, not as a replacement for the parent in all legal contexts. Custody, treatment, and medical decisions still implicate the parent's underlying rights subject to whatever court order placed the child.
Q: What if the originating school district disputes the change in school residence?
A: SDCL 13-28-9 governs. As long as the group home placement is bona fide and the director is in loco parentis, school residence is the district where the home is located. The originating district is not financially responsible for the child's education while the placement lasts.
Background and statutory framework
South Dakota's school residence rules in chapter 13-28 reflect a balance: a child's right to free public education at a single school is paired with a corresponding state and local fiscal interest in not paying for the same child twice. SDCL 13-28-9 anchors residence on the legal residence of the parent, guardian, or person in loco parentis. SDCL 13-28-11 then addresses children in charitable or state institutions: their school residence is the district they came from. SDCL 13-28-11.1 overrides 13-28-11 for the specific case of private nonprofit child care institutions and group homes, putting the state on the hook for tuition.
The "in loco parentis" doctrine is a long-standing common-law concept. It was developed initially in cases of stepparents and grandparents taking on parental roles, then extended to teachers, employers of apprentices, foster parents, and group home administrators. The doctrine recognizes that the parental role can be assumed without going through legal adoption or guardianship proceedings. Once assumed, the person takes on the duties and responsibilities of a parent for the purposes related to that assumption.
In the SDCL 13-28-9 context, the in-loco-parentis question is narrow: is this person standing in for the parent for purposes of school enrollment and supervision? Janklow's opinion confirms that a group home director, in the ordinary course of running a residential placement for juvenile-court-placed children, meets that test.
Citations
- SDCL 13-28-9
- SDCL 13-28-11; SDCL 13-28-11.1; SDCL 13-28-11.2
- SDCL 26-6-14(1)
- Fitzpatrick v. Hudson Coal Company, 46 A.2d 589
- Meisner v. United States, 285 F. 866, 868
- Black's Law Dictionary, Revised Fourth Edition
Source
Original opinion text
Children who reside in a group care center or group home having school residence in the school district where the care center or home is located
Dear Mr. Todd:
You have requested an opinion based upon the following factual situation:
SDCL 13-28-11.1 and 13-28-11.2 makes reference to private nonprofit child care institutions and group homes. See also subdivision (1) of SDCL 26-6-14. These types of care centers and group homes are of course located within the confines of a given school district. In most instances the children who reside in such care centers and group homes come from within an area outside the area of the school district wherein the home or care center is located.
Based upon the above facts you ask:
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Does the person who is responsible for the care and custody of the children in the group care center or group home qualify as a "person in loco parentis" as provided for in SDCL 13-28-9?
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If the answer to No. 1 is yes, would the school district be eligible for the tuition payments as provided for in SDCL 13-28-11.1?
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 a school within such district.
SDCL 13-28-11.1 reads as follows:
Notwithstanding § 13-28-11, the state shall pay tuition for all children under the care and custody of the division of social welfare, county welfare, probation and parole departments, licensed voluntary agencies, and children who are under the responsibility of the federal bureau of Indian affairs for placement and supervision through a tribal court order who reside in private, nonprofit child care institutions, or group homes, or both and who attended educational programs approved by the state superintendent of public instruction, or who reside in a foster home and who are assigned to a private, nonprofit institution or group home, or both for attendance in such educational programs.
SDCL 13-28-11 reads as follows:
When a child is residing in a charitable or in a state institution which provides care and custody for children who are not living with their parents or guardian, the school residence of such child shall be the school district wherein such child resided immediately prior to the time such child entered such institution and such residence continues until such time as such child ceases to reside in such institution.
Black's Law Dictionary, Revised Fourth Edition, defines "in loco parentis" as follows:
in the place of a parent; instead of a parent; charged, factitiously, with a parent's rights, duties, and responsibilities."
The term "in loco parentis" is a term referring to one who means to put himself in the situation of a lawful father of the child, or a person assuming the parental character or discharging parental duties. Fitzpatrick v. Hudson Coal Company, 46 A.2d 589. It has also been referred to in regard to one who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption. Meisner v. United States, 285 F. 866, 868.
It is my understanding from conversations with interested people in the education department that a great majority of the children in group homes such as that referred to in your letter, are in the group home because of the child's involvement with the juvenile court. It is also my understanding that parental rights to these children have not in most instances been terminated.
To contend that children in a group home are not "in loco parentis" to the director of the home and that consequently such children are not residents of the school district wherein the home is located, is, in effect to contend that group homes can only serve children from the school district wherein the group home is located. Obviously, a group home in Pierre, South Dakota can not have a child in a group home situation and at the same time send the child back to some distant point in the state for his education. This is particularly absurd in view of the fact that many if not most of the children placed in group homes are placed there by our juvenile courts.
In view of the above considerations, it appears that SDCL 13-28-9 should be construed liberally so as to enable children placed in group homes to be "in loco parentis" to the administrator of the group home for purposes of school residence. The school district in which the group home is located does not suffer financially from this position inasmuch as SDCL 13-28-11.1, cited above, makes the school district eligible for reimbursement from the state for group home children who attend the public schools in the district.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:DOC:rw