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

The requester asked where children living in private nonprofit group homes or care centers counted as school residents, and whether the district housing the home could receive state tuition payments. Such homes could take children from outside the local school district.

SDCL 13-28-9 defined school residence by the legal residence or domicile of a student's parent, legal guardian, or other person in loco parentis. The AG said that provision should be read liberally so a group home administrator could be treated as in loco parentis for purposes of school residence. Otherwise, a group home could effectively serve only children already living in its district, or would have to send resident children to distant schools. The opinion gives a group home in Pierre as an example.

The AG also concluded that the district where the home is located was eligible for state reimbursement under SDCL 13-28-11.1 for group home children attending public schools there. That statute described the children and placements it covered, including custody by listed welfare or probation agencies and Bureau of Indian Affairs responsibility through a tribal court order.

The opinion does not decide whether a group home administrator may authorize medical care, sign permission slips, or exercise other powers associated with a parent. Its in loco parentis analysis is expressly tied to school residence.

Currency note

This opinion addresses the school residence and tuition statutes as quoted at the time. Check current versions of SDCL 13-28-9 and 13-28-11.1 before applying its conclusion to a present placement.

What the opinion meant at the time

For school districts with a group home in their boundaries, the opinion said the administrator could be treated as the person in loco parentis for determining a resident child's school district. It also said the district was eligible for state reimbursement for covered group home children attending its public schools.

For group home administrators and placement officials, the opinion supplied an answer to the school residence question. It did not address the administrator's authority over the child's health care or other parental decisions.

Common questions

Q: Does a child have to return to the district where the child lived before entering the group home?
A: The AG said SDCL 13-28-9 should be read so the group home administrator could stand in loco parentis for school residence. He rejected the idea that a child living in a group home would need to attend a distant school.

Q: Does the state pay tuition for every child in a group home?
A: The opinion says the host district is eligible for reimbursement under SDCL 13-28-11.1 for group home children attending its public schools. The statute quoted in the opinion describes covered custody and placement categories and educational programs.

Q: Does this make the administrator a parent substitute for medical decisions?
A: The opinion does not address medical decisions. Its conclusion about in loco parentis is for school residence under SDCL 13-28-9.

Q: Are foster home placements mentioned?
A: Yes. The version of SDCL 13-28-11.1 quoted in the opinion also covers a child in a foster home who is assigned to a private nonprofit institution or group home for attendance in the educational programs described there.

Background and statutory framework

SDCL 13-28-9 used the residence of a parent, legal guardian, or person in loco parentis to determine school residence. SDCL 13-28-11 addressed residence for children in charitable or state institutions. The quoted SDCL 13-28-11.1 provided state tuition payments for the specified children in private nonprofit care institutions, group homes, and connected foster home placements. The AG read these provisions together to place the group home's children in the district where the home was located for school residence and to make that district eligible for state reimbursement.

Citations

• SDCL 13-28-9
• SDCL 13-28-11, 13-28-11.1 and 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

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1325

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:

1. 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?

2. 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