Social Services; Non-public Schools, Group Homes; Juveniles.

Subject:

Social Services; Non-public Schools, Group Homes; Juveniles.

Requested By:

Dr. Sarah T. Morrow Secretary Department of Human Resources

Question:

Does G.S. 110-49 apply to a facility established for the dual purposes of (1) giving full-time care to neglected, dependent, abandoned, destitute, orphaned or delinquent children and (2) operating a school, whether or not registered as a non-public school in accordance with the general statutes governing private church schools and schools of religious charter and qualified non-public schools?

Conclusion:

Yes, G.S. 110-49, which requires that a facility giving full-time care to children must obtain a permit to organize and a license to operate, applies to such a facility regardless of whether it also operates a duly registered non-public school.

The question asks us to consider the case of a facility which provides full-time care to neglected, dependent, abandoned, and destitute children and, in addition, operates on its premises a duly registered non-public school to educate these children. In our opinion such a facility must comply both with the provisions of G.S. 110-49, requiring permits and licenses for those who operate children’s homes, and with the provisions of G.S. 115C-547, et seq., governing non-public schools. We reach this conclusion on the basis of the statutes themselves and their obvious purposes. And our conclusion is reenforced by the decision to like effect of the California Court of Appeals. Montessori Schoolhouse of Orange County, Inc. v. Department of Social Services, 175 Cal. Rptr. 14, 120 Cal. App. 3d 248 at 260 & 261 (1981), pet. for hearing by Sup. Ct. den., 175 Cal. Rptr. 22, 120 Cal. App. 3d 263 (1981).

The statute in question, G.S. 110-49, in pertinent part provides as follows:

"No individual, agency, voluntary association, or corporation seeking to establish and carry on any kind of business or organization in this State for the purpose of giving fulltime care to children or for the purpose of placing, dependent, neglected, abandoned, destitute, orphaned or delinquent children, or children temporarily separated from their parents, shall be permitted to organize and carry on such work without first having secured a written permit from the Department of Human Resources. The said Department shall issue such permit recommending said business or organization only after it has made due investigation of the purpose, character, nature, methods and assets of the proposed business or corporation.

"Upon establishment as provided above, every such organization, except those exempted [for reasons not germane to this inquiry] shall annually procure a license from the Department of Human Resources, and it shall be unlawful to carry on said work or business without having such license. [Emphasis added.]"

Violation of this law is a misdemeanor.

There are no reported North Carolina cases construing this statute. Therefore, the analysis must begin with consideration of the language of the statute and its purposes, as they can be understood from the text itself.

The statute is plainly intended to protect children who are not living with their parents, or who cannot live with them, or who should not live with them. The State’s obligation to protect such children is basic. The United States Supreme Court has recognized that North Carolina’s obligation to protect children is an "urgent" one. Lassiter v. Department of Social Services, 452

U.S. 18 at 27, 101 S.Ct. 2153 at 2160, 68 L.Ed. 2d 640 at 650 (1981). Licensing is a proper way to fulfil that obligation. State v. School, 42 N.C. App. 665 at 672, 258 S.E. 2d 459 at 463 (1979), vacated on other grounds, 299 N.C. 351, 261 S.E.2d 908 (1980), app. dism. 449 U.S. 807, 101 S.Ct. 55, 66 L.Ed.2d 11 (1980); State v. Heart Ministries, Inc., 227 Kan. 244 at 253, 607 P.2d 1102 at 1109 (1980), appeal dismissed, 449 U.S. 802, 101 S.Ct. 47, 66 L.Ed.2d (1980).

Taking the foregoing cases as a point of reference, we see that G.S. 110-49 is a broad statute by which the State exercises all its reasonable authority to license full-time child care facilities. With very limited exceptions, which are not germane to the question before us, the statute applies to all persons who give full-time care to children, whether these persons are individuals, corporations, voluntary associations or the agencies of other legal entities. The statute applies to both profit making and charitable facilities. It requires not only that a facility have a license to operate but that it obtain a permit to organize. The statute contains no general exemptions on account of the size of a facility. It contains no exemption for facilities which only accept children who are placed there with their parents’ permission. It contains no exemption for facilities which serve some second purpose, such as education.

Turning to the text of the statute, we think that the word "children" as used in G.S. 110-49 must be construed to cover all people below age 18, the age of majority. G.S. 48A-2. This interpretation is consistent with the fact that parental responsibilities continue unabated until a child reaches age eighteen. It is also consistent with the age limits in the Juvenile Code’s definitions of abused, dependent and neglected juveniles, G.S. 7A-517(1), (13) and (21), the age limits in the definitions in the Termination of Parental Rights Law, G.S. 7A-289.22, et seq., the distinction between children and adults in the adoptions statute, G.S. 48-1, et seq., the definition of "dependent child" in the child support laws, G.S. 110-129(2), the words "minor child" in the child custody laws, G.S. 50-13.1, et seq., and the use of the word child in the Interstate Compact on the Placement of Children, G.S. 110-57.

Also, we think that the reference to neglect, dependency and other such conditions in G.S. 11049 describes older children as well as younger ones. See, G.S. 7A-517(1), (13) and (21). While a parent must provide a different kind of care for an older child than a younger one, it is obvious that older children can truly be neglected, dependent, etc.

In our opinion, in adopting G.S. 110-49 the General Assembly exercised all of its reasonable authority to regulate and license the important practice of giving full-time care to children. That being so, we conclude that the fact that a child caring facility is also a duly registered non-public school does not remove it from the purview of G.S. 110-49. We note that the California Court of Appeals reached the same conclusion concerning the laws of that state and that the California Supreme Court declined to review that decision. Montessori Schoolhouse of Orange County, Inc.

v. Department of Social Services, supra.

This conclusion is reenforced by an examination of the Non-Public School Law, G.S. 115C-547, et seq. That statute concerns the ordinary universal activities of schools: class attendance, testing in the basic academic subjects of grammar, reading, spelling and mathematics, and graduation requirements. By its terms the statute exempts complying non-public schools from "any other provision of law relating to education." G.S. 115C-554 (Emphasis added.) However, the statute does not exempt them from any other aspect of the law, and nothing in the statute authorizes a non-public school to engage in any activity other than education. It certainly does not relieve a full-time child caring facility from compliance with G.S. 110-49.

In an earlier opinion of this Office, 42 N.C.A.G. 226 (26 April 1973), it was said that G.S. 11049 did not apply to a facility providing residential care for girls and young women, ages 16 to 23, most of whom were emancipated but some of whom were placed there at parental request. In reaching this decision, the opinion stated, "The most important consideration here is the fact that the facility involved will not care for young children who need protection from unsatisfactory environmental conditions." 42 N.C.A.G. at 228-229. Both factors distinguish the facility considered in that opinion from the facility which prompts this request for our opinion. Here, we have no facts showing that the residents are solely adults or emancipated minors. Moreover, the articles of incorporation for the home in question here state that its purpose is to provide care for "destitute, abandoned, neglected and dependent boys," i.e., boys from unsatisfactory environments. However, any language or opinion contrary to the conclusion set forth here which is found in the prior opinion of the Attorney General, 42 N.C.A.G. 226, is expressly withdrawn.

Finally, we note specifically that the provisions of G.S. 108A-78(c) do not apply to this facility.

N.B. The General Assembly has adopted Chapter 637 of the 1983 Sessions Laws, effective October 1, 1983, which replaces G.S. 110-49 with a new statute, G.S. 131D-10.1, et seq. The new statute addresses specifically the issues considered in this opinion. First, it applies to facilities caring for unemancipated children under age eighteen. G.S. 131D-10.2(3) (eff. Oct. 1, 1983). Second it exempts from its provisions "primarily education institutions", which are those

(1) which comply with the Non-Public School law and (2) where "the primary purpose of the housing and care of children is to meet their education needs." G.S. 131D-104.4(6) and G.S. 131D-10.2(11) (eff. Oct. 1, 1983). Except as exempted, the statute applies to all facilities which, on a "continuing" basis, provide the following:

"the essentials of daily living on a 24-hour basis for dependent, neglected, abused, abandoned, destitute, orphaned, undisciplined or delinquent children or other children who, due to similar problems or behavior or family conditions, are living apart from their parents, relatives, or guardians in a . . . residential child care facility. The essentials of daily living include but are not limited to shelter, meals, clothing, education, recreation, and individual attention and supervision."

G.S. 131D-10.2(9) (eff. Oct. 1, 1983)

Plainly, the fact that a facility has an educational component does not remove the facility from the purview of the statute, if the facility exists to care for children whose parents, relatives or guardians, cannot, will not, do not, or should not care for them. Thus, G.S. 131D-10.1, et seq., (eff. Oct. 1, 1983) will not affect the conclusion reached in this opinion.

RUFUS L. EDMISTEN Attorney General

Ann Reed Special Deputy Attorney General

Steven Mansfield Shaber Assistant Attorney General