November 10, 1983
Subject:
Social Services; Non-Public Schools; Group Homes; Juveniles
Requested By:
Sarah T. Morrow, M.D., M.P.H. Secretary Department of Human Resources
Question:
Does G.S. 131D-10.1, et seq., 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, schools of religious charters and other qualified non-public schools?
Conclusion:
Yes, G.S. 131D-10.1 requires that a facility giving full time care to such children must be licensed by the State to perform this function regardless of whether it also operates a duly registered non-public school.
The statute in question, G.S. 131D-10.1, et seq., was adopted by the General Assembly as Chapter 637 of the 1983 Session Laws. It became effective October 1, 1983, at which time it replaced G.S. 110-49. The former statute was itself the subject of a recent opinion by this office wherein we concluded as follows:
"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."
Opinion of the Attorney General (July 22, 1983, at page 4).
In our earlier opinion concerning G.S. 110-49, we also noted that the General Assembly had adopted present G.S. 131D-10.1, et seq. In anticipation of G.S. 131D-10.1, et seq., becoming effective, we said as follows:
"[T]he fact that a facility has an educational component does not remove the facility from the purview of [G.S. 131D-10.1, et seq.] if the facility exists to care for children whose parents, relatives or guardians cannot, will not, do not, or should not care for them."
Id., at page 5.
The present question asks us to elaborate on that conclusion.
North Carolina’s new statute, G.S. 131D-10.1, et seq., requires the State to license all facilities which, on a "continuing" basis, provide the following:
"[T]he essentials of daily living on a 24-hour basis for dependent, neglected, abused, abandoned, destitute, orphaned, undisciplined or delinquent or other children who, due to similar problems of 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) (emphasis added).
Under the terms of this definition, the fact that a facility provides an education to its children does not, for that reason alone, remove the facility from the purview of the State’s child care licensing law. However, the statute does exempt from its provisions "primarily educational institutions" which are defined as follows:
"[A]ny institution which operates one or more scholastic or vocational education programs that can be offered in satisfaction of compulsory school attendance laws, in which the primary purpose of the housing and care of children is to meet their educational needs, provided such institution has compiled with Article 39 of Chapter 115C of the General Statutes."
G.S. 131D-10.2 (11) (emphasis added).
Plainly, this new statute distinguishes boarding schools from child care facilities. The former exist to meet the educational needs of ordinary children and, therefore, provided they have complied with Chapter 115C, Article 39, they require no license. The latter exist to meet the special needs, including education, of "dependent, neglected, abused, abandoned, destitute, orphaned, undisciplined or delinquent children or other children, who, due to similar problems of behavior or family conditions, are living apart from their parents, relatives or guardians in family foster homes or residential-care facilities". Therefore, the latter must be licensed.
The distinction between a boarding school and a child care facility is a factual distinction. Labels may mean little in determining whether or not a particular facility is exempt from licensing. What counts are the characteristics of the children and the institution and its reason for existence.
Therefore, for the foregoing reasons, we reaffirm the conclusions set forth in the Opinion of the Attorney General dated July 23, 1983. The fact that the General Assembly has adopted G.S. 131D-10.1, et seq., in lieu of G.S. 110-49 does not signify any intention on the part of the General Assembly to restrict the State’s authority to license facilities which "care for children whose parents, relatives or guardians cannot, will not, do not, or should not care for them." Opinion of the Attorney General, July 22, 1983, at page 5.
RUFUS L. EDMISTEN Attorney General
Steven Mansfield Shaber
Assistant Attorney General