CHILD CARE ‑- FOSTER HOMES ‑- STANDARDS

CHILD CARE ‑- FOSTER HOMES ‑- STANDARDS

The Department of Social Security can establish standards to determine approval of foster homes only for children within its care or that of its agencies.

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                                                                 August 30, 1950

Honorable Roderic Olzendam
Director, Department of Social Security
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 327

Dear Sir:

            This is in answer to your letter of August 25, 1950, in which you request our opinion on the following question:

            Can the Department of Social Security establish standards to determine whether or not a particular agency can be approved to care for children under section 6, chapter 114, Laws of 1941?

            Our conclusions may be summarized as follows:

            The Department of Social Security can establish standards to determine whether or not an agency can be approved by the Department to provide care for children.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            The Department of Social Security, under chapter 172, Laws of 1933, was authorized to examine and approve articles of incorporation of all agencies, societies, institutions, etc., which were established to provide care for children.  In addition, the Department authorized the issuance of certificates of approval to agencies which met the standards established by the Department.

            In a recent supreme court case, State v. Bess L. Gilroy, 137 Wash. Dec. 38 [[37 Wn.2d 41]], that court held that chapter 172, Laws of 1933, was unconstitutional in that it attempted to delegate legislative powers to an administrative agency of the state.  Accordingly, the Department is no longer authorized to establish rules and regulations for the operation and government of child care agencies, societies, institutions, etc., and issue certificates of approval as authorized by that law.

            You state that the Department is authorized to provide care to children either directly or through its agencies under section 6, chapter 114, Laws of 1937, as amended by chapter 260, Laws of 1947.  This statute provides in part as follows:

            "* * * to accept custody of children and to provide for the care of children in need of protective services, directly or through its agents, following in general, the policy of using properly approved private agency services for the actual care and supervision of such children in so far as they are available, paying for long term care of such dependent children as are accepted by the Department as eligible for support at a reasonable rate established by the Department; to receive and expend all funds made available through the Department of Public Welfare by the Federal government, the state or its political subdivisions for such purposes."

            As we understand your question you are concerned with whether or not the Department is authorized to establish standards by which it may determine whether or not an agency can be approved to provide care for children under  [[Orig. Op. Page 3]] the Aid to Dependent Children program.  It would appear that under that statute the Department must set up some standards in order to determine whether or not an agency provides adequate care under its program.  However, we believe that the Department of Social Security may not use section 6,supra, resulting in circumvention of the ruling of the supreme court case ofState v. Gilroy, supra, and continue to issue certificates of approval as authorized by the law which has been declared unconstitutional.  Any standard established by the Department to be used in the determination of whether or not a particular agency can be approved by the Department must be drafted under section 6, chapter 114, Laws of 1937, as amended by chapter 260, Laws of 1947.

            It is our opinion that no certificates of approval can be issued on either a voluntary or an involuntary basis.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General