LEGALITY OF CHARGING NON-RESIDENT [[NONRESIDENT]]PARENTS, WHO WERE FORMERLY RESIDENTS OF THE STATE, THE COST OF MAINTAINING THEIR CHILDREN IN OUR STATE INSTITUTIONS

LEGALITY OF CHARGING NON-RESIDENT [[NONRESIDENT]]PARENTS, WHO WERE FORMERLY RESIDENTS OF THE STATE, THE COST OF MAINTAINING THEIR CHILDREN IN OUR STATE INSTITUTIONS

The Director of the Department of Public Institutions may legally require that non-resident [[nonresident]]parents, who were formerly residents of this state, pay the cost of maintaining their children in our state schools for mentally deficient children.

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                                                                 August 19, 1953

Honorable H. D. Van Eaton, Director
Department of Public Institutions
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 118

Dear Sir:

            In your letter of July 28, 1953, you have requested our opinion as to whether the Department of Public Institutions may legally charge non-resident [[nonresident]]parents, who were formerly residents of the state, the cost of maintaining their mentally deficient children in our state schools, when the state of the parents' residence refuses to accept the responsibility for maintaining such children.  Your letter assumes a factual situation wherein the parents of the mentally deficient children, when originally admitted to our state schools, were residents of the State of Washington, but, subsequently, acquired a residence in another state.

            Our conclusion may be summarized as follows:  The Director of the Department of Public Institutions may legally require that non-resident [[nonresident]]parents, who were formerly residents of the state, pay the cost of maintaining their children in our state schools for mentally deficient children.

                                                                     ANALYSIS

            The requirements for admission to Lakeland Village, a state institution for mentally deficient children, at Medical Lake, Spokane County, are set out in RCW 72.28.020, section 2, chapter 173, Laws of 1913, the pertinent portion of which is as follows:

             [[Orig. Op. Page 2]]

            "Lakeland Village shall be free to residents of the state under the age of twenty-one years who are feeble‑minded, idiotic, or epileptic, or who are physically defective to such extent as to prevent them from being educated in the common schools, and who are free from contagious diseases.  * * *"  (Emphasis supplied)

            The requirements for admission to Rainier State School, a state institution for mentally deficient children, at Buckley, Pierce County, are set out in RCW 72.32.070, section 8, chapter 10, Laws of 1937, which states as follows:

            "The institution shall be free to residents of the state between the ages of six and twenty-one years, who by reason of defective intellect, are rendered unable to acquire an education or training in the common schools, and who are free from loathsome or contagious diseases:  Provided, That children who are idiotic, epileptic, or afflicted in any particular that renders them unfitted for companionship with other children, may be segregated and admitted to Lakeland Village under such general rules and regulations as may be prescribed by the department."  (Emphasis supplied)

            Manifestly, it was the intention of the legislature, as expressed in the two sections above quoted, that the state institutions for mentally deficient children should be free only to residents of the State of Washington.  Therefore, a minor child who during the period of commitment becomes a non-resident [[nonresident]]of this state, would be ineligible to remain in either institution free of charge.

            It is a general rule that a minor child cannot of his own volition acquire a domicile or residence.  The domicile of every person at his birth is the domicile of the person on whom he is legally dependent, whether it is at the place of birth or elsewhere.  Since the father is the natural guardian and is responsible for the tutelage, discipline and support of the minor child, the domicile of the father is in legal contemplation of the domicile of his minor children, if they are legitimate; otherwise, they take the mother's domicile.

            The common law doctrine of domicile by operation of law, as recited in the foregoing paragraph, is recognized by our Supreme Court in the case ofIn re A Minor, 191 Wash. 452, 71 P. (2d) 385.  In the above cited case, the issue concerned the domicile of a minor child, which was illegitimate at birth but was subsequently legitimatized by the father, a resident of the State of California.  The court, at page 456, states the rule of domicile by operation of law as follows:

             [[Orig. Op. Page 3]]

            "* * * if an illegitimate minor child is legitimatized as the child in this case was, such child's domicile becomes that of its father from the time of its birth, and under such legitimation the child's domicile during its minority follows that of the father under the same circumstances as any other legitimate child.  * * *"

            Although a minor who has been committed to an institution for mentally deficient children in Washington may in fact continue to live in the institution when his parents remove their residence and domicile to another state, his legal residence is nonetheless immediately established in the second state.  The minor is thereupon rendered ineligible to remain in the institution free of charge.

            RCW 72.28.160 (section 3, p. 260, Laws of 1909) provides as follows:

            "The director may admit to this institution (Lakeland Village) feeble‑minded children from other states, but the parents or guardians of such children must be required to pay annually or quarterly in advance a sufficient amount to cover the cost of maintaining and educating such children."  (Emphasis supplied)

            RCW 72.32.150 (section 16, chapter 10, Laws of 1937) provides:

            "Any state, territory, or legal subdivision thereof which, and any parent or guardian residing in another state or territory who, may wish to enter a child in the institution and pay all expenses of care, maintenance, and instruction may do so under terms, rules, and regulations prescribed by the department and the department may enter into appropriate contracts on behalf of the state."

            If the state of the parents' residence refuses to assume the responsibility for a mentally deficient, non-resident [[nonresident]]child or children in our institutions, and the parents of such child or children do not make other suitable arrangements for their care and maintenance, then the Director of the Department of Public Institutions may require the parents or guardians of the non-resident  [[Orig. Op. Page 4]] [[nonresident]]children to pay the cost of maintaining and educating such children, pursuant to the two statutes last quoted above.

Very truly yours,

DON EASTVOLD
Attorney General

STEPHEN C. WAY
Assistant Attorney General