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Bob Ferguson

SCHOOLS TEACHERS

AGO 1988 No. 5 -
Attorney General Ken Eikenberry

CHILDREN ‑- CHILD ABUSE ‑- CRIMES ‑- SCHOOLS TEACHERS 

1.  State law authorizes but does not require the Department of Social and Health Services (Child Protective Services) to investigate complaints of child abuse allegedly perpetrated by third parties (that is, persons not the parent or guardian of the child and not standing in loco parentis to the child).

2. State law authorizes but does not require the Department of Social and Health Services (Child Protective Services) to investigate complaints alleging physical or sexual abuse committed by a teacher against a child. 

3. State law authorizes but does not require the Department of Social and Health Services (Child Protective Services) to investigate complaints alleging physical or sexual abuse committed by a neighbor against a child. 

4. Although the Department of Social and Health Services is ordinarily not legally obligated to investigate complaints alleging physical or sexual abuse against a child by third parties, an obligation to investigate might arise where the abuse by the third party is directly related to neglect or abuse by the child's parent or guardian or by a person standing in loco parentis to the child.

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                                                                   March 8, 1988

Honorable Phil Talmadge!al State Senator, 34th District
1725 S.W. Roxbury, No. 5
Seattle, WA 98106

Cite as:  AGO 1988 No. 5                                                                                                                  

 Dear Senator Talmadge:

             By letter previously acknowledged, you requested our opinion on the following questions, which we paraphrase as follows:

                         1. Does RCW 74.13.031(3) require Child Protective Services to investigate complaints of child abuse, including sexual abuse, allegedly perpetrated by third parties?

              [[Orig. Op. Page 2] ]

                         2. Does Child Protective Services have a legal responsibility to investigate a complaint alleging physical or sexual abuse committed by a teacher against a child?

                         3.  Does Child Protective Services have a legal responsibility to investigate a complaint alleging physical or sexual abuse committed by a neighbor against a child?

             We answer all of your questions in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             Question 1:

                         Does RCW 74.13.031(3) require Child Protective Services to investigate complaints of child abuse, including sexual abuse, allegedly perpetrated by third parties?

             As explained more fully below, we conclude that Child Protective Services is authorized but not required to investigate complaints of child abuse allegedly perpetrated by "third parties." 1/

             The legislative purpose stated in RCW 74.13.010 is to safeguard, protect, and contribute to the welfare of the children of this state through comprehensive and coordinated programs. As used in Title 74 RCW, child welfare services refers to those public social services which strengthen, supplement, or substitute for parental care and supervision.  RCW  [[Orig. Op. Page 3] ] 74.13.020.2/

             RCW 74.13.031 provides in part:

                         The department 3/

              shall have the duty to provide child welfare services as defined in RCW 74.13.020, and shall:

                         . . .

                         (3) Investigate complaints of neglect, abuse, or abandonment of children, and on the basis of the findings of such investigation, offer child welfare services in relation to the problem to such parents, legal custodians, or persons serving in loco parentis, and/or bring the situation to the attention of an appropriate court, or another community agency: PROVIDED, That an investigation is not required of nonaccidental injuries which are clearly not the result of a lack of care or supervision by the child's parents, legal custodians, or persons serving in loco  [[Orig. Op. Page 4] ] parentis.  If the investigation reveals that a crime may have been committed, the department shall notify the appropriate law enforcement agency.

                         . . .

 (Emphasis added.)

             The above quoted provision reflects a 1983 amendment.  Laws of 1983, ch. 246, § 4, p. 1275. 4/

              The amendment authorized the Department of Social and Health Services to investigate complaints of child abuse and neglect by persons other than parents, legal custodians, or persons serving in loco parentis.  The 1983 amendment to RCW 74.13.031 was intended to coordinate with the 1982 amendments to chapter 26.44 RCW.  In 1982, the Legislature amended RCW 26.44.020(12), which defines "child abuse or neglect," by deleting the requirement that the perpetrator of the abuse be a person legally responsible for the child's welfare, such as a parent or legal custodian.  Laws of 1982, ch. 129, § 6, p. 562.5/

             The Legislature therefore clearly intended to broaden the authority of the Department.  The Legislature used the word  [[Orig. Op. Page 5] ] "shall" in providing the Department with the duty to provide child welfare services and to investigate complaints of abuse or neglect.  See RCW 74.13.031.  The use of the word "shall" creates an imperative obligation unless a different legislative intent can be discerned.  State v. Q.D., 102 Wn.2d 19, 685 P.2d 557 (1984).  In reviewing the legislative purpose and intent set forth in RCW 74.13.010, there is no such contrary legislative intent discernable here.

             However, the Legislature stopped short of giving the Department the absolute duty to investigate complaints of "third party" abuse by including the proviso in RCW 74.13.031(3).  The proviso gives the Department discretionary authority to investigate incidents of nonaccidental injuries that are not the result of lack of care or supervision by a parent, legal custodian, or person serving loco parentis.  The proviso clearly states that the Department is "not required" to investigate such cases.  Thus, the issue raised by your first question is what cases fall within those involving a person serving "in loco parentis" since "parents" and "legal custodians" are readily defined persons.

             Absent a statutory definition, the words of a statute must be accorded their usual and ordinary meaning.  Pacific First Fed. Sav. & Loan Ass'n. v. State, 92 Wn.2d 402, 598 P.2d 387 (1979).  "In loco parentis" ordinarily means "in the place of a parent; instead of a parent; charged, factitiously, with a parent's rights, duties, and responsibilities."  Black's Law Dictionary, 896 (4th rev. ed. 1968).  See also Webster's Third New International Dictionary 1165 (1981).  Generally, a person is said to stand in loco parentis when he puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities of a legal adoption.  Niewiadomski v. United States, 159 F.2d 683 (6th Cir. 1947).  A person standing in loco parentis has assumed the duty to educate and support the child and to provide a home for the child.  Id. at 686; Taylor v. Taylor, 58 Wn.2d 510, 512, 364 P,2d 444 (1961).6/

              In State ex rel. Gilroy v. Superior Court, 37 Wn.2d 926, 226 P.2d 882 (1951), the court stated that a person stands in loco parentis when he takes a child into his home and treats the child as a member of his own family, educating and supporting the child.

              [[Orig. Op. Page 6] ]

             Based on these cases, we conclude that, for purposes of child welfare services, a person stands in loco parentis when he takes the child into his home, supports and educates the child and intends to create a family unit.  The focus of child welfare services is to strengthen and support children and their families.  RCW 74.13.010, 74.13.020.  Therefore, such a definition is consistent with the intent and purpose of the Department's responsibility to provide child welfare services.

            Except in the unusual case where abuse by a "third party" is directly related to abuse, lack of care, or lack of supervision by a parent, custodian, or other person in loco parentis as defined earlier, the proviso in RCW 74.13.031(3) establishes that the Department is not required to investigate incidents of third party abuse.  The Department is authorized to investigate such incidents, however, and may have an obligation, depending on the facts it finds, to report an incident to the proper law enforcement authorities.  RCW 26.44.030.

             Question 2:

                         Does Child Protective Services have a legal responsibility to investigate a complaint alleging physical or sexual abuse committed by a teacher against a child?

             Having concluded that the Department is not generally required to investigate incidents of child abuse which are the result of lack of care or supervision by "third parties," we likewise conclude that the Department is not required, although it is authorized, to investigate a complaint of physical or sexual abuse committed by a teacher. Absent fairly unusual circumstances, abuse by a teacher is not the result of parents' lack of care of their child.

             We are aware of one case in which the State Supreme Court observed in passing that "teachers, while pupils are under their direction, occupy the parental relationship for purposes of discipline only  . . . ."  State ex rel. Gilroy v. Superior Court, 37 Wn.2d 926, 934, 226 P.2d 882 (1951).  The facts inGilroy did not concern a teacher, however, and the dictum quoted seems to mean, at most, that teachers have certain of the rights of a parent when disciplining pupils in school.  NeitherGilroy nor any other authority ascribes to teachers the continuing, quasi-familial relationship ordinarily associated with the term "in loco parentis."

              [[Orig. Op. Page 7] ]

             Chapter 74.13 RCW focuses on the child's family unit.  RCW 74.13.020.  There would be no benefit to offer services to a child's teacher because a teacher is not part of the family unit.  We conclude that for purposes of RCW 74.13.031 a teacher is not a person serving in loco parentis.  The Department therefore is not required to investigate abuse allegedly perpetrated by a teacher.7/

             Question 3:

                         Does Child Protective Services have a legal responsibility to investigate a complaint alleging physical or sexual abuse committed by a neighbor against a child?

             An investigation is required under RCW 74.13.031(3) when the child's injuries are the result of the lack of care or supervision by the child's parents, legal custodians, or person serving in loco parentis.  Based upon the definition of "in loco parentis" contained earlier in this opinion, neighbors generally do not serve in loco parentis to a child.  Such persons usually do not assume parental obligations and do not take a child into their home, holding the child out as their own.

            However, there is a possibility that in some instances child abuse committed by a neighbor may result from lack of care or supervision by the child's parents or custodians.8/

              In such a case, the Department may have a duty to investigate.  We conclude that abuse committed by a neighbor otherwise falls within the proviso contained in RCW 74.13.031(3), and the Department is not legally required to investigate such a complaint.

              [[Orig. Op. Page 8] ]

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

NOELLA HASHIMOTO
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/Since your question does not define "third party" and that term is not used in chapter 74.31 RCW, we define the term for purposes of this opinion as a person who is neither the child's parent, the child's legal custodian, nor a person serving in loco parentis.  The term "in loco parentis" is discussed later in this opinion.

 2/RCW 74.13.020 lists the purposes of such services as follows:

                         "(1) Preventing or remedying, or assisting in the solution of problems which may result in families in conflict, or the neglect, abuse, exploitation, or criminal behavior of children;

                         "(2) Protecting and caring for homeless, dependent, or neglected children;

                         "(3) Assisting children who are in conflict with their parents, and assisting parents who are in conflict with their children with services designed to resolve such conflicts;

                         "(4) Protecting and promoting the welfare of children, including the strengthening of their own homes where possible, or, where needed;

                         "(5) Providing adequate care of children away from their homes in foster family homes or day care or other child care agencies or facilities."

 3/child Protective Services is a part of the Department of Social and Health Services.  The Department is the agency with overall responsibility for investigating complaints of abuse and neglect.  Thus, to be consistent, this opinion will refer to the Department of Social and Health Services rather than to Child Protective Services.

 4/RCW 74.13.031 previously provided in part:

             The Department  . . . shall:

                          . . .

                         (3) Investigate complaints of neglect, abuse, or abandonment of childrenby parents, legal custodians, or persons serving in loco parentis, and on the basis of the findings of such investigation, offer child welfare services  . . .

                          . . .

 Laws of 1982, ch. 118, § 3. p. 522 (emphasis added).  The underlined portion was deleted in 1983 and the proviso was added.

 5/Prior to 1982, "child abuse or neglect" was defined in part as "injury, sexual abuse, sexual exploitation, or negligent treatment or maltreatment of a child by a person who is legally responsible for the child's welfare under circumstances which indicate that the child's health, welfare and safety is harmed thereby."  Laws of 1981, ch. 164, § 1, p. 804.

 6/See alsoIn re Hansen, 24 Wn. App. 27, 599 P.2d 1304 (1979).

 7/However, upon receipt of a report of death or physical injury by other than accidental means or a report of sexual abuse, the Department must notify the proper law enforcement agency.  RCW 26.44.030(3).

 8/For instance, we can foresee the possibility that abuse by a neighbor may be directly related to abuse by a parent or guardian (as where the parent or guardian and the neighbor are collaborating in the abuse) or where the abuse by the neighbor is directly attributable to neglect by the parent or guardian (as where the parent or guardian has negligently or knowingly placed the child in a situation where abuse might occur).  Naturally, we cannot anticipate all possible fact patterns.