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AGO 1972 No. 6 - February 08, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

COURTS ‑- JUVENILE ‑- APPLICABILITY OF RCW 74.15.090 TO UNLICENSED FOSTER HOMES RECEIVING DELINQUENT OR DEPENDENT CHILDREN PURSUANT TO COMMITMENTS BY JUVENILE COURTS

It is not lawful for an "agency" as defined in RCW 74.15.020 to receive and care for a child found by a juvenile court to be delinquent or dependent without being licensed by the department of social and health services in accordance with chapter 172, Laws of 1967 (chapter 74.15 RCW), notwithstanding that the child is placed with such an unlicensed agency pursuant to an order of the court entered under RCW 13.04.095.

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                                                                 February 8, 1972

Honorable Sidney E. Smith
Secretary, Department of
Social and Health Services
P.O. Box 1788
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1972 No. 6

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Is it lawful for an "agency" as defined in RCW 74.15.020 to receive and care for a child found by a juvenile court to be delinquent or dependent without being licensed by the department of social and health services in accordance with chapter 172, Laws of 1967 (chapter 74.15 RCW) where the child is placed with such an unlicensed agency pursuant to an order entered under RCW 13.04.095?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 74.15.090, codifying the provisions of § 9, chapter  [[Orig. Op. Page 2]] 172, Laws of 1967, states in unequivocal terms that:

            "It shall hereafter be unlawful for any agency to receive children, expectant mothers or adult retarded persons for supervision or care, or arrange for the placement of such persons, unless such agency is licensed as provided in chapter 74.15, RCW 74.32.040 through 74.32.055 and 74.13.031."

            The referenced RCW sections in this statute codify other portions of this same 1967 act by which the legislature established a comprehensive set of procedures for the licensing of agencies caring for children away from their own homes.  A significant purpose of this act, as set forth in RCW 74.15.010 (5), is

            "To license agencies as defined in RCW 74.15.020 and to assure the users of such agencies, their parents, the community at large and the agencies themselves that adequate minimum standards are maintained by all agencies caring for children, expectant mothers and adult retarded persons."

            The term "agency" is extensively defined in RCW 74.15.020 (3) in both inclusive and exclusive terms.  It means

            ". . . any person, firm, partnership, association, corporation, or facility which receives children, expectant mothers or adult retarded persons for control, care or maintenance outside their own homes, . . ."

            including group-care facilities, child-placing agencies, maternity services, day-care centers and foster-family homes ‑ all as specifically defined in this subsection, butexcluding the following:  Persons who are related by blood or marriage to the subject child within certain specified degrees; persons who are legal guardians of the child; persons who care for a neighbor's or friend's child or children without compensation on an irregular basis; nursery schools or kindergartens; schools (including boarding schools) which are primarily engaged in education and do not accept custody of children;  [[Orig. Op. Page 3]] seasonal camps of three months or less duration engaged primarily in recreational or educational activities; licensed hospitals, nursing homes and boarding homes; licensed physicians or lawyers; and certain other specifically described facilities.

            Your question assumes that the recipient of a particular child is an "agency" as thus defined, but has not obtained the required license specified in RCW 74.15.090,supra.  The second assumption upon which your question is based is that the child in question has been placed with this unlicensed agency pursuant to RCW 13.04.095, a part of our state's juvenile court act, which provides as follows:

            "When any child shall be found to be delinquent or dependent, within the meaning of this chapter, the court shall make such order for the care, custody, or commitment of the child as the child's welfare in the interest of the state require.  Subject to further order, the court may commit the child:

            "(1) To the care of such child's parents subject to supervision of the probation officer; or

            "(2) To the custody of a probation officer, subject to such conditions as the judge may impose; or

            "(3)To a reputable citizen or association able and willing to receive and care for such child; or

            "(4) To an appropriate private agency authorized to care for children; or

            "(5) To the department of public assistance; or

            "(6) To the department of institutions if the court finds such child to be delinquent, or a dependent child whose dependency arises from incorrigibility as defined by RCW 13.04.010 (7). . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]   We have underscored subsection (3) of this statute because it appears to be the only one of the six subsections contained therein the use of which could directly result in the situation conceived by your question.  Any commitments made pursuant to subsections (1), (2), (4), (5) or (6) would not result in a placement of the child with an unauthorized "agency" unless by way of some form of secondary placement (to be discussed separately below) for the following reasons:  With regard to subsection (1) a "parent" is expressly excluded from the definition of agency,supra.  In the case of subsections (2), (5) and (6), a commitment to a probation officer or a state department is outside of the scope of RCW 74.15.090, supra, under the rule that general statutes tending to restrain or diminish rights or interest are inapplicable to the state or its agencies unless made so expressly or by necessary implication.  See, e.g.,State ex rel. Thielicke v. Superior Court, 9 Wn.2d 309, 314, 114 P.2d 1001 (1941), in which the court expressed this rule as follows:

            "It is a well-established rule of ancient origin that a general statute which tends to restrain or diminish rights and interests should not be construed to apply to the sovereign government unless the same be comprised therein expressly by name or be included by necessary implication.  [Citations omitted.]"

            And finally, of course, a commitment under subsection (4) to a ". . . private agency authorized to care for children . . ." would of necessity be a commitment to a licensed "agency," supra.  Your question thus becomes primarily one of determining the relationship between two statutory propositions that may be enunciated as follows:

            (1) A juvenile court, upon finding a child to be dependent or delinquent, may commit the child "To a reputable citizen or association able and willing to receive and care for such child";

            (2) Such person or association, if an "agency" under RCW 74.15.020 (3), may not receive and care for such a child without obtaining a license under chapter 172, Laws of 1967, supra.

            When faced with an appearance of conflict between two  [[Orig. Op. Page 5]] statutes, our supreme court has ruled that before determining that one must be subordinated to the other, every attempt must be made to reconcile the conflict so as to preserve both provisions.  See, e.g.,Booth Fisheries Corp. v. Case, 182 Wash. 392, 47 P.2d 834 (1935), and cases cited therein.  One approach to be taken, in attempting to achieve such a reconciliation, is to consider the possibility that the two apparently inconsistent provisions actually relate to different subjects.  Rosenoff v. Cross, 95 Wash. 525, 164 P. 2d 236 (1917).  In the instant case, by a careful reading of the precise terms of the two statutes under consideration, we find this approach to be the key to the solution.

            RCW 13.04.095, it will thus be seen, deals with the authority of a juvenile courtto commit a dependent or delinquent child; whereas RCW 74.15.090 relates to the legal ability of an agency to receive and care for the child.  Unless licensed, the agency, although "willing" to take the child, can thus not be said to be "able" to do so for the term "able" denotes both physical and legal capacity.  A person, in order to be able, must (interalia) be "legally qualified to do a specified act."  See, Webster's New International Dictionary (at p. 4); alsoState ex rel. Dunlap v. Higbee, 43 S.W. 2d 825, 328 Mo. 1066 (1931), andTrammell v. Trammell, 138 S.E. 2d 562, 220 Ga. 293 (1964).

            Thus read, RCW 74.15.090 does not in any way impair the legal capacity of a court to place a dependent or delinquent child; rather, it merely affects the question of who may legally receive the child.1/   If the court places the child with an  [[Orig. Op. Page 6]] unlicensed "agency" it will be placing the child with a person who is unable to receive and care for the child because to do so would be "unlawful" ‑ since nothing contained in RCW 74.15.090 purports to except the receipt of a child pursuant to a court order under RCW 13.04.095 from the prohibition set forth therein.

            In order to sustain a contrary answer to your question (as paraphrased), one would have to be able to say that an unlicensed "agency" receiving a dependent or delinquent child pursuant to a court order would, by virtue of that fact, have a complete defense against the criminal liability which is imposed by RCW 74.15.150 upon "Any agency operating without a license" ‑ declared thereby to be a misdemeanor.  If the recipient had no choice in the matter and could be ordered to take the child "willing" or not, then perhaps such an argument could be made ‑ possibly on constitutional due process grounds.  However, such is not the case under RCW 13.04.095 (3), supra, for willingness as well as ability must exist before the commitment can be made.

            Another possible argument in support of a contrary answer to your question should also be noted before closing:  By reading "able" in subsection (3) of RCW 13.04.095 as including the concept of "legal authority" it may be suggested that we are creating a redundancy between that portion of the statute and subsection (4) which speaks of "an appropriate private agency authorized to care for children."

            If the licensing requirements of chapter 74.15 RCW (chapter 172, Laws of 1967) had already been in effect when RCW 13.04.095 was enacted, this argument would undoubtedly have some significant force and effect for it is well settled that, where possible, every statute should be construed so that no clause, sentence or word is superfluous.  Groves v. Meyers, 35 Wn.2d 403, 213 P.2d 483 (1950).  However, RCW 13.04.095 originated a number of years earlier, as § 6, chapter 302, Laws of 1961.  At that time, legal ability to receive and  [[Orig. Op. Page 7]] care for a child did not include a requirement of licensure in all of the situations now covered by the more recent, 1967, act.  Thus, a reading of "able" in subsection (3) as including the element of legal capacity or ability was perfectly permissible, notwithstanding the foregoing rule of construction, when the statute was first enacted.  All that we are doing now is giving effect to a later enactment by which the legislature has qualified the ability of certain persons to receive and care for children not their own by establishing a licensing requirement.

            Lastly, we turn to the matter of secondary placements which we understand also to be related to your present question.  Under certain circumstances an authorized "agency" or exempt person (e.g., a parent or a juvenile probation officer) with whom a child has been initially placed by the juvenile court will, thereafter (presumably with the court's approval) turn the child over to someone else to provide it with a foster home.  Of course, the answer here must be the same as above; i.e., the mere fact that the child has thus been placed with an unlicensed "agency" pursuant to court action will not immunize the agency from criminal liability under RCW 74.15.150,supra, in the absence of some provision in the governing provisions of chapter 74.15 RCW to that effect.

                        SUMMARY

            In view of all of the foregoing, we answer your question in the negative.  It is not lawful, in our opinion, for an "agency" as defined in RCW 74.15.020 to receive and care for a child as a result of any juvenile court order entered under RCW 13.04.095 without being licensed by the department of social and health services in accordance with chapter 172, Laws of 1967 (chapter 74.15 RCW).

            We trust that the foregoing will be of assistance.

Very truly yours,

SLADE GORTON
Attorney General


WALTER E. WHITE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We are aware, in passing, of an argument which has been suggested informally by the King county prosecuting attorney's office to the effect that an unlicensed "agency" receiving a delinquent or dependent child under a court order pursuant to subsection (3) of RCW 13.04.095, supra, would constitute an agent of the court so as to be excluded from the licensing requirements of chapter 74.15 RCW under the rule ofState ex rel. Thielicke v. Superior Court,supra.  Cf.,State ex rel. Richey v. Sup. Ct., 59 Wn.2d 872, 371 P.2d 51 (1962).  We think, however, that this argument fails to take appropriate account of the true thrust of the rule as above quoted; namely, that a legislative intent to derogate against the sovereign powers of a governmental entity is simply not to be assumed or casually implied.  The above demonstrated proposition that the legislation here in question does not purport to deal with the authority of the court to place a child but only with the legal ability of certain persons to receive the child thus renders the rule inapplicable here.

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