The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5396

December 11, 1978

CHILD PROTECTION LAW:

Teachers

SCHOOLS AND SCHOOL DISTRICTS:

Teachers subject to the Child Protection Law

DEPARTMENT OF SOCIAL SERVICES:

Teachers subject to Child Protection Law

The Child Protection Law vests the Department of Social Services with the authority and responsibility to investigate situations where children are abused by a teacher or a school administrator in a public or private school. In conducting an investigation of alleged teacher abuse of a pupil, the Department should coordinate its actions with those of the parent or legal guardian.

John T. Dempsey

Director

Michigan Department of Social Services

300 South Capitol Avenue

Lansing, Michigan 48926

You have requested my opinion on a question which may be stated as follows:

Does the Child Protection Law, 1975 PA 238, MCLA 722.621 et seq; MSA 25.248(1) et seq, grant the Michigan Department of Social Services authority to intervene on behalf of children when they are abused by a teacher in either a public or private school?

The purpose of the Child Protection Law, supra, as stated in its title, (1) is to prevent child abuse and neglect. To effectuate such purpose, the act empowers the Department of Social Services to investigate reports of suspected abuse or neglect and provide or secure services necessary to protect children who are abused or neglected.

1975 PA 238, Sec. 2(b), supra, defines the term child 'abuse,' to mean:

'. . . harm or threatened harm to a child's health or welfare by a person responsible for the child's health or welfare which occurs through nonaccidental physical or mental injury, sexual abuse, or maltreatment.' (Emphasis added)

Thus, the critical issue is whether a teacher or other member of the staff of a school is 'a person responsible for the child's health or welfare' within the meaning of this act.

The Child Protection Law, supra, does not contain a definition of 'a person responsible for the child's health or welfare' and the legislative history of the act is silent as to whether school personnel were intended to be included as such.

In the absence of a statutory definition of a term, it must be given its plain and ordinary meaning, for it is to be presumed that the legislature, not having indicated otherwise, so intended. Bingham v American Screw Products Co, 398 Mich 546; 248 NW2d 537 (1976).

Black's Law Dictionary (rev 4th ed, 1968) defines 'responsible' as follows:

'Liable, legally accountable or answerable. [citations omitted] Able to pay a sum for which he is or may become liable, or to discharge an obligation which he may be under. [citation omitted].'

In Gaincott v Davis, 281 Mich 515, 518-519; 275 NW 229 (1937), the Michigan Supreme Court, in discussing the potential liability of a teacher for injury to a pupil, reiterated the following common law rule:

'At least in a limited sense the relation of a teacher to a pupil is that of one in loco parentis. We are not here concerned with the law applicable to punishment of a pupil by a teacher; but rather with the law applicable to the duties of a teacher in the care and custody of a pupil. In the faithful discharge of such duties the teacher is bound to use reasonable care, tested in the light of the existing relationship. If, through negligence, the teacher is guilty of a breach of such duty and in consequence thereof a pupil suffers injury, liability results. It is not essential to such liability that the teacher's negligence should be so extreme as to be wanton or wilful.'

See also, Lovitt v Concord School Dist, 58 Mich App 593; 228 NW2d 479 (1975).

Because a teacher or school administrator has responsibility and authority to control a pupil while school is in session as the substitute for the child's parent or legal guardian the legislature intended to include such individuals as persons responsible for the child's health or welfare. The purpose of the Child Protection Law is to protect children against abuse by persons who exercise authority over them. This conclusion is further supported by Sec. 8(4) of the Child Protection Law, supra, which provides as follows:

'If there is reasonable cause to suspect that a child in the care of or under the control of a public or private agency, institution, or facility is an abused or neglected child, the agency, institution, or facility, shall be investigated by an agency, administratively independent of the agency, institution, or facility being investigated.'

In interpreting a statute, effect must be given, if possible, to every word, sentence and section thereof so that the entire act is read and a particular word interpreted in a manner which produces a harmonious and consistent enactment. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 91 NW2d 307 (1971).

1975 PA 238, Sec. 3(1), supra, identifies persons required to report suspected child abuse or neglect to the Department of Social Services including school administrators, school counselors or teachers. In addition to persons required to report to the Department when they have reasonable cause to suspect child abuse or neglect, some of whom may be employees of the Department itself, 1975 PA 238, Sec. 4, allows any person with such information to report to the Department or a law enforcement agency.

1975 PA 238, Sec. 8, supra, outlines the responsibilities of the Department upon receipt of a report of suspected child abuse or neglect which are investigatory in nature and particularly Sec. 8(2) of the act provides:

'In the course of its investigation, the department shall determine if the child is abused or neglected. The department shall cooperate with law enforcement officials, courts of competent jurisdiction, and appropriate state agencies providing human services in relation to preventing, identifying, and treating child abuse and neglect; shall provide, enlist, and coordinate the necessary services, directly or through the purchase of services from other agencies and professions; and shall take necessary action to prevent further abuses, to safeguard and enhance the welfare of the child, and to preserve family life where possible.'

All the above mandatory obligations placed upon the Department during such investigation make it incumbent that where a teacher or a school administrator is suspected of child abuse, the Department contact that child's parents or legal guardian, ascertain whether the parent or legal guardian intends to proceed in a manner which will obviate the need for the Department to provide or secure services for the child or person committing the abuse and if the parents or legal guardian can do so, assist them in a manner compatible with 1975 PA 238, Sec. 8(2), supra.

In conclusion, it is my opinion that the Child Protection Law grants to the Michigan Department of Social Services the authority and indeed the responsibility to investigate situations where children are abused by a teacher or other school administrators in either a public or private school and requires the Department, during the course of such investigation to take such action as is necessary to insure the welfare of such children. In such investigation, the Department should make every effort possible to coordinate its actions with those of the parent or legal guardian.

Frank J. Kelley

Attorney General

(1) The title to the act states:

'AN ACT to require the reporting of child abuse and neglect by certain persons; to permit the reporting of child abuse and neglect by all persons; to provide for the protection of children who are abused or neglected; to authorize limited detainment in protective custody; to authorize medical examinations; to prescribe powers and duties of the state department of social services to prevent child abuse and neglect; to safeguard and enhance the welfare of children and preserve family life; . . .'