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. 6900

May 9, 1996

CHILDREN'S OMBUDSMAN:

Authority to investigate complaints, investigate adoption decisions and obtain adoption records

The Children's Ombudsman Act does not grant the children's ombudsman the authority to investigate complaints about child care organizations other than child placing agencies. However, the Act does authorize the children's ombudsman to investigate complaints about the conduct of the Family Independence Agency (formerly the Department of Social Services) covered by the Act even if that conduct involves a child care organization other than a child placing agency.

The Children's Ombudsman Act gives the children's ombudsman the authority to investigate adoption decisions of the Michigan Children's Institute and to obtain adoption records of the Michigan Children's Institute.

Richard S. Bearup

Ombudsman

Office of Children's Ombudsman

Lansing, MI 48913

You have asked two questions concerning the authority of the children's ombudsman under the Children's Ombudsman Act (Act), 1994 PA 204, MCL 722.921 et seq; MSA 27.3178(557.1) et seq. Your first question may be stated as whether that Act grants the children's ombudsman the authority to investigate complaints about child care organizations other than child placing agencies.

£2£In section 1(a) of the statute addressing the licensing of child care organizations, 1973 PA 116, MCL 722.111 et seq; MSA 25.358(11) et seq, the Legislature has defined child care organization as follows:

"Child care organization" means a governmental or non-governmental organization having as its principal function the receiving of minor children for care, maintenance, training, and supervision, notwithstanding that educational instruction may be given. Child care organization includes organizations commonly described as child caring institutions, child placing agencies, children's camps, child care centers, day care centers, nursery schools, parent cooperative preschools, foster homes, group homes, or day care homes. [Emphasis added.]

Thus, the definition of child care organization includes both child placing agencies and a number of other child care organizations.

In section 1(c) of 1973 PA 116 the Legislature has defined a child placing agency as follows:

"Child placing agency" means a governmental organization or an agency organized pursuant to the nonprofit corporation act, Act No. 162 of the Public Acts of 1982, being sections 450.2101 to 450.3192 of the Michigan Compiled Laws, for the purpose of receiving children for their placement in private family homes for foster care or for adoption. The function of a child placing agency may include the investigation of applicants for adoption and the investigation and certification of foster family homes and foster family group homes as provided in this act. The function of a child placing agency may also include the supervision of children who are 16 or 17 years of age and who are living in unlicensed residences as provided in section 5(4). [Emphasis added.]

In light of this background, we turn to an examination of the Act that sets forth the powers and duties of the children's ombudsman. The goal of statutory construction is to ascertain legislative intent. When the language used by the Legislature is clear, no further interpretation is necessary. Owendale-Gagetown £3£ School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d 529 (1982). Further, it must be noted that administrative agencies have only those powers conferred upon them expressly or by necessary implication by the Legislature. Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951).

The authority of the children's ombudsman to investigate complaints is set forth in section 6 of the Act as follows:

The ombudsman may do all of the following:

(a) Upon its own initiative or upon receipt of a complaint from a complainant, investigate an administrative act that is alleged to be contrary to law or rule, or contrary to policy of the department or a child placing agency, imposed without an adequate statement of reason, or based on irrelevant, immaterial or erroneous grounds. [Emphasis added.]

The authority to investigate complaints is expressly limited to child placing agencies. It does not include other child care organizations.

This conclusion is reinforced by the definitions of administrative act and child placing agency found in section 2(a) and (d) of the Act:

(a) "Administrative act" includes an action, omission, decision, recommendation, practice, or other procedure of the department of social services, an adoption attorney, or a child placing agency with respect to a particular child related to adoption, foster care, or protective services. [Emphasis added.]

 

 

(d) "Child placing agency" means an organization licensed or approved by the department of social services under Act No. 116 of the Public Acts of 1973, being sections 722.111 to 722.128 of the Michigan Compiled Laws, to receive children for placement in private family homes for foster care or adoption and to provide services related to adoption.

£4£These definitions are expressly limited to child placing agencies.

Under section 6 of the Act, the authority to investigate a complaint is limited to investigating administrative acts. The definition of administrative act in section 2(a) of the Act expressly includes the conduct of child placing agencies but it does not include the conduct of any other child care organizations.

Moreover, sections 7, 8 and 10 of the Act deal with various aspects of the complaint investigation process. Each of these sections also expressly refers to child placing agencies but not to any other child care organizations.

This review of the Children's Ombudsman Act demonstrates that the ombudsman's authority to investigate is limited to the conduct of the Department of Social Services, adoption attorneys and child placing agencies. The conduct that may be investigated must relate to the adoption of or the provision of foster care or protective services for a particular child.

Under section 6(a) of the Act, the children's ombudsman is expressly authorized to investigate the conduct of the Department of Social Services. That department is now known as the Family Independence Agency under MCL 400.1(1); MSA 16.401(1), as amended by 1995 PA 223. The children's ombudsman is expressly authorized to investigate complaints about the conduct of the Family Independence Agency covered by the Act even if that conduct involves a child care organization other than a child placing agency.

£5£It is my opinion, therefore, that the Children's Ombudsman Act does not grant the children's ombudsman the authority to investigate complaints about child care organizations other than child placing agencies. However, the Act does authorize the children's ombudsman to investigate complaints about the conduct of the Family Independence Agency (formerly the Department of Social Services) covered by the Act even if that conduct involves a child care organization other than a child placing agency.

Before addressing your second question, it should be noted that, under Executive Order 1996-1, at section III, paragraph C. 3., pp 10-11, the authority of the Family Independence Agency to administer 1973 PA 116, which addresses the licensing of child care organizations, has been transferred intact to the Director of the Department of Commerce. Under Executive Order 1996-2, section I, paragraph 1, the Michigan Department of Commerce has been renamed the Michigan Department of Consumer and Industry Services. Executive Order 1996-2 was signed by the Governor on March 15, 1996, and it becomes effective sixty days after filing.

You have also asked if the Act gives the children's ombudsman the authority to investigate adoption decisions of the Michigan Children's Institute (MCI) and to obtain adoption records of the MCI.

In 1935 PA 220, MCL 400.201 et seq; MSA 25.381 et seq, the Legislature created the MCI. The MCI exists within the Family Independence Agency. See, section 2 of 1935 PA 220 and MCL 16.553; MSA 3.29(453). Children under seventeen are committed to the care and custody of the MCI by probate court orders under section 3 of 1935 PA 220. Under section 9 of the same act, the superintendent of the MCI £6£may consent, among other things, to the adoption of children who have been committed to the MCI.

Under sections 2(a), 3(1), and 6 of the Act, the children's ombudsman is authorized to investigate the conduct of the Family Independence Agency with regard to adoption, foster care and protective services for particular children. This authority includes the authority to investigate the adoption decisions of the MCI since it is a part of the Family Independence Agency.

Section 11 of 1935 PA 220 provides that all records pertaining to a child committed to the MCI shall be filed as confidential and not be made subject to public disclosure, unless the Family Independence Agency deems it necessary for the best interest of the child. Section 8 of the Act provides, in pertinent part, that upon the ombudsman's request, the Family Independence Agency shall grant the ombudsman or its designee access to all relevant information, records, and documents in its possession that the ombudsman considers necessary in an investigation. Furthermore, section 8 of the Act provides that the Family Independence Agency shall assist the ombudsman to obtain the necessary releases of those documents that are specifically restricted. All records received by the ombudsman are subject to confidentiality under section 9 of the Act.

Finally, section 68(21) of the Michigan Adoption Code, 1974 PA 296, MCL 710.68(21); MSA 27.3178(555.68)(21), provides that the Family Independence Agency shall permit the children's ombudsman to inspect adoption records in its possession in connection with an investigation authorized under the Act.

Section 11 of 1935 PA 220 and section 8 of the Act, taken together, demonstrate that the ombudsman is not part of the public from which MCI confidential records are to be withheld from disclosure. Moreover, section 68(21) of 1974 PA 296 expressly provides for the ombudsman's inspection of adoption records.

It is my opinion, therefore, in answer to your second question, that the Children's Ombudsman Act gives the children's ombudsman the authority to investigate adoption decisions of the Michigan Children's Institute and to obtain adoption records of the Michigan Children's Institute.

Frank J. Kelley

Attorney General