Request By:
Mr. Ryan M. Halloran
General Counsel
Cabinet for Human Resources
Office of the Counsel
275 E. Main Street - 4 West
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
This is in response to your request concerning the Cabinet for Human Resources (CHR) personnel interviewing children on school premises without consent of parents in the course of an abuse investigation. Under KRS 199.335 CHR has interviewed children alleged to be victims of abuse on school premises without notification of parents. However, the 1986 General Assembly enacted a new Juvenile Code, which becomes effective July 1, 1987, and as a result recodified KRS 199.335 in KRS 620.030, 620.040, and 620.050. Apparently, inadvertently the following language of KRS 199.335 was deleted from KRS 620.050(3):
"The bureau may request and shall receive from any agency of the state or any other agency, institution or facility providing services to the child or his family, such cooperation, assistance and information as will enable the bureau to fulfill its responsibilities."
Your specific question is whether the new statute requires schools to permit CHR to interview children on school premises without consent of parents in the course of an abuse investigation.
In past opinions our office has relied on the above quoted language, as well as other provisions, to interpret KRS 199.335 as requiring schools to cooperate with CHR in allowing school premise interviews with children without the consent of parents. See OAG 80-50 and OAG 85-134. In OAG 85-134 we pointed out several policies supporting our conclusion:
"We believe that for the school to notify the parent prior to the interview may not aid the Department in its investigation, but may have the opposite effect. For example, if the school notifies the parent of the impending interview, it may give an abusive parent either the opportunity to so intimidate the child that he or she will be afraid to tell the truth, or to rehearse the child in a plausible story to explain away evidence of abuse, or to remove the child completely so the Department has no opportunity to speak to the child.
If the school informs the parent after the interview, it may still impede the investigation. The parent may then remove the child from the Department's jurisdiction or abuse the child in an effort to deter the child from speaking to the interviewer.
Once a report has been made, the Department has authority over the investigation of suspected child abuse, and it is not within the purview of the school to interpose its judgment as to informing the parent. As OAG 77-365 stated, 'We believe that this statute places abused children under the jurisdiction of the Bureau for Social Services. It also provides all the safeguards as to privacy, confidential informants and due process.'"
These policy concerns are no less applicable today than when they were discussed in OAG 85-134. In light of these policies, we believe the more reasonable conclusion is that pursuant to KRS 620.050 and the state's general police powers, CHR should expect and obtain the continued cooperation of other state agencies and institutions in its investigation of child abuse cases. The relevant provision of KRS 620.050 is found in subsection three:
"(3) Upon receipt of a report of an abused or neglected child pursuant to this section, the department as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action and shall offer protective service toward safeguarding the welfare of the child, preventing further abuse or neglect of the child or any other child under the same care, preserve and strengthen family life, where possible, by enhancing parental capacity for adequate child care." (Emphasis added).
Once again as pointed out in OAG 85-134, "prompt" may mean at school so as to allow CHR to obtain evidence of alleged abuse or neglect while such evidence is still readily available. Or school may be where the child is located when information indicating an emergency has been reported. It appears that the legislature, through its mandate to "take necessary action" and "offer protective service toward safeguarding the welfare of the child, preventing further abuse or neglect of the child", has provided CHR with the authority to obtain cooperation from other state agencies and institutions.
In considering the scope of the state's police power, the Kentucky Court of Appeals has stated:
"The police power is as broad and comprehensive as the demands of society make necessary [Citation omitted.]. It must keep pace with the changing concepts of public welfare."
Jasper v. Commonwealth, Ky., 375 S.W.2d 709, 711 (1964).
Given the mandate of KRS 620.050 to initiate a prompt investigation, take necessary action to offer protective service, safeguard the welfare of the child, and prevent further abuse or neglect, and the police power of the state, we are of the opinion that schools must continue to allow CHR to interview children on school premises without consent of parents in the course of an abuse investigation if that is the course of action determined appropriate by CHR.
Even though the new statutes, as interpreted in this advisory opinion, appear to enable CHR to continue interviewing children on school premises without the consent of parents, we suggest that the deletion from KRS 620.050 be brought to the attention of the legislature so that the statute may be amended and the intent of the legislature clarified.