Untitled Texas Attorney General Opinion

Hon. John H. Winters, Executive Director State Department of Public Welfare Austin, Texas Opinion No. V-497. Re: The necessity for individuals and county agencies, who place a child for adoption, to secure a license from the Child Wel- fare Division of the State De- partment of Public Welfare. Dear Sir: Reference is made to your request for an opin- ion on the above-captioned subject, from which we quote, in part, as follows: "The question has arisen as to the nec- essity for licensing Individuals who place children. Occasionally arrangements are made through an attorney or a physician for the placement of a child for adoption, l?o doubt, the attorney or the physician con- siders his action in placing the child as being to the best Interest of the child and the potential adoptive parents. Some attor- neys contend they can serve their clients in their legal capacity in this respect. Usually, there is no fee charged for the placement, but the action is taken gratult- ously at the request of the natural or adopt- ive parents. "It has always been the Interpretation of the Department of Public Welfare that under the statute any person or agency which places a child for adoption must have a ll- tense and that the degree or number of child- ren placed would not alter the situation. In other words, it has been our interpretation that individuals as well as organized agencies came within the scope of the statute. Hon. John H. Winters, Page,2, V-497. "OuP question is: Does an Individual who places a child either for pay or gratuit- ously come vithin the scope of Article 4442-a SO that a license by the Child Welfare Divi- sion of the State Department of Public Welfare is required? Does it alter the fact that the attorney or the physician Is acting in his professional capacity in serving either the natural parents or the foster'applicants? "In Opinion Bo. R-702 you answered our question regarding the inspection and llcen- ing of commercial boarding homes for chlld- ren. In that opinlon reference was also made to the responsibility of the State Department of Public Welfare in relation to the boarding homes selected by County Probation Departments in metropolitan areas for the temporary deten- tion of children pending investigation and court hearing; however, we shall appreciate your opinion and advice concerning the depart- ment's responsibility for lfcensing Probation Departments which place children for adoption or otherwise where there is no court order di- recting the placement. "Our question in this connection is: Are county agencies such as Probation Departments required to secure a license to place child- ren for adoption or othervise vhere they do so wlthout a court order directing the place- ment?" !Chepertinent excerpt from Article 4442a, V.C.S., on the licensing of child placing agencies, reads as fol- lows : %ec. 1. Every person, association or corporation, whether operating for charity or revenue, who shall own, conduct or manage a day nursery, children's boarding home, or child placing agency, or other place for the care or custody of children under fifteen years of age, or who.shall solicit funds In this State for any such place or institution, shall obtain an annual license from the State Board of Health, which license shall be is- sued without fee, and under such reasonable and uniform rules and regulations as said Hon. John H. Winters, Page 5, v-497 D Board shall prescribe . . ." As you have noted, Article 695e, V. C. S., transferred the foregoing authority and duty of li- tensing such agencies to the Child Welfare Division of the State Department of Public Welfare. Your first question refers to the applica- bility of the licensing statute to attorneys or phy- sicians who, acting in their professional capacity, place or assist in the placement of a child on occa- sions. It is our opinion that the necessity of se- curing such a child-placing license from the Child Welfare Division does not apply in the Instances you have mentioned. We quote the following from 57 Corpus Juria 215, Section 70: ” a The performance of a single D * act, or even a number of Isolated acts, pertaining to a particular business, does not constitute engaging in or carrying on such business within the meaning of a law imposing a license or tax thereon, unless an Intent to engage In the business is clearly apparent 0 . 011 Applicable to your particular inquiry, Artl- cle 4442a, V.C.S., requires a license of 'Every person . 0 D w-hoshall own, manage or conduct . . . a child placing agency." It does not state that a license Is required of every person who places a child. In order to constitute a situation necessitating the procure- ment of a child-placing license, the agency or instl- tution must be capable of being owned, conducted or managed, and must have for its motivating or primary purpose the conduct of a business or occupation of placing children. It is the nature of the agency which brings It within the scomthe llcenslna atat- ute, and ii must be characterized by the intention to pursue or follow the occupation of child placing. Clear- ly, this is not true of attorneys and physicians. In the case of Smith v. American Packing and Provision Company, decided by the Supreme Court of Utah, 102 Utah T51, 130 P (2d) 951, the contention was made that a State-licensed engineer had to secure a State Hon. John H. Winters, Page 4, v-497. license as an architect because he performed a remotely related but Isolated architectural function in the course of his engineering practice. The court used the follow- ing language in holding that it was not necessary to secure an architectural license: “The mere fact that a licensed profes- sion extends in some degree Into the field of some other licensed occupation, does not require the licensee to have a license In each of the fields into which his profession may overlap, unless the statutes impose such requirement. If a person had to have a li- cense in each field into which his chosen profession or calling might overlap In some degree, he might not only have to obtain nu- merous licenses In different fields to en- gage In the field in which he is specially trained and qualified, but he might be pre- vented from engaging in the field In which he is particularly well qualified for the reason he could not meet all of the quali- fications for license in other fields.” (Em- phasis added) Your second question inquires as to the appli- cability of the licensing stakute to “county agencies such as Probation Departments D We shall assume that you have reference to county agencies provided for under Title 82, V. C. S., on Juveniles, wherein are found stat- utes authorizing counties of various population brackets to establish County Juvenile Boards, which are to be dis- tinguished from probation officers authorized by the “Adult Probation and Parole Lsw,” Article 781b, V.C.C.P., pertaining exclusively to adults. The same considerations apply to County Juve- nile Boards, County Juvenile Officers and County Proba- tion Officers, authorized by Articles 5179-5142b, V.C.S., as apply to individuals discussed in answer to your first question. An individual act, or several Isolated acts, of placing a child does not constitute the officer or board a child-placing agency, We are not passing on the authority of such county agencies as you have mentioned to place child- ren for adoption, as such a consideration is not ap- plicable to your Inquiry. .’ . Hon. John H. Winters, Page 5, V-497. SUMMARY Article 4442a, V. C. S., insofar as It requires a license of child-placing agencies, does not apply to attorneys, physicians, county juvenile boards, couu- ty juvenile officers, or county ,probation officers who occasionally place a child for adoption or for custody pending adopt- ion. Your3 very truly, ATTORNEY GERRRAL OF TRXAS BY Assistant APPROVED: , P o4L.J AT%Y GENERAL. DJC:jmc