Attorney General Opinion WW-1031

THEA~TORNEYGENERAL OF TI?ExAs AUSTIN ~.TEXAS W’II& WILSON A-JX-ORNEX- OENERAL March 29, 1961 Honorable Joe Resweber County Attorney Harris County Houston, Texas opinion No. w-1031 Re: Whether a Chief Probation Officer has the authority to consent to an operation on a dependent child placed in his cus.tody by a Judge of Dear Nr. Resweber: the Juvenile Court? We are in receipt of your letter in which you request- ed an opinion from this office ccncerning questions raised by the Chief Probation Officer of Harris Ccunty. You stated in your letter that where a juvenile had been declared depend- ent and neglected by the Court, and where the Court has placed such juvenile in the Chief Probation Officer's custody, does such Probation Officer have the authority to sign a “consept for operation" form when the juvenile needs an operation, which includes the administration of anesthetics, and the hospital requires a consent form to be signed. Your second qu~estion is 6s follows: "Is the Juvenile Court Y'udgels signature necessary on this form, either as the person giving consent for su'ch medical care a.nd/cr in addition to signature of the Chief of Proba- tion Officer as legal custodian?" The subject of juvenile cotirts snd dependent and neglected children is covered by Title 43 of Yernon's Civil Statutes. Section 1, Article 2338-1, Verncn's Civil Statutes, prc- vides in part as follows: "The pri'ncipl? is hereby recognized that children under the ju"isdfcticn of ,tl^e eo11rt "^ 2 5 gards of t;he state, subject to th:? disci- pline and entitled to the protecticc of the state, which may intervene to safeguard them from neglect or inJury and to enforce the legal obligatisns due to them and from Wem.” Honorable Joe Resweber, page 2 (WW-1031) Article 2336 of Vernon's Civil Statutes provides as follows: "In any case where the court shall award any dependent or neglected child to the care of any individual or institution in accordance with the provisions of this title, the child, unless otherwise ordered, shall become a ward and be subject to the guardianship of the institution or individual to whos'e care it is committed. Such institution or individual shall, with the consent of the court, have authority to place such child in a suitable family home, the head of such family being respondible for the maintenance and educa- tion of said child. Any institution or individual receiving any such child under the order of the sourt shall be subject to visitation or inspection by any person appointed by the court for such wur- pose; and the court, may at any time, require from any institution or person a report containing such information as the court shall deem proper or neces- -7, to be fully advised as to the care, education, maintenance and moral and physical ,training of the child, as well as the standing and ability of such institution or individual to care for such child. The court may change the guardianship of such child, if, at any time, it is made to appear to the court such change is to the best interest of the child. If, id the opinion of the court, the causes of the dependency of any child may be removec: under such conditions or supervisions for its care, protect- ion and maintenance as may bc imposed by the court, so long as it shall be for its best interests, the child may be permitted to remain i'n its own home and under the care and control of its own parent, parents or guardian, subject to the jurisdiction and direction of the court; and when it shall appear to the court that it is no longer to the best interests of sl~ch child to remain with such parents or guardian, the court may proceed to a final disposition of the case." The Legislature has further provided in Section 5 of Arti- cle 2338-1, Vernon's Civil Statutes, that the jurisdiction of the juvenile court is a continuing one until said ward be- comes twenty-one (21) years of age unless discharged prior to that time. Honorable Joe Resweber, page 3 (WW-1031) Our statutes are silent as to giving direct authority to the courts or-individual guardians to authorize specific operations where such ward is in need of same such as is provided for by the Constitution of New York (Art.6, par.18 as amended) and by Statute (Laws of 1922, C-547, amended by Laws of 19 0, 25,N.Y.s. ? C;393) of that State. -2d) 625. See In Re Rolkowitz, We have not been, able to find any Texas cases where'the courts have written on the subject. The Supreme Court of the State of Washington, In Re Hudson, 126 P.2d 765 (1942), in discussing that State's .juvenile laws, which are similar to those of Texas, stated at page .'76: "The underlyIng reason for the creation of juvenile courts was to take in hand by the state, as a protector and guardian, the child who had commenced to go wrong because either the unwillingness or inability of the natural parents to guide that child compelled the inter- ventfon of the state." ?he Court further stated at page 778: I, . D - rlhen that right of cus~tody and control is forfeited by neglect of parents to care for the child, guardianship of the child may be awarded to another, who thereby succeeds to all the rights of the natural guardian whose obliga- tfon to provide the minor child with necessar?es of life the successor legal guardian assumes. . u *" It is our opinion that once a child hg:s been judicfally determined to be dependent and neglected and is removed from the control of the parents, he becomes a ward of the state. It is our opinion that the state succeed:: to the rights of the parents, which would include the authorization for an opera- tion or other medical care when said ward is in need of it. While Article 2336, Vernon's Cfvfl Statutes, gives -to the Juve- nile Court the authority of placement of such ward and pro- vides that such ward "shall become a ward and be subject to the guardianship of the institution or Individual to whose care it is committed," it confers in addition upon the Juvenile Court a contintitg Tupervision of the ward. Such supervision shall ~continue until said ward becomes twenty-one (21) years of age or until said ward is discharged from its jurisdiction. In answer to your firstquestion, It is our opfnlon that the Chief Probation Officer does not have the independent Honorable Joe Resweber, page authority to sign a "consent nile ward under his control. 4 (ww-1031) for operation" form for a juve: In answer to your second question, it is our opinion that the juvenile court stands in loco parentis to the ward, and standing in that position exerts that authority which has long been recognized as being reserved only to parents. Since our Legislature has recognized that such children are wards of the State and "subject to the discipline and en- titled to the protection of the state" and recognizing further that there Is more responsibility assumed by the State than merely to declare a child dependent and neglected and taken from its unhealthy environment, they have clothed such court with a mantle of continuing protection and supervision until the ward reaches his majority or until such time as such court may deem it to the best interest of the ward to be dis- charged~. It is our opinion that it was the intention of the Legislature that a decision which may result in life or death of one of its wards is reserved only to the court of that jurisdiction which has assumed the responsibilities of the State as is provided by statute. SUMMARY The Chief Probation Officer, in whose ' custody a Juvenile Court has placed a dependent and neglected child, does not have the individual authority to sign a "consent for operation" form when such juvenile needs an operation and the hos- pital requires a consent form to~be signed. The Judge of the Juvenile Court has the au- thority to sign a "consent for operation" form where an operation is needed by a juve- nile who has been placed in the custody of a Probation Officer. .\ .' Yours very truly, LFP:mm:ms Honorable Joe Resweber, page 5 (W-1031) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Jot Hodges, Jr. J. Arthur Sandlin Joe B. McMaster REXrImED FOR THE ATTORNEY GENERAL BY: Morgan Nesbltt