Untitled Texas Attorney General Opinion ( 1961 )

THEA~TORNEYGENERAL
OF TI?ExAs
AUSTIN ~.TEXAS
W’II& WILSON
A-JX-ORNEX- OENERAL March 29, 1961
Honorable Joe Resweber opinion No. w-1031
County Attorney
Harris County Re: Whether a Chief Probation
Houston, Texas Officer has the authority
to consent to an operation
on a dependent child placed
in his cus.todyby 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'udgelssignature
necessary on this form, either as the person
giving consent for su'chmedical care a.nd/cr
in addition to signature of the Chief of Proba-
tion Officer as legal custodian?"
The subject of juvenile cotirtssnd 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^eeo11rt
"^25 gards of t;hestate, 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'ecare 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 ,trainingof 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'nits 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~chchild 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, C;393) of that State. See In Re Rolkowitz,
25,N.Y.s. ?-2d) 625. 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 .juvenilelaws,
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 - rlhenthat right of cus~todyand 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:sbeen 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 ~continueuntil 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 4 (ww-1031)
authority to sign a "consent for operation" form for a juve:
nile ward under his control.
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