Cornhusker Christian Children's Home, Inc. v. Department of Social Services of State of Neb.
| Decision Date | 11 December 1987 |
| Docket Number | No. 86-055,86-055 |
| Citation | 227 Neb. 94,416 N.W.2d 551 |
| Parties | CORNHUSKER CHRISTIAN CHILDREN'S HOME, INC., a Nebraska Nonprofit Corporation, Appellee, v. DEPARTMENT OF SOCIAL SERVICES of the STATE OF NEBRASKA et al., Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Declaratory Judgments: Appeal and Error. In an appeal from a declaratory judgment, the Supreme Court, regarding questions of law, has an obligation to reach its conclusion independent from the conclusion reached by the trial court.
2. Administrative Law: Minors: Public Policy. Public policy in Nebraska does not prohibit the Department of Social Services of the State of Nebraska from enacting a regulation proscribing the use of physical punishment in licensed child-caring facilities.
3. Minors: Words and Phrases. A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.
4. Administrative Law: Minors. Neb.Rev.Stat. § 43-708 (Reissue 1984) does not provide an agency standing in loco parentis with an affirmative right to inflict corporal punishment upon children residing in licensed child-caring facilities. Section 43-708 simply limits the Department of Social Services' power to forcibly remove a child from the home of his parents or guardian, or one standing in loco parentis prior to State intervention into the parent-child relationship.
5. Administrative Law: Parental Rights: Minors. Parents' natural and superior rights to have custody of their children have always been protected and maintained by the courts, but those rights are not absolute or inalienable, as society also has a paramount interest in the protection of the rights of children to be loved, to be cared for properly, and to have proper moral training and education. The State's parens patriae power obligates it to protect the welfare and interests of the child.
6. Administrative Law: Parental Rights: Minors. The parents' natural right to the care and custody of a child is limited by the State's power to protect the health and safety of children. An agency standing in loco parentis to a parent is similarly limited by the State's parens patriae power to protect the best interests and welfare of children within its jurisdiction.
7. Administrative Law: Parental Rights: Minors. A parent has a personal right to determine the appropriate discipline to be inflicted upon the child, but the State has a paramount interest in protecting the health and welfare of a child from parental discipline decisions which may cause the child emotional or physical harm. The State has a compelling interest in the health and safety of children within the State's jurisdiction.
8. Administrative Law: Statutes: Legislature. The Legislature can delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute.
9. Administrative Law: Statutes: Legislature. An administrative agency's rulemaking authority is limited to the powers delegated to the agency by the statute which the agency is to administer.
10. Administrative Law: Statutes: Legislature. An administrative agency's rulemaking authority is essential to the agency's exercise of its power in efforts to achieve a purpose intended by the Legislature.
11. Administrative Law: Statutes: Legislature. The validity of an administrative agency's rule or regulation is contingent upon consistency with the statute under which the rule or regulation is promulgated.
Robert M. Spire, Atty. Gen., and Royce N. Harper, Lincoln, for appellants.
Steven G. Seglin of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee.
This is an appeal from a judgment entered by the district court for Lancaster County in favor of Cornhusker Christian Children's Home, Inc. (Cornhusker), and against the Department of Social Services (DSS) of the State of Nebraska. In December 1984 Cornhusker brought a declaratory action, asserting that the DSS regulation in Neb.Admin.Code tit. 474, ch. 6, § 6-005.26K (1983) (Regulation 6-005.26K) contravenes state common and statutory law (Neb.Rev.Stat. §§ 28-1413 (Reissue 1985) and 43-708 (Reissue 1984)); exceeds DSS' authority under state law (Neb.Rev.Stat. § 71-1904 (Reissue 1986)); establishes an arbitrary and capricious classification between the regulation of physical punishment imposed in child-caring agencies and that of family day-care homes; and violates the Nebraska and U.S. Constitutions under the due process and equal protection clauses of U.S. Const. amend. XIV. The district court found that the public policy of the State of Nebraska authorizes the use of corporal punishment upon children residing in child-caring facilities. The district court further found that a parent may delegate authority to administer reasonable corporal punishment and that persons in loco parentis have the authority to use reasonable corporal punishment for discipline and control of children placed in their care. The district court also found that the distinction made by DSS between child-caring facilities and family day-care homes with respect to the use of corporal punishment was arbitrary and capricious. The district court then held that the subject regulation was void and unenforceable, since it exceeded the authority and power granted to DSS under state law. DSS has appealed and requests that this court reverse the judgment of the district court, thereby upholding the regulation and the prohibition against the use of physical punishment as a proper expression of DSS' duty to promulgate rules necessary for the care and protection of children in Nebraska.
Cornhusker is a nonprofit corporation licensed by the State of Nebraska as a child-caring agency to provide 24-hour residential care for children placed in the agency by parents, courts, and DSS. Timothy Loewenstein, a member of Cornhusker's board of directors, described the Cornhusker home as composed of a number of cottages under the control of various houseparents who assume the responsibility of representing the children's parents. Situated on a 160-acre ranch, each cottage consists of a large, seven-bedroom home containing kitchen and dining room facilities, a social area, and a bedroom area. Cornhusker is licensed to provide necessary care for 19 children; the home presently cares for 4 girls and 11 boys, ranging in age from 8 to 16 years. In recent months two of the children were placed in the home by the State, and the remainder of the children were privately placed by their parents or guardians. Since Cornhusker's inception as a child-caring agency, approximately two-thirds of the children have been placed in the home by the courts.
Loewenstein also testified that Cornhusker's primary responsibility is to provide a suitable environment for the care and proper development of the children under its control. Between 1973 and 1983, an established ingredient of Cornhusker's disciplinary policy endorsed the spanking of children on the buttocks for purposes of discipline and control. The precise language of this pre-1983 disciplinary policy provided for the use of "[c]orporal punishment such as a spanking on the buttocks by the open hand or a suitable instrument for the purpose of inflicting temporary pain."
In September 1983 DSS promulgated a regulation prohibiting the use of physical punishment in child-caring agencies. The regulation is expressed in Regulation 6-005.26K:
Discipline: Each agency shall develop written policies regarding discipline.
Agency staff shall:
1. Use discipline only as a learning process in which certain specified consequences are the result of unacceptable behavior; and
2. Never use the following as discipline:
a. Physical punishment or abuse;
b. Denial of necessities;
c. Chemical or mechanical restraints; or
d. Derogatory remarks, abusive or profane language, yelling or screaming, or threats of physical punishment.
Under Regulation 6-005.26K, physical punishment was prohibited in all child-caring facilities licensed by DSS; however, the limited use of physical punishment was allowed in family day-care homes. Under protest, Cornhusker amended its disciplinary policy to conform to Regulation 6-005.26K, which prohibited the use of physical punishment, in order to ensure that its license would be renewed as a child-caring facility.
Prior to October 1983, DSS approved of Cornhusker's disciplinary policy authorizing a houseparent to spank a child on the buttocks by applying an open hand or a suitable instrument for the purpose of inflicting temporary pain. Loewenstein testified that the former policy approving corporal punishment was applied as a last resort under controlled situations, and only after explaining to the child the reason for such an application of spanking, followed by the administration of the spanking itself. According to Loewenstein, physical punishment had the power of a deterrent, and corporal punishment was necessary to cause a child to change his behavior and conform with the standards that were expected. In the absence of corporal punishment, Cornhusker has encountered various difficulties with the children's behavior. Cornhusker's former policy of spanking children promoted the welfare of the children entrusted to Cornhusker's care. Every parent who has made a private placement of his or her child with Cornhusker has expressly granted permission or encouraged Cornhusker to apply corporal punishment when the child disobeys the policies or rules of the home. However, Cornhusker has not used corporal punishment to effectuate its disciplinary policies subsequent to...
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