STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6900

May 9, 1996

CHILDREN'S OMBUDSMAN:

Authority to investigate complaints, investigate adoption

decisions and obtain adoption records

The Children's Ombudsman Act does not grant the children's

ombudsman the authority to investigate complaints about child
care organizations other than child placing agencies. However,
the Act does authorize the children's ombudsman to investigate
complaints about the conduct of the Family Independence Agency
(formerly the Department of Social Services) covered by the Act
even if that conduct involves a child care organization other than
a child placing agency.

The Children's Ombudsman Act gives the children's ombudsman

the authority to investigate adoption decisions of the Michigan
Children's Institute and to obtain adoption records of the
Michigan Children's Institute.

Richard S. Bearup

Ombudsman

Office of Children's Ombudsman

Lansing, MI 48913

You have asked two questions concerning the authority of the

children's ombudsman under the Children's Ombudsman Act
(Act), 1994 PA 204, MCL 722.921 et seq; MSA 27.3178(557.1) et
seq. Your first question may be stated as whether that Act grants
the children's ombudsman the authority to investigate complaints
about child care organizations other than child placing agencies.

£2£In section 1(a) of the statute addressing the licensing of child

care organizations, 1973 PA 116, MCL 722.111 et seq; MSA
25.358(11) et seq, the Legislature has defined child care
organization as follows:

"Child care organization" means a governmental or non-

governmental organization having as its principal function the
receiving of minor children for care, maintenance, training, and
supervision, notwithstanding that educational instruction may be
given. Child care organization includes organizations commonly
described as child caring institutions, child placing agencies,
children's camps, child care centers, day care centers, nursery
schools, parent cooperative preschools, foster homes, group
homes, or day care homes. [Emphasis added.]

Thus, the definition of child care organization includes both child

placing agencies and a number of other child care organizations.

In section 1(c) of 1973 PA 116 the Legislature has defined a child

placing agency as follows:

"Child placing agency" means a governmental organization or an

agency organized pursuant to the nonprofit corporation act, Act
No. 162 of the Public Acts of 1982, being sections 450.2101 to
450.3192 of the Michigan Compiled Laws, for the purpose of
receiving children for their placement in private family homes for
foster care or for adoption. The function of a child placing agency
may include the investigation of applicants for adoption and the
investigation and certification of foster family homes and foster
family group homes as provided in this act. The function of a child
placing agency may also include the supervision of children who
are 16 or 17 years of age and who are living in unlicensed
residences as provided in section 5(4). [Emphasis added.]

In light of this background, we turn to an examination of the Act

that sets forth the powers and duties of the children's
ombudsman. The goal of statutory construction is to ascertain
legislative intent. When the language used by the Legislature is
clear, no further interpretation is necessary. Owendale-Gagetown
£3£ School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d
529 (1982). Further, it must be noted that administrative
agencies have only those powers conferred upon them expressly
or by necessary implication by the Legislature. Coffman v State
Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322
(1951).

The authority of the children's ombudsman to investigate

complaints is set forth in section 6 of the Act as follows:

The ombudsman may do all of the following:

(a) Upon its own initiative or upon receipt of a complaint from a

complainant, investigate an administrative act that is alleged to
be contrary to law or rule, or contrary to policy of the department
or a child placing agency, imposed without an adequate
statement of reason, or based on irrelevant, immaterial or
erroneous grounds. [Emphasis added.]

The authority to investigate complaints is expressly limited to

child placing agencies. It does not include other child care
organizations.

This conclusion is reinforced by the definitions of administrative

act and child placing agency found in section 2(a) and (d) of the
Act:

(a) "Administrative act" includes an action, omission, decision,

recommendation, practice, or other procedure of the department
of social services, an adoption attorney, or a child placing agency
with respect to a particular child related to adoption, foster care,
or protective services. [Emphasis added.]

(d) "Child placing agency" means an organization licensed or

approved by the department of social services under Act No. 116
of the Public Acts of 1973, being sections 722.111 to 722.128 of
the Michigan Compiled Laws, to receive children for placement in
private family homes for foster care or adoption and to provide
services related to adoption.

£4£These definitions are expressly limited to child placing

agencies.
Under section 6 of the Act, the authority to investigate a
complaint is limited to investigating administrative acts. The
definition of administrative act in section 2(a) of the Act expressly
includes the conduct of child placing agencies but it does not
include the conduct of any other child care organizations.

Moreover, sections 7, 8 and 10 of the Act deal with various

aspects of the complaint investigation process. Each of these
sections also expressly refers to child placing agencies but not to
any other child care organizations.

This review of the Children's Ombudsman Act demonstrates that

the ombudsman's authority to investigate is limited to the
conduct of the Department of Social Services, adoption attorneys
and child placing agencies. The conduct that may be investigated
must relate to the adoption of or the provision of foster care or
protective services for a particular child.

Under section 6(a) of the Act, the children's ombudsman is

expressly authorized to investigate the conduct of the
Department of Social Services. That department is now known as
the Family Independence Agency under MCL 400.1(1); MSA
16.401(1), as amended by 1995 PA 223. The children's
ombudsman is expressly authorized to investigate complaints
about the conduct of the Family Independence Agency covered
by the Act even if that conduct involves a child care organization
other than a child placing agency.

£5£It is my opinion, therefore, that the Children's Ombudsman

Act does not grant the children's ombudsman the authority to
investigate complaints about child care organizations other than
child placing agencies. However, the Act does authorize the
children's ombudsman to investigate complaints about the
conduct of the Family Independence Agency (formerly the
Department of Social Services) covered by the Act even if that
conduct involves a child care organization other than a child
placing agency.

Before addressing your second question, it should be noted that,

under Executive Order 1996-1, at section III, paragraph C. 3., pp
10-11, the authority of the Family Independence Agency to
administer 1973 PA 116, which addresses the licensing of child
care organizations, has been transferred intact to the Director of
the Department of Commerce. Under Executive Order 1996-2,
section I, paragraph 1, the Michigan Department of Commerce
has been renamed the Michigan Department of Consumer and
Industry Services. Executive Order 1996-2 was signed by the
Governor on March 15, 1996, and it becomes effective sixty days
after filing.

You have also asked if the Act gives the children's ombudsman
the authority to investigate adoption decisions of the Michigan
Children's Institute (MCI) and to obtain adoption records of the
MCI.

In 1935 PA 220, MCL 400.201 et seq; MSA 25.381 et seq, the

Legislature created the MCI. The MCI exists within the Family
Independence Agency. See, section 2 of 1935 PA 220 and MCL
16.553; MSA 3.29(453). Children under seventeen are committed
to the care and custody of the MCI by probate court orders under
section 3 of 1935 PA 220. Under section 9 of the same act, the
superintendent of the MCI £6£may consent, among other things,
to the adoption of children who have been committed to the MCI.

Under sections 2(a), 3(1), and 6 of the Act, the children's

ombudsman is authorized to investigate the conduct of the
Family Independence Agency with regard to adoption, foster care
and protective services for particular children. This authority
includes the authority to investigate the adoption decisions of the
MCI since it is a part of the Family Independence Agency.

Section 11 of 1935 PA 220 provides that all records pertaining to

a child committed to the MCI shall be filed as confidential and not
be made subject to public disclosure, unless the Family
Independence Agency deems it necessary for the best interest of
the child. Section 8 of the Act provides, in pertinent part, that
upon the ombudsman's request, the Family Independence Agency
shall grant the ombudsman or its designee access to all relevant
information, records, and documents in its possession that the
ombudsman considers necessary in an investigation.
Furthermore, section 8 of the Act provides that the Family
Independence Agency shall assist the ombudsman to obtain the
necessary releases of those documents that are specifically
restricted. All records received by the ombudsman are subject to
confidentiality under section 9 of the Act.
Finally, section 68(21) of the Michigan Adoption Code, 1974 PA
296, MCL 710.68(21); MSA 27.3178(555.68)(21), provides that
the Family Independence Agency shall permit the children's
ombudsman to inspect adoption records in its possession in
connection with an investigation authorized under the Act.

Section 11 of 1935 PA 220 and section 8 of the Act, taken

together, demonstrate that the ombudsman is not part of the
public from which MCI confidential records are to be withheld
from disclosure. Moreover, section 68(21) of 1974 PA 296
expressly provides for the ombudsman's inspection of adoption
records.

It is my opinion, therefore, in answer to your second question,

that the Children's Ombudsman Act gives the children's
ombudsman the authority to investigate adoption decisions of the
Michigan Children's Institute and to obtain adoption records of
the Michigan Children's Institute.

Frank J. Kelley

Attorney General