NOT A MINOR DETAIL

July 19, 2011

AN OUTLINE TO THE LEGAL ASPECTS OF YOUTH PROGRAMMING

Matt Campbell, J.D.
Assistant Director, Campus Recreation
Marshall University

In a time where most campus recreation programs are laboring to produce revenue, youth programming offers an economically viable and administratively practical option. Most youth programming is run during off-peak times for campus recreation, namely the summer months and holiday breaks when student usage is less. However, youth programming also entails unique and, in most instances, greater legal responsibility – namely the supervision of minors. This article will lay out basic issues from starting a youth program, selecting a staff, and running the program.

The term “minor” itself is a legal term differentiated from child, kid, adolescent, or youth. The term minor is defined as “someone who has yet to reach the legal age at which [they are] responsible for his/her own actions.” West’s Encyclopedia of American Law (2nd ed. 2008). Since a minor is not of sufficient age to be responsible for their own actions that means that the responsibility will shift to some other person or entity to be responsible for them. Under the American common law, this responsibility shifts to the parent/guardian. A legal relationship exists between a parent/guardian and a child where the parent/guardian is responsible for the health, safety, well-being, support, and control of the minor. But what happens when the parent is not in control of the child? This legal relationship then shifts to the provider of care when the provider has stepped into the role of parent, commonly referred to as “in loco parentis.” West’s Encyclopedia of American Law (2nd ed. 2008). The question of whether a person/entity acting in place of the parent has these responsibilities is contingent upon whether the person/entity intended to undertake them. West’s Encyclopedia of American Law (2nd ed. 2008). Under this standard, it would appear that youth programming taking place in a recreation center would qualify as in loco parentis.

While the in loco parentis standard is common law duty owed towards minors, many states create statutes specifically regulating daycare, camps, and other child care services. Often, these legal duties enforced in the statute are much more specific, and require annual inspections, fees, and reporting. These statutes vary from state to state, and it is important to check the state code prior to starting a youth program to ensure compliance with state regulations. All state codes are available online through the state government websites. These statutes are enforced typically by a state agency responsible for child welfare and protective services. The state agency will often layout minimum qualifications for providers and staff, including education, background checks, and first responder skills.

For instance, in West Virginia, the agency responsible for enforcing child welfare laws is the Department of Health & Human Resources. Some of the purposes explicated stated in the West Virginia Code include:

• To establish statewide rules for regulating programs as defined in this article;
•  To encourage and assist in the improvement of child care programs;
• To ensure that persons and entities offering child care are not unduly burdened by licensure and registration requirements; and
• To ensure that all child care programs be safe, reliable and geared to the ages and needs of the children they serve, meet basic health and safety standards, and employ people who have the training and experience needed to work with children.

W. Va. Code § 49-2B-1 (2008)

Once a license is applied for, an investigation of the facility, program, and persons responsible for the care of the children. The investigation includes, but is not limited to, criminal personnel records, institutional financial records, fire and environmental safety compliance, and equipment safety inspections. If the program passes investigation and is approved, the next step will be to hire a staff.

Staffing for youth programming at a college recreation center is often centered on student employees. While student employees are the backbone of operating a recreation center, it is important that you check with the governing agency, as some states impose mandatory qualifications for the staff such as age, background checks, licensing, and education. For example, in West Virginia, the director must be at least twenty-one years old and meet additional educational, training and work experience requirements depending on the number of children to be served. Further, a teacher/counselor must be at least 18 years old, have one year of relevant work experience, and meet additional training requirements. See West Virginia Department of Health & Human Resources, Division of Early Care and Education, available at http://www.wvdhhr.org/bcf/ece/earlycare/documents/Daycare_Information_Packet_web.pdf.

Many character traits such as personality, education, and interests must be evaluated when hiring staff. However, an application, interview, and a “good feeling” about an applicant may not be enough to satisfy the legal responsibility of hiring a staff. Some states require background checks for all staff working with children. However, even if not statutorily imposed, it is highly recommended that background checks be conducted on staff members prior to hiring. A background check to ensure that applicants do not have outstanding warrants or have committed felonies, particularly those of violent, sexual, or physical nature is important to insulate the program from a negligent hiring claim. Further, a third-party background check will shift the burden to the organization doing the background check. Typically the University Human Resources Department has a proscribed method for background checks and it is important that they are involved with the legal and financial burdens of procuring background checks for employees.

Even after a license is secured and a staff has been hired, there are still many legal issues to consider. There are specific incidents which may arise with youth programming that are distinct from other campus recreation programs, and a comprehensive Emergency Action Plan (EAP) must be developed and tailored with the concept of in loco parentis in mind. Even something as simple as a fire evacuation EAP changes when the program has stepped into the role of parent, and all campers must be accounted for and supervised during an evacuation. Examples of other scenarios which need to be considered include missing campers, heat & sun emergencies, swimming & water emergencies, and allergic reactions. One way to help handle these situations is to utilize a health history form to pre-screen the minor for any potential issues. These forms are important for communicating if the minor has any special needs, restrictions, medications, or adverse reactions which the program will be responsible for monitoring and managing. It is imperative that the program be proactive rather than reactive when dealing with an emergency situation, and a health history form is one way to stay ahead of any potential situations.

Another issue unique to youth programming has to do with parental rights and specifically policies regarding pick-up procedures. It is an unfortunate truth that there are situations where a biological parent may not have legal rights to custody and parenting time. In this situation, it is imperative that the parent or guardian signing the release also registers all persons who are permitted to pick-up the child. Then, the program staff must understand the importance of not releasing a minor to someone who is not listed as an authorized adult. The culpability associated with a program releasing a minor to someone who is not permitted to remove them from the program is enormous, and any resulting harm would be the responsibility of the program.

While this article has covered some of the key issues behind starting and operating a youth program, there are many more issues involved – ranging from national accreditation, staff training, activities and travel, signs of child abuse/neglect and mandatory reporting, camper to counselor ratios and more. Ultimately, youth programming can be an excellent source for generating revenue. But before the revenue can be realized, it is essential that all the legalities have been considered to ensure that the program is not opening itself to costly litigation.