MAYBERRY v. PRYOR, 422 Mich. 579 (1985)

374 N.W.2d 683

Docket No. 74387.Supreme Court of Michigan.Argued March 7, 1985 (Calendar No. 14).
Decided September 24, 1985.

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Allsopp, Fitzgerald Kolka (by William W. Allsopp) for the plaintiff.

Collison, Chasnis Dogger, P.C. (by John A. Chasnis), for defendants Pryor.

CAVANAGH, J.

This appeal presents three questions for our consideration:

1) May foster parents invoke the defense of parental immunity in negligence suits brought by or on behalf of a foster child placed in their care?

2) If so, does negligent supervision of a child fall within the purview of the parental immunity doctrine?

3) If so, is the reasonableness of the alleged parental conduct a question of law or fact?

We hold that foster parents cannot invoke the defense of parental immunity and therefore may be held liable for their negligent conduct which proximately causes injury to their foster child. In

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light of this holding, we need not address the remaining two questions.

I
Defendants Alfred and Carol Pryor were properly licensed by the Department of Social Services as foster family home parents. Justin Mayberry was placed in their home in October, 1977, after the Bay County Probate Court temporarily removed him from the custody of his natural mother, plaintiff Kay Mayberry.[1] At the time of the initial placement, Justin was twenty-two months old and deaf. Justin was briefly returned to Ms. Mayberry’s custody twice, but was removed to the Pryors’ home after appropriate hearings.

On November 18, 1979, Justin, then about four years old, was allegedly attacked by a German shepherd dog while sitting alone on the front porch of the Pryors’ home. Because of his deafness and inability to communicate, Justin was unable to cry out for help. As a result of the attack, he suffered serious injuries and permanent brain damage. Justin apparently has been placed in a state residential facility because of his physical and mental disabilities.

Ms. Mayberry filed a complaint in June, 1980, against the Pryors for negligent supervision, and against defendants Ralph and Susan Day, the owners of the dog. The Pryors moved for summary judgment on the ground that their foster parent status entitled them to invoke the defense of parental immunity. In March, 1982, the Saginaw Circuit Court granted the Pryors’ motion pursuant

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to GCR 1963, 117.2(3).[2] The Court of Appeals affirmed. 134 Mich. App. 826; 352 N.W.2d 322 (1984), and certified, pursuant to Administrative Order No. 1984-2, that its decision was in conflict with Grodin v Grodin, 102 Mich. App. 396; 301 N.W.2d 869
(1980), lv den 412 Mich. 867 (1981). We granted plaintiff’s application for leave to appeal. We directed the parties to brief whether Plumley v Klein, 388 Mich. 1; 199 N.W.2d 169 (1972), was properly applied to the instant case and whether foster parents may invoke parental immunity. 419 Mich. 901 (1984).

II
In Plumley, this Court joined a growing number of jurisdictions which have abolished the common-law rule that children cannot bring a tort cause of action against their parents. We retained the defense of parental immunity in only two limited situations:

A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. [388 Mich. 8.]

Although Plumley addressed only the tort liability

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of a natural parent, the circuit court and Court of Appeals concluded here that persons acting in loco parentis to a child could also invoke the defense of parental immunity. Citing Hush v Devilbiss, 77 Mich. App. 639; 259 N.W.2d 170 (1977),[3] the circuit court reasoned that licensed foster care homes provide children, whose natural parents are unwilling or unable to provide proper care and supervision, with a healthy and supervised environment. Since by definition foster parents replace the function of natural parents, the circuit court concluded that the Pryors stood in loco parentis to Justin. The Court of Appeals similarly held, as a matter of law, that persons who provide temporary foster care to a child pursuant to a probate court order stand in loco parentis to the foster child. 134 Mich. App. 830.

Both lower courts then held that an action for negligent parental supervision is barred because it involves the exercise of parental authority over a child, which falls within the firs Plumley exception. Id., pp 830-831.[4] Finally, they concluded that

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the reasonableness of the exercise of parental authority is a question of law which can be disposed of by motion for summary judgment. The Court of Appeals at first distinguished, then rejected, the seemingly contrary holding in Grodin. Id., pp 832-833.[5]

III
The tort liability of a foster parent is an issue of first impression in this state. Similar cases from other jurisdictions are conflicting. The vast majority of cases which have discussed the tort liability of persons standing in loco parentis to a child generally involved the child’s stepparents, adoptive parents, grandparents, or other persons related

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by consanguinity, marriage, or adoption. In addition, the child was generally visiting with or being cared for by these persons with the natural parents’ consent when the injury occurred. See cases discussed in 6 ALR4th 1066, § 4, pp 1087-1093; 41 ALR3d 904, § 11, pp 960-963.

The situation is markedly different when a foster care arrangement is involved. Foster parents and foster children are not related by consanguinity, marriage, or adoption. See MCL 722.111(f); MSA 25.358(11)(f). They are brought together by means of a preexisting contractual arrangement between the DSS and the foster parents in which the latter are compensated for expenses incurred in caring for the child. See MCL 400.115a-c, 712A.25; MSA 16.490(25a)-(25c), 27.3178(598.25). The foster parents and home must conform to specific statutory and regulatory guidelines and the DSS is required to monitor them. See MCL 722.111 et seq.; MSA 25.358(11) et seq.; 1979 AC, R 400.191 et seq.

In addition, placement of the child in a foster family home generally is not voluntary. It often occurs after the child has been physically removed from the custody of the natural parent or other caretaker by order of the probate court after an adversary hearing due to neglect, mistreatment, or abandonment. See MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. Even a “voluntary” relinquishment of a child for foster care placement may be induced by threats of court proceedings or the product of uninformed consent. Smith v Organization of Foster Families, 431 U.S. 816, 834; 97 S Ct 2094; 53 L Ed 2d 14 (1977).

Finally, the goal of foster care is not to create a new “family” unit or encourage permanent emotional ties between the child and foster parents.

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Foster care is designed to provide a stable, nurturing, noninstitutionalized environment for the child while the natural parent or caretaker attempts to remedy the problems which precipitated the child’s removal or, if parental rights have been terminated, until suitable adoptive parents are found. Smith, 431 U.S. 861-862 (Stewart, J., concurring). See also MCL 400.18c(2), 712A.19; MSA 16.418(3)(2), 27.3178(598.19).

There are few cases from other jurisdictions involving suits by foster children against foster parents. We are aware of only two cases in which a foster parent has been determined to stand in loco parentis to a foster child. In Miller v Pelzer, 159 Minn. 375; 199 N.W. 97 (1924), the child was placed with the foster parents shortly after her birth and lived with them for twenty-five years. When she discovered that she was not their natural child, she filed suit alleging fraud and deceit and sought compensation for farm work she had performed. In dismissing the child’s suit, the Minnesota Supreme Court initially noted that the family relation which had existed “for all practical purposes was just as sacred as if plaintiff had been the natural daughter.” Id., p 377. The true holding of the case, however, was that the foster parents were under no legal duty to inform the child of her true parentage and therefore plaintiff had failed to state a cause of action. Althoug Miller was cited with approval in London Guarantee Accident Co v Smith, 242 Minn. 211, 217, n 13; 64 N.W.2d 781 (1954), the liability of a stepfather was involved in the latter case.

In Goller v White, 20 Wis.2d 402; 122 N.W.2d 193 (1963), the Wisconsin Supreme Court accepted the trial court’s conclusion that the foster father stood in loco parentis to the foster child. It then proceeded to abolish the defense of parental immunity,

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except in two limited situations.[6] Since the child’s complaint sufficiently alleged negligent parental supervision, a cause of action which did not fall within either exception, th Goller Court concluded that the foster father could be held liable. Id., pp 409-413. The concurring opinion would have allowed the suit on the ground that parental immunity should not be extended to foster parents. Id., p 413.

Several courts have permitted foster children to sue their foster parents without discussing the issue of parental immunity.[7] Some cases are distinguishable because the foster parents allegedly engaged in intentional misconduct. See, e.g., Blanca v Nassau County, 103 A.D.2d 524; 480 N.Y.S.2d 747 (1984) Vonner v Dep’t of Public Welfare, 273 So.2d 252 (La, 1973);[8] Hanson v Rowe, 18 Ariz. App. 131; 500 P.2d 916 (1972). Actions alleging intentional torts were one of the first exceptions carved out from the parental immunity doctrine.[9]
Other courts, while expressing sympathy for the plight of foster parents, have nevertheless permitted suits

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alleging negligent supervision. Headrick v Parker, unpublished opinion of the Tennessee Court of Appeals, decided August 31, 1984 (Docket No. CA 954) (available on LEXIS); New Jersey Property-Liability Ins Guaranty Ass’n v State, 184 N.J. Super. 348, 354-355; 446 A.2d 189 (1982), rev’d on other grounds 195 N.J. Super. 4; 477 A.2d 826 (1984). See also Kern v Steele County, 322 N.W.2d 187 (Minn, 1982); cf. Pickett v Washington County, 31 Or. App. 1263; 572 P.2d 1070 (1977).

The only jurisdiction which has thoroughly addressed the problem and concluded that foster parents are not entitled to parental immunity is New York. We find the reasoning of Andrews v Otsego County, 112 Misc.2d 37; 446 N.Y.S.2d 169, 172-174 (1982), to be particularly enlightening:

“Foster parents, in the generally accepted meaning of that term, are contract service providers. The very existence of the status of foster parent arises out of a knowingly assumed contractual relationship between the State and the foster parents.” Matter of Mavis M, 110 Misc.2d 297, 308; 441 N.Y.S.2d 950 [1981]. Although a foster parent may develop significant emotional ties with a foster child, the duties owed to the child are grounded in a “knowingly assumed contractual relation with the State.” Smith v Organization of Foster Families, 431 U.S. 816, 845; 97 S Ct 2094, 2110; 53 L Ed 2d 14 [1977]. . . . [F]oster care placement is a temporary arrangement designed as an alternative to institutionalized care, and the County agency continues to be the legal custodian of the child. People ex rel Ninesling v Nassau County Dep’t of Social Services, 46 N.Y.2d 382; 413 N.Y.S.2d 626; 386 N.E.2d 235 [1978]. The natural parent continues to be responsible for the child’s support during placement. Rockland County Dep’t of Social Services v Brust, 102 Misc.2d 411; 423 N.Y.S.2d 435
[1979]. The foster parent does not assume “all the obligations incident to the parental

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relationship” (Rutkowski v Wasko, [286 AD 327, 331; 143 N.Y.S.2d 1 (1955)]), but only those responsibilities assigned by the agency as required by law. Smith v Organization of Foster Families, supra, 431 US at pp 826-828; 97 S Ct at 2100-2101. See [52A, NY] Social Services Law, § 378 [McKinney’s]; 18 N.Y.CRR [New York Codes, Rules and Regulations] § 444.6. Indeed, the “temporary parent substitute must keep his proper distance at all costs to himself.” Spence-Chapin Adoption Service v Polk, 29 N.Y.2d 196, 205; 324 N.Y.S.2d 937; 274 N.E.2d 431 [1971].

* * *

The second theory of liability also applies here. The [foster parents] knowingly and voluntarily assumed a contractual duty to provide supervisory care for which they received compensation. Having undertaken the duty, they may and should be held responsible for any failure to use reasonable care. Zalak v Carroll, [15 N.Y.2d 753; 257 N.Y.S.2d 177; 205 N.E.2d 313 (1965)].
Third, the [foster parents’] duty to provide care was created by contract, not “because of the family relationship.” Holodook v Spencer, [36 N.Y.2d 35, 44; 364 N.Y.S.2d 859; 324 N.E.2d 338 (1974)]. At the time of placement, there was no familial bond between this infant plaintiff and the [foster parents]. His natural mother continued to be the legal guardian and the County his legal custodian. Smith v Organization of Foster Families, supra, 431 US at page 827; 97 S Ct at 2100. Although foster parents owe similar responsibilities to the foster child concerning discipline, food, clothing, housing, education and supervision as are owed to their own biological children, the nature of the required care and supervision is distinct. Foster parents must strive to provide a stable environment and at the same time, encourage, rather than discourage, the relationship of the foster child and natural parent and ease the return of the child to the natural parent. See State ex rel Wallace v Lhotan, 51 A.D.2d 252, 259; 380 N.Y.S.2d 250
[1976]. This unique responsibility clearly differs

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from the supervisory functions of a natural parent. Moreover, the foster parent-child relationship is designed to be temporary, and the foster parent is obliged to surrender the child upon expiration of the term and perhaps sooner upon the institution of removal proceedings. See, in this respect, Fox v Mission of the Immaculate Virgin, [202 Misc. 478; 119 N.Y.S.2d 14 (1952), aff’d 280 AD 993; 117 N.Y.S.2d 477
(1952)].
Counsel for the [foster parents] also urges that a number of foster parents assume their responsibility with a view towards adoption and that there may be increasing difficulties in finding suitable foster parents in the future. The Court can appreciate these concerns. However, it must be noted that general legislative policy prefers the ultimate return of the child to the natural parent. Soc. Serv. Law, § 384-b(1); Smith v Organization of Foster Families, supra, 431 US at pp 846-847; 97 S Ct at 2110-2111. See also, Note, The Fundamental Right to Family Integrity and Its Role in New York Foster Care Adjudication, 44 Brooklyn LR 63, 84-96 [1977]. Although foster parents and children may develop emotional ties, the natural parent retains a paramount right to raise the child. . . . Thus, the Court finds that the concerns expressed by counsel do not tip the public policy scale in favor of an immunity from suit (or, more accurately, nonrecognition of a cause of action).
The Court additionally observes that the County is obliged to contact and observe the foster home and determine whether the foster child is receiving adequate supervision. 18 N.Y.CRR § 428.3(e)(2). Seemingly, negligent or inadequate supervision would serve as a basis for termination of foster care services. It would be incongruous to permit negligent supervision to serve as a basis for termination of foster care service and allow the relationship of foster parent-child existing at the time of the event to preclude a cause of action for negligent supervision.

Accord Miller v Davis, 49 Misc.2d 764; 268 N.Y.S.2d 490 (1966).

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These considerations are equally applicable to this state’s system of providing foster care. As previously noted, foster parents and children are brought together solely through a contractual arrangement between the DSS and the foster parents. Foster parents are compensated by the state. The natural parents or other caretakers are required to reimburse the state or county for the cost of foster care if and to the extent they are financially capable. MCL 712A.18(2); MSA 27.3178(598.18)(2). Placement of a child in a foster home is generally designed to be temporary[10] and is monitored by the DSS.

We are not persuaded that the traditional rationales for the parental immunity doctrine — preservation of the family unit and domestic tranquillity, protection of family resources,[11] and a reluctance to interfere with parenting decisions — require or justify extending the defense to foster parents. Licensing and monitoring procedures already exist, which to some degree limit the foster parents’ parenting decisions. As the Andrews court noted, it would be incongruous to suspend a foster parent’s license because of negligent supervision, but not allow the foster child to sue for injuries incurred because of that negligence.

We recognize that the vast majority of foster parents execute their duties conscientiously and provide quality care to their foster children. Foster parents provide a greatly needed and appreciated

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service to children who would otherwise have to be institutionalized. The question presented today involves a balancing of equally compelling interests — the foster child’s interest in receiving proper care and being compensated for his injuries versus the foster parents’ interest in providing foster care without fear of litigation. The clear judicial trend is to abolish or limit the availability of the parental immunity defense to both parents and other caretakers alike. We are similarly persuaded that the interests of the child outweigh those of the foster parents and that the parental immunity doctrine should not be further extended. We note, however, that parental immunity from tort liability can be statutorily extended to foster parents if the Legislature so desires.

IV
The decision of the Court of Appeals is reversed. The case is remanded to the Saginaw Circuit Court for further proceedings consistent with this opinion.

WILLIAMS, C.J., and LEVIN, RYAN, BRICKLEY, BOYLE, and RILEY, JJ., concurred with CAVANAGH, J.

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