112 Misc. 2d 37 | N.Y. Sup. Ct. | 1982
OPINION OF THE COURT
This is an application by the defendants, Thomas and Winifred Talbot, to dismiss the complaint for failure to state a cause of action (CPLR 3211, subd [a], par 7). The
The underlying facts are not at issue. The plaintiff, Frances Andrews, is the natural mother of the infant plaintiff, Joseph J. Andrews. Ms. Andrews voluntarily surrendered custody of the infant plaintiff to the Otsego County Department of Social Services (hereinafter Department). The Department then engaged the Talbots to provide foster care for the infant plaintiff. The contract for assumption of such responsibility was signed by Mrs. Talbot on December 14, 1979. The complaint alleges that the infant plaintiff sustained an injury to his eye on April 19, 1980 and that the injury was caused by the negligent supervision of the Talbots and the County of Otsego.
A brief discussion of the foster care system in this State may be helpful. The State has a constitutional duty to provide for the health, safety and welfare of those children in need of foster care. (NY Const, art XVII, § 1; Sinhogar v Parry, 74 AD2d 204, 214, mod on other grounds 53 NY2d 424.) The State Legislature has provided for the assumption of the constitutional mandate (see Social Services Law, art 6) and the Commissioner of Social Services has promulgated a regulatory scheme for the implementation of foster care services (see 18 NYCRR ch 2, subch C). Basically once the State assumes the burden of parens patriae and, through its designated agency (a county department of social services) places the child in a custodial setting, it (the department) has a duty to provide reasonable care and supervision. (Sinhogar v Parry, supra, p 215.) There are several options available to a county department. It may provide institutional care, or place the child in a group home or residence, with a licensed private agency, or in a foster family home. (See Social Services Law, §§ 374, 398; 18 NYCRR 427.1; Kadushin, Child Welfare Services [2d ed], pp 417-421.) When a department opts to place the child in a foster family home, it can no longer feasibly provide day-to-day supervision and hence, it contractually obliges the foster parent to provide constant reasonable care and supervision. (Smith v Organization of Foster Families, 431 US 816, 827.)
The Talbots have also moved for dismissal, claiming that since an infant child does not have a cause of action against a parent for the negligent failure to supervise (citing Holodook v Spencer, 36 NY2d 35, as authority), as foster parents, they should be treated in the same manner as natural parents.
Prior to the New York Court of Appeals decision in Gelbman v Gelbman (23 NY2d 434), a defense of intrafamily tort immunity barred a direct suit by an infant child against a parent for a nonwillful tort. However, the immunity defense did not apply to an action by an infant child against a foster parent. (Miller v Davis, 49 Misc 2d 764.) This conclusion was premised upon a determination by Special Term (Jasen, J.) that a foster parent who had not assumed any permanent responsibility for support of the
In Gelbman v Gelbman (supra), the Court of Appeals abolished the immunity defense for nonwillful intrafamily torts. As in Miller v Davis (supra), the Gelbman case involved an action arising out of the negligent operation of a motor vehicle.
However, in 1974, the New York Court of Appeals held that an infant child does not have a direct cause of action against a natural parent for negligent supervision. (Holodook v Spencer, supra.) The court concluded that although Gelbman abrogated the defense of intrafamilial immunity for nonwillful torts, it did not create any new liabilities. Since the court in Holodook could find no prior judicial recognition of such a claim, it refused to create a new cause of action for negligent supervision, which was described as the breach of a duty which exists “because of the family relationship” (Holodook v Spencer, supra, at p 44).
Thus far, the New York Court of Appeals has extended the Holodook rationale solely to actions between siblings premised on negligent supervision. (See Smith v Sapienza, 52 NY2d 82.) A cause of action for negligent supervision has been recognized in suits between an infant child and a stepfather who was not in an in loco parentis relationship (Pierce v Helz, 64 Misc 2d 131), an aunt and uncle who provided temporary care during each day while the mother worked (Zalak v Carroll, 15 NY2d 753), grandparents (Barrera v General Elec. Co., 84 Misc 2d 901), and a private institutional home for foster children (Fox v Mission of Immaculate Virgin for Protection of Homeless & Destitute Children, 202 Misc 478, affd 280 App Div 993). Decisions recognizing the viability of the action for negligent supervision have relied on either of two theories: (1) the “family” member did not stand in a relationship of in loco parentis with the child (see, e.g., Pierce v Helz, supra)', or (2) the defendant voluntarily assumed a duty to provide reasonable care (see, e.g., Zalak v Carroll, supra). Further, even where the parent-child relationship does exist, courts have
Research has not disclosed any reported decision in New York on the precise issue presented here: does an infant child have a cause of action against a foster parent for negligent supervision? The court concludes that he does.
First, no reported judicial authority in this State has extended the bar of Holodook beyond the biological family.
Second, in deciding whether or not to apply Holodook to the facts of this case, analysis of the ratio decidendi of those cases recognizing the viability of a cause of action for negligent supervision leads inescapedly to the conclusion that foster parents should be held liable for negligent supervision of a foster child.
In Miller v Davis (49 Misc 2d 764, supra), the court held that a foster parent who is compensated for his services does not stand in an in loco parentis relationship with the child. The status of a foster parent has not been altered since that decision, and recent judicial literature significantly supports the Miller conclusion.
“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.) 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 US 816, 845, supra.) As the letter contract for. foster care in this case reveals, the only specified duty “owed” to the child (and for which the Talbots are compensated at a specified rate) is to “provide services in accordance with applicable requirements of law.” Each foster parent is licensed for a period of one year, and each placement contract has a maximum term of one year. (Social Services Law, § 378, subd 2; 18 NYCRR 405.3.) There is no guarantee or assurance of renewal or exten
The second theory of liability also applies here. The Talbots 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 NY2d 753, supra.)
Third, the Talbots’ duty to provide care was created by contract, not “because of the family relationship”. (Holodook v Spencer, 36 NY2d 35, 44, supra.) At the time of placement, there was no familial bond between this infant plaintiff and the Talbots. His natural mother continued to be the legal guardian and the county his legal custodian. (Smith v Organization of Foster Families, 431 US 816, 827,
Counsel for the Talbots 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. (Social Services Law, § 384-b, subd 1; Smith v Organization of Foster Families, supra, at pp 846-847; see, also, Note, the Fundamental Right to Family Integrity and Its Role in New York Foster Care Adjudication, 44 Brooklyn L Rev 63, 84-96.) Although foster parents and children may develop emotional ties, the natural parent retains a paramount right to raise the child. Foster parents develop such ties at their peril. (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, supra.) A foster parent has no recognized preference for adoption until the lapse of 18 months (Social Services Law, § 383; see, also, People ex rel. Ninesling v Nassau Co. Dept. of Social Servs., 46 NY2d 382, supra), except where the natural parent’s rights have terminated (see Social Services Law, § 384-b). Thus, the court finds that the concerns expressed by counsel do not tip the public policy scale in
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 NYCRR 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. (Indeed, the county’s support of the foster parents’ motion for dismissal is somewhat puzzling in view of its status as legal custodian of the infant plaintiff, the constitutional mandate to protect his safety, and the duty to remove the child upon detecting inadequate supervision.) Further, “[t]he consideration of public policy stated in Holodook (<supra, p 45) — the potential strife between parent and child created by litigation and the risk of a third-party claim against the parent diminishing the value of the child’s recovery — have no application here, where the interests of parent and child are united, and no liability of the parent is threatened.” (Bartels v County of Westchester, 76 AD2d 517, 522, supra.)
In sum, the court concludes that public policy favors recognition of a cause of action against foster parents for negligent supervision. Therefore, the court concludes and finds that the complaint states a cause of action against the Talbots, and their motion to dismiss is denied.
