Ex parte Kristi Kelley PETITION FOR WRIT OF MANDAMUS (In re: Arnold Curry, as administrator of the Estate of A.C., a deceased minor v. Kristi Kelley et al.)
1170988
SUPREME COURT OF ALABAMA
November 15, 2019
OCTOBER TERM, 2019-2020
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Ex parte Becky Van Gilder PETITION FOR WRIT OF MANDAMUS (In re: Arnold Curry, as administrator of the Estate of A.C., a deceased minor v. Kristi Kelley et al.)
1170995
SUPREME COURT OF ALABAMA
November 15, 2019
OCTOBER TERM, 2019-2020
PER CURIAM.
This case addresses whether a foster-care provider and a caseworker for the Department of Human Resources (“DHR“) are immune from liability. Arnold Curry filed this wrongful-death action against Becky Van Gilder, a licensed foster-care provider, and Kristi Kelley,1 a caseworker with the Montgomery County DHR office, seeking damages for the death of his nine-year-old son A.C., who died of complications related to sickle-cell anemia after DHR removed him from Curry‘s home. Curry alleged that Van Gilder had acted negligently and wantonly in caring for A.C. and that Kelley had acted negligently and wantonly in managing A.C.‘s case. Van Gilder and Kelley separately asked the Montgomery Circuit Court to
Facts and Procedural History
On February 25, 2013, DHR removed A.C. and his two siblings from their home after receiving reports from officials at the children‘s school and a neighbor of the family indicating that Curry was physically abusing the children. DHR placed the children with Van Gilder and, after conducting an investigation and substantiating the allegations of abuse, DHR obtained legal custody of the children. Kelley was assigned to be the caseworker for the children and, in accordance with DHR policy, drafted the initial Individualized
Van Gilder was told at placement that A.C. suffered from sickle-cell anemia, and she subsequently took him to appointments with his primary-care physician and received instruction from the Sickle Cell Center associated with the University of Alabama at Birmingham Hospital. Van Gilder states that she was told it was important for A.C. to stay hydrated and to rest when he was tired but that he could otherwise engage in any activities that interested him. She also states that she was told to give him ibuprofen or acetaminophen if he complained of pain but that, if that medication did not alleviate his pain, if he complained of chest pain, or if he had a body temperature of over 101 degrees, she should seek emergency medical treatment. Kelley also attended at least some of A.C.‘s medical appointments and visited the children on at least a monthly basis over the next several months.
On May 18, 2013, Van Gilder‘s grandmother died, and she made plans to attend the funeral, which was out of state. Van Gilder arranged for Susan Moss, a friend and another licensed
A.C. did not complain of any discomfort over the next two days. On May 28, 2013, he woke up with a sore throat and asked for a Sprite soft drink. Shortly afterward, Van Gilder retrieved him and his siblings from Moss‘s home; A.C. apparently made no further complaints before going to bed that night. After A.C. went to bed, one of his siblings alerted Van Gilder that A.C. was in pain and was crying. Van Gilder
A.C. initially appeared to be in stable condition, but on May 30, 2013, his condition deteriorated, and the decision was made to transfer him tо a hospital in Birmingham because he was showing symptoms of acute chest syndrome and hypoxia, which are complications of sickle-cell anemia. Van Gilder accompanied A.C. in the ambulance to Birmingham, but before A.C. could be given a needed blood transfusion, he suffered respiratory failure and died.
On January 26, 2015, Curry, initiated this wrongful-death action against Van Gilder and Kelley, alleging that their negligence and wantonness caused A.C.‘s death.3 The essence
On November 17, 2017, Van Gilder and Kelley filed separate motions for a summary judgment. Van Gilder argued in her motion that the doctrine of parental immunity barred any claim against her based on negligence and that Curry had identified no evidence indicating that she had acted wantonly
Standard of Review
“A writ of mandamus is a
“‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’
”Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993).”
Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002). This Court generally will not entertain a mandamus challenge to a trial court‘s denial of a summary-judgment motion, but we make an
We emphasize, however, that this Court will consider such petitions only to the extent they challenge the trial court‘s determination of immunity issues. This Court will not consider secondary arguments about the appropriateness of summary judgment on other grounds or review the trial court‘s
As further explained in Wood, the standard of review we apply on a petition for a writ of mandamus to a trial court‘s denial of a motion seeking a summary judgment on immunity grounds is the same standard of review we would apply in any appeal reviewing a trial court‘s ruling on a motion for a summary judgment:
“If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the mоving party is not entitled to a summary judgment.
Rule 56, Ala. R. Civ. P. In determining whether there is [an issue of] material
fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000).”
Van Gilder‘s Petition (no. 1170995)
Van Gilder argues first that the trial court erred by not entering a summary judgment in her favor on Curry‘s wrongful-death claim to the extent that claim is premised on alleged negligence. She bases her argument on the doctrine of parental immunity, which she says bars negligence-based claims against a foster parent. In support of her argument, Van Gilder cites multiple cases decided by this Court, including Spurgeon, in which we stated the rule that “in Alabama the parental-immunity doсtrine extends to foster parents with regard to simple negligence claims.” 82 So. 3d at 668. Curry concedes that Van Gilder‘s argument is meritorious, and he does not oppose this Court‘s granting her petition with regard to the negligence allegations in his complaint.
“The [foster parents] do not argue that they are entitled to parental immunity on the wantonness claims, and, indeed, our decision in Mitchell [v. Davis, 598 So. 2d 801 (Ala. 1992)], makes it clear that such claims against foster parents are not barred by the parental-immunity doctrine. Mitchell, 598 So. 2d at 805–06 (‘[T]he trial court must determine whether the acts by the defendants alleged to give rise to liability would amount only to simple negligence or would rise to the levеl of wantonness.... If the alleged acts amounted to wantonness ..., then the wantonness claim by the foster children would not be barred by the parental immunity doctrine.‘).”
82 So. 3d at 669. Thus, there is no question that the doctrine of parental immunity bars Curry‘s wrongful-death claim against Van Gilder to the extent that claim is based on alleged negligence, but not to the extent it is based on alleged wantonness.
Despite the fact that the parental-immunity doctrine is inapplicable to wantonness, Van Gilder argues that a summary judgment should have been entered in her favor on Curry‘s entire claim, because, she says, Curry has not put forth
In summary, Van Gilder has established that Curry‘s wrongful-death claim is barred by the doctrine of parental
Kelley‘s Petition (no. 1170988)
Kelley first argues that, as a DHR caseworker, she too has parental immunity. In support of her argument, she cites Mitchell, in which this Court, after extending the doctrine of parental immunity to foster parents, explained:
“The parental immunity doctrine should also be available, in a qualified form, to the commissioner [of DHR], the [Barbour County DHR], the [Barbour County DHR] director, and the case supervisor charged with the care and custody of foster children. That is, they also should be able to assert the parental immunity doctrine as a defense to claims of simple negligence by foster children. Alabama has already concluded that DHR stands in loco parentis to children of unfit parents. [Citations omitted]. As DHR stands in loco parentis, so does the commissioner [of DHR], the [Barbour County DHR], the [Barbour County DHR] director, and the case supervisor.”
598 So. 2d at 805. It is undisputed that DHR had legal custody of A.C. at the time of his death. As A.C.‘s caseworker, Kelley states that she arranged and attended his
In response, Curry argues that Mitchell‘s holding extending parental immunity to DHR employees is obsolete. He notes that Kelley has not cited a single post-Mitchell case in which this Court has held that a DHR employee was entitled to parental immunity, even though this Court has regularly decided appeals involving DHR employees who have been sued in their individual capacities. See, e.g., Ex parte Watson, 37 So. 3d 752, 757-65 (Ala. 2009); Sumerlin, 26 So. 3d at 1183-91; Gowens v. Tys. S., 948 So. 2d 513, 522-27 (Ala. 2006). Curry observes that those cases have instead focused exclusively on State-agent immunity when considering the liability of DHR employees, and he urges us to decide whether Kelley is entitled to immunity solely under the State-agent
The absence of post-Cranman caselaw applying the Mitchell parental-immunity shield to DHR employees does not mean that Mitchell has been silently overruled. Curry is correct that, since Cranman, this Court‘s opinions analyze the immunity afforded DHR employees sued in their individual capacities exclusively by reference to the test restated in Cranman. But the doctrine of parental immunity undisputedly did not apply in most of those cases. Mitchell stated that, because DHR stands in loco parentis to foster children, DHR employees “should be able to assert the parental immunity doctrine as a defense to claims of simple negligence by foster children.” 598 So. 2d at 805 (emphasis added). None of the cases Curry cites featured claims filed on behalf of foster children in DHR custody. Rather, the factual underpinning of the claims in Watson, Sumerlin, and Gowens was that DHR employees should have removed children from their parents and placed them in
There are other reasons why this Court has not discussed, post-Cranman, how parental immunity applies to DHR employees. First, it is well settled that this Court will not reverse a trial court‘s judgment based on arguments not made to this Court. Maloof v. John Hancock Life Ins. Co., 60 So. 3d 263, 268 (Ala. 2010). Thus, if a DHR employee seeks this Court‘s review of a trial court‘s decision denying him or her immunity –– but argues only that he or she was entitled to State-agent immunity –– this Court will not go out of its way to analyze whether parental immunity might also have applied. For еxample, in Watson, this Court exclusively applied the Cranman test for State-agent immunity because that was the only basis
Second, this Court will not address every applicable issue in a case if the resolution of another issue makes doing so unnecessary. Ex parte McClintock, 255 So. 3d 180 (Ala. 2017), for example, is similar to this case; it involved claims against DHR employees alleging that the negligence and wantonness of those employees caused the death of a child who had been removed from his parent‘s custody and placed in foster care. The DHR employees moved for a summary judgment, arguing “that they were entitled to immunity on several bases.” 255 So. 3d at 182. After the trial court denied their summary-judgment motion, the DHR employees petitioned this Court for mandamus relief. This Court granted their petition and issued the requested writ, holding that the DHR employees had established that they were entitled to “a summary judgment in their favor based on State-agent immunity under Ex parte Cranman.” McClintock, 255 So. 3d at 186. Because State-agent immunity was appropriate, it was unnecessary for this Court to discuss any other basis upon which the DHR employees might have been entitled to immunity.
Kelley contends that she has established a claim to State-agent immunity under the third ground of the test set forth in Cranman:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent‘s
“....
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner ....”
792 So. 2d at 405. She asserts that all the actions she took with respect to A.C. were performed in accordance with DHR rules and regulations and that Curry should be prevented from second-guessing the discretionary decisions that she made. She further asserts that shе was highly involved in A.C.‘s case, visiting him and his siblings on at least a monthly basis, and that there is no evidence that A.C.‘s death was caused by any act or omission on her part. Thus, she argues,
We agree that, under Cranman, Kelley has a presumptive claim to State-agent immunity. See Ex parte Terry, 239 So. 3d 1125, 1130-31 (Ala. 2017) (agreeing that “as a social worker with DHR, [the petitioner] is entitled to State-agent immunity under category (3) of the Cranman restatement because ... the actions for which she is being sued involve her discharging duties pursuant to DHR policy and procedures“). Our inquiry is not complete, however, because Cranman also provides that, despite the general availability of State-agent immunity, “a State agent shall not be immune from civil liability in his or her personal capacity ... when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistаken interpretation of the law.” 792 So. 2d at 405. In Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006), this Court explained the burden-shifting analysis that courts must apply:
“In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiff‘s claims arise from a function that would entitle the State agent to immunity. Giambrone [v. Douglas], 874 So. 2d [1046,] 1052 [(Ala. 2003)]; Ex parte Wood, 852 So. 2d 705, 709 (Ala. 2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So. 2d at 1052; Wood, 852 So. 2d at 709; Ex parte Davis, 721 So. 2d 685, 689 (Ala. 1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.“’ Giambrone, 874 So. 2d at 1052 (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000)).”
Curry does not dispute that Kelley met her initial burden, but he argues that State-agent immunity is not available to her because, he says, she acted beyond the scope of her authority. Curry contends that Kelley generally failed to learn about A.C.‘s condition and failed to properly share information about his case with all the DHR employees and caretakers involved in A.C.‘s case. He also contends that Kelley failed to follow specific, detailed rules set forth in the DHR manual concerning ISPs. Curry argues that those failures make State-agent immunity inappropriate. See Gowens, 948 So. 2d at 527 (stating that the rules in the DHR manual “are precisely the sort of ‘detailed rules or regulations’ that State agents cannot ignore, except at their peril“); Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (“A
A written copy of DHR‘s ISP policy was submitted to the trial court and has been submitted to this Court. That document describes its purpose as follows:
“This policy provides guidelines and procedures related to the individualized service planning process which results in the development of an individualized service plan (ISP). The ISP, developed in partnership with the child and family planning team, is the actual case plan that is designed to achieve the desired case outcome. It also serves as an organizer of case activity and a tool for communicating with the individuals involved with the children and family.”
The ISP policy also states in bold print that ”[i]nitial ISPs will be reviewed at a meeting of the child and family planning team that is held within thirty (30) days of the date of the initial ISP.” The ISP policy explains the twofold purpose of this review:
“(1) to determine if implementation is occurring as planned, and if not, what revisions need to be made; and”
“(2) to complete a more thorough ISP addressing additional needs which have been identified and prioritized during the assessment process following the initial ISP.”
The ISP policy provides that “[a] more thorough ISP includes, at a minimum, addressing strengths and needs for the children and family in the physical/medical, behavioral, emotional, educational, and social (for children in out-of-home care) areas of family functioning.” Curry argued in his response to Kelley‘s motion for a summary judgmеnt that Kelley never performed this required, more thorough 30-day ISP review and,
Kelley refutes Curry‘s assertion that she never performed the required 30-day ISP review. In a November 2017 affidavit, Kelley states that she performed “a segmented ISP review” at a doctor‘s appointment for A.C. on March 21, 2013.6 She states that Van Gilder, Curry, and A.C.‘s primary-care physician were present at the review, that she concluded at that time that the initial ISP was thorough, and that no goals in that ISP needed to be changed. Kelley had previously stated in an October 2016 deposition that she was not required to document the 30-day ISP review. Thus, Kelley argues, she complied with DHR‘s ISP policy, and any concerns Curry has
Curry maintains that Kelley did not abide by DHR‘s rules regarding the 30-day ISP review and argues that she is now attempting to retroactively label A.C.‘s March 21, 2013, doctor‘s appointment as an ISP review. He further argues that Kelley‘s position that the initial ISP only has to be “reviewed” by the 30-day mark, and not updated and documented, is contrary to the written guidelines in DHR‘s ISP policy, which indicate that one of the purposes of the 30-day ISP review is “to complete a more thorough ISP.” In support of his argument, Curry notes that the ISP policy provides that all interested parties, or “team members,” are to be given “[s]ufficient advance notice ... of each ISP meeting ... to allow them to prepare for and participate in the meetings.” Moreover, the method of notification is to be documented “on the ISP form,” and all revisions and updates to the initial ISP are to be completed within 10 days of the ISP meeting so that the ISP can be distributed to appropriate team members within that same time frame. Finally, the DHR policy specifically provides that supervisory review and approval, as
When reviewing a trial court‘s decision on a summary-judgment motion, our standard of review requires us to consider the evidence in the light most favorable to the nonmovant –– in this case, Curry. Curry has established that there is at least a question of material fact about whether Kelley failed to discharge her duties in accordance with DHR‘s rules. Specifically, he has identified evidence indicating that Kelley violated DHR‘s ISP policy by failing to conduct the required 30-day ISP review and by failing to complete a more thorough ISP in conjunction with that review. Thus, under our caselaw, Kelley did not establish that she was entitled to a summary judgment in her favor on the basis of State-agent immunity. See, e.g., Ex parte Jones, 52 So. 3d 475, 484 (Ala. 2010) (holding that DHR employee was not entitled to a summary judgment on the basis of State-agent immunity where there was a genuine issue of material fact about whether she had acted beyond her authority by failing to turn in a required report); Watson, 37 So. 3d at 760-61 (holding that DHR employee did not establish that she wаs entitled to a summary judgment based on State-agent immunity where there was substantial evidence indicating that she had not complied with a DHR regulation requiring her to conduct a home visit); Gowens, 948 So. 2d at 527 (holding that DHR employee was not entitled to a summary judgment on the basis of State-agent immunity where employee failed to comply with a DHR requirement that he verify, from an outside source, the number of children in a household under investigation).
Finally, Kelley argues that, regardless of whether she is entitled to immunity, there is no connection between her alleged violations of DHR‘s ISP policy and A.C.‘s death. As she states, the “alleged lack of documentation did not cause the child‘s death” nor did the lack of “a ‘more thorough’ ISP.” Petition at p. 29. Such an argument, however, is unrelated to Kelley‘s claim of immunity and thus is not an
“The extent to which there is a causal relation between the matters made the basis of the complaint and the deviation from the guideline is an issue we do not decide. When entertaining interlocutory review of the denial of a summary judgment in the context of immunity we do not address other matters dealing with the merits of tort liability.”
Ex parte Monroe Cty. Bd. of Educ., 48 So. 3d 621, 628 n.2 (Ala. 2010). Therefore, because Curry has provided substantial evidence that Kelley did not comply with the DHR ISP policy, this Court may deny her petition for the writ of mandamus without a considerаtion of proximate cause. Of course, Curry will be required to produce substantial evidence
Conclusion
Curry sued Van Gilder and Kelley following the death of his son A.C., alleging that their negligent and wanton actions wrongfully caused his death. Van Gilder and Kelley argued that they were immune from liability based on their respective statuses as a foster parent and a DHR caseworker, and they moved the trial court to enter summary judgments in their favor on those bases. After the trial court denied their motions, Van Gilder and Kelley petitioned this Court for mandamus relief, seeking writs directing the trial court to enter summary judgments in their favor on the basis оf immunity.
For the reasons explained above, we grant Van Gilder and Kelley‘s petitions in part. To the extent Curry‘s wrongful-death claims against Van Gilder and Kelley are based on
1170988 –– PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
1170995 –– PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Bolin, Shaw, Bryan, Sellers, Mendheim, and Stewart, JJ., concur.
Parker, C.J., and Wise and Mitchell, JJ., concur specially.
In Mitchell v. Davis, 598 So. 2d 801 (Ala. 1992), this Court extended parental immunity to the Department of Human Resources and its employees (hereinafter referred to collectively as “DHR“). The respondent, Arnold Curry, has not asked us to overrule Mitchell, so I concur with the main opinion. However, I write to explain why Mitchell‘s grant of parental immunity to DHR is both an anomaly in American jurisprudence and contrary to the historical foundations of parental immunity in Alabama.
First, Mitchell‘s extension of parental immunity to DHR is an extreme outlier in the United States. National treatises suggest that Alabama is the only state to have granted such immunity to a child-protection agency. See Marjorie A. Shields, Liability of Parents or Person in Loco Parentis for Personal Tort Against Minor Child -- Willful or Malicious Act, 118 A.L.R.5th 513, § 6 (2004); 43 Causes of Action 2d 1, § 25 (2019); see also Grant Hayes Frazier, Defusing a Ticking Time Bomb: The Complicated Considerations Underlying Compulsory Human Genetic Testing, 10 Hastings Sci. & Tech. L.J. 39, 73 n. 153 (2019). I have found no other
Second and more importantly, Mitchell‘s extension of parental immunity to DHR runs counter to the historical foundations of this type of immunity. The doctrine of parental immunity stems from a trio of American cases decided in the late 19th and early 20th centuries: Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903); and Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905). Widespread adoption of the doctrine quickly followed. Martin J. Rooney & Colleen M. Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 New Eng. L. Rev. 1161, 1163 (1991).
From its inception, the doctrine has been rooted in the nature of the parent-child relationship. Courts reasoned that the state bore a responsibility to protect and preserve the
As we recognized in Mitchell, this fаmily-relationship rationale naturally extends to foster parents. Like natural parents, “[f]oster parents provide food, shelter, and discipline for children in their homes. Foster parents must also try to meet the emotional needs of the children.”
Despite this well established grounding of parental immunity in the family relationship, in Mitchell this Court extended parental immunity to DHR without determining whether the rationale underlying the doctrine supported that extension. See 598 So. 2d at 805. Indeed, we observed that “there is no familial relationship between DHR and foster children that a lawsuit could disturb.” Id. That observation remains true today. Unlike foster parents, DHR does not directly provide food and shelter to the children in its care, has no legal authority to discipline them, and cannot meet their emotional needs.
The two state courts that have refused to extend parental immunity to child-protection agencies and similar entities have done so for precisely that reason. A New York Supreme Court Appellate Division considered an agency‘s argument that it should have parental immunity against a charge of inadequate supervision. Bartels, 76 A.D.2d at 520, 429 N.Y.S.2d at 906. The court held that parental immunity did not extend to the agency because the public-policy
Similarly, the Illinois Supreme Court considered the issue in the context of a corporately owned children‘s home that provided care under a contract with a child-protection agency. Wallace, 203 Ill. 2d at 148, 786 N.E.2d at 982, 272 Ill. Dec. at 443. The children‘s home argued that, because it controlled the daily care of the child, it was entitled to parental immunity. 203 Ill. 2d at 151, 786 N.E.2d at 985, 272 Ill. Dec. at 448. The court disagreed, reasoning that “while thе parental immunity doctrine logically reaches foster parents, it cannot stretch to cover a corporate entity and its employees. The employees of a residential child care facility ... exercise their professional duties in handling state wards; they are not parents, however similar their responsibilities.” 203 Ill. 2d at 152, 786 N.E.2d at 987, 272 Ill. Dec. at 451-52. The court held that, because of the lack of family relationship, there could be no parental immunity.
Likewise, here in Alabama, the Department of Human Resources and its employees are not parents exercising loving
In addition to those problems, the Court in Mitchell relied on a faulty premise, at odds with history, that DHR stands in loco parentis. To the contrary, the origins of that doctrine reveal that it is inextricably tied to the voluntary delegation of authority by parents.
From its oldest recorded reference, the legal concept of in loco parentis entailed a relationship based on consent of a parent. The doctrine first emerged in Roman law under the
As early as the 13th century, this delegative concept of patroni loco was adopted in England under its current moniker, in loco parentis. See id. at 31 (citing Roscoe Pound, Readings on the History and System of the Common Law 28 (2d ed. 1913)). William Blackstone, the great commentator on the English common law (on which Alabama law is based, see
“delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of
1 William Blackstone, Commentaries *441.
On this side of the Atlantic, Chancellor James Kent echoed Blackstone‘s comment: “The power allowed by law to the parent over the person of the child, may be delegated to a tutor or instructor, the better to accomplish the purposes of education.” 2 James Kent, Commentaries on American Law 170 (1827). Kent‘s use of the doctrine of in loco parentis in the context of the delegated authority of educators was later adopted in Alabama. See Boyd v. State, 88 Ala. 169, 171, 7 So. 268, 269 (1890). Shortly thereafter, this Court extеnded the doctrine to include anyone to whom parents had delegated authority. See Dean v. State, 89 Ala. 46, 49, 8 So. 38, 39 (1890).8
“In awarding custody of minors modern courts have often said that the welfare of the child is paramount, but this consideration will not suffice to take children from parents who are decent and responsible, if able to furnish the necessities for their children, although the child‘s welfare and prospects in life might be bettered thereby, but custody may be taken away from parents manifestly unfit by the State standing in loco parentis in equity.”
Chandler v. Whatley, 238 Ala. 206, 209, 189 So. 751, 754 (1939) (quoting 1 James Schouler, A Treatise on the Law of Marriage, Divorce, Separation and Domestic Relations § 744 (6th ed. 1921) (emphasis added)). It was on that language in Chandler that Mitchell later relied in extending parental immunity to DHR. Mitchell, 598 So. 2d at 804. However, Chandler‘s pronouncement that the State stands in loco parentis was made without any consideration of the historical
Further, that historical understanding comports with a sound view of the State‘s role in protecting children. In this role, the State does not derive its authority from being “in the place of a parent.” Rather, the State derives its authority from its God-ordained nature as the State. Like the family, the State “is a separate and legitimate human government within its proper sphere.” Ex parte E.R.G., 73 So. 3d 634, 650 (Ala. 2011) (Parker, J., concurring specially). “[I]t possesses supreme authority within its own legitimate bounds, with the rights and duties of its members ordained by ‘a higher authority.‘” Id. at 650-51 (quoting Ex parte Sullivan, 407 So. 2d 559, 563 (Ala. 1981)). See generally id. (explaining divinely designed separate spheres of authority of family and state, with historical references); G.C., 924 So. 2d at 674-77 (same, in greater detail).
Because the State‘s authority over abused or neglected children is inherent, not delegated from parents, the State does not stand in loco parentis. Thus, Chandler‘s pronouncement and Mitchell‘s reliance on it to grant parental immunity to DHR were misguided.
In summary, Mitchell‘s extension of parental immunity to DHR stands as a solitary jurisprudential miscue among American courts. More importantly, it runs counter to the historical foundations of the doctrine of parental immunity. Although the State has an interest in protecting family relationships, DHR has no familial relationship with the children in its care. And although the State has a role in protecting children from abuse and neglect, that role is not in loco parentis. Therefore, although I reluctantly concur because Curry has not asked this Court to abrogate this application of the doctrine, this aspect of Mitchell ought to be ovеrruled upon appropriate request and argument in a future case.
Wise, J., concurs.
I concur because Mitchell v. Davis, 598 So. 2d 801 (Ala. 1992), is controlling precedent. Like Chief Justice Parker and Justice Wise, however, I am uncomfortable with the principle that the State and its agents have parental immunity equivalent to the immunity enjoyed by biological, adoptive, and foster parents. For that reason, I would be open to reconsidering this principle in a future case in which this Court is asked to overrule Mitchell.