Andrews v. Otsego County

• Decision Date: 08 January 1982
• Citation: 446 N.Y.S.2d 169,112 Misc.2d 37
• Court: New York Supreme Court
• Parties: Joseph J. ANDREWS, an Infant under the age of 18 years, by his parent, Frances Andrews, Plaintiff, v. The COUNTY OF OTSEGO and Thomas and Winifred Talbot, both Individually and as Agents or Employees of the Otsego County Department of Social Services, Defendants.

Page 169

446 N.Y.S.2d 169

112 Misc.2d 37

Joseph J. ANDREWS, an Infant under the age of 18 years, by his parent, Frances Andrews, Plaintiff, v. The COUNTY OF OTSEGO and Thomas and Winifred Talbot, both Individually and as Agents or Employees of the Otsego County Department of Social Services, Defendants.

Supreme Court, Otsego County.

Jan. 8, 1982.

Thomas Hegeman, Oneonta, for plaintiff.

James E. Fey, Utica, for defendants, Talbots.

Levene, Gouldin & Thompson by Paul B. Price, Binghamton, for defendant, County of Otsego.

OPINION

JOHN P. BALIO, Justice.

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). The defendant County of Otsego had joined in the application and has also requested dismissal of the claim asserted against the County.

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. N.Y. Constitution, art. XVII, § 1; Sinhogar v. Parry, 74 A.D.2d 204, 214, 427 N.Y.S.2d 216, mod. on other grounds 53 N.Y.2d 424, 442 N.Y.S.2d 438, 425 N.E.2d 826. 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, subchapter 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, 74 A.D.2d 204, 215, 427 N.Y.S.2d 216. 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 Soc.Serv.Law, §§ 374, 398; 18 NYCRR § 427.1; A. 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 U.S. 816, 827, 97 S.Ct. 2094, 2100, 53 L.Ed.2d 14.

When a county places a child under foster family care, it has an obligation to exercise care in the placement (See Soc.Serv.Law, §§ 377, 378; 18 NYCRR §§ 405.1, 405.3.) and to provide continuing supervision during the placement (18 NYCRR § 428.3and ). A county does not, by the mere fact of placement, relinquish its role as parens patriae nor its continuing obligation to protect the child's health, safety, and welfare. Although the precise bounds of duty and liability have yet to be defined, a county may be held liable for negligent placement or supervision. Bartels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d 906. In the present case, the complaint does not allege any negligence in the placement nor that the County had notice of prior incidences of misconduct or negligent supervision. See, in this regard, Bartels v. County of Westchester, supra. However, at this stage of the proceedings all of the complaint allegations are deemed true, and the pleader is entitled to every favorable inference that may be drawn. Siegel, N.Y. Practice, § 265. Liberally construed, the complaint states a cause of action against the County for negligent supervision. Bartels v. County of Westchester, supra; See also, Faria v. Catholic Home Bureau for Dependent Children, Inc., NYLJ, August 21, 1981, p. 6, col. 4. The likelihood of success on the merits is not presently before this Court. See 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., p 3211.36. Therefore, the County's application for dismissal is DENIED.

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 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338, as authority), as foster parents, they should be treated in the same manner as natural parents.

Prior to the N.Y. Court of Appeals decision in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, 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, 268 N.Y.S.2d 490. 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 child and who was compensated by the then Department of Social Welfare for foster care services did not stand in a relationship of in loco parentis. A relationship of in loco parentis was then essential to extension of the immunity defense. Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.S.2d 1.

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 N.Y. 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, 36 N.Y.2d at p. 44, 364 N.Y.S.2d 859, 324 N.E.2d 338. (Emphasis in original.)

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 N.Y.2d 82, 436 N.Y.S.2d 236, 417 N.E.2d 530. 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, 314 N.Y.S.2d 453), an aunt and uncle who provided temporary care during each day while the mother worked (Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313), grandparents (Barrera v. General Electric Co., 84 Misc.2d 901, 378 N.Y.S.2d 239), and a private institutional home for foster children (Fox v. Mission of the Immaculate Virgin, 202 Misc. 478, 119 N.Y.S.2d 14, affd. 280 App.Div. 993, 117 N.Y.S.2d 477). 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, for example, Pierce v. Helz, supra.); or (2) the defendant voluntarily assumed a duty to provide reasonable care (See, for example, Zalak v. Carroll, supra.). Further, even where the parent-child relationship does exist, courts have not been anxious to apply the bar of Holodook whenever liability could be predicated upon affirmative acts. (See, for example, Hurst v. Titus, 77 A.D.2d 157, 432 N.Y.S.2d 938, affg. 99 Misc.2d 205, 415 N.Y.S.2d 770), rather than failure to supervise.

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, 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, 441 N.Y.S.2d 950. 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. As the letter contract for foster care in this case reveals, the only specified duty "owed" to the child (and for which...