Liner v. Brown

• Decision Date: 15 November 1994
• Docket Number: No. 9321SC1118,9321SC1118
• Citation: 449 S.E.2d 905,117 N.C.App. 44
• Court: North Carolina Court of Appeals
• Parties: David LINER, as Administrator of the Estate of Ambra D. Richardson and Veronica Richardson v. Ronald and Linetta BROWN.

Page 905

449 S.E.2d 905

117 N.C.App. 44

David LINER, as Administrator of the Estate of Ambra D Richardson and Veronica Richardson v. Ronald and Linetta BROWN.

No. 9321SC1118.

Court of Appeals of North Carolina.

Nov. 15, 1994.

Crawford Whitaker & Hough, P.A. by William A. Hough, III and David R. Crawford, Winston-Salem, for plaintiff-appellant/appellee David Liner, as Administrator of the Estate of Ambra D. Richardson.

Nichols, Caffrey, Hill, Evans & Murrelle by William L. Stocks and Richard J. Votta, Greensboro, for defendant-appellants/appellees.

GREENE, Judge.

David Liner (Liner), as administrator for the estate of Ambra D. Richardson (Ambra), appeals from a judgment entered in Forsyth County Superior Court on 21 July 1993, granting Ronald and Linetta Brown's (defendants) motion for summary judgment based on parental immunity in Liner's claim for wrongful death. Defendants appeal from that part of the judgment denying their motion for summary judgment as to the claim of Veronica Richardson (Ms. Richardson) for negligent infliction of emotional distress.

Ms. Richardson and Dennis Richardson (Mr. Richardson) are the divorced parents of Ambra, born 7 June 1987. Mr. Richardson is the brother of defendant Linetta Brown. By order dated 27 April 1990, Judge Loretta C. Biggs (Judge Biggs) adjudicated Ambra to be a dependent and neglected juvenile, placed her in the legal and physical custody of the Forsyth County Department of Social Services (DSS), and gave DSS "placement responsibility for said minor" with the "cause [to] be reviewed within ninety days of the April 25, 1990, hearing." In addition, Judge Biggs ordered Ms. Richardson, beginning on 27 April 1990 and "continuing until further order of the Court," to "pay to the Clerk of Superior Court of Forsyth County ... the sum of $30.00 per week for the support and maintenance of Ambra Dean Richardson. Said Clerk shall remit said payments to the minor's caretaker at the following address: Mrs. Linetta Brown...." Judge Biggs ordered Mr. Richardson to "continue to make without fail his $30.00 per week child support payment for the support and maintenance of" Ambra. Judge Biggs also found that Ambra "has been placed by the DSS with her paternal aunt, Linetta Brown, since the DSS assumed custody of the minor ... [and] [i]t is the DSS's intent to maintain temporary placement of the minor with Mrs. Brown."

In March of 1990, DSS temporarily placed Ambra in the home of defendants, who were not licensed foster parents, and this arrangement continued after Judge Biggs' 27 April 1990 order. Ambra had spent weekends with defendants for about eighteen months prior to March of 1990. On 21 June 1990, Ambra drowned in defendants' swimming pool.

On 19 June 1992, Liner and Ms. Richardson (plaintiffs) filed a complaint in Forsyth County Superior Court, Liner alleging wrongful death and Ms. Richardson alleging negligent infliction of emotional distress. On 17 August 1992, defendants filed an answer and defenses, stating that "[o]n the occasion referred to in the complaint the defendants stood in loco parentis to Ambra D. Richardson who had been placed with defendants and lived with the defendants, with the defendants functioning as [her] parents" so that "the doctrine of parental immunity is applicable to any claims against the defendants for bodily injury to or the wrongful death of Ambra ... and also is applicable to the derivative claim of Veronica Richardson for alleged emotional distress resulting from [Ambra's] death."

In her affidavit, Ms. Richardson stated:

7. Throughout the time from April 25, 1990 through June 21, 1990, I:

a. regularly visited with Ambra or attempted to regularly visit with Ambra;

b. tried to see that Ambra received proper psychological care; and,

c. stayed in constant touch with [DSS] regarding Ambra's welfare; and,

8. It was my intention after consenting to relinquish the custody of Ambra on April 25, 1990 to do everything in my power to continue to provide love, affection and support to Ambra, to comply fully with the terms of all Court Orders pertaining to me, and to seek reinstitution of my custody over Ambra upon review of the case by the Court.

Ms. Richardson stated in her deposition that she visited Ambra "several times a week" at defendants' house or at day care, and she "raised some [C]ain [with DSS] about Ambra having two black eyes, a swollen nose, and her left cheek swollen and blue after [defendants] had her. And [she] went down to the daycare ... and [she] took pictures of" Ambra. From March until 21 June 1990, Ms. Richardson paid child support "through the child support office over at the courthouse" and had paid for Ambra's support "through June 22nd." Ms. Richardson stated her "psychological evaluation had come in the day before [Ambra] died that did state [she] was a proper and fit mother to raise [her] child." She was "pending the starting of parenting classes which [DSS] wanted [her] to do."

Mr. Brown stated in his affidavit that after Ambra was adjudicated a neglected and dependent juvenile, he and Mrs. Brown "naturally wished to continue [their] growing relationship with Ambra and to have her live on a continuous basis as a part of [their] family." "In every respect during this period of time, we were the persons who served and functioned as Ambra's parents."

On 14 October 1992, plaintiffs filed a motion for summary judgment and submitted defendants' affidavits and Ms. Richardson's affidavit and deposition in support. On 2 April 1993, defendants filed a motion for summary judgment. By judgment signed 21 July 1993, the trial judge found and concluded that "[t]he defendants' motion for summary judgment as to the claim of Veronica Richardson for negligent infliction of severe emotional distress should be and the same hereby is denied." The trial judge granted defendants' motion for summary judgment as to the wrongful death claim because defendants were "in loco parentis to the decedent and, therefore, [are] entitled to parental immunity which bars [Liner's] claim."

We first dismiss defendants' appeal as to Ms. Richardson's claim for negligent infliction of emotional distress because a denial of a motion for summary judgment is not appealable. Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978).

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The issues presented are (I) whether defendants stood in loco parentis to Ambra; and (II) if so, whether they are entitled to parental immunity as to the wrongful death claim.

I

This Court has defined the term in loco parentis to mean "in the place of a parent" and has defined "person in loco parentis" as "one who has assumed the status and obligations of a parent without a formal adoption." Shook v. Peavy, 23 N.C.App. 230, 232, 208 S.E.2d 433, 435 (1974); see also Howard v. United States, 2 F.2d 170, 174 (1924) (person in loco parentis is one "assuming the parental character or discharging parental duties"); Black's Law Dictionary 787 (6th ed.1990) (person in loco parentis is one "charged, factitiously, with a parent's rights, duties, and responsibilities"); N.C.G.S. § 7A-517(16.1) (1993) (in loco parentis defined in juvenile code as one, other than parents or legal guardian, who has assumed status and obligation of a parent without being awarded legal custody by a court). A person does not stand in loco parentis "from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. This relationship is established only when the person with whom the child is placed intends to assume the status of a parent--by taking on the obligations incidental to the parental relationship, particularly that of support and maintenance." State v. Pittard, 45 N.C.App. 701, 703, 263 S.E.2d 809, 811, disc. rev. denied, 300 N.C. 378, 267 S.E.2d 682 (1980); see 67A C.J.S., Parent and Child §§ 153-158, at 548-55 (1978); 59 Am.Jur.2d, Parent and Child § 75, at 217-18 (1987); 3 Robert E. Lee, North Carolina Family Law § 238, at 98-100 (1963). Therefore, whether defendants stood in loco parentis to Ambra at the time of her death is a question of intent "to assume parental status" and depends on all the facts and circumstances of this case. See Hush v. Devilbiss Co., 77 Mich.App. 639, 259 N.W.2d 170, 174 (1977) (intent to assume parental status can be inferred from parties' acts and declarations).

The facts and circumstances of this case do not support a determination that defendants stood in loco parentis to Ambra. Although Mrs. Brown was Ambra's aunt, DSS had both legal and physical custody of Ambra pursuant to Judge Biggs' 27 April 1990 order. Judge Biggs ordered the matter to be reviewed in ninety days, when one of the essential aims of such a review hearing--"to reunite the parent(s) and the child, after the child has been taken from the custody of the parent(s)"--would be considered. In re Shue, 311 N.C. 586, 596, 319 S.E.2d 567, 573 (1984). Defendants were therefore aware they were obliged, at all times, to surrender Ambra's placement with them should the court reinstate custody with Ms. Richardson or should DSS choose a different placement for Ambra. Furthermore, during the two months Ambra lived with defendants, Ms. Richardson regularly visited Ambra and made payments "for the support and maintenance of Ambra" to the clerk of court who in turn was to deliver such payments to Mrs. Brown pursuant to Judge Biggs' 27 April 1990 order. Ms. Richardson continued to love and care for Ambra's well-being as evidenced by her photographing the bruises she noticed on Ambra's body after being placed in defendants' care and contacting DSS about the bruises. Ms. Richardson also obtained a psychological evaluation showing she was a fit parent, tried to insure "that Ambra received proper psychological care," and was about to begin parenting classes requested by DSS. The mere fact defendants were obligated to provide and did in fact provide a stable environment for Ambra for a two...