Mitchell v. Davis

• Decision Date: 17 April 1992
• Citation: 598 So.2d 801
• Parties: Robert MITCHELL, et al. v. James DAVIS, as Administrator of the Estate of Jesse Walker, Deceased, et al. Robert MITCHELL, et al. v. James DAVIS, as Conservator of the Estate of Brenda Gilbert, a Minor. Robert MITCHELL, et al. v. James DAVIS, as Administrator of the Estates of Jesse James Gilbert, Deceased, and Kimberly Renee Gilbert, Deceased. Dan TRAMMELL v. James DAVIS, as Administrator of the Estate of Jesse Walker, Deceased, et al. Dan TRAMMELL v. James DAVIS, as Conservator of the Estate of Brenda Gilbert, a Minor. Dan TRAMMELL v. James DAVIS, as Administrator of the Estates of Jesse James Gilbert, Deceased, and Kimberly Renee Gilbert, Deceased. 89-1779 to 89-1781, 1900129 to 1900131.
• Court: Alabama Supreme Court

Page 801

598 So.2d 801

Robert MITCHELL, et al. v. James DAVIS, as Administrator of the Estate of Jesse Walker, Deceased, et al.

Robert MITCHELL, et al. v. James DAVIS, as Conservator of the Estate of Brenda Gilbert, a Minor.

Robert MITCHELL, et al. v. James DAVIS, as Administrator of the Estates of Jesse James Gilbert, Deceased, and Kimberly Renee Gilbert, Deceased.

Dan TRAMMELL v. James DAVIS, as Administrator of the Estate of Jesse Walker, Deceased, et al.

Dan TRAMMELL v. James DAVIS, as Conservator of the Estate of Brenda Gilbert, a Minor.

Dan TRAMMELL v. James DAVIS, as Administrator of the Estates of Jesse James Gilbert, Deceased, and Kimberly Renee Gilbert, Deceased.

89-1779 to 89-1781, 1900129 to 1900131.

Supreme Court of Alabama.

April 17, 1992.

James Allen Main of Steiner Byars Haskell Slaughter Young & Johnston, Montgomery, Sp. Asst. Atty. Gen., and James L. Martin, Sp. Asst. Atty. Gen., for appellants.

Jimmy S. Calton, Eufaula, Sp. Asst. Atty. Gen., for appellant Dan Trammell.

James H. Evans, Atty. Gen., and George E. Jones III, Asst. Atty. Gen., for appellants Robert Mitchell and Lois Mitchell.

William Prendergast and James E. Long, Asst. Attys. Gen., for appellants Hornsby and Barbour County Dept. of Human Resources.

David Cromwell Johnson and Susan J. Walker of Johnson & Cory, P.C., Birmingham, for appellees.

Bart Harmon, Birmingham, for amicus curiae Lifeline Children's Services.

PER CURIAM.

The first issue in these appeals is whether the parental immunity doctrine bars civil actions by foster children against their foster parents and the commissioner of the Alabama Department of Human Resources ("DHR"), the Barbour County Department of Human Resources ("BCDHR"), and the BCDHR director and case supervisor charged with custody and care of the foster children. The second issue is whether the commissioner, the director, and the case supervisor are entitled to some form of sovereign immunity.

On January 7, 1990, eight minor foster children were residing in the home of Robert and Lois Mitchell. As a result of a fire in the foster home, six of the foster children were killed; those children were Jesse Walker, Kimberly Walker, Larry Walker, Marketta Walker, Jesse James Gilbert, and Kimberly Gilbert. The two remaining foster children, Brenda Gilbert and Kevin Bouyer, were injured in the fire. James Davis, the administrator of the deceased children's estates, sued the foster parents, BCDHR, the director and the case supervisor of BCDHR, and the commissioner of DHR. Davis also sued these defendants as conservator of the estate of Brenda Gilbert. No suit was filed on behalf of Kevin Bouyer.

The plaintiffs alleged that the fire was the result of negligence, wantonness, breach of contract, and breach of warranty and that it gave rise to liability under the Alabama Extended Manufacturer's Liability Doctrine. Also, the plaintiffs asserted 42 U.S.C. § 1983 claims against the case supervisor, the director, and the commissioner.

Each defendant filed a motion to dismiss or, in the alternative, a motion for summary judgment, asserting the defense of parental immunity. Additionally, BCDHR, the commissioner, the director, and the case supervisor asserted the defense of sovereign immunity. The trial court denied each motion, holding that the parental immunity doctrine did not apply. However, the court also ruled that an immediate appeal of that holding was warranted. This Court granted all defendants permission to appeal. See Rule 5, A.R.App.P.

The parental immunity doctrine prohibits all civil suits brought by unemancipated minor children against their parents for the torts of their parents. The parental immunity doctrine was judicially created in 1891 by the Supreme Court of Mississippi. Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). This Court first discussed the doctrine of parental immunity in Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937). In Owens, the administrator of the estate of a minor child sued the father's insurer when the child was killed as a result of being hit by an automobile driven by the father. We held that the parental immunity doctrine barred a minor from suing his father for damages based on negligence or wantonness. The reason behind the doctrine is "the protection of family control and harmony, and [the reason] exists only where the suit, or the prospect of a suit, might disturb the family relations." Owens, 235 Ala. at 10, 177 So. at 134, citing Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905 (1930).

More recently, this Court created an exception to the parental immunity doctrine. In Hurst v. Capitell, 539 So.2d 264 (Ala.1989), we held that the parental immunity doctrine does not bar suits by minor children against their parents based on sexual abuse claims. The Court held that this exception applied to natural parents, stepparents, and adoptive parents.

We must now decide whether the doctrine of parental immunity applies to foster parents and the commissioner, the BCDHR, the director, and the case supervisor charged with custody and care of the foster children.

Foster care has been defined as " 'a child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.' " Smith v. Organization of Foster Families, 431 U.S. 816, 823, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (1977).

"The goal of foster care is not to create a new 'family' unit or encourage permanent emotional ties between the child and foster parents. 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."

Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683 (1985), citing Smith, 431 U.S. at 861-62, 97 S.Ct. at 2119 (Stewart, J., concurring).

In the present case, the foster parents argue that they stand in loco parentis to the foster children in their home and that this relationship warrants the application of the parental immunity doctrine. They point out that foster parents provide clothing, food, and transportation for foster children and meet their emotional needs. They argue further that functionally there is no difference between a biological family unit and a foster family unit. They contend that foster parents provide religious and social instruction to the foster children in their home. The foster parents also contend that although they are paid a supplement for each child in the home, it covers only minimal costs. They contend that if foster parents were not immune from civil suits by foster children, there would be a sharp decrease in the number of individuals willing to be foster parents.

The plaintiffs argue that the relationship between foster parents and foster children is purely contractual, and, therefore, that the parental immunity doctrine should not apply. The plaintiffs contend that the foster parent-foster child relationship is not permanent and continuous. They further argue that DHR may transfer a foster child to another foster home, without interference from the foster parents. Also, the plaintiffs point out that foster parents are paid a supplement to care for each foster child in their home and that DHR may inspect the foster home at any time. The plaintiffs assert that foster parents have no obligation of care, except through contract, and can exercise only that control dictated by DHR.

This Court concludes that the doctrine of parental immunity should be extended to foster parents in a qualified form. Specifically, we hold that foster parents may assert the defense of parental immunity against claims of simple negligence brought by foster children in their care.

Foster parents provide food, shelter, and discipline for children in their homes. Foster parents must also try to meet the emotional needs of the children. Therefore, foster parents should be afforded some protection by the parental immunity doctrine. However, the use of the parental immunity doctrine by foster parents should be limited, because of the nature of foster care. Foster parents differ from natural parents and others who stand in loco parentis, because there is no relationship by blood, marriage, or adoption. Foster parents are selected and approved by DHR. Foster care is temporary and is based upon a contract with the state. Foster children can be transferred at any time, and the foster home must be monitored by DHR. Foster parents are paid a supplement for necessities of the foster children. Therefore, this Court considers it necessary to limit the parental immunity doctrine to claims of simple negligence as it relates to foster parents.

The parental immunity doctrine should also be available, in a qualified form, to the commissioner, the BCDHR, the BCDHR 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. Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939); English v. Macon, 46 Ala.App. 81, 238 So.2d 733 (1970); State Dep't of Pensions & Security v. Whitney, 359 So.2d 810 (Ala.App.Civ.1978). As DHR stands in loco parentis, so does the commissioner, the BCDHR, the director, and the case supervisor. Although they stand in place of the parent, there is no familial relationship between DHR and foster children that a lawsuit could disturb. Any acts by the commissioner, the BCDHR, the commissioner, the director, or the case supervisor that rise to wantonness should not be protected by the parental immunity doctrine. Therefore, the BCDHR,...