Newsome v. Department of Human Resources, A90A1731

• Decision Date: 25 February 1991
• Docket Number: No. A90A1731,A90A1731
• Citation: 405 S.E.2d 61,199 Ga.App. 419
• Parties: NEWSOME et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
• Court: Georgia Court of Appeals

Page 61

405 S.E.2d 61

199 Ga.App. 419

NEWSOME et al. v. DEPARTMENT OF HUMAN RESOURCES et al.

No. A90A1731.

Court of Appeals of Georgia.

Feb. 25, 1991.

Rehearing Denied March 29, 1991.

Certiorari Denied May 15, 1991.

William L. Salter, Jr., Charles W. Cook, Vidalia, for appellants.

Jones, Cork & Miller, Thomas C. Alexander, Thomas W. Joyce, Macon, Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., Jennifer L. Hackemeyer, Asst. Atty. Gen., for appellees.

SOGNIER, Chief Judge.

Jackie Newsome and James Ricks, the natural parents of Remono L. "Rusty" Ricks and Jennifer Nichole Ricks, minors, brought suit against the Georgia Department of Human Resources ("DHR") and its then Commissioner, James G. Ledbetter; several Emanuel County Department of Family & Children's Services ("DFCS") employees, including Iris M. Leonard and Billy K. Scott; and Roy Lee Habersham and Sandra Habersham, seeking damages for the wrongful death of their son Rusty and injury to their daughter Jennifer Nichole, as a result of a fire at the home of the Habershams, foster parents with whom the children had been placed. The action was filed in Fulton County, where it is undisputed Ledbetter resided. Ledbetter was subsequently voluntarily dismissed from the action by the plaintiffs. The Fulton County court then granted the remaining defendants' motion to transfer venue to Emanuel County. All the defendants then moved for and were granted summary judgment in Emanuel County, and Newsome and Ricks appeal.

1. Appellants contend the Fulton County court erred by transferring the action to Emanuel County. Appellants argue that venue was proper in Fulton County because they sought to hold DHR jointly and severally liable for the actions of its employees on the theory of respondeat superior, that venue against DHR lies in Fulton County, and thus the action may be maintained in Fulton County against the appellees as joint tortfeasors under Ga.Const. of 1983, Art. VI, Sec. II, Par. IV. We do not agree.

Venue in actions against DHR is set by OCGA § 31-2-5 "in the appropriate county." We have found no cases, and the parties have cited none, construing the phrase "appropriate county." That language first appeared in OCGA § 31-2-5 at the time of the adoption of the Michie Code as a revision of the predecessor statute, Ga.Code Ann. § 88-118, which placed venue for actions against DHR "in the county in which the cause of action originates." Given that Ga.Code Ann. § 88-118 was never amended, and that OCGA § 1-1-2 provides that the adoption of the new Michie Code was intended only as a recodification and modernization of the old Code, and its enactment was not intended to alter the substantive law then in existence, we hold that the phrase "appropriate county" in OCGA § 31-2-5 means "the county in which the cause of action originated," as provided in former Code Ann. § 88-118. Accordingly, this cause of action having originated in Emanuel County, the Fulton County court did not err by transferring the action to Emanuel County. ¹

2. Venue in Emanuel County having been proper, we next address appellants' contention that the grounds on which the Emanuel County trial court granted summary judgment to all defendants were erroneous.

(a) Appellants allege summary judgment was improperly granted in the Habershams' favor based on parental immunity. The doctrine of parental immunity (a form of family immunity) is based on the public policy of keeping families intact and discouraging proceedings which tend to disrupt family tranquility, and shields a parent or one standing in loco parentis from suit by an unemancipated minor. Clabough v. Rachwal, 176 Ga.App. 212, 213, 335 S.E.2d 648 (1985). The doctrine was first held to apply to foster parents in Brown v. Phillips, 178 Ga.App. 316-317(1), 342 S.E.2d 786 (1986). In Brown, we held that although foster parents are not the source of their foster children's financial support, it is their responsibility, "in their role as foster parents selected and approved by DFCS, to discharge the duties of the parental relationship by receiving [foster children] into their home and caring for [them] as if [they] had been their own child. [Cit.]" Id. Accordingly, since Brown, foster parents have been clothed with parental immunity identical to that afforded natural parents, and are entitled to assert it as a defense to any action brought against them by their foster children for torts allegedly committed by them during the period during which they stood in loco parentis. We would agree that it should be applied here, as in Brown, but for the fact that after the fire appellants' children were removed from the Habershams' home and placed with another foster family, and thus the Habershams did not stand in loco parentis to the children at the time this action was filed.

Even accepting the special concurrence's analogy of the situation in the case at bar to that of an emancipated child, reliance on cases decided long before the Supreme Court's holding in Nelson v. Spalding County, 249 Ga. 334, 337-338(3)(a), 290 S.E.2d 915 (1982) misses the mark. "In Fowlkes v. Ray-O-Vac Co., 52 Ga.App. 338, 340 (183 SE 210) [(1935) ], this court held that 'an action is maintainable, if the child was emancipated at the time of the tort and the action.' The Supreme Court, however, declined to follow this narrow view in [Nelson, supra], concluding that the interspousal immunity doctrine was applicable where, after the collision giving rise to the cause of action, the plaintiff married the defendant. Thereafter, this court held that in determining whether a defendant is immune from suit, we will not find controlling the status of the 'relationship' at the time the cause of action accrued, rather we will look 'to the status of the relationship at the filing of suit and thereafter.' (Emphasis supplied.) [Cits.] Clearly under the precedent established by this authority, the [status of the parties] at the time of the accident was not controlling." Arnold v. Arnold, 189 Ga.App. 101, 103-104, 375 S.E.2d 225 (1988). In Arnold, the Nelson test was applied in a case of first impression in which an unemancipated minor brought suit against a sibling. The defendant sibling was unemancipated at the time the asserted cause of action arose, but had attained majority before trial commenced. We determined that under those circumstances, applying Nelson, the defendant was not entitled to immunity as she was by law an adult. The Supreme Court affirmed our decision in Arnold with full knowledge of the manner in which Nelson had been applied and thus the characterization of that affirmance in the special concurrence is misleading. See also Trust Co. Bank v. Thornton, 186 Ga.App. 706, 709-710, 368 S.E.2d 158 (1988); Morris v. Brooks, 186 Ga.App. 177, 366 S.E.2d 777 (1988); Clabough, supra 176 Ga.App. at 214, 335 S.E.2d 648. In Morris and Clabough the Nelson test was used in application of the parental immunity doctrine. Even conceding the merit of appellees' argument that the Morris case has no precedential value because only two judges of this court concurred fully, Clabough is fully precedential, and thus we conclude that application of the doctrine of parental immunity is controlled by the status of the relationship of the parties at the time the action is filed. ²

We see no reason to refuse to apply the time of filing test when the relationship at issue is that of foster parents and children rather than natural parents and children. Rather, we find that application of this test is completely in accord with the reasoning originally stated in Brown for clothing foster parents with parental immunity. When a parenting relationship exists, even on an impermanent basis, allowing suit against the parent on behalf of the child violates the public policy of this state favoring the preservation of family tranquility and affording to foster children an environment which resembles, as much as is possible, a natural family. If the foster parent-child relationship no longer exists between the parties, however, concern for the quality and stability of that relationship necessarily abates, thus canceling the reason behind the grant of immunity.

The logic behind the withdrawal of immunity when the condition motivating its creation ceases is analogous to the reasoning in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301, 357 S.E.2d 569 (1987), for the waiver of sovereign immunity when the provision of liability insurance obviates concern about damaging the public fisc. Here, as in Martin, "[o]ur duty is to honor that articulation of public policy," id., and remove the shield of immunity when the reason for its original extension no longer exists. It is in accord as well with the Supreme Court's reasoning in Harris v. Harris, 252 Ga. 387, 388(2), 313 S.E.2d 88 (1984). In holding that the doctrine of interspousal immunity would not be applied to bar suit where the parties, although not divorced, had been separated for many years, the Supreme Court pointed out that "there was, realistically speaking, no 'marital harmony' to be protected by application of the interspousal immunity rule. Nor is there in the record any hint of collusion between the Harrises or of intent to defraud an insurance company. Under these peculiar facts we merely hold, consistent with the principles reviewed in Robeson [v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) ] (1981) (setting forth the 'traditional policy reasons favoring retention of the common-law immunity rule') ], that the reasons for the immunity rule simply do not exist here, and that the doctrine of interspousal tort immunity does not apply to bar [this] claim." (Emphasis supplied.) Harris, supra. Stanfield v. Stanfield, 187 Ga.App. 722, 371 S.E.2d 265 (1988), cited in the special concurrence, is an aberration unless construed simply as a holding that, unlike the situation in Harris, supra, the evidence in Stanfield was...