Sayers by Sayers v. Beltrami County

• Decision Date: 25 June 1991
• Docket Number: No. C9-90-2654,C9-90-2654
• Citation: 472 N.W.2d 656
• Parties: John A. SAYERS, by his guardian ad litem, Clarence J. SAYERS, Appellant, v. BELTRAMI COUNTY, et al., Charles Wind, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 656

472 N.W.2d 656

John A. SAYERS, by his guardian ad litem, Clarence J.

SAYERS, Appellant, v. BELTRAMI COUNTY, et al., Charles Wind, et al., Respondents.

No. C9-90-2654.

Court of Appeals of Minnesota.

June 25, 1991.

Review Granted Aug. 29, 1991.

Syllabus by the Court

1. The Indian Child Welfare Act's grant of exclusive jurisdiction to tribal courts in child custody matters does not preclude suit against a county which provides foster care for a tribal child.

2. A county is immune from suit for its decision to place a child in a particular foster home. This immunity, however, does not extend to the county's effort to train and assist the foster parents and monitor foster care.

3. Where evidence at the summary judgment stage permits a finding that a county failed to warn foster parents of a child's diagnosed hyperactive condition, it cannot be concluded that the child's subsequent injury was unforeseeable as a matter of law.

4. Foster parents are independent contractors, and not employees of a county. Although employers may be vicariously liable Charles H. LeDuc, Shermoen, LeDuc & Jaksa, International Falls, for John A. Sayers, by his guardian ad litem, Clarence J. Sayers.

for the torts of independent contractors in certain instances, no exception to the general rule of nonliability is present here.

Gordon W. Myerchin, David M. Box, McElroy, Camrud, Maddock & Olson, Ltd., Grand Forks, N.D., for Beltrami County, et al.

Gregory G. Scott, Minneapolis, for Charles Wind, et al.

Considered and decided by FORSBERG, P.J., and CRIPPEN and KLAPHAKE, JJ.

OPINION

CRIPPEN, Judge.

Appellant John Sayers sued his foster parents Charles and Eva Wind for negligent supervision after a personal injury occurring when he was three years old. Appellant also sued respondents Beltrami County and Beltrami County Social Services for negligently placing him in the Winds' home, negligently failing to warn the Winds of his hyperactive condition, and vicarious liability for the Winds' negligence. The trial court granted the county's motion for summary judgment, removing it as a party to the suit. We affirm in part, and reverse and remand in part.

FACTS

On May 6, 1983, while appellant was in foster care at the Winds' home, he suffered a severe arm injury. Appellant was left without supervision and placed his arm in a washer wringer located outside the foster home. Evidence indicates the boy required extraordinary care because he was hyperactive. Dr. Donald Dekrey, a psychologist, diagnosed appellant on March 17, 1983, as "very hyperactive," and suggested prescribing an anti-hyperkinetic such as Ritalin. ¹ Betty Curran, the county social worker primarily responsible for appellant's foster placement, was of the opinion that a highly specialized Professional Association Therapeutic Home (PATH) would be appropriate.

Appellant was placed with the Winds on March 29, 1983, after a series of child protection efforts by Beltrami County Welfare Department. The county first became involved with appellant in November 1982 when he was found alone with his sister at a Bemidji hotel. The county provided protective services on a temporary basis and returned appellant to his natural parents. Later that fall, a Bemidji hospital social worker referred appellant to the county while his mother completed a stay at a shelter for battered women. The county assisted in providing day care and transportation services for appellant.

In January 1983, appellant's parents, who are Native Americans living off the Red Lake Indian Reservation, requested that the county provide temporary foster care for appellant. Between January and March 1983, the Red Lake Tribal Court, confirming placement arrangements made by the county, ordered the placement of appellant in three different foster homes. The tribal orders were made following voluntary placement agreements which provided the county would "assume responsibility for giving care and supervision to the child(ren) in a properly licensed foster home." Each temporary placement was terminated because the foster parents could not handle appellant's hyperactivity.

On March 29, 1983, the county transferred appellant to the home of the Winds, Native Americans who live on the Red Lake Indian Reservation. Because the child is a member of the Red Lake Indian Tribe, beginning in January 1983 the county reported its placements to the tribe by letter. Again in February, after placement, the county reported to the tribe. In March 1983, in addition to executing another agreement for voluntary placement of the child, the county obtained a tribal court order confirming foster placement with the Winds. In its order granting the Winds temporary custody, the tribal court stated that it was in appellant's best interests to be placed in foster care "through the Beltrami County Welfare Department."

After his injury, appellant brought this action against the county and the Winds. The county moved for summary judgment, arguing only that appellant failed to state a cause of action against the county because any injury was attributable to the conduct of the foster parents. In response to this motion, the trial court explored sua sponte whether claims against the county were adversely affected by the tribal court's jurisdiction to confirm the county's foster care placement. Although this topic was neither introduced, briefed, nor argued by the parties, the trial court found it dispositive, concluding that tribal court jurisdiction negated any alleged duty of county personnel. The court further concluded, also sua sponte, that discretionary immunity for public officials was sufficiently broad to protect the county against claims stated here. Finally, the court agreed with the county that the risk of injury from a washer wringer was not one the county could foresee, and that the county could not be vicariously liable for the conduct of the Winds.

ISSUES

1. Does the jurisdiction granted to the tribal court under the Indian Child Welfare Act bar a negligence claim against the county?

2. Are the county's foster placement decision and its conduct in monitoring the foster parents protected by discretionary immunity?

3. Was appellant's injury unforeseeable as a matter of law?

4. Can the county be vicariously liable for the acts of foster parents?

ANALYSIS

On appeal from a summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, Inc., 281 N.W.2d 328, 330 (Minn.1979).

1. Indian Child Welfare Act.

The trial court concluded sua sponte that the tribal court's jurisdiction over appellant's placement was determinative of the county's duty of care. The dissenting opinion on review embraces the same conclusion. Numerous considerations dictate a contrary conclusion.

First, although the tribal court exercised jurisdiction in the case, it specifically delegated to the county the responsibility for foster care. The foster care stated in the tribal court's order was care "through the [county agency]." The county accepted without evident conditions the duty given it by the trial court. The Indian Child Welfare Act (ICWA) gives the Indian tribe exclusive jurisdiction over child custody proceedings involving tribal children. 25 U.S.C. Sec. 1911(a) (1982). In asserting exclusive jurisdiction, the tribal court may establish the following relationships with the state:

States and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.

25 U.S.C. Sec. 1919(a) (1982). Section 1919(a) specifically contemplates an arrangement such as the one between the tribal court and the county here. See also Minn.Stat. Sec. 257.353, subd. 5 (1990) (current law, part of Minnesota Indian Family Preservation Act, stating authority of Minnesota human services agency to enter into agreements to furnish care and custody of Indian children under section 1919(a)). Moreover, it is undisputed here, as confirmed in the county's own portrayal to the trial court on its duties, that its task in assisting tribal members is part of its general child protection role under state law.

Second, independent of the county's agreement, it is legally compelling that the county practiced the exclusive role in providing foster care services in the case. Tribal court jurisdiction, like any court jurisdiction in child protection matters, is over "proceeding[s]," not over administration of protection or treatment programs, especially those for residential care. 25 U.S.C. Sec. 1911(a) (1982); see 25 U.S.C. Sec. 1903(1)(i) (1982) (defining "foster care placement" in "proceeding" as action of removing child from custody of parents); see also Welfare of M.D.A. v. State, 306 Minn. 390, 394-95, 237 N.W.2d 827, 829 (1975) (declaring separate roles of juvenile court and corrections authorities); Smith v. Organization of Foster Families, 431 U.S. 816, 859, 97 S.Ct. 2094, 2117, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring) (discussing limited due process implications in unfettered agency control of foster care after voluntary or judicial placement). Nothing in the tribal court's exclusive jurisdiction over a placement decision precludes the caretaking duty of state agencies that furnish foster care service for a tribal child. Moreover, the evidence suggests nothing to distinguish efforts the county made here and the like efforts it would make in a case where tribal court jurisdiction did not exist. As the only active agent in administering placement and providing care for the child, the county cannot escape liability for alleged nonfeasance by reference to...