Yes, Virginia, California can be Reasonable

Two-year old Jonathan Stass drowned in a toilet while in the care of his foster parents.

In a negligence action brought by his biological parents, the Illinois Supreme Court found that the foster parents are protected under certain circumstances from tort liability by the doctrine of parental immunity. Nichol v. Stass,192 Ill.2d 233, 735 N.E.2d 582 (2000).

In two separate strongly worded dissents, Justices Charles Freeman and James Heiple expressed their disagreement with the majority’s conclusion that foster parents stand in loco parentis to their foster children and are entitled to "enjoy a limited but undefined form of parental immunity ..." 192 Ill.2d at 249, Justice Heiple dissent.

Aside from the notion that foster parents are compensated by the state to fulfill their parental duties, the decision swims upstream against the more recent trend to narrow the scope of this doctrine.

The parental immunity doctrine is a creature of American common law, having first been invoked in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891). Illinois courts quickly adopted the doctrine. Foley v. Foley, 61 Ill.App. 577 (1895).

Over the years, Illinois courts have relied primarily upon three theories in support of the doctrine: (1) the preservation of family harmony; (2) the discouragement of fraud and collusion; and (3) the preservation of parental authority and discipline.

In the oft-cited case of Cates v. Cates, 156 Ill.2d 76, 619 N.E.2d 715 (1993), the Illinois Supreme Court limited the doctrine of parental immunity and found it inapplicable when the parental activity did not involve the supervision or discipline of a child. There, a suit was brought on behalf of a daughter against her father for injuries she received in a collision while riding as a passenger in a motor vehicle driven by him.

In reversing the circuit and appellate courts, the state Supreme Court held that the father owed a duty to drive carefully, not merely to his daughter, but to the public generally and that, therefore, the parental immunity doctrine was inapplicable.

Over the years, Illinois courts as well as other jurisdictions throughout the country have further diluted the doctrine through a number of exceptions to avoid harsh results.

Application of the doctrine has been rejected:

But, Illinois courts fiercely embrace the doctrine when the actions involve parental discretion in the discipline, supervision and care of the child. That rule was apparent in a recent case where the court found that a father was not immunized from liability for the negligent operation of a tractor when he ran over his son causing serious injury.

The court, however, made the distinction that the parental immunity doctrine applies for the father’s alleged failure to properly supervise his son by allowing him to be in the vicinity of a dangerous vehicle. Paterson v. Lauchner, 294 Ill.App.3d 455, 690 N.E.2d 1048 (2d Sit. 1998).

Although the principles underlying the doctrine are laudatory, the doctrine has become a procrustean bed at times, with some Illinois courts straining to make it fit.

Take the more recent case of Wallace v. Smyth, 301 Ill.Spp.3d 75, 703 N.E.2d 416 (1^st Dist. 1998), where a 12-year-old ward of the state was killed when counselors and administrators at Maryville Academy allegedly restrained here for several hours on the floor, including sitting on her, until she died from asphyxiation.

The appellate court found that the defendants did not stand in loco parentis to the child and reversed the circuit court’s granting of the defendant’s motion to dismiss. The Illinois Supreme Court, however, remanded the matter without opinion to the appellate court for additional consideration in light of Nichol v. Stass, supra, Wallace v. Smyth, Ill.2d, 735 N.E.2d 1001, 249 Ill.Dec. 176 (decided Oct. 4, 2000).

Although the majority in Nichol focused more on the negligent conduct, Justices Harrison and Heiple looked more to the temporary nature of the foster parents relationship and the fact that this parent is a paid employee of the state who carries out well-defined duties. Justice Heiple criticized the majority for offering no guidance to other courts on when the parental immunity doctrine should be invoked.

Other jurisdictions have denied parental immunity for torts upon foster children on a number of grounds but generally because public policy reasons are not furthered. Rourk v. State, 170 Arz. 6, 821 P.2d 273 (1991); Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683 (1985); Andrews v. County of Otsego, 112 Misc.2d 37, 446 N.Y.S.2d 169 (1982).

In Nichols v. Stass, the fact that the child is dead abrogates the family harmony theory. If the child had lived, no one would expect him to be returned to these foster parents. The possibility of fraud or collision is not valid inasmuch as the child is a ward of the court and the child’s financial affairs are under its control, not of the parents.

Furthermore, the policy of not undermining parental authority is not even applicable because the discipline of foster children is closely regulated by the Department of Children and Family Services. 89 Ill.Adm. Code sect. 402.21 (1996). But, it is the symbiotic relationship between the foster parents, the biological parents and the state on which the majority in Nichol extended the parental immunity doctrine.

Perhaps the most wise solution to Justice Heiple’s criticism in Nichol is the approach adopted by the California courts. There, a reasonable parent standard is applied to test the viability of all negligence actions between parent and child. Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648, 92 Cal.Rptr. 288 (1971). In doing so, a more consistent and predictable framework upon which to judge the scope of the immunity would emerge.