By Guest Contributor, Daniel Pollack   |   April 1st, 2017

Foster Child Sexual Abuse And Abolishing the Parental Immunity Doctrine

sexual abuse parental immunityRemoved from their biological parents, the children were placed in foster care. The court and all the professionals held out hope that the children would one day be reunified. Toward that end, under court order, unsupervised visits were gradually introduced. Unfortunately, those unsupervised visits were occasions for the biological father to molest his own children in plain sight of the mother.

Eventually, the children sought to sue their mother. May they? Aside from the practical aspect of the mother having insignificant assets, what is the legal answer? The mother was present when the children were being abused. She saw their plight in time to act so the children could avoid being harmed and she knew, or should have known, that a legal duty existed to protect them. In such a circumstance, when a child suffers an injury resulting from a parent’s failure to adequately protect, should there be an actionable tort against the biological parent?

Can A Minor Child Bring A Civil Lawsuit against his or her parent for personal injuries arising out of sexual abuse? Parental Immunity Explained

The doctrine of parental immunity can be traced back to 1891 to a Mississippi Supreme Court case, Hewellette v. George (9 So. 885 (Miss. 1891)), holding that a minor child may not maintain a negligence action for personal injuries against his or her parent. The court noted that “so long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained (p. 887).” The court further explained:

“The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand (p. 887).”

Eventually, a number of states decided to completely abrogate the parental immunity doctrine. Today, some states still hold by a limited parent-child tort immunity rule for intentional torts, and some recognize an actionable tort for negligent parental supervision. But our case is different. Legal custody of the children was held by the state, physical custody was with the foster parents but, the parental rights of the biological parents had not been terminated.

Where Does Ohio Stand On Parental Immunity and Sexual Abuse?

Some courts have strongly condemned applying the parental immunity doctrine to defeat an intentional sexual abuse claim. For example, in Hurst v. Capitell (539 So. 2d 264 (Ala. 1989)), a minor sued her stepfather and natural mother for damages based on sexual abuse. The court held:

“[T]o leave children who are victims of such wrongful, intentional, heinous acts [sexual abuse acts] without a right to redress those wrongs in a civil action is unconscionable, especially where the harm to the family fabric has already occurred through that abuse (p. 266).”

In similar fashion, the Connecticut Supreme Court, in Henderson v. Woolley (230 Conn. 472 (1994)), held that the common law parental immunity doctrine did not bar a civil lawsuit for damages by a minor child against his or her parent for personal injuries arising out of sexual abuse, sexual assault, or sexual exploitation.

If a child living with his or her biological parents is permitted to bring a legal action against their biological parent for sexual abuse, is it not compelling that, all the more so, a child living in foster care can also bring a similar action? It is time for all states to embrace the idea that to whatever extent it retains a parental immunity doctrine, such doctrine should not bar an action by a minor child against their biological parent for damages arising from sexual abuse when the child is in foster care. A parental immunity doctrine should not be a shield for parental moral depravity.

FROM THE PUBLISHER: Where Does Ohio Stand on This Issue?

The Supreme Court of Ohio expressly abolished the doctrine of parental immunity in 1985, through its decision in Kirchner v. Crystal, 15 Ohio St.3d 326, 326 (1984). The Court recounted four justifications for the doctrine’s implementation, “first, the doctrine will preserve the domestic peace, harmony and tranquility of the family unit; second, the doctrine inhibits possible interference with parental discipline and control; third, the doctrine hinders the potential depletion of the family funds or exchequer; and fourth, the doctrine prevents the possibility of fraud and collusion.” Id. at 327. The Court found “these rationalizations underlying the doctrine of parental immunity to be outdated, highly questionable and unpersuasive.” Id. Accordingly, the Court abolished the doctrine of parental immunity.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child  abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at dpollack@yu.edu  This article, “May a foster child sue their biological parent for sexual abuse?” originally appeared in Policy & Practice, 75 (2) 24 & 30.

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Guest Contributor, Daniel PollackAbout The Author: Guest Contributor, Daniel Pollack
Daniel Pollack, MSSA (MSW), JD is a full professor at Yeshiva University's School of Social Work in New York City and Senior Fellow, Office for Foster Care and Adoption, University of Massachusetts Medical School, Worcester, MA.

Sexual Abuse: May a Foster Child Sue Their Biological Parent for Abuse?
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