DEFINING THE SCOPE OF PARENTAL LIABILITY IN ABUSE
AND ABANDONMENT OF CHILDHEN
--·
Independent Research Study
For
Dean Richard W. Hemingway
By
Carolyn R. Royse
July 17, 1981
7~19
Outline
I.
II.
In traduction
Burnette v. Wahl:
A.
B.
III.
Alienation Of Affection
Infliction Of Emotional Distress
Parents' Duty After Rejection Of The Parent-Child IMmunity
A.
B.
IV.
Exceptions
The Rejection Of The Rule
:
Recent Amendments To The Texas Child Abuse Statutes
A.
Areas Address By Amendment
1.
2.
Chapter 17: Emergency Procedures In
Suit By Governmental Entity
Due Process Requirements
a.
b.
c.
d.
Emergency Custody
Ex Parte Hearing
Voluntary Relinquishment Of Child
e.
Placement of Child
f.
Adversary Hearing
g.
Hearing
Section 11.10:
a.
b.
3.
V.
The Attempt To Recover For Emotional Injury
Appointment of Attorney
For The Child
For The Parent
Sections 34.01 to 34.03:
Conclusion
720
Reporting Child Abuse
1.
Comment, 46 Fordham L. Rev. 670 (1978}.
2.
Id. at 739.
3.
Id. at 741.
4.
Hewellette v. George, 68 Miss. 703, 711, 9 so. 885, 887 (1891}.
5.
See, e.g., Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929}.
6.
Supra, note 1 at 742.
7.
McKelvey v. McKelvey, 11 Tenn. 388, 77 s.w. 664 (1903}.
8•
Ro 11 e r v. Ro 11 er , 3 7
9.
See, e.g., Davis v. Smith, 253 F.2d 286 (3d Cir. 1958}.
~vas h
• 2 4 2 , 7 9 P • 7 8 8 ( 19 0 5 } •
10.
See, e.g., Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640
(1963}.
11.
Gollar v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963}.
12.
See, e.g., Gibson v. Gibson, 3 Cal. 3d 914, 479 P. 2d 948, 92
Cal. Rptr. 288 (1974}.
13.
36 N.Y.2d 35, 324 H.E.2d 338 (1974}.
14.
Id. at 46, 324 N.E.2d 343.
15.
Id. at 46-7, 324 N.E.2d at 344.
16.
Id.
17.
Id.
18.
J. Goldstein, A Trend and A So1nit, Beyond The Best Interest Of
The Child, 32-34 (1973}.
19.
284 Or. 705, 588 P. 2d 1105 (1978}.
20.
Id., 284 Or. 730-31, 588 P.2d 1119 n. 5 (1978}
21.
Or. REV. STAT § 109.010 (1977 provides:
(Linde, J. dissenting).
Duty of Support.
Parents are bound to maintain their
children who are poor and unable to work to maintain
themselves; and children are bound to maintain their
parents in like circumstances.
721
OR. REV. STAT.
§
163.535 (1977) provides:
Abandonment of a Child.
(1)
A person commits the crime
of abandonment of a child if, being a parent, lawful
guardian or other person lawfully charged with the care
or custody of a child under 15 years of age, he deserts
the child in any place with intent to abandon it.
(2)
Abandonment of a child is a Class c felony.
OR REV. STAT.
§
163.545 (1977) provides:
Child neglect.
(1)
A person having custody or control of
a child under 10 years of age commits the crime of child
neglect if, with criminal negligence, he leaves the child
unattended in or at any place for such period of time as
may be likely to endanger the health or welfare of such
child.
(2)
Child neglect is a Class A misdemeanor.
OR REV. STAT.
§
163.555 (1977) provides:
Criminal Nonsupport.
(1) A person commits the crime of
criminal nonsupport if, being the parent, lawful guardian
or other person lawfully charged with the support of a
child under 18 years of age, born in or out of wedlock,
he refuses or neglects without lawful excuse to provide
support for such child.
* * *
(3)
Criminal nonsupport is a Class C felony.
22.
284 Or. at 710, 588 P.2d at 1108.
23.
Id. at 710, 588 P.2d at 1109.
24.
Id.
25.
284 Or. 705, 588 P.2d 1105.
26.
Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964).
27.
284 Or. at 710, 588 P. 2d at 1108-09.
28.
I d. at 712, 588 P. 2d at 1109-10.
29.
Id. at 717, 588 P.2d at 112.
30.
Id.
31.
Id. (Lent, J., concurring in part, dissenting in part); accord,
ReStatement (Second) Of Torts § 46 (1965) (Outrageous Conduct
Causing Severe Emotional Distress).
722
32.
I d. at 723, 588 P.2d at 1115.
33.
Id. at 729, 588 P. 2d at 1118.
34.
Id. at 731, 588 P. 2d at 1118.
35.
I d. at 716, 588 P.2d at 1111.
36.
w.
37·
Id. at 200.
38·
See, e.g., Goldstein, supra note 18, at 34
39.
Restatement (Second) Of Torts § 874A (1979).
40.
Id., comment d.
41.
Id., comment h.
42.
Id.
43.
See, e.g., Goldstein, supra note 18, at 34.
44.
Id.
45.
284 Or. at 714, 588 P.2d at 1108.
46.
Id. at 708, 588 P.2d at 1107.
47.
Id. at 714, 588 P.2d at 1110.
48.
Id. at 728-29, 588 P.2d at·lll8.
49.
See, e.g., Sullivan v. Valiquette, 66 Colo. 170, 180 P•.91 (1919).
50.
See Heermance v. James, 47 Barb. 120 (N.Y. 1866).
51.
See Moulin v. Monteleone, 165 La. 169, 115 So. 44 7 (1927).
52.
Holbrook, The Change in the Meaning of Consortium, 22 Mich. L. Rev.
Prosser, Handbook Of The Law Of Torts § 36, at 191 (4th ed.
1971).
/
1 (1923).
53.
Id.
54.
See Edler v. MacAlpine-Downie, 180 F.2d 385 (D.C. Cir. 1950).
55.
See Dai 1 y v. Parker , 15 2 F • 2 d 1 7 4 ( 7th Ci r • 19 4 5 ) •
723
56.
See note 53 supra.
57.
Johnson v. Luhman, 330 Ill. App. 598, 606-07, 71 N.E.2d 810,
814 (1947).
58.
2 Q.B.
59.
Bielitski v. Obadiak, 61 Dom. L. Rep. 494
60.
Wilson v. Wilkins, 181 Ark. 137, 25
61.
Grant A. and P. Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931).
62.
Restatement of Torts § 46
63.
2 5 3 Or • 113 , 4 5 3 P • 2 d 6 8 2 ( 19 6 9 ) •
64.
Id. at 122, 453 P.2d at 686.
65.
Restatement (Second) of Torts § 46, comment d (1965).
66.
259 Or. 54, 485 P. 2d 28 (1971) •
67.
See e.g., Goldstein, supra note 18.
6l
284 Or. at 716, 588 P.2d at 1110.
69.
Id. '
70.
Restatement (Second) Of Torts § 500
71.
Prosser, Insult and Outrage, 44 Cal. L. Rev. 40, 53 (1956).
72.
Restatement (Second) Of Torts § 46, comment j
73.
See, e.g., Ourada v. Knahmuhs, 221 N.W. 2d 659 (Minn. 1974).
74.
284 Or. at 729, 588 P. 2d at 1118.
75.
Golds be in, supra note 18, at 32.
76.
Id. at 33.
77.
Id. at 33-34.
78.
Id. at 34.
79.
Or. Canst. art. 1, § 10.
57 (1897).
(Can. 1921).
s.w. 2d
428 (1930).
(1934).
~-
724
(1965).
(1965).
80.
Restatement (Second) Of Torts § 870 (1979).
81.
Or. Rev. Stat. § 163.535 (1977). Contra, Hendricks v. Curry,
401 S.W.4d 796 (Tex. Civ. Ct. App. 1966).
82.
Parents, of course, may discipline their child by corporal
punishment, but if the punishment exceeds that which is reasonably necessary under the circumstances, the child may recover
for the battery. See, e.g., Calway v. Williamson, 130 Conn. 575,
36 A. 2d 377 (1944).
83.
Goldstein, supra note 18, at 22-26.
84.
S. Speiser, Recovery For
85.
Henry H. Foster, Jr. and Doris Jones Freed, A Bill of Rights For
Children, in The Youngest Minority (S. Katz ed. 1974).
86.
Id. at 318.
87.
See Abuse and Neglect of Children in Institutions, 1979. Hearings
Before the Subcomm. on Child and Human Development of the Senate
Comm. on Labor and Human Resources, 96th Cong., 1st Sess. 193-94.
(1979).
88.
Goldstein, supra note 18 at 32-34 .
89.
Supra, note 4.
90.
Supra, note 7.
91.
Supra, note 8.
92.
Goldstein, supra note 18 at 35.
93.
E.g., Treschman v. Treschman, 28 Ind. App. 206, 61 N.E. 961 (1901)
(action to recover damages for assault and battery allowed against
plaintiff's stepmother).
94.
See, e.g., Union Bank & Trust Co. v. First Nat'l. Bank & Trust
Co., 362 F.2d 311 (5th Cir. 1966).
95.
See, e.g., Harlan Nat • 1. Bank v. Gross, 346 S. Wl 2d 482 (Ky. Ct.
App. 1961).
96.
See, e.g., Fowler v. Fowler, 242 S.C. 252, 130 S.E.2d 568 (1963).
97.
Supra, note 10.
~1rongful
Death, § 3.1 ( 2d ed. 197 5) •
•
725
98.
See, e.g., Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d
375 (1966).
99.
E.g., Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908
(1938).
100.
Supra, note 91.
101.
See, e.g., Emery v. Emery, 45 Cal. 2d 421, 289 P. 2d 218 (1955).
102.
Supra, note 11.
103.
See, e.g., Dunlap v. Dunlap, 84 N.H. 352, 362-63, 150 A. 905,
910 (1930).
104.
Id.
105.
Id.
106.
Supra, note 8.
107.
Supra, note 9 2.
108.
Supra, note 101.
109.
284 Or.
11~
w.
111.
Comment, Child v. Parent: Erosion of the Irnmuni ty Rule, 19
Hastings L. J. _201 (1967).
112.
I d. at 2 0 9 •
113.
See, e.g., Hebel v. Hevel, 435 P.2d 8 (Alaska 1967).
114.
Supra, note 10 9.
115.
Id.
116.
Id.
117.
Id.
118.
Id.
119.
D.
120.
Id.
121
Id.
705, 730, 58-8 P.2d 1105, 1119 (1978).
Prosser, supra note 34, § 122, at 865 n. 75.
~
Goleman, Proud To Be A Bleeding Heart.
(June 1978) 81-91.
726
Psychology Today
122.
U.S. National Center On Child Abuse and Neglect, Dep' t. of
Health, Education And Welfare, Child Abuse And Neglect Reports
7 (1979).
123.
Tex. Faro. Code Ann. § 17.01-.05 (Vernon 1975)
124.
See, e.g., Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632,
651 (1974).
125.
See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
126.
See, e.g., Meek v. Pittenger, 374 F. Supp. 639 (E.D. Pa. 1974).
127.
See Carqueville v. Woodruff, 153 F.2d 1011, 1012 (6th Cir. 1946).
128.
See, e.g. , In re Ninship, 397
u.s.
358, 367 (1970)
129.
See, e.g., Goss v. Lopez, 419
u.s.
565, 574 (1975).
130.
Supra, note 126 at 367.
131.
Note, State Intrusion into Family Affairs: Justifications and
Limitations, 25 Stan. L. Rev. 1383, 1383-84 (1974).
(amended 1979).
j
"
132.
Id.
)
133.
See Sims v. State Dept. of Pub. Welfare, 438 F. Supp. 1179, 1192-93
~D. Tex. 1977), rev'd sub nom.
134.
Compare Tex. Faro. Code Ann. § 17.01-.08 (Vernon Supp. 1980) with
1975 Tex. Gen. Laws, ch. 476, § 44-45, at 1270.
135.
See Tex. Faro. Code Ann. § 17.02 (Vernon Supp. 1980).
136.
See Tex. Fam. Code Ann. § 17.03 (Vernon Supp. 1980).
137.
Supra, note 129.
138.
Id.
139.
See id.
-
140.
See Tex. Rev. Civ. Stat. Ann. art. 695p (Vernon 1980).
141.
Tex. Faro. Code Ann. § 17.04(a)
§
17.03(d).
(Vernon Supp. 1980).
Supra, note 131.
143.
Cf. Fuentes v. Shevin, 407
u.s.
67, 81 (1972).
727
144.
See Newton v. Burgin, 363 F. Supp. 782, 788 (W.O. N.C. 1973).
145.
Supra, note 131.
146.
See Tex. Fam. Code Ann. § 17.07 (Vernon Supp. 19 80) •
14 7.
See Tex. Rev. Ci v. Proc. 6 8 6 ("such reasonable notice given in
such manner as the courE may direct").
148.
Supra, note 12 9.
149.
Id.
150.
383 u.s. 541 (1966).
151.
387 U.S. L (1967).
152.
In re Gault, 387 U.S. 1, 30 (1967); Kent v. United States, 383
u.s. 541, 561-62 (1966).
.:
153.
See In Re Whittington, 391 U.S. 341, 344 (1968).
154.
See McKeiver v.' Pennsylvania, 403 u.s. 528, 541 (1971).
155.
See 42 u.s.c.A. § 5101 (West 1977 § Supp. 1979).
156.
-h,~. ~ ~~. ~ ~~
~~·
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.t/1./o rv~
DEFINING THE SCOPE PARENTAL LIABILITY
IN ABUSE AND NEGLECT OF CHILDREN
I.
INTRODUCTION
Children are a problem.
Helpless at birth, long in rna-
turing, prohibited by biology, custom, and law from providing
for themselves, they need protection, nurturance, and education
for a substantial period of time.
Even in a society like ours,
which urges individual liberty and responsibility, special provisions must be made for children. 1
Who should provide this protection, guidance, and control?
In our society a child's biological parent or parents
have the primary right and responsibility to raise children.
/
Aside from the obvious reason that any other policy would be un~
•
acceptable to virtually everyone, our preference for parental
authority is based on the assumption that children develop best
when raised by their parents.
The ties of blood are thought to
generate the commitment essential to childrearing.
Our defer.
ence to parents also reflects a commitment to diversity of lifestyle and thought.
In contrast, we question the capacity of
state institutions to rear children.
Yet parents do not always live up to expectations.
sometimes injure and even kill their offspring.
they fail to provide love, guidance, and concern.
,They
More often,
Because the
quality of care children receive influences their ability to
function as adults
1
(as well as the quality of their child-
hood) and because many adults seem to do a less than adequate
-1-
729
2
job of childrearing, it is generally thought that parents
should not be totally free to rear their children as they see
fit.
The state clearly has some role in insuring the adequacy
of care a child receives.
The critical questions are: how
much of a role should the state
have~
who should exercise this
role; and what powers should the state have to alter parental
care.
In early Roman law, a child was treated as a chattel
of its father. 2
All interests of the child were vested in
the father, who was permitted under the doctrine of jus vitae
necisque to punish his child's misconduct as he saw fit--even
by
banishm~t,
slavery, or
death.~
Eventually the law grew to
recognize
property interests in the child, and later, person,
.
al interests as well.
,.
The doctrine of jus vitae necisque was
abrogated by the time of Justinian, but the law continued to
consider children as both property and
p~rsons,
a status
si~-
ilar to that of Blacks under American slavery.
Despite this, in both England and America, children
were able to sue their parents for matters relating to prop3
erty and, under English common-law, for personal torts.
In
1891, however, the Mississippi Supreme Court held that parents
were immune from suit by their children for intentional torts.
4
This parental immunity doctrine was soon adopted by other states
.
and extended to neg 1 1gence
ac t.1ons. 5
The rationale for this immunity is far from clear.
Some courts state that parental immunity prevents the danger
~130
3
of fraud in prosecution of state claims, since statutes of limitations are often tolled during the plaintiff's minority.
Im-
rnuni ty is also said to prevent depletion of the "family exchequer" and the possibility that the parent will succeed, to a
cause of action against himself.
Frequently the parent-child
relationship is analogized to that of a husband and wife, in
which suits are barred.
Finally, it is feared that permitting
such suits will result in interruption of domestic tranquility, or erosion of parental discipline and contro1. 6
Whatever the underpinnings of parental immunity, it
quickly spread throughout the United States.
th~
with
doctrine soon became apparent.-
The difficulties
Courts held that the
immunity barred suit for such abuses of parental authority as
rape
7
and cruel, inhuman treatment. 8
In an effort to relieve
, the harshness of such a strict rule, courts quickly recognized
exceptions which permitted suits in cases in which the child
was emancipated or the tort was intentional.
Some courts al-
lowed a child to bring suit against the estate of a dead pa.
.
h'1s b us1ness
.
rent 9 or aga1nst
a parent 1n
capac1. t y. 10
The crazy-quilt pattern of immunity resulting from
these exceptions suggests a widespread hostility to the general rule of parental immunity.
This hostility has
courts to find ill-reasoned, artificial exceptions.
l~d
some
In 1963,
Wisconsin became the first state to abrogate the doctrine, retaining immunity for exercises of parental control and authority, and for parental discretion with respect to such matters
4
as food and care.
11
In what appears to be a trend, a number
of other states similarly have abrogated the immunity.
Some,
like Wisconsin, have retained a small corner of the immunity
to protect parents from suit for reasonable exercises of their
authority and discretion.
Others have abrogated the immunity
entirely, although generally recognizing that in applying the
standard of reasonableness in a negligence action, the parental relationship must be considered. 12
Abrogation of parental immunity has not only permitted
suits that previously would have been actionable without the
parental relationship, but also has opened the door to duties
\
that exist because of the family relationship.
A few post-
~
immunity
~ases
have recognized the need for definition of tort
duties existing between parent and child.
In Holodook v.
~
~. 13
Spencer,
the court, although holding that a parent's negligent failure to supervise his child was not actionable by the
child, nonetheless treated the issue as one of first impression
that, until then, had eluded consideration due to parental immunity.
The court in Holodook feared that permitting intrafamily suits might lead to fraud ~nd collusion in cases in which
.
d . 14
parents were 1nsure
If the parents were not insured,
such suits might destroy family harmony.
Recognition of such
a tort, together with the New York rule of apportionment of
damages between concurrent tortfeasors, might discourage parents from prosecuting their children's tort claims against
732
I
5
a third party.
15
Finally, the court deemed child-raising such
a difficult task that almost all·parents could be said to have
16
.
.
b een neg 1 1gent
1n some regard.
The court felt that recog-
nition of a tort action to redress conduct so common would be
ill-advised. 17
These considerations, however, are not relevant in a
case of abandonment.
It is doubtful that insurance would pro-
teet parents from suit for the willful tort of abandonment,
and the danger of fraud, therefore, is minimal.
Family bar-
mony certainly will suffer no more from an abandonment suit
that it would
suffer from the abandonment itself.
,
Abandon-
ment is, moreoever, such a radical, even criminal departure
from the standard of parental conduct expected by society that
recognition of a tort action will impose no widespread, additional burdens on parents.
II.
BURNETTE v. WAHL AND THE ATTEMPT TO
RECOVER FOR EMOTIONAL INJURY
Our society has historically treated abandonment, along
with other forms of child abuse or neglect, as a criminal matter.
Legislatures have imposed criminal penalties on parents
who abandon their children, and have provided administrative
procedures to remove the child from its natural family, if neeessary, and placed it in a foster or adoptive home.
Despite
the damage to children caused by abandonment, no American legislature or court has ever allowed a child to recover in tort
733
6
for such damage.
18
In the recent case of Burnette v. Wah1 19
the Oregon Supreme Court maintained this unanimity by refusing
to recognize a civil action based on abandonment.
Plaintiffs in Burnette were five children,
ag~d
two
through eight, who brought suit through their guardian ad
litem against their mothers for emotional injury caused by
abandonment.
Plaintiffs advanced four theories to justify
their recovery: first, that defendant's violation of a statutory, criminal duty to support and care for their children constituted a tort; second, that defendants had intentionally inflicted severe emotional injury on their children;
third, that defendants had alienated the bonds of affection
that normally exist between parent and child; and, finally,
that the court should recognize abandonment of children as a
common-law tort.
The circuit court sustained demurrers to
the complaint and dismissed the action.
On appeal, the Oregon
Supreme Court affirmed, rejecting each of plaintiff's theories.
Unfortunately, the factual background of the abandonments alleged in Burnette is unavailable since the case never
went to trial.
This background would have been interesting
because of the light it would have shed on the extent of
plaintiffs' injuries.
As the dissent noted, however, "the
case would have been the same if a child had been deliberately abandoned in an unheated mountain cabin and lost a limb
to frostbite or suffered other permanent injuries from lack
•
o f food or pneumon1a.
11
20
This may overstate the case somewhat,
734
7
since plaintiffs were seeking recovery solely for emotional
injury.
This paper will accept the allegations of that com-
plaint as true.
The complaint in Burnette alleged that defendants had
violated four statutes that establish minimum standards of
parental care for children.
21
These statutes forbid abandon-
rnent of a child, child neglect, and criminal non-support, and
impose a duty on parents to support their children.
Plaintiffs
argued that violation of these statutes constituted a per se
tort.
The Oregon Supreme Court noted that the legislature had
established a Children's Service Division, of which the plaintiffs were wards, and had charged it to provide, "care, .
.
.
protective services, . . . and such services for the child as
the division finds to be necessary."
22
The court interpreted
these terms to include an obligation to provide emotional nurturing, and reasoned that since the legislature had enacted "a
vast panoply of procedures, both civil and criminal, to insure
that children receive proper nurturing, support and physical
care," 23 its failure to provide specifically for a private
cause of action implied that the statutes were not intended to
create civil liability.
The court concluded: "It is obvious
that had the legislature intended a civil action it would
24
have provided one, as legislatures many time~ do."
The oregon supreme Court rejected plaintiffs' claims,
holding that neither these statutes nor the common law provide
a civil remedy for the wrongs alleged.
735
25
The disparate opinions
. -·
8
in Burnette offer evidence of the difficulty courts are likely
to face in determining the scope of parents' liability to their
children.
Oregon has yet to abrogate parental immunity.
However,
they have recognized an exception permitting suits for intentional torts.
26
A suit for abandonment may be maintained, how-
ever, even in jurisdictions that retain some form of parental
immunity, if the suit falls within an applicable exception, such
as the intentional torts exception utilized in Burnette or the
emancipated child exception.
;
Burnette, therefore, is a unique case.
It must be con-
sidered in the context of the expanding notion of the rights of
children and the relatively recent movement toward abrogation
of parental immunity.
It is the first judicial examination of
a child's right to enforce through a civil action an age-old
moral and criminal duty imposed on parents.
Justice Holman's majority opinion focused upon the lack
of legislative authority for such units
27
and suggested that to
allow a cause of action would upset a complex legislative scheme
\
designed to deal with the problems of child abuse, neglect, and
abandonment.
These statutes, according to Justice Holman, ex-
pressed a legislative policy_pf reuniting the family when possible.28
Justice Holman feared that to allow a cause of action
based on these statutes would interfere with the state's effort
to restore the family.
Moreoever, for the same reasons, he re0
fused to create a new tort of parenta 1 d esert1on.
726
29
Justice
\
9
Tongue concurred in the result, stating, however, that the doctrine of parental immunity should not be abandoned with respect
to liability for mental and emotional injuries. 30
Justice Lent, concurring in part and dissenting in part,
agreed with the result only because plaintiffs failed to state
a cause of action for "outrageous conduct." 31
He insisted,
however, that the court should permit a civil cause of action
for damages upon a properly drafted complaint.
Justice Lent ex-
amined the costs of caring for abandoned children, including
both the monetary loss to the community and the "loss of human
potential" caused by psychological and emotional harm to abandoned children.
He concluded that offending parents "should
. ] resources perm1t.
.
'' 3 2
s h ou1 d er so muc h o f t h e b ur d en as [ t h e1r
In his dissent, Justice Linde noted that it is not uncommon for courts to award civil damages for violations of prohibitory laws and concluded that parents could be
~eld
liable for
mental and emotional damages inflicted maliciously, intentionally, and with cruel disregard of the consequences.
33
Justice
-
Linde said that the majority's desire to protect the legislative policy of preserving family unity would prevent suits for
torts resulting in physical as well as mental injury.
Finally,
the dissent accused Justice Holman of applying the doctrine
of parent-child immunity even though Oregon courts had aban-
.
.
.
1 torts. 34
doned the doctrine w1th
respect to 1ntent1ona
Justice Holman observed that "[t]here are probably as
many children who have been damaged in some manner by their
10
parents' failure to meet completely their physical, emotional and psychological needs as there are people." 35
The court
suggested, as an example of the high exposure of parents to liability for emotional injuries, that a child might sue his parents for emotional damages resulting from the parents' divorce
on the theory that reasonable persons would conclude that harm
was substantially certain to result from such an act.
Justice
Holman's reasoning sounds very much like the rationale generally offered to justify parental immunity--that the abrogation
of immunity would result in a flood of frivolous litigation.
Indeed, Justice Tongue went so far as to argue that such immunity should be preserved for claims alleging emotional injury.
The court cited Dean Prosser.
Prosser criticizes the ra-
tionale of many courts that, in viewing a statute's silence on
a civil remedy, purport to find an implied intent to provide
for tort liability.
Prosser states: "In the ordinary case
this is pure fiction concocted for the purpose .. ,The obvious
conclusion can only be that when the legislators said nothing
about it, they either
~ ~ot
have the
~civil
all, or deliberately omitted to provide
~or
suit in mind at
it."36
The Bur-
nette court interpreted the legislature's silence as a conscious refusal to establish a civil action.
It is at least as
reasonable to infer, however, that the Oregon legislators,
accustomed tQ the bar of parental immunity, simply did not
consider the possibility of a civil suit.
788
i
11
Rather than seeking to divine the intention of the leg-
'
islature, Prosser would look to criminal legislation as a
source of tort liability whenever the criminal statute is designed to protect the class of persons in which the plaintiff
is included against the risk of the type of harm that in fact
occurred. 3 7
On the basis of Prosser's two-pronged analysis, the
Burnette court could have held that violation of the four
Oregon statutes regulating child care gives rise to tort liability.
It is clear that the plaintiffs were in the cla-~s
of persons intended to be protected.
It is not as clear, how-
ever, whether the statutes seek to protect children from emotiona! injury.
Physical injury may be the most obvious conse-
quence of abandonment, but it is by no means the only one.
Emotional injury is so common among abandoned children 3 gthat
it is reasonable to conclude that the statutes sought to prevent emotional as well as physical injury.
The Restatement (Second) of Torts approaches the issue
of violation of a statutory duty differently that Prosser,
but dictates the same result.
Section 874A of the Restatement
provides:
When a legislative provision protects a class of
persons by proscribing or requiring certain conduct
but does not provide a civil remedy for the violation, t~e court may, if it determines that the remedy is appropriate in furtherance of the purpose
of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable
existing tort action or a new cause qf action analogous to an existing tort action .~1 ':: ·~
739
12
/
The comments to this Restatement indicate that, when faced
with a criminal statute silent on the matter of civil respon.J.
sibility, courts first should determine whether the legislature in fact had some specific, yet unexpressed, intention
regarding civil liability.
If so, that intention must govern.fO
But if the legislature's silence indicates that it had no specific intention, the court must make a policy decision and provide the remedy sought if it is "consistent with the legislative provision, appropriate for promoting its policy and
needed to assure its effectiveness. "L/-/
The Restatement sug-
gests that it is appropriate, for a court to consider the following: The nature of the legislative provision; the adequacy
of existing remedies; the significance of the purpose that the
legislative body is seeking to effectuate; the extent of the
resultant change in the tort law; the burden that the new
cause of action will place on the courts; and the extent to
which the tort action will supplement or interfere with existing remedies and means of enforcement.
Lf-l.
Judged by these standards, the Oregon statutes probably
.,
should have been held to create a tort action.
Specific,
narrowly-drawn criminal statutes are the most appropriate statutory source of implied civil actions.
'
Unlike a constitution•
al provision, which may be intended only as a broad statement
of policy, these statutes_precisely define a standard of conduct to which all must adhere.
It is reasonable to hold those
who breach this standard of conduct liable civilly as well as
740
1,
(
13
criminally.
Criminal liability alone will not redress the
injury caused by abandonment since the existing criminal remedies do nothing to recompense the child,
juries may be quite severe~3 J
e~en
though his in-
The goal of preventing and
remedying these injuries is vital, for they may permanently
damage the child and, ultimately·, society as well.~f
The court in Burnette did not follow the Restatement
analysis, but it did express great concern with one of the Restatement's considerations: the extent to which establishing
a civil action for damages would interfere with the legislative scheme.
In particular, the court feared incursion into
what it found to be a general theme running throughout the
Oregon Juvenile Code: that children are to be provided for in
their natural homes whenever possible.
sible~
When this is not pos-
a means is provided for divesting the parents of their
rights and removing the children from their natural family.
The court in Burnette believed that "tort actions such as the
present ones might well be destructive of any plans the social
45
agencies and juvenile court might have for these children."
The
compla~nt
in this case alleged that the plaintiff
..
children had .been abandoned and deserted by their parents
"maliciously, intentionally, and with cruel disregard of the
consequences."lfh
Under these circumstances, it is unlikely
that these children could,ever be reunited with their natural
families.
Also, by enacting criminal statutes preventing such
desertions, the legislature may be said to have abandoned any
t-Aj··1
I ·:f.
14
hope of reconciliation in such cases.
Any conflict could be
eliminated by requiring that children be removed from their
family before beginning a civil action.
The Burnette court
found it "significant" that the complaint failed to allege
that defendants' parental rights had been terminatedt7
But
the very nature of a claim for abandonment suggests that the
parental relationship has ceased to exist.
Criminal statutes are most often applied to tort actions in negligence cases.
They are considered, in that con-
text, to be a legislative definition of the requisite standard
of care.
Most intentional torts, like battery, derive from a
duty that was long recognized in both civil and criminal law.
Some, like intentional infliction of emotional distrss, impose
a duty that evolved slowly, often finding expression first in
a civil action.
In contrast, the duty at issue in Burnette
has been recognized both criminally and morally for thousands
of years, but, until recently, civil suits have peen barred
by parental immunity.
In those states that have abroqated or limited parental immunity, the question becomes whether this duty should
be recognized bv the civil as well as the criminal law.
Prosser and the Restatement suggest that it should be.
Both
Refu-
sal to permit tort recovery in an abandonment case is to ignore
the emphasis our society places on a parent's duty to her child.
The dissent in Burnette expressed the relationship between criminal and civil duties of support in these terms:
742
15
Jurisprudentially it might be said that parents
ha~e a duty not to abandon and desert their young
ch1ldren because ORS 163.535 makes it a crime to
do so, but a legislator would surely think ORS
163.535 should make it a crime to abandon and desert a child because the parent's existing duty-the duty to the child, not to the state--deserved
governmental reenforcement.
It is the parent's
duty thus recognized under Or~gon law that plaintiffs invoke in these cases.~
·
A.
Alienation of Affection
Alienation of affections is a tort that seeks to proteet a Person's interest in the family relationship.
Tradi-
tionally, this tort was an impairment of the marital relation
by depriving the plaintiff of his spouse's affections, including love, society, companionship, and comfort.q4
It is most
generally brought aqainst a meddling parent or lover.
This
tort- was recognized as early as 1866 by New York,50 and was
ultimately adopted at common law by every state except Louisiana.
51
~
Alienation of affections and other torts that seek to
protect such relational interests evolved from an ancient
common-law action for enticing away a servant, thereby depriving
the master of an interest in the servant's services.
Damages
could be recovered only for loss of services, even in the context of a family relationship.
Gradually, however, the law
came to recognize the leqitimacy of interests in companionship
and affection as well.
In some jurisdictions these interests
have come to overshadow or replace the original interest 1n
services.?~ -
743
/
16
The common law permitted only the husband to maintain
an action for alienation of affections.
The wife was afford-
ed no such protection, in part because she lacked capacity
to sue in her own behalf.
The common law also reflected the
prevailinq belief that women were not entitled to any services from their husbands and could not, therefore, recover for
the loss of such services.
As society's conception of women
and marriaqe changed, so did the law; today in almost all
states a wife may recover for alienation of affections.S3
Courts have recently begun to consider the question
whether children may recover aqainst one who has alienated the
affections of a parent.
~f
However, only four courts have al-
lowed children to recover for alienation of a parent's affectin.55
Oregon has not yet ruled on this question.
Even in those states that allow to children a cause of
action for alienation of affections, a conceptual leap is required to apply it to abandonment situations.
In those cases
that have permitted children to recover, the children sued third
persons who allegedly had enticed their parents away from the
family, thus depriving the children of the services, comoan5fc,
ionship, and affection due them.
In Burnette the children
sought to recover from the abandoning parents themselves.
Plain-
tiffs thus sought an expansion of the doctrine beyond that recognized by any court.
Althouqh recoqnizinq the lack of prece-
dent for the alienation of affections doctrine, Plaintiffs argued that it would be anomalous to recognize a right to recover
744-
17
as against a third party, but refuse to enforce a riqht where
the fault is qreater--against the desertinq parent himself.
The doctrine of alienation of affections has undergone
a transformation since its appearance in rhe early common law.
It is certainly "anamolous," as plaintiffs said, to allow a
man's wife and children to recover damaqes for loss of his affections from a third-party temptress and yet deny recoverv
for the same injuries when the husband acts without outside
encouraqement.
Perhaps a person's interest in the continued
love, society, companionship, and comfort of a spouse or parent can best be dealt with in actions for divorce, child support, or even abandonment, brought against the family member
himself.
The alienation of affections doctrine certainly does
have some relevance to a case of abandonment.
In applying
the doctrine to children, courts have determined that a child's
relationship with his parents should be a legally-protected interest.
As one court said in allowing a child recovery
~or
fections:
Defendant's conduct resulted in the destruction of
the children's family unit--that fortress within
which they should find comfort and protection at
least until thev reach maturity--and deprived them
of the unstinting financial support heretofore contributed by their father, as well as the security
afforded by his affection and presence . . . . [T]he
minor children herein have a right to protect their
relationship with their parents and are properly entitled to seek damaqes from one who has destroved
their family unit.S7
~;45
af-
,
18
This court expressed concern for the children's interest in their father's earnings, an interest not implicated in
Burnette, but the court clearly seeks to protect other interests as well, particularly the children's right to their parents' love and mora] support.
If children's interest in
their family relationship is sufficient to permit recover from
a stranger who has interfered with that relationship, then it
should also be sufficient to permit recovery from a parent who
'
has destroyed that relationship.
The alienation of affections
cases cited by plaintiffs are clearly distinguishable from Burnette, but the reasoning underlying them does support a crucial
premise of the plaintiffs' case: a child's legal interest in
his parental relationship deserves legal protection.
B.
Infliction of Emotional Distress
The early common law afforded no independent protection
to a person's interest in peace of mind.
tion of emotional distress could
Damages for inflic-
be~recovered
only if a defend-
ant's conduct constituted some independent tort, such as assault,
battery, false imprisonment, or seduction.
Wilkinson v. Downton,S~
an English case decided in 1897, is generally considered a
watershed in this area of the law.
In Wilkinson, a practical
joker told plaintiff that her husband had broken both his legs
in an accident and was lying in a public house in need of assistance.
The court held the defendant liable for the plaintiff's
resulting emotional injury.
By the middle of this century,
716
19
American courts generally had come to recognize a cause of action for intentional infliction of emotional harm, a doctrine
that proved remarkably flexible.
Liability has been found for
such disparate wrongs as spreading a false rumor that plain·
·
t 1'ff' s son h a d h ange d h'1mse lf ; sq~ b r1ng1ng
a mob to plaintiff's
., door at night with a threat to lynch him; bO and wrapping ~nd delivering a dead rat instead of a loaf of bread to a person who
obviously expected the latter.6t
The Restatement of Torts initially refused to recognize
the existence of such a tort.~1
In 1948, however, the editors
reversed themselves by recognizing the tort with.few limits.
The Restatement (Secondr of Torts retained the general doctrine,
but limited its scope.
The revised formulation was adopted by
the ~regon supreme Court in Pakos v. Clark. b 3
"One who by ex-
treme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability
for such emotional distress . .
There are basically three separate elements in this articulation of the tort: the defendant's conduct must be extreme
and outrageous; he must act intentionally or recklessly; and severe emotional distress!.. ,rnust result.
All th:r:ee of these elements
are satisfied when a parent abandons his child.
"Extreme and outrageous conduct" is an imprecise standard.
Some insight into the meaning of the phrase can be gained from
an examination of the American cases that impose liability.
The holdings of these cases have been summarized in the comment
~747
'
20
to section 46 of the Restatement, which provides:
Liability has been found only where the conduct has
been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally,
the case is one in which the recitation of facti to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, "Outrageous!"b5
The Oregon Supreme Court found this statement to be imprecise
and contradictory and proposed a simpler test in Rockhill v.
Pollard: bb·the defendant's conduct must be "outrageous in the
extreme."
Here, the court held a physician liable for ejecting
plaintiff and her 'injured 10-month old baby from his office
in the dead of winter, without treatment.
Such conduct was
"outrageous in the extreme," the court concluded, in part because of the relationship of the parties--a physician may be
held to a stricter standard of conduct toward his patients
than a layman would be toward a stranger.
Similarly, in judging a child's claim for intentional
infliction of emotional distress, courts should demand more
from parents than from strangers.
Conduct that merely is in-
sensitive when engaged in by a stranger may become extreme and
outrageous if done by a parent.
It is not necessary to recite
a paean to motherhood to assert that the relation of mother to
child is among the most sacred in our society, a status indicative of its importance.
Any abandonment of a child threatens
)
21
physical harm, but when a child is abandoned by his mother, the
chances are greatly increased that severe emotional injury will
result.
The emotional injury may be more serious than its phy-
sical couhterpart. It may result even though the child's physical needs are met.
In any case, it may show up
lo~g
after the
physical effects of abandonment have disappeared.~/
If the facts alleged in Burnette are not outrageous, it
is difficult to imagine what would be.
The Burnette court re-
fused to allow recovery, fearing
that such a precedent would
I.
I
.
prove difficult to conta1n.
hg
A recovery in Burnette, the court
asserted, would permit a child to recover damages when its parents divorce ther~by causing the child emotional injury~bq
Di-
vorce clearly is qualitatively different from abandonment, and
liability in such a case could be avoided by holding it to be
not "outrageous."
Indeed, the recent increase in the iricidence
of divorce in our society, cited by the majority, itself is evidence that divorce is no longer considered intolerable in a civilized community.
Parents who desert their children may not intend specifically to injure them.
Such parents, however, do act in delib-
erate disregard of a high probability that their children will
suffer emotional distress.
This disregard is sufficient to sat-
.
isfy the Restatement definition of recklessness,
70
and meets the
second of the three elements of the tort.
In order to recover for intentional infliction of emotional distress, some states require plaintiff to prove physical
749
22
as well as emotional injury.
Once physical injury is shown,
however, recovery is permitted for both physical and emotional
damage.
~
Those courts that require physical injury probably do
so to discourage fraudulent claims.
They consider physical
harm to be independent evidence of the claimed emotional damage.
It is not surprising, therefore, that these coures often find
the physical injury requirement met by a relatively minor physical manifestation.
There is some danger of fraudulent claims when emotional
injury alone is held compensable.
typically proved solely through
Such emotional injury is
plainti~f's
testimony.
To re-
quire physical injury as an absolute condition for recovery,
however, is an example of judicial overkill.
Such a require-
ment results in an arbitrary denial of recovery to the class of
emotionally damaged plaintiffs who, luckily (or unluckily)
avoided physical injury.
Prosser suggests that when physical
injury is lacking, the courts properly may requ1re a greater
showing of
outrageo~s
conduct; the more outrageous the conduct,
the more believable the plaintiff's claim of emotional injury.
'
7/
Section 46 of the Restatement permits recovery for -"emotional distress" even in the absence of physical injury.
In-
deed, recovery is permitted for a wide range of emotional ailments, as indicated by the comments to section 46:
The rule stated in the Section applies only where the
emotional distress has in fact resulted, and where it
is severe.
Emotional distress passes under various
names, such as mental suffering, mental anguish, mental
750
23
or nervous shock, or the like.
It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry and nausea.7~
This definition of "emotional distress" should be adequate, in
I
a typical case, to recompense a child for the variety of emotional disturbances caused by abandonment.
The tort of intentional infliction of emotional distress
is a relatively recent growth in the law.
The tort clearly ap-
pears to reach the conduct alleged in Burnette.
Indeed, the
defendants' conduct is more repreqensible and the plaintiffs'
injuries more serious in Burnette than in many previous cases
in which liability has been found.
Certainly a parent who aban-
dons her children is more despicable than a practical joker,
even one with a taste for the macabre.
The momentary upset
suffered by one who unexpectedly discovers a dead rat in her
groceries pales in comparison to the trauma suffered by an
abandoned child.
Thus, the court in Burnette should have held
that the complaint stated a cause of action for intentional
infliction of emotional distress.
I
No case has been found recognizing a tort for parental desertion, either as a common-law tort or under one of the
other theories advanced by the plaintiffs in Burnette.
Such
suits traditionally have been barred by parental immunity.
Only recently have courts begun to consider the substantive
issue of the rights and duties that exist because of the faroily relationship.
Indeed, no case other than Burnette has
reached the question whether parents owe their children a civil
24
duty to provide care.
To recognize a civil action for aban-
donrnent, therefore, a court must be willng to break new legal
ground--something courts notoriously have been hesitant to do.
The scant attention this issue has received, however, suggests
that the common law of abandonment is worthy of reconsideration
and ripe for change.
Why did the court in Burnette refuse to recognize a tort
of abandonment?
One answer certainly is found in the tradition-
al hesitancy of courts to intrude in family relationships.
This hesitancy was responsible, in part at least, for the develment of intra-family immunities and remains a useful policy in
some cases today.
Some aspects of the family relationship
clearly deserve judicial deference.
Parents certainly should be
given wide latitude in raising their children--determining when
'
and how to discipline them, regulating their conduct, and supervising their education.
The law should impose no liability on
parents for good-faith errors of judgment in performing these
parental functions.75
But courts should not refuse to question
all manner of parental conduct.
The recent trend toward abrogation of parental immunity
indicates an increasing willingness on the part of courts to
allow tort claims in cases in which the damage to the family
is minimal and the essence of the tort is unrelated to the
exercise of parental discretion.
Thus, for instance, courts
have created exceptions to the immunity doctrine in cases in
which the child is emancipated, or the suit is against the
752
25
estate of a dead parent or against a parent in his business
capacity.
In the first two cases the family relationship has,
in a sense, ceased to exist.
In the latter case, the probable
existence of insurance makes it unlikely that a suit would interfere with the family.
Abandonment of a child results in the utter destruction
of the family relationship; permitting the child to bring suit
for the abandonment cannot further damage the relationship.
As
the Burnette dissent noted, "the parents have in fact ended the
family unit, so that solicitude about not impairing it by,.litil
gation
may~sacrifice
the children's legal rights to a
p~ous
hope." 7lf, ·.Abandonment is no mere exercise of parental discretion nor error of parental judgment.
Rather, it is a complete
abdication of responsibility for the child.
A person who has
thus turned his back on his parental duties should not be permitted to invoke his parental status to shield himself from
tort liability.
Abandonment is thought to cause a wide range of emotiona! problems in children.
In children from birth to 18
months, any separation from the mother, even for the short
period when the baby is put in the care of a babysitter, can
lead to food refusals, digestive
ties, and crying.JS
upsets, sleeping difficul-
In children under five, abandonment may
produce distress, anxiety, and a profound diminution in the
quality of their next attachments.
Children abandoned at this
age often grow up as persons unable to maintain warm contacts
753
26
with others.
They have been-known to suffer regressions 1n
their toilet training and a loss or lessening of their ability to communicate verbally. 7 b _When parents abandon schoolage children, the children may respond by abandoning their
parents' demands, prohibitions, and social ideals.
This re-
sponse may, in turn, result in antisocial, delinquent, or even
criminal behavior. 7 7
The effects of abandonment are most dif-
ficult to see in adolescents, but may include interference with
the establishment of the child's independent adult identity.7?
I
-
Perhaps the most disheartening result of abandonment is that
adults who were themselves abandoned may treat their own children no better.
Thus, the sins of the fathers are visited on
the sons.
The real debate in Burnette, however, is not over the
damage caused by abandonment, but rather, over the best way to
remedy that damage.
Is the imposition of civil liability the
best way to deal with the problem of abandonment?
Is it possi-
ble that the potential for civil liability would act as a deterrent, but this argument is not particularly persuasive.
When
parents abandon their child, they violate one of the oldest
and most cherished precepts of our society.
It is doubtful,
therefore, that the possibility of civil liability will be effective in restraining such parents.
Another argument for imposition of civil liability is
based on the Oregon Constitution, which contains a provision
similar to provisions found in the constitutions of many states:
754
27
"[E]very man shall have remedy by due course of law for injury
,
done him in his person, property, or reputation."77
This pro-
vision, however, cannot reasonably be read to mean that every
injury must be remedied.
Many injuries are not, and should
not, be recognized by the law.
If the provision is read to
mean only that all injuries recognized as such by the law must
be remedied, it does no:more than state a fact of due process
doctrine.
This constitutional provision is a slender reed on which
to base tort liability, but it does state, perhaps too broadly, an important tenet of tort law.
Culpable conduct injury
to another, if not protected by privilege, defense, or irnmunity, should give rise to tort liability.
A wrong should not
go unremedied merely because it is not within the definition
of any previously recognizable cause of action.
Section 870
of the Restatement (Second) of Torts reflects this principle.
It provides: "One who intentionally causes injury to another
is subject to liability to the other for that injury, if his
conduct is generally culpable and not justifiable under the
circumstances.
This liability may be imposed although the ac-
tor's conduct does not come within a traditional category of
tort liability.
nJD
The generality of this provision may detract from its
persuasive value, but the principle underlying section 870 certainly warrants consideration in the case of abandonment.
Aside from the general concept that wrongs such as
755
28
abandonment should be righted, there are several more narrow
considerations urging recognition of a civil cause of action
for abandonment.
The
~riminal
law can .be effective in pro-
tecting the rights of children only if the authorities are will-
'
ing to invoke it.
Friends or relatives of the children or the
children themselves may recommend criminal action to the local
prosecutor, but the ultimate decision to prosecute is not in
their hands.
Criminal
prosecut~ons
hot only require a higher
degree of proof than their civil counterparts, but they often
demand proof of something more than just desertion.
Many states,
including Oregon, define abandonment in terms of the parent's
intent.&/ ·,A parent may desert the child for a time and yet
incur no criminal liability--despite the damage caused his child.
ted,
In sum, when no civil action for abandonment is permit-
th~
child has no independent means of
to parental love and care.
enforcin~
his right
Indeed, in the absence of a means
of enforcing such a right, it is probably meaningless to assert
that any right exists.
The child is then left without his pa-
rents and without any civil remedy, while an action against
the parents may be brought, if at all, only at the discretion of
the state.
There is no one to speak for the child.
In its present state, the law draws arbitrary
distinc~
tions between those injuries to a child that are compensable
and those that are not.
In most states, for instance, a child
may recover against his parents for
batte;y~~~
If the child
is a·bandoned, the wrong may be more grievous, the harm more
-~;56
29
severe, and yet the child is denied recovery.
Even broken
bones may heal in time, but the emotional damage caused by abandonment may never heal, even if the child is later placed in a
foster or adoptive family.?3
Moreover, the interests
....
'
asse~ted
.J
py
plaintiffs in Bur-
nette have been deemed worthy of legal protection in other contexts.
For instance, an increasing nUmber of states permit
children, as plaintiffs in wrongful death actions, to ·recover
non-pecuniary losses such as lost society and companionship,
mental anguish, grief and
sorrow.t~
Courts have thus recognized
the legitimacy of a child's interest in the continuation of
his family relationship.
The argument for legal protection of
that interest is certainly no less compelling in a case of abandonment than in a case of wrongful death or alienation of affections.
.The defendant in a wrongful death action may have been
unaware that his victim had children, and yet he is held liable for interference with the parent-child relationship.
An
abandoning parent, on the other hand, knowingly ends that relationship and yet escapes civil liability.
The case for recognition of a civil action for abandonmentis stated most succinctly by Henry_Foster and Doris Freed
in an essay entitled, "A Bill of Rights for Children.''
write: "A child has a moral
right: 1.
righ~
and
sho~ld
~
They
have a legal
To receive parental love and affection, discipline.
and guidance, and to grow to maturity in a home environment
which enables him to develop into a mature and responsible
30
adult .
. . .. Bfo
It is fitting that the authors chose to express
this right first, for the right to love and nurturing is of
paramount importance.
The overwhelming importance of this
right demands that the law afford redress for its denial.
III.
PARENTS' DUTY AFTER REJECTION OF THE
PARENT-CHILD IMMUNITY
Child neglect and abandonment are serious problems in
the United States.
The number of children in foster care
in the United States has risen from a third of a million in
1971 to over 750,000 in 1979.g1
A significant number of these
children have been abandoned voluntarily and permanently by
their parents.
Abandoned children suffer marked psychologic-
al consequences; even after receiving the best available foster care, such children suffer adverse emotional effects throughout their adult
lives.g~
Due to the traditional American rule
granting parents immunity from personal injury suits by their
minor children, abandoned children generally have been uncompensated for these injuries.
The recent trend toward abrogation
of parental immunity, however, suggests that the prospects for
abandoned children are likely to improve.
The notion that a minor child could not sue his parent
in tort originated in Hewlett v. George 81 an action brought
by a minor daughter against her mother for fales imprisonment
1n an insane asylum.
Reasoning that society's interest is
best served by preserving peace in the family, the court held
758
31
that a minor child could not seek civil redress for personal
injury against his parents.
Several years later, in McKelvey
v. McKelvey, 10the Tennessee Supreme Court upheld dismissal
of a suit by a minor child against his father and stepmother
for cruel and inhuman treatment.
After noting that a parent
has the right to control his child, the court, without any
specific authority, attributed to common law the rule that a
child had no remedy if the parent abused this right.
In addi-
tion, the court drew an analogy between the relationship of
parent and child and that of husband and wife, reasoning that
the same policies preventing a wife from suing her husband justify preventing a child from suing his parent.
In Roller v.
Roller~/ th~ Washingt6n Supreme Court firm-
ly established the doctrine of parent-child immunity in American
~
jurisprudence.
.
Plaintiff, a fifteen year old girl, brought a
civil action seeking damages for rape against her father, who
had already been criminally convicted of
~he
same charges.
The court dismissed the action on the grounds that a minor child
may not sue her parent in tort.
The court reasoned that to al-
low such actions would be against public policy and would disrupt the tranquility of the household.
The court also expressed
concern that it could draw no limitation once it permitted ac-
.
tion by a child against her parents; any such action would have
to be permitted, not only for "heinous crime,'' but for any tort.
Finally, the court suggested that one child should not appropriate the family estate at the expense of other minor children
759
32
in whose welfare the public has an interest.
These three decisions constitute the great trilogy upon
which the American rule of parent-child tort immunity is based.
They include most of the reasons commonly given in support of
the rule: the concern for the preservation of the family unit,
the preservation of parental authority; the preservation of
the family exchequer; the assertion that the injured child already has a remedy in criminal proceedings or in removal from
his parents' custody; the suggested analogy between the relationship of husband and wife and that of parent and child; the
possibility that the parent could inherit any judgment that the
child might recover; and the possibility that frivolous claims
might flood the courts.
A justification for the rule is the
danger of fraud and collusion between the parties in cases involving insurance.
A.
Exceptions
.
The majority of American courts quickly adopted the immunity rule and applied it to both intentional and negligent
torts.
These courts, however, apparently displeased with the
rule, also placed limitations on the scope of immunity.
For
example, courts did not extend immunity beyond personal torts
and refused to adopt comparable immunity for
erty actions.
contr~ct
or prop-
In addition, several courts declined to apply
the doctrine in tort cases involving solely property damage,
such as trespass, or pecuniary loss, as in most deceit cases.
,
760
33
Also, most courts did not grant the parent immunity if the
child was an adult or an emancipated minor, although some
courts invoked the doctrine if the child was an unemancipated
minor at the time the tort was committed.q~
In addition to these limitations, courts developed several exceptions to the immunity rule.
One early exception per-
.
d su1' t s aga1nst
.
.
m1tte
persons who stood 1n
loco parentis.q' · .
Another exception arises when one or both parties to the action are
deceased.q~ In such a case, the principal reason
for the immunity doctrine--the interest in preserving family
harmony or parental discipline--is absent.
Similarly, an exception to the immunity doctrine also exists in wrongful death actions.qs
Again, the family unit has been destroyed.
Courts
also reason that since wrongful death is a statutory action,
there should be no immunity when the statute is silent on the
issue.fb
Several courts also recognize an exception when the tort
is committed in connection with the parent's business activities.17
Courts recognizing this exception emphasize that neg-
ligent acts in performance of employment or business are unrelated to the discharge of parental responsibilities; thus a
cause of action under such circumstances is less likely to disturb family harmony..
An interesting variation of this excep-
tion deals with ''dual relationships"--when in addition to the
parent-child relationship, the parties may be characterized
as carrier and passenger or master and servant.
761
Courts
34
generally reason that if such a dual relationship exists, the
'
..
domestic relationship is incidental and therefore logically irrelevant to the cause of action.
1f
Another widely recognized exception to the immunity rule
holds that a third party is not protected from liability for
the parent's tort.
For example, if the parent within the scope
of his employment injures his child, the parent's employer will
not be prot~~ted from suit by the parent's immunity.11
Finally, a particularly important exception permits suit
against parents who intentionally inflict injury upon their chil-
dren~~
or who engage in willful
misconduct.~/
Courts adopting
this exception generally reason that the parent has abandoned
the parental relation and therefore cannot claim parental immunity.
Certainly, in the case of a particularly violent inten-
tiona! tort, such as when a father murders his wife and commits
\
suicide in his child's presence, granting the father immunity
from suit would not salvage the peace and tranquility of the
home.
B.
The Rejection of the Rule
The various limitations and
except~ons
to parental im-
munity indicate an attempt by several courts to avoid unjust
results while still operating within the confines 'of the rule.
It was not.-until 1963, with the Wisconsin Supreme Court's decision in Golier v.
trine was abrogated.
White, 1 ~L
that the parental immunity doc-
The case involved injury to a child whose
762
35
father negligently allowed him to ride on the drawbar of a
tractor.
To support its finding of liability, the court point-
ed to the widespread judicial dissatisfaction with the rule as
evidenced by the numerous exceptions.
Thus, the Wisconsin court
abolished the immunity doctrine except in certain limited circumstances.
The argument that to allow suit by children would undermine parental authority is not adequate justification for parental immunity.
Rather, it is better to consider the merits of
each individual case than to protect parental authority with a
blanket immunity from
suit~
In this regard, courts have argued
that the possibility that children will cease to obey their parents if permitted to sue them for assaults is remote.
/03
The
immunity rule-assumes that, like a sovereign, a parent can do
.
/DL/-
no wrong.
In fact, a parent is more like a judge--not ac-
countable for mere errors, but responsible when he oversteps
his bounds.
(OS
Moreoever, if the parent has, in the exercise
-
of his authority, injured his child so severely that an action
is brought, it would be unwise to protect summarily the exercise of authority to the child's detriment.
Courts have also rejected the argument that to allow
suit would result in depletion of the family exchequer.
lOb
This argument certainly carries no weight if the defendant
.
.-107.
is insured.
In any event, this rationale "ignores the par-
'
ent's
power to distribute his favors as he will, and leaves
out bf the picture the depletion of the child's assets of
763
36
strength and health through the injury."
10
~ Moreover, under
normal circumstances a parent would pay the costs of any nontortious injury to his child.
Thus, it is unlikely that abro-
gation of the doctrine would alter a family's financial status.
The availability of criminal remedies also is not a convincing argument for denying a private cause of action to an
injured child.
for his
damages.
Criminal remedies do not compensate a child
10
~·
Moreoever, it is unrealistic to believe
that such proceedings will disrupt family harmony any less than
?
a tort action.
Analogizing parental immunity to spousal immunity also
appears to be an insufficient reason for retention of the parental immunity doctrine.
At common law husband and wife were
considered a legal unit; there was, however, no such unity between parent and chil'd.
Moreoever, the marital immunity itself
has been subject to considerable criticism; in fact, a number
of states have abrogated it.
Indeed, Prosser suggested that
"[t]he height of ihaonsistency is reached by courts which permit action by the wife but deny it to the child.
110
The argument that a parent might fall heir to judgment
against him in favor of his child is also not convincing. 11/ '
First, the possibility of such an occurrence is remote, and
second, to the extent.that i t 7xists, the same could occur in
a property case. l/1._
Finally, the criticism that rejection of immunity for
certain serious torts logically would result in rejection for
all torts also does not justify retaining the parental immunity
764
37
rule.
Concededly, courts inclined to permit actions between
parent and child do not distinguish between intentional torts
and negligent torts.·l/3
The concern that permitting all such
actions will result in a flood of litigation, however,
insufficient rationale for inununity.
.
l.S
an
The American Law Insti-
tute has observed that "[t]his seems a poor reason for denying
liability for real harm to a child, which ought to be com pensated.
•
. .
It
.
l.S
the business of the courts to deal with
the flood of actions if they arise.
11
f
Similarly, with regard
to the concern over fr-aud and collusion between parent and
child, courts should inquire into the possibility of such fraud
and collusion in individual cases rather than bar all suits by
children against their parents.
The possibility of fraud or
collusion is no greater in tort actions between parent and
-b,._
.
child than in other actions generally permitted by the courts,
such as contract or property suits between parent and child, or
suits between driver and guest or master and servant.
115
Because of the less than compelling reasons for retaining parent-child immunity, a growing minority of courts have
abrogated the doctrine.
Significantly, in response to this
trend the American Law Institute has also rejected parent-child
immunity in the Second Restatement of Torts. l/b
Prior to 1963, when states began to reject the doctrine
of immunity between parent and child, a minor child could not
sue his parent for damages resulting from mental and emotional
765
38
injuries.
This left a large number of abandoned children
to bear the emotional scars of childhoods spent in foster
homes even though states simultaneously recognized the right
of physically abused children to recover damages for their injuries.
Today, with increased rejection of the parental immunity rule, courts have the opportunity to mitigate the damage
emoti~nal
caused by child abandonment and to impose a duty of
as well as physical care upon parents for the well-being of
their children.
Courts that reject or severely limit the im-
rnunity doctrine will soon confront claims of children who have
suffered mental injury as a result of parental abandonment.
To protect the interests of these children, courts should utilize the following theories of liability: liability per se for
violation of statute, liability for mental distress or negligence, or possibly a new tort theory of liability for child
abandonment.
.
In defining parental duty under whatever theory
it pursues, a court must consider the parent's exposure to patentially limitless liability while nonetheless assuring that the
parent assume appropriate responsibility.
IV.
II?-
RECENT AMENDMENTS TO THE TEXAS CHILD
ABUSE STATUTES
'
. . . criminals are simply people who spend their
whole lives avenging their mistreatment as children at the hands of adults.
111
A link between the experience of violence in childhood
39
and the expression of violence in later life has frequently
been demonstrated.
Many child-abusing adults were themselves
victims of parental violence in their childhood and/or witnessed violence between their parents.
The early life of many
murderers is characterized by child'abuse and violence between
parents.
Similarly, the adult who is violent towards his
spouse is likely to have been a witness to assaultive behavior
j2.o
between his own parents or a target of ·their violence.
Supporting the time-worn cliche, .violence begets violence,
these studies have demonstrated that the more individuals are
exposed to violence as children the more likely are they as
adults to be violent towards other people, including their
spouses and/or their children.
The victim of violence by others may become the victim
of his own violence.
The present evidence cannot be viewed as conclusive, but
it does raise the possibility of a link between parental abuse
and self-injurious behavior, a relationship which has been vir~ually
ignored in research on child abuse.
It also may serve
to stimulate researchers to examine the possibility of a relationship between childhood exposure to violence and the occur-.
renee in adolescence or adulthood of self-destructive behavior
(suicide or direct self-injurious behavior such as obesity, alcoholism, and anorexia nervosa.
/:l/
Approximately one million children are abused by their
parents each year and more than two thousand die as a result
767
40
11
. .
.
o f 1nJur1es
su ff ere d . ~
T h e problem of child abuse is no
longer hidden and relegated to understaffed, overwhelmed agencies.
In response to growing awareness, states have reformed
their child protective systems and child abuse reporting laws. 1 ~ 3
Drafters of child abuse legislation face the difficult task of
accommodating the freedoms of parent and child, while ensuring
the necessary exercise of
stat~
authority.
The United States
,
Supreme Court has upheld the fundamental right of family integrity, and has recognized there exists a private realm of family
life into which the state cannot enter. 12 ~ _A parent's interest
in directing the upbringing and education of his child is constitutionally protected. 12 S
When a child is subjected to or
threatened with serious physical or emotional harm, however, the
right of a parent to deal with his child as he sees fit becomes
'•
subordinate to the state's interest in protecting the child. ~b.
1
If necessary the state, as parens patriae, may intervene to remove the child from the dangerous situation, abrogating any
.
right the parent has to custo d y. !2..1· In ta k'1ng sue,h act1on
t he
state's purpose is twofold: to protect'the child from his parent and to enforce the state's own interest in having the child
raised as a healthy, law-abiding citizen.
The child's interest is separate from that of the parent or the state.
Permanent removal of a child from his inti-
mate family relationship will not always be in the child's best
interest.
The state, therefore, must be extremely cautious be-
fore removing a child from the environment to which he is
768
I
41
psychologically attached.
The child's best interest should be
the primary concern. 128
A.
Areas Addressed by Amendffient
1.
Chapter 17: Emergency Procedures in Suit by Governmental Entity
(a) Due Process Requirements
,
No person may be deprived of life, liberty, or property,
'
unless afforded adequate notice and a hearing before an impartial tribunal. ],t ~
Minimal requirements of due process must
precede permanent termination of parental rights. /3o
/.
Protection of a child in an emergency is a definite-gov,
. t eres t
ernmen t a 1 1n
.
.
/3}
an d requ1res
prompt act1on.
.
S1nce
t he
seizure of a child in an emergency involves only a temporary
deprivation,
courts allow temporary state custody of the child
,.
pending reasonable notice and hearing within a reasonable time.
The emergency procedure for taking temporary custody of a child
must, nonetheless, carefully guard the due process rights of'the
parent while providing necessary protection of a child's physical
health and safety. 1 3~
Prior to amendment, Texas' emergency cus-
tody procedures under chapter seventeen of the Family Code were
(
.....
unconstitutional because of due process deficiencies./33
The
legislature amended the entire chapter, thereby establishing
a constitutionally adequate procedure for taking custody of a
child in an emergency. 13
f
42
(b)
Emergency Custody
The state may take custody of a child in an
emergency
,
by court order, under section 17.02, as amended. 13S A temporary restraining order or attachment of the child will issue
/
if the court is satisfied by sworn petition or affadavit that
there is "immediate danger to the physical health or safety
of the child" and that there is not time for an adversary hearing.
Even without a court order, a child may be taken into
emergency custody in four instances.
In the first instance,
a representative of the Texas Department of Human Resources
(DHR), a law enforcement officer, or a juvenile probation officer who finds a child in a situation endangering physical health
or safety is authorized to take the child into custody and deliver him without delay to the person entitled to possession.
A child may be taken into custody if the official has personal
knowledge of facts or has received information that would lead
a reasonable person to believe a child's physical health and
safety is endangered.
Finally, custody may be taken upon the
voluntary delivery of the child by his parent or guardian to
the state.
(c)
Ex Parte Hearing
When a child is placed in the custody of the state under emergency circumstances, section 17.03 provides that a
suit affecting the parent-child relationship must be filed
without unnecessary delay and a hearing must be held no later than the first working day after the child is taken into
43
custody. 1}!o 1\l though due process does not require an immediate· hea~ing, courts have held the state's interest in protecting the alleged abuse victims does not justify the resulting
usurpation of parental rights when the hearing is held later
than one day after seizure.
The Texas Legislature found this
requirement unworkable since judges may not be immediately
available during times other than normal business hours.
The
legislature deemed the "next working day" requirement a more
practical solution and further provided for circumvention of
the prescribed time limit.
(d)
Voluntary Relinquishment of Child --
A child delivered voluntarily into state custody by
his parents or guardian may be held up to sixty days, within
which time a suit affecting the parent-child relationship
must be filed by the person taking the child into custody.
This procedure has been subject to serious criticism because
it allows irresponsible parents to dump their children into
the state's custody.
Escape from a probable harmful situation is often in
the child's best interest. 13l
'When no serious threat to the
child's physical health or safety exists, however, extended
separation from his home and family is very likely to have adverse effects.
Separated from familiar surroundings and placed
with strangers in a foster home, the child remains in a state
of insecurity.
The child may develop emotional attachments to
771
44
,
the persons with whom he associates daily during the interim
between_separation from and return to his parent.
When the
'
parent-child relationship is terminated permanently, the child
-
is sometimes removed from his temporary surroundings to another
new environment.
To uproot the child again, once custodial
rights are determined, infringes upon his right to family pri-
'
vacy./3? The child is entitled to expeditious determination
of the location of his future home.
Conversely, filing suit
too soon may result in an unfair determination of custodial
rights.
The parent needs time to recover financially or regain
a better emotional perspective before he can adequately assert
his rights in a hearing.
Two months is a reasonable period of
time from the parent's point of view.
The parent's interest
in this situation has a correlative relation to the interest
of the child: a fair determination of custody is in the child's
best interest as well.
The sixty day statutory period, there-
fore, presents a fair compromise between the competing interests
at stake.
(e)
Placement of Child --
Section 17.03 further provides for the immediate return of a child to the person entitled to possessi?n if, after
a hearing, the court is not satisfied there is a continuing
danger to the child's physical health or safety.
13
7
Although
section 17.03 expressly prohibits the placement of a child in
temporary custody in a jail or juvenile detention facility,
772
45
no specification is made as to where a child should be placed.
In practice the child is usually kept in a children's shelter,
sent to an appropriate relative, or placed in a foster home.
It is necessary for the Family Code to expressly direct the
placement of children held temporarily by the state.
There-
fore, legislative action must be taken to ensure that the right
to proper and expedient placement of a child in a healthy environment is protected.
One solution to this problem would be
for the legislature to expressly provide that abused children
be placed in temporary family shelters. I'H:>
(f)
Unde~
_,.
Adversary Hearing
sect1on 17.04 a full adversary hearing must be
held ten days after the emergency seizure of a child or within
ten days of the issuance of an ex parte order directing his
seizure, unless the child has already been returned to his parents.14/
This section also requires a full adversary hearing
within ten days of the filing of a suit affecting the parentchild relationship.
If sufficient evidence is produced at this
hearing to satisfy a person of ordinary prudence and caution
that there is danger to the physical health or safety of the
child, appropriate temporary orders under section 11.11 of the
Code must be issued.
If not, ±he child shall be returned to the
person entitled to possession.
Due process entitles a person
to adequate notice and a full adversary hearing within a reasonable
time:;~2
What constitutes a reasonable time is determined
46
by considering the interests of each party.
'¥ 3
The interests
of the child will be better represented if there is time to
investigate his living conditions before the hearing; and in
most cases, the parent needs time to prepare his own case to
rebut the state's allegations and to obtain character witnesses.
-
Five days have been held the minimum time within which either
party could prepare for a hearing to determine the fitness of
. Ji.J!f
the parent.· -
(g)
Notice --
For notice to be adequate, due process requires all reasonable efforts be made by the state to serve the parent.
Jt,t."s
Sec-
tion 17.07 does not specifically provide for all reasonable
efforts; rather, it requires notice to be given in accordance
with section 11.09 of the Family Code and the Texas Rules of Civil
Procedure~/¢b
The new provision for notice is constitutionally
~
adequate because the Texas Rules of Civil Procedure require that
reasonable notice be given.
The legislature deliberately re-
frained from making the notice requirement in the Family Code
more specific for fear that such language would be interpreted
as something more than "all reasonable efforts._" llf 7
2.
Section 11.10: Appointment of Attorney
(a)
For the Child
In a child abuse proceeding the child's interest is
distinct from that of either his parent or the state.
Under
47
the doctrine of parens patriae, the state is charged with protecting the interest of the child.
As an interested party,
however, the state might lose sight of the fact that the child's
best interest may best served by rehabilitating the parent
and keeping the family intact. lLf?
The opposition in a child
abuse proceeding is a battle for custody between the parent
and the social worker who seeks removal.
caught in the middle.
ing must be recognized.
The helpless child is
The true adversary nature of such hearWithout meaningful representation of
the child's interest, the adversary hearing cannot properly
effectuate.the legal test of what is in
..
the ch1ld.
1/f-1
th~
best interest of
A major breakthrough for children's rights oc-
curred with the United States supreme Court's decisions Kent v.
United States.ISD and In re Gault. /51
Kent and Gault held that
juveniles were guaranteed the "essentials of d.ue process and .
fair treatment" in criminal proceedings which could result in
the juvenile's loss of liberty. lS~ These decisions guaranteed
minors the right to a hearing, representation by counsel, the
opportunity to confront and cross-examine witnesses, and the
privilege against self-incrimination.
Applying the guarantees
of Kent and Gault, the Supreme Court later expanded these rights
to hearings wherein the minor's delinquency was to be determined
by the juvenile courts.
JS3
These guarantees are no longer lim-
ited to criminal proceedings, but are present in any proceeding
that may result in a loss of liberty.l5i
The only issue is
whether the assistance of counsel if necessary to afford a
48
fair hearing.
.... . .· r , .........
..
-
~
Further impetus for states to require ~ppint-
-·
ment of counsel for a child in an abuse proceeding was passage of the Federal Child Abuse Prevention and Treatment Act, ISS
in 1974.
To be eligible for federal funding of child protect-
ive agencies, states are required to provide a guardian ad
litem to represent the interests of the abused and neglected
children in judicial proceedings.
The Texas Family Code, as
amended, provides for the appointment of an attorney ad litem
to represent the interests of the child./5b
(b)
For the Parent --
The 1979 amendment fails to provide appointment of counsel for the indigent parent, whose fundamental interests are
equally at stake.
3.
Sections 34.01 to 34.03: Reporting Child Abuse
Reporting child abuse initiates the child protective process.
If a case of suspected child abuse or neglect is not re-
ported, neither the police nor the child protection agency can
become involved, nor can emergency protection measures be taken,
nor can a treatment plan be developed.
Reflecting the impor-
tance of reporting in an adequate child protection system, the
federal act requires states to provide for the reporting of
known and suspected child abuse or neglect.
The purpose of re-
porting is to foster the protection of the children, not to
punish those who maltreat them. IS?
It i's essential then, that
49
reporting statutes encourage reports and provide detailed pro~
cedural guidelines.
V.
CONCLUSION
If a child lives after being severely beaten,
do you think he'll forget it? Vengeance for
that crueltv is going to come out against
somebody. 15?
Plaintiffs were unsuccessful in Burnette, but their com-
plaint arguably stated a cause of action both for a tort arising
from violation of a criminal statute and for intentional infliction of emotional distress.
Moreoever, as a policy matter,
plaintiffs stated a strong case for recognition of a new tort
of parental abandonment.
In denying recovery, the Oregon su-
preme Court may have been reacting to the novelty of the cause
asserted.
As states continue to abrogate or limit parental im-
munity, more such suits will likely be brought, forcing wider
consideration,of the issues raised by Burnette and perhaps resulting in recognition of a civil cause of action for abandonment.
Thus, Burnette vividly illustrates the principal difficulty courbs are likely to face when attempting to place limitations upon parental liability after they have abandoned
the immunity doctrine.
Even though parental immunity has been
abandoned, such courts must face the same considerations that
couched the immunity-no immunity debate.
As a result, the ra-
tionale that a court must use for limiting parental liability
in a particular context will likely be the same rationale
,-
50
that the court rejected when it abandoned parental immunity
in the first place.
Justice Linde's dissent apparently rec-
ognized this inconsistency
when it noted that the majority's
rationale for precluding suits for emotional injury, if logically applied, would also preclude suits for physical injury.
It seems incoungruous for any jurisdiction that has accepted the arguments for rejection of immunity to refuse to
entertain claims alleging mental and emotional injury.
If
such a jurisdiction accepts the general principle that it is
possible to inflict mental or emotional injury, either intentionally or recklessly, and if the jurisdiction recognizes
that such injury may cause economic consequences as serious as
do physical injuries, then by allowing only claims for physical injury, the jurisdiction leaves a particular class of children uncompensated without justification.
Analytic consistency
requires that these jurisdictions permit recovery for emotional injury as well as for physical injury.
The demise of parent-
al immunity has made any distinction between the two logically
impossible.
Rather than focus on the nature of the child's in-
jury, courts in these jurisdictions should focus on whether
the parent has a duty to the child and whether that duty has
been breached.