referring to section 874A as indicating that sometimes “a common law court will assimilate the statutory duty into an existing principle of liability, as for instance [a] negligence action * * *, but that is not always so”
How later courts described this case
- referring to section 874A as indicating that sometimes “a common law court will assimilate the statutory duty into an existing principle of liability, as for instance [a] negligence action * * *, but that is not always so”
- “Courts should exercise restraint in fields in which the legislature has attempted fairly comprehensive social regulation.”
Written by the judges who cited it.
The opinion
LENT, J.,
concurring in part; dissenting in part.
I agree with the majority that the asserted cause of action for alienation of affections must fall. I further agree with the majority that from a technical, pleading standpoint plaintiff (I shall speak of the plaintiffs and defendants in the singular) has failed to state a cause of action for "outrageous conduct” for failure to state that defendant intended to cause the severe emotional distress described in the complaint.
In dissenting, I have joined in the dissent of Linde, J. but desire to add some additional reasons for finding that a civil cause of action for damages should obtain.
*718 The majority seems to take the position that what it finds to be a comprehensive legislative scheme is sufficient unto the evil of the day. I do not agree with that position and the limited condemnation of the defendant’s conduct found in that legislative scheme.
The community has still other interests in condemning defendant’s conduct and compensating plaintiff’s injuries. At present there are over one-third of a million children in the United States who are dependent upon the community for their parental care. 1 In Oregon during fiscal year 1976-77 the number of dependent children was over 6,000. 2 The future is bleak for the vast majority of these children, at least those in the position of the plaintiff, whose parents have abandoned them permanently. 3 Only approximately five percent of such children are ever adopted and placed in a permanent parental situation. 4
*719 The costs—in dollars and cents—of taking care of these children is staggering. In 1972, the total cost at all levels of government was 712.5 million dollars. 5 The present cost may be estimated at approximately 800 million dollars. 6 In Oregon the Children’s Services Division budget for the 1977-1979 biennium to provide "family services” for dependent children is over 43 million dollars. 7
It is estimated that the total direct cost to the community of foster care in 1972 for a child from the age of one to eighteen was $122,500. 8 This is about five times the cost of raising a child in a low-budget family situation. 9 In Oregon the cost of foster care is approximately $200 per month per child. 10 Other types of dependent child care cost as much as $978.57 per child per month. 11
However, the dollars-and-cents picture is not complete, since it measures only the direct, monetary loss to the community. Indirect costs are those which result from the effects of prolonged foster care—delinquency, economic dependency, crimes and corrections. Possibly the greatest costs are those which cannot be measured by dollars and cents at all—the loss in human potential. This latter cost to the community can best be stated in the words of those who have done the pioneering research on this subject. 12
*720 All researchers report the psychological phenomenon known as "separation trauma,” the trauma produced by the initial separation from the mother regardless of the circumstances of the case. 13 A second element noted by researchers is the development of ambiguous relationships by the dependent child, with a concomitant loss of self-identity. 14 A third general phenomenon found by the researchers stems from the instability of the foster care system itself, where multiple placements are the norm. This instability in relationships fosters personality disturbance. 15
The general results of these factors have been summarized in two of the major works in the field. Maas and Engler 16 state:
"These are the children who learn to develop shallow roots in relationships with others, who try to please but cannot trust, or who strike out before they can be let down. These are the children about whom we are most concerned.”
And the authors of the influential work Beyond the Best Interests of the Child state: 17
"Only a child who has at least one person whom he can love, and who also feels loved, valued, and wanted by that person, will develop a healthy self-esteem. He can then become confident of his own chances of achievement in life and convinced of his own human value. Where this positive environmental attitude toward an infant is missing from the start, the consequences become obvious in later childhood and adult life. They take the form of the individual’s diminished care for the *721 well-being of his own body, or for his physical appearance and clothing, or for his image presented to his fellow beings. What is damaged is his love and regard for himself, and consequently his capacity to love and care for others, including his own children.”
While indirect monetary costs to society are more difficult to document and quantify, they are just as real. Maas reports that forty to fifty percent of the foster children involved in his study exhibited symptoms of maladjustment. 18 Eisenberg reports that the referral rate for psychiatric services for foster children is thirty per one thousand population, about ten times that of the general population. 19 Meier reports a higher than normal incidence of marital breakdown and illegitimate births among former foster children. 20 Finally, McCord reports that "a significantly higher proportion of those who had been placed in foster homes had criminal records in adulthood” when compared to a control group of potentially delinquent boys living at home. 21
The authors of Beyond the Best Interests of the Child amply summarize the effects of parentless dependency on different age-group children and relate them to the costs to society:
"When infants and young children find themselves abandoned by the parent, they not only suffer separation distress and anxiety but also setbacks in the quality of their next attachments, which will be less trustful. 22
* *
*722 "Resentment toward the adults who have disappointed them in the past makes [school age children0 adopt the attitude of not caring for anybody; or of making the new parent the scapegoat for the shortcomings of the former one. In any case, multiple placement at these ages puts many children beyond the reach of educational influences, and becomes the direct cause of behavior which the schools experience as disrupting and the courts label as dissocial, delinquent, or even criminal. 23
* *
"Adults who as children suffered from disruptions of continuity may themselves, in 'identifying’ with their many 'parents,’ treat their children as they themselves were treated—continuing a cycle costly for both a new generation of children as well as for society itself.” 24 (emphasis added)
The sum of the cost to the community—direct and indirect, monetary and intangible—cannot be computed with complete accuracy; however, Maas and Engler summarized their findings as follows: 25
"Adequate care of children is not inexpensive. It is just as costly to mend a child emotionally crippled by disorganized family life as it is to cure the crippled leg of a child stricken with polio. For children in need of parents the community will pay the price sooner or later. The high incidence of mental disorders, criminality, or at best economic dependency among adults who as children had lived in the limbo of foster care, is clear evidence of this.”
It might be added that experts in the field of abandoned children have found this emotional damage to be real and important, however difficult it may be to measure. We heed the words of the authors of Beyond the Best Interests of the Child, who state: 26
*723 "While they [legal decision makers] make the interests of a child paramount over all other claims when his physical well-being is in jeopardy, they subordinate, often intentionally, his psychological well-being to, for example, an adult’s right to assert a biological tie. Yet both well-beings are equally important and any sharp distinction between them is artificial.”
In view of the costs, both tangible and intangible to society of caring for these dependent children who have well been termed the "orphans of the living” 27 and the character of defendant’s conduct as admitted by the demurrer, I believe defendant should shoulder so much of the financial burden as her resources permit. Further, I would hold that the emotional harm which the demurrer admits plaintiff has suffered is such as the community should conclude is monetarily compensable. As stated in Justice Linde’s dissent plaintiff has alleged a cause of action.
This figure is based on a projection of the figures and growth rates given by Subcommittee on Children and Youth, Senate Committee Labor & Public Welfare, 9th Cong., 1st Sess., Foster Care and Adoptions: Some Key Policy Issues, 7 (Committee Print 1975) [hereinafter Senate Committee]. As of 1971, there were 330,373 children in foster care. This figure includes 260,430 in foster families, 5,640 in group homes, and 64,303 in institutions. The growth rate, when adjusted for population increase, is approximately 2.4% per year.
See Children’s Services Division, Trends 4-27 (August 1977). This figure includes approximately 3,600 children in foster care, 224 in shelter care, 103 in family group care, 65 in shelter evaluation centers, 78 in independent living, 440 in private agencies, 287 in child care centers, 136 in child study and treatment centers, and 1,280 in the juvenile correction system.
In a study of foster care and its costs in New York City, Fanshel and Shinn, "Dollars and Sense in the Foster Care of Children,” (Child Welfare League, 1972) [hereinafter Dollars and Sense], it was reported that approximately 42% of dependencies resulted from the voluntary act of the mother. These include:
Unwillingness of mother to assume parental duties—9.1%
Abandonment and desertion—12.5%
Neglect and abuse—17.4%
Unwillingness of mother to continue parental duties—2.9%
R. Geiser, The Illusion of Caring—Children in Foster Care, 81 (1973). Maas and Engler, in their seminal work, Children in Need of Parents (1959), indicated that a very small percentage of such children are "readily adoptable”—less than five years old, white, of average or above average intelligence, and with no severe physical or personality problems. Id. at 383.
Senate Committee, supra n.1 at 18. Additional costs include 119 million dollars a year for "homemaker services” and 65:8 million dollars for adoption services. Id.
This figure is calculated using a growth rate of 2.4% per year, which does not account for inflation of costs.
State of Oregon, Executive Department, Budget, Children’s Services Division, Family Services, 119.
Dollars and Sense, supra n.3 at 20. Per diem rates in 1970 ranged from $10.08 per child for foster family care to $20.52 per child in group residences. Id. at 8.
Id. at 21.
Children’s Services Division, Trends 5 (August 1977).
Id. at 24 (per diem costs for Child Study and Treatment Center).
A representative bibliography (as of 1975) is given in Senate Committee, supra n.1 at 40-41.
See e.g., Mnookin, Foster Care—In Whose Best Interests?, 43 Harvard Educational Review 599, 623 (1973) and studies cited therein. The risk of harm to the child from separation trauma is "substantial,” especially for those separated at ages six months to three years, at approximately six years of age, and at puberty. Id. at 624.
Id. at 625.
Id. See also H. Maas and R. Engler, Children in Need of Parents 422 (1959) [hereinafter Children in Need].
Children in Need, supra n.15 at 356.
J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child 20 (1973) [hereinafter Beyond the Best Interests].
Maas, Highlights of the Foster Care Project: Introduction, 38 Child Welfare 5 (1959), cited in Mnookin, supra n.13 at 623 and n.87.
Eisenberg, The Sins of the Fathers: Urban Decay and Social Pathology, 32 American Journal of Orthopsychiatry 14 (1962). See also Mnookin, supra n.13 at 623, n.86.
Meier, Current Circumstances of Former Foster Children, 44 Child Welfare 192-206 (1965).
McCord, McCord and Thurber, the Effects of Foster-Home Placement in the Prevention of Adult Anti Social Behavior, 34 Social Science Review 415-420 (1960).
Beyond the Best Interests, supra n.17 at 33.
Id. at 34. See also id. at 34, n2, which quotes extensively from the case history given in Carter v. U. S., 252 F2d 608 (DC Cir 1957).
Beyond the Best Interests, supra n.17 at 34.
Children in Need, supra n.15 at 397.
J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child 4 (1973).
Children in Need, supra n.15 at 380.