A recent ruling addresses a potential risk – Hargrove v. Tree of Life Christian Day Care Center, 699 So.2d 1242 (Ala. 1997)
Article summary. The kidnapping of a child from church premises is a risk that is seldom considered by parents and church leaders. After all, who would commit so brazen a crime in a church? But this very indifference not only increases the risk of such acts, but also exposes churches to significant liability in the event such an act does occur. A recent decision by the Alabama Supreme Court addressed the liability of a church—operated child care program for the kidnapping of a baby girl. The court concluded that the child care center could be sued by the baby’s parents, even though the baby was found and returned to them. Church leaders (and any staff member who works with children) should be sure to review this article.
The kidnapping of a child from a church nursery is every parent’s worst nightmare. Yet, church leaders often fail to address this risk. They simply cannot conceive of such a crime occurring in their church. But consider the following:
• Most churches have frequent custody of infants and young children. Common examples include nursery services provided during worship services and special events, as well as formal preschool programs.
• Most churches have not developed safeguards for reducing the risk of kidnapping.
• A staggering number of marriages have ended in divorce, often followed by bitter struggles over custody of children. Parents who do not receive custody of their children sometimes look for opportunities to “reclaim” them. This often proves difficult, unless the children are placed in the temporary custody of an institution with little if any protection against transferring custody of infants to unauthorized individuals.
A recent decision by the Alabama Supreme Court addresses this tragic issue. This article will review the facts of the case, summarize the court’s ruling, and then address steps that church leaders can take to reduce this risk.
Facts
A young couple enrolled their one—month—old baby girl (the “victim”) in a church—operated child care center. The center’s administrator provided the parents with a lengthy document entitled “operating policies.” This document, which stated that parents and guardians were expected “to read and follow the operating procedures,” set out specific rules and procedures to be followed by the center as well as by parents or guardians of enrolled children. It provided, among other things, as follows:
The [center] provides a healthy, safe, and Christian environment that promotes the physical, social, emotional, cognitive and spiritual development of young children, and seeks to respond to the needs of families.
All staff members are selected on the basis of experience in working with young children, educational background, emotional stability, as well as care and concern for the well—being of the child. All participate in a continuous program of in—service education and studies for professional advancement in order to remain alert to the ever—changing needs of today’s children and families, and to the findings of current research ….
Children will be released only to properly identified persons who have been listed in the “child release” section of the Parent—Agreement Form. We must have written authorization for changes in this respect. In unusual circumstances, we will accept verbal (phone) authorization to release a child to an individual not listed in writing. It must be followed up in writing if the child is to be released to that person on an ongoing basis. We will ask for identification of individuals we do not know. It would be helpful if you would arrange for the persons to pick up your child to visit the school with you so that the staff may become acquainted with them. We will not release a child in the care of anyone under the age of 14 years.
In addition to a number of adults, the center employed a 14—year—old girl and her 17—year—old sister to assist in the care of the children. These girls were foster children who had lived with the center’s administrator for a few months. The center also allowed another sister, who was 12 years old, to assist with the children from time to time, although she was not paid for doing so. This sister was not one of the administrator’s foster children.
When the victim was three months old, and under the center’s care and supervision, she was kidnapped by the three sisters. At the time of the kidnapping, there was no qualified adult teacher, other than perhaps the administrator herself, directly supervising the sisters. The administrator later testified that the other teachers had “gone for the day” and that she thought one of the sisters had intentionally distracted her while the other two slipped the baby out the front door undetected. The evidence suggested that the 17—year—old sister was preoccupied with the notion of having her own baby, even to the point of misleading the administrator into thinking that she was pregnant, and she devised the plot to kidnap the victim.
The local police and the Federal Bureau of Investigation investigated the incident, eventually found the baby, and reunited her with her parents. The parents experienced severe shock as a result of the kidnapping, and later sued the center. They claimed that the center was legally responsible for the kidnapping on the basis of the following theories: (1) negligent hiring of the three sisters; (2) negligent “supervisory policies”; (3) respondeat superior (a legal theory imposing liability on an employer for the negligent acts of its employees committed within the scope of their employment); and (4) breach of contract. With respect to the negligent hiring claim, the center pointed out that while there was evidence suggesting that the two older sisters had been physically abused (perhaps sexually) by certain members of their family, and that one of them had deceived the center’s administrator into believing that she was pregnant, there was no evidence that could have placed the center or its administrator on notice that the two older girls had criminal propensities. A trial court threw out the entire lawsuit, and the parents appealed.
The court’s ruling
Negligent hiring, negligent supervision, respondeat superior
The Alabama Supreme Court agreed with the trial court’s dismissal of all of the parents’ claims except for breach of contract. The court began its opinion by observing:
It is well settled that, absent special relationships or circumstances, no person or entity has a duty to protect another from the criminal act of a third person. A defendant cannot be held liable for the criminal act of a third party unless the defendant knew or had reason to know that the criminal act was about to occur on the defendant’s premises.
• Example. The court referred to the following 1992 New Jersey case: A mother sued a church alleging that the church had failed to use due care in watching and supervising her minor daughter in its day care program, and that this failure resulted in the rape of her daughter on the church’s premises. A state appeals court disagreed, finding that there was insufficient evidence of negligent supervision on the church’s part. It expressed its reluctance to impose liability on one person or entity for the criminal act of another, and specifically rejected the mother’s attempt to hold the church liable under the negligent supervision claim: “The affidavits of the director of the kindergarten and the pastor of the church indicate that (1) they had no knowledge of other criminal acts of a similar nature that might have occurred on the church’s premises; and (2) they had no knowledge of any previous criminal behavior by [the rapist]. Thus, the church [demonstrated] that it was not responsible for the rape.” N.J. v. Greater Emanuel Temple Holiness Church, 611 So.2d 1036 (Ala.1992).
The Alabama Supreme Court, in commenting on the case summarized in this example, noted that “implied in the holding … is that there were no special circumstances or special relationships that would give rise to a duty on the church’s part to take additional steps to protect [the victim].”
• Example. The court referred to one of its previous rulings in support of its conclusion. It ruled that a university was not liable for the murder of one of its students by a former professor. The victim’s parents sued the university, claiming that it had negligently hired and supervised the professor, and that it was liable under the doctrine of respondeat superior for the murder of their son. With respect to the negligent hiring and supervision claims, the court noted that the parents “did not present substantial evidence that [the university] should have, or could have, foreseen that [the professor] would or might commit the murder.” With respect to the claim based on the doctrine of respondeat superior, the court noted simply that it was preposterous to assume that the professor was acting within the scope of his employment when he committed murder. Copeland v. Samford University, 686 So.2d 190 (Ala.1996).
The court concluded:
The undisputed evidence in the present case indicated that [the two older sisters] were not acting in the line and scope of their duties at the center when they kidnapped the [baby]. The evidence suggested that [the oldest sister] was preoccupied with the notion of having her own baby, even to the point of misleading [the administrator] into thinking that she was pregnant. The apparent plot hatched by the sisters to provide [the oldest sister] with a baby by kidnapping the [victim] constituted, as a matter of law, a gross deviation from the center’s business; that fact precludes the imposition of liability upon the center under the doctrine of respondeat superior for the actions of [the sisters]. Furthermore, the undisputed evidence indicated that there was nothing that should have, or could have, put [the administrator] or the center on notice that the sisters would or might kidnap one of the children.
Based on the two cases summarized above, the court concluded that the trial court acted properly in dismissing the negligent hiring and supervision claims, the respondeat superior claim, and all other claims except for breach of contract.
Breach of contract
The court concluded that the trial court erred in dismissing the parents’ breach of contract claim against the center. The parents asserted that they entered into a contract with the center when they enrolled their daughter in the program and paid the weekly fee of $55. In return, the center agreed to be entrusted with the care and custody of their baby. The parents claimed that the center breached this contract by the following acts and omissions:
• failing to have [the baby] at the day care when her mother … arrived to pick her up
• failing to properly supervise its employees and agents
• putting [the baby] in a position of potential harm, including kidnapping
• allowing the baby to get into the hands of “underaged, unqualified, and incompetent persons”
• allowing people to have access to the day care and have responsibilities in the running of the day care center who were not appropriate persons for such access and responsibilities
• employing unqualified people at the day care and allowing unqualified people to do the business of the day care
• failing to have a sufficient number of qualified persons on staff at all times to care for the babies and minor children entrusted to their care
• failing to properly set up operations to appropriately care for babies and minor children entrusted to their care
• failing to provide a safe place for the care and custody of babies and minor children entrusted to their care
• failing to comply with state and other licensing requirements
The center insisted that there was no evidence of a contract provision imposing a duty to provide “any level of care.” The court disagreed:
The evidence indicates that the center expressly contracted with the [parents] to care for their daughter on a daily basis for a sum certain per week. The evidence is sketchy with respect to the discussions [the administrator had with the parents] when the contract was [signed]. However, reasonable inferences from the evidence indicate that the document entitled “Operating Policies” was provided to the [parents] and that it was intended by the center to become a part of the contract. That document, which incorporated the minimum standards imposed by [the state department of human resources] stated that parents were expected “to read and follow the operating procedures” contained therein. Those operating procedures specifically obligated the center (1) to release the [parents’] daughter only to a properly authorized and identified person; (2) to employ only persons qualified (in accordance with [the state’s] minimum standards) to care for the [victim]; (3) and to keep the [victim] safe while she was under its care and supervision. The evidence indicates that unqualified and unauthorized persons (the sisters) removed the [victim] from the center’s premises. The evidence also indicates that a qualified teacher or child care provider was not directly supervising the [victim] at the time of her kidnapping. The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement. We conclude that the [parents] presented sufficient evidence of these basic elements to submit to a jury their claim alleging the breach of an express contract.
Relevance to other churches
What is the significance of this case to other churches? Obviously, the decision by the Alabama Supreme Court has limited effect. It will not be binding on any court outside of the State of Alabama. Nevertheless, the decision represents an extended discussion of the liability of church—operated day care centers for the kidnapping of young children, and accordingly it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:
1. Liability based on negligent selection. Whenever a child is kidnapped on church premises, it is possible that the church may be legally responsible on the basis of negligent hiring. That is, the church was negligent in hiring those persons who would care for children, and this negligence led to the kidnapping. The parents in this case insisted that the center was liable for the kidnapping of their child on this basis. After all, the center used girls who were only 12, 14, and 17 years of age to care for infants. And, there was evidence that the two older sisters had been physically (and perhaps sexually) abused by members of their family, and that the oldest sister lied to the center’s administrator by telling her that she was pregnant. Did this evidence demonstrate that the center was negligent in employing the sisters? The court did not think so.
• Key point. Other courts may disagree with the Alabama Supreme Court’s conclusion that a church—operated child care center is not guilty of negligent hiring when it uses girls who are 17, 14, and 12 years of age to care for infants-especially when two of the girls had been sexually abused.
One judge dissented from the court’s decision. He pointed out that state regulations that apply to licensed child care centers require that workers be at least 19 years of age (16 years of age for “student aides”). He concluded that the center was guilty of negligent hiring by using persons below these state—mandated minimum ages. This was so even though the center in this case had let its license lapse and as a result the minimum age regulations were not applicable. Further, the dissenting judge asserted that the center’s administrator should have known that the three sisters did not meet the following provision in the center’s own “Operating Policies”:
All staff members are selected on the basis of experience in working with young children, educational background, emotional stability, as well as care and concern for the well—being of the child. All participate in a continuous program of in—service education and studies for professional advancement in order to remain alert to the ever—changing needs of today’s children and families, and to the findings of current research.
2. Liability based on negligent supervision. Whenever a child is kidnapped on church premises, it is possible that the church may be legally responsible on the basis of negligent supervision. That is, the church was negligent in supervising those persons who had custody of the child, or in supervising its premises and activities. The parents claimed that the center was guilty of negligent supervision as a result of numerous acts, including the following:
• allowing the baby to get into the hands of “underaged, unqualified, and incompetent persons”
• allowing people to have access to the day care and have responsibilities in the running of the day care center who were not appropriate persons for such access and responsibilities
• failing to have a sufficient number of qualified persons on staff at all times to care for the babies and minor children entrusted to their care
• failing to properly set up operations to appropriately care for babies and minor children entrusted to their care
• failing to comply with state and other licensing requirements
The court rejected the parents’ allegations, and concluded that the center was not guilty of negligent supervision. It relied primarily on a New Jersey court ruling finding that a church—operated child care center was not responsible on the basis of negligent supervision for the rape of a young child. The New Jersey court concluded: “The affidavits of the director of the kindergarten and the pastor of the church indicate that (1) they had no knowledge of other criminal acts of a similar nature that might have occurred on the church’s premises; and (2) they had no knowledge of any previous criminal behavior by [the rapist]. Thus, the church [demonstrated] that it was not responsible for the rape.” N.J. v. Greater Emanuel Temple Holiness Church, 611 So.2d 1036 (Ala.1992).
Once again, however, the dissenting judge disagreed, pointing out that the center “employed the underaged and untrained girls in the day care center” and allowed them to care for a three—month—old infant. Further, when the kidnapping occurred at approximately 4 o’clock in the afternoon, the 17 and 14—year—old sisters “were virtually the only ones left on the premises of the day care facility [since the administrator] had allowed most of the adult staff to leave for the day although there were still children to be picked up.”
• Key point. Other courts may disagree with the Alabama Supreme Court’s conclusion that a church—operated child care center is not guilty of negligent supervision when it dismisses adult workers in the afternoon and allows infants and young children to be in the sole custody of two girls aged 17 and 14.
3. Respondeat superior. The court rejected the parents’ claim that the center was responsible for the kidnapping on the basis of respondeat superior. Under this legal principle, the center would be liable for the negligence of its employees committed within the scope of their employment. The court concluded that the “undisputed evidence” indicated that the sisters were not acting within the scope of their duties at the center when they kidnapped the baby.
4. Breach of contract. Perhaps the most significant aspect of the court’s ruling was its conclusion that the center could be legally responsible for the kidnapping on the basis of a breach of contract. The parents had signed a brief enrollment form containing very little information and no policies or procedures. However, the center also provided the parents with a separate document entitled “Operating Procedures”. This document was not referred to in the enrollment form, was not signed by the parents, and did not indicate that it was a contractual document. Nevertheless, the court concluded that the “Operating Procedures” document formed a part of the “contract” between the parents and the center.
The “Operating Procedures” document contained the following provisions: (1) “[t]he [center] provides a healthy, safe, and Christian environment that promotes the physical, social, emotional, cognitive and spiritual development of young children”; (2) “[a]ll staff members are selected on the basis of experience in working with young children, educational background, emotional stability, as well as care and concern for the well—being of the child”; and (3) “[c]hildren will be released only to properly identified persons who have been listed in the `child release’ section of the Parent—Agreement Form.” Since these assurances were contained in a document that the court considered to be part of a “contract” between parents and the center, the center was guilty of a “breach of contract” if it violated any of them.
The parents claimed that the center breached this contract in numerous ways, as noted above. The court agreed:
[R]easonable inferences from the evidence indicate that the document entitled “Operating Policies” was provided to the [parents] and that it was intended by the center to become a part of the contract. That document, which incorporated the minimum standards imposed by [the state department of human resources] stated that parents were expected “to read and follow the operating procedures” contained therein. Those operating procedures specifically obligated the center (1) to release the [parents’] daughter only to a properly authorized and identified person; (2) to employ only persons qualified (in accordance with [the state’s] minimum standards) to care for the [victim]; (3) and to keep the [victim] safe while she was under its care and supervision.
The court concluded that these “contractual” provisions were violated because
• unqualified and unauthorized persons (the sisters) removed the victim from the center’s premises, and
• a qualified teacher or child care provider was not directly supervising the victim at the time of her kidnapping.
• Key point. Does your church operate a child care program? If so, you should recognize that any policies or operating procedures you adopt may be considered to be part of a “contract” with parents. This exposes your church to liability for breach of contract in the event that you violate any of these policies or procedures.
5. The importance of reviewing official policies. The center’s “Operating Procedures” contained a provision obligating it to employ only persons qualified in accordance with state standards. These standards required child care workers to be at least 19 years of age. Since none of the three sisters met this requirement, the center violated this provision of the “contract”. Why did the center have this provision in its Operating Procedures? Because the center had been a state—licensed facility at one time. However, the center let its license lapse, in part because church day care centers were not required to be licensed under state law. But it failed to delete or modify this provision in its Operating Procedures, meaning that it could only employ workers who met the otherwise nonapplicable state standards.
What is the lesson here? Church leaders should periodically review all policies, procedures, and forms to ensure that they are up—to—date and in full compliance with the law. The assistance of a local attorney is indispensable in this process.
• Key point. It is common for churches to abandon provisions in written policies. In many cases, this occurs because church leaders fail to periodically review their policies to be sure they are current and accurate. In other cases the person responsible for creating and implementing a particular policy has relocated and no longer attends the church. Churches that no longer comply with their policies are exposing themselves to legal jeopardy, as this case illustrates. The church was liable for the victim’s kidnapping in part because it failed to comply with an outdated provision in its child care policies requiring all workers to meet state standards.
• Example. A church adopts a policy requiring at least two adults to be in the nursery at all times. An adult who was scheduled to work in the nursery during a Sunday morning worship service has an emergency at the last minute that prevents her from performing her duties. The nursery director is unable to find another adult with so little notice, and assigns a 15—year—old girl to work with the other adult. A child is injured while in the nursery. The church may be liable for the child’s injuries on the basis of “negligent supervision” because it failed to follow its own “two adult” policy.
• Example. A church adopts a policy requiring reference checks on all persons who volunteer to work in any youth program. Bob is allowed to work as a volunteer in a youth activity without any reference checks. The church is exposed to liability for any injuries that Bob may cause since it failed to follow its policy.
6. Reducing the risk of kidnapping. What steps can a church take to reduce the risk of kidnapping, and the risk of liability in the event that an incident of kidnapping occurs? Consider the following precautions:
Day care centers
• Comply with applicable state requirements. If your church operates a day care program, be sure you are in compliance with all applicable state requirements. Church day care centers are required to be licensed in many states. But even if your center is not required to be licensed, some state regulations may apply.
• Additional precautions. See the additional precautions for church nurseries that are summarized below.
Nurseries
• Screening workers. While screening workers may not reduce the risk of kidnapping, it will reduce a church’s risk of liability in the event an incident of kidnapping occurs. Screening ordinarily will include an application form and reference checks.
• Need more help? We have produced a variety of helpful resources to assist churches in screening nursery workers. These include: (1) the “Reducing the Risk” kit (includes a video, audio tape, and two booklets); and (2) our new “Selection and Screening of Church Volunteers” kit (includes all the forms you will need, along with an explanatory booklet). Both resources can be obtained by calling Christian Ministry Resources at 1—800—222—1840. Or, you can order them from our new online bookstore at our website www.iclonline.com.
• Check in procedures. A number of churches have implemented a check in procedure to reduce the risk of kidnapping. As children are checked in at the nursery, a small piece of plastic with a randomly selected number is pinned to their clothing. Another piece of plastic with the same number is given to the adult who brought the child. The adult is informed that the child will be returned only to a person presenting the correct number.
• Example. A mother brings her infant child to the church nursery before a morning worship service. During the service, an adult male comes to the nursery and asks a teenage nursery attendant for the same child. The attendant is reluctant, because she had never seen the man before. He assures her that he is an “uncle” visiting from out—of—town. The attendant is satisfied with this explanation and gives the child to the man. Following the morning service the mother goes to the nursery and is shocked to learn that her child is not there. It is later determined that the “uncle” in fact was a former husband who was seeking custody of the child.
• Example. A mother brings her infant child to the church nursery before a morning worship service. An attendant pins a plastic number on the child, and gives the mother an identical plastic number. The attendant informs the mother that the child will be returned only to a person presenting the plastic number. During the service, an adult male comes to the nursery and asks a teenage nursery attendant for the same child. He claims to be an “uncle” visiting from out—of—town. In fact, he is a former husband seeking custody of the child. The attendant asks the “uncle” to present the correct plastic number. He obviously does not have it, and so the attendant refuses to give him the child.
• Adequate supervision. Church nurseries should be staffed by an adequate number of qualified adults. The appropriate number will depend upon the number of children present. Many churches use teenagers as helpers in the nursery. Such a practice will not increase a church’s risk of kidnapping (or liability in the event of an incident of kidnapping) so long as adults are also present.
• Key point. It is often helpful to contact other institutions for assistance with staffing ratios. For example, some churches base their adult to child ratio in the nursery to what the state requires of licensed day care facilities. You may also contact the Red Cross, Salvation Army, or similar organizations. The point is this-if you can demonstrate that you based your adult to child ratio on the established practices of other similar organizations in your community, then this will be a strong defense in the event you are accused of liability for an incident of kidnapping (or any injury to a child) on the basis of “negligent supervision.”
• Off—site activities. Be especially careful of off—site activities such as field trips. These outings can be difficult to control. It is essential that an adequate number of adults are present. While on the trip, precautionary measures must be implemented to assure adequate supervision of the group. For example, some churches group children in pairs, always keep the entire group together, and have frequent “roll calls.” Once again, you can call other community—based organizations for guidance.
• Be sure policies are being followed. As this case demonstrates, it is absolutely essential to familiarize nursery workers with relevant policies, and to be sure that these policies are followed. At a minimum, this should be part of an orientation process for all new nursery workers (both paid and volunteer). Periodic training sessions are also desirable to reinforce nursery policies.
• Legal review of all policies, contracts, and enrollment forms. It is a good practice to have your nursery policies, contracts, and enrollment forms reviewed periodically by a local attorney. Such a review will help to ensure that your policies are current and accurate, and in compliance with the law. The church—operated day center in this case was found liable for the incident of kidnapping in part because it failed to update its official policies.
• 2 adult rule. Churches can reduce the risk of an incident of kidnapping by establishing a “two adult” rule in the nursery. Such a rule mandates that no child shall ever be in the presence of fewer than two adults. Not only does such a policy reduce the risk of an incident of kidnapping, but it also protects workers from being unjustly accused of child molestation.
• Example. A church has a policy requiring two adults to work in the nursery. However, the policy does not prohibit children from being in the custody of less than two adults. On a Sunday morning during worship services, one adult temporarily leaves the nursery for ten minutes to speak with another church member. A few days later the parents of one of the infants in the nursery suspect that their child has been molested. Suspicion is focused on the church nursery. Since the two nursery workers cannot prove that they both were present with the child throughout the entire worship service, they cannot “prove their innocence.” The worker who was present in the nursery while the other worker was temporarily absent is suspected of wrongdoing, even though she is completely innocent.
• Video. Some churches are incorporating video technology into their nurseries. Such a practice has a number of potential benefits, including the following: (1) it reduces the risk of kidnapping, since the videocamera will serve as a powerful deterrent; (2) it reduces the risk of other inappropriate behavior; (3) it provides irrefutable evidence of innocence if a nursery worker is falsely accused of wrongdoing; (4) it may identify a kidnapper.
• Restroom breaks. Church restrooms present a unique risk of kidnapping for both infants and older children. After all, they are frequented by children, they are easily accessible, and they often are in remote locations or are not adequately supervised. Church leaders should take steps to reduce this risk. While a full discussion of this subject is beyond the scope of this article, here are some ways that this risk can be reduced: (1) Restrict restroom breaks to restrooms that have limited access to other adults, if this is possible. (2) Have two adults accompany children in groups to the restroom, whenever possible. (3) Do not allow a lone adult to take one or more children to the restroom. (4) Consider installation of “half doors” that will permit adults to have partial vision into restrooms used by young children. (5) Do not allow young children to use the restroom without adult supervision. (6) Install videocameras in prominent locations to discourage kidnapping and provide evidence identifying the perpetrator in the event an incident does occur.
• Architecture. Unauthorized access to nursery areas by outsiders should be discouraged or prevented by the physical layout. Many churches accomplish this with counters staffed by an adult worker or attendant.
• Relevance of state regulations. State regulations that apply to licensed child care facilities do not apply to church nurseries, but they will contain a wealth of information that may be useful in adopting policies to reduce the risk of kidnapping and injuries. Further, compliance with selected regulations can be cited as evidence that your church should not be legally responsible on the basis of negligent supervision for an incident of kidnapping.
© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m11 m86 m58 c0598
