Teenage Drivers in Foster Care:
Critical Issues in Transportation©

By Sharon R. Brinks

THE TRANSPORTATION
PROBLEM

Ours is a mobile society. Life in Michigan, in particular, is propelled both economically and physically by four-wheeled transportation. Whatever the proper philosophy regarding the mass transit, it is undeniable reality that it does not serve the transportation needs of most people in the state. If you are going to "go places," either literally or figuratively, you probably need a driver's license and a vehicle. Given this premise, the situation presents a significant problem for the Michigan foster care system: What do you do when a foster teenager reaches driving age?

It can be argued that if a teenager is denied the chance to learn how to drive and obtain a license, that teen is deprived of an essential skill needed for independent living. Yet, all too often, concerns about potential legal liability deter both foster placement agencies and foster parents from allowing foster teenagers to acquire driving skills. The foster care provider in many ways stands in the shoes of the natural parents. ⁱ Has the provider done an adequate job of child rearing if a foster teenager is denied an opportunity to acquire an important skill because of concerns about legal liability? Nevertheless, in 1990 potential legal liability is a legitimate concern of both foster placement agencies and foster parents.

Caseworkers and foster parents also face the practical problem of teenagers who must be driven to various outside activities, to and from school, to and from a job and to and from the many additional appointments related to their involvement in the foster care system.

It has become a cliché that mother wears a chauffeur's hat. Many parents have helped their teenager buy a first car, not for the child's sake as much as for the parents' sanity. Teenagers regularly argue that it is their inalienable right to obtain a license at age 16 and the keys to the family car the day there after. Foster teens make the same comments and look for the same treatment as other adolescents.

The problem of when a teenager is ready for driving privileges is not unique to foster teenagers but there are additional factors which effect the decision-making process in the foster care situation. For example: Who will sign for the driver's license? Who is responsible for the increased insurance premium? Who is liable for the teenager's first accident? This article discusses these issues and suggests a balanced solution, including proposals for legislative change.

FOSTER TEEN DRIVER SURVEY

The scope of the problem of foster teenagers who want to drive is apparent from the responses of the foster placement agencies in Michigan, which have addressed the issue. A survey of the 235 Michigan foster placement agencies conducted in 1989 by the author, reveals that many are concerned about the issue, and great differences exist in the agencies' responses. ⁱⁱ Some agencies encourage driving. Some agencies discourage it. Some agencies have intentionally chosen not to establish a firm rule, making the policy decision that each case must be deal with on an individual basis. ⁱⁱⁱ This situation has led to confusion among caseworkers and foster parents.

The problem concerns not only placement agencies, but also foster parents, who have repeatedly raised the issue with caseworkers. The issues become concrete when foster teens are involved in accidents, some very serious. Of the agencies surveyed, 18 reported auto accidents involving children under their care. Some agencies had multiple experiences. The accidents varied from minor fender benders to accidents resulting in death and serious brain injury. No particular pattern was apparent, other than accidents do happen and these issues arise in both rural and urban agency placements. This thought was reflected in several other survey responses form rural counties.

--Different agencies address the problem in different ways. The only written policy repeated in the survey responses was the policy found in Michigan Department of Social Services Manual, which several agencies have adopted. That policy provides:

While this policy addresses some basic legal issues, it does not respond to many of the policy concerns raised in the foster teenager situation. While caseworkers "may," sign in some circumstances, should they?

The reason for various approaches to the driving problem became apparent from survey responses. For example, the following factors were addressed in various policies: Why is the child in foster care? What is the child's level of maturity and behavior? What alternative transportation is available (e.g., rural vs. urban environment)? Is the placement a long-term or a short-term situation? What is the foster family's position on the issue? (Interestingly, one agency surveyed indicated that it would permit the foster teen to obtain a driver's license even if the foster family objected.) These are some factors that play a role in the analysis of the ability of the system to respond appropriately to a foster teen's transportation needs.

DEFINING THE PROBLEM

The decision-making analysis for foster teenagers who drive is more complex than with a natural child. There is some overlap, however, and the foster teenager analysis should begin by examining the intersecting issues; For example, every family is well advised to examine whether the mandatory minimum residual liability coverage of $20,000/$40,000 is enough to protect their assets if a family member is in a serious auto accident. All families should enforce a family policy that the engine does not start if the seat belts are not buckled. The merits of seat belt use can be argued in the abstract, but the law requires their use and foster parents should comply with the law. ^v Questions of uninsured and underinsured coverage (not mandatory in Michigan), what type of collision coverage to purchase, and the deductible the family can afford must be answered by all families with cars. A full analysis of auto insurance coverage involves much more than just looking at comparative premium cost.

Does the Agency Have a Policy?

In the foster care analysis, the first step is to ask: Does the agency that licenses the foster home or the agency that places the child have a policy regarding foster teenagers and driving?

Unfortunately, many agencies have no policy, or have no uniform policy. Some agencies have an unwritten policy, but caseworkers may not be familiar with it. The agency with a clear written policy is in the distinct minority. ^vi Even those agencies with a written policy generally have significant exceptions to their general rules. These exceptions are often so broad that they make the written policy only a mere guideline for purposes of the analysis.

Allowing a foster teenager to drive when an agency policy precludes the privilege has ramifications beyond a potential lawsuit or increased insurance costs. The wise foster parents and caseworkers work within the established guidelines, and must find out whether an agency policy exists.

Liability of Foster Parents

Every foster family or caseworker who allows a foster teenager to drive must consider the ramifications of that decision.

Michigan Owner's Liability Law

Most important is Michigan's owner's liability law. There is automatic statutory responsibility of an owner of a vehicle, which is driven with the owner's consent. ^vii If the family car is lent to someone and is involved in an accident, the owner of the car is legally liable, along with the borrowing driver. For example, if the owner lends the car to a neighbor because their car is in the shop, and the neighbor runs a stop sign and hits another car, the owner as well as the borrowing driver is legally responsible for the physical and property damage. The owner's driving record may also be damaged for insurance purposes. Parents should instruct their teenagers never to let their friends drive the family car unless it has been cleared with the parent. Parents themselves should be careful when lending a car to co-workers or neighbors. Every time the car is on the road, it increases the potential for an accident.

Liability to the Foster Teenager

In 1985 the Michigan Supreme Court held that foster parents cannot invoke the defense of parental immunity. Foster parents, the Court ruled, can be sued for negligence by or on behalf of the foster children placed in their care. Mayberry v. Pryor, 422 Mich 579, 374 NW2d 683 (1985).

The Michigan Legislature there-after limited the situations where foster parents can be sued. In 1988, the law was modified:

This statute incorporates language from cases dealing with a natural parent's immunity from suit by their natural children, as set forth in Plumley v. Klein, 388 Mich 1: 199 NW2d 169 (1972), and following cases. Unfortunately, the law involving parental immunity from suits relating to auto accidents is not settled. Until a court decision or legislative change clarifies this matter, it would be prudent to presume that foster parents are potentially liable to foster teenagers for negligence involving the use of an automobile. If foster parents know that the teenager is not competent to drive in certain circumstances (e.g. icy roads, brand-new license), they should not allow the teen to drive. If the foster teenager is injured in an accident in such a circumstance, the foster parents may not be protected by lawsuit.

Liability to Other Persons

Michigan has no reported cases where either a foster parent or a caseworker was held responsible because of signing a permit or license application. However, there are cases which touch on the problem.

In 1960, the Michigan Supreme Court considered a situation where the divorced parents of a 16-year-old boy who owned a car was sued by a person severely injured in an accident. ^viii The Court decided that the father was not responsible because he neither furnished the car to his son, nor had anything to do with his son obtaining a license. The Court also found that while the mother signed the application for a driver's license, this did not make her responsible for her son driving.

The discussion in the case should concern foster parents and foster placement agencies, however, because the court seemed to find important the fact that (1) neither the father nor the mother were aware of bad driving habits of the teenager; (2) the car was purchased with the boy's own money, not money given to him by his father or mother,; and (3) the teenager was not driving as an agent of the father or mother. It is by no means certain that the Court would absolve a natural parent from responsibility if the facts were different.

Another case involved an 18-year-old, known by his parent to be a reckless driver, who was driving his own car when he severely injured another individual. ^ix The parent was sued. The Court of Appeals noted that a minor may own an automobile in Michigan, and that any 18-year-old can obtain a license without parental consent. But the Supreme Court reversed adopting a general standard of "negligent entrustment." ^x This theory could provide a basis for liability in certain situations for foster parents.

Coverage Under the Family Insurance Policy

The next question is whether the foster teenager is covered by the foster family insurance policy.

Here, only contact with the insurance company, and documentation of the response, is sufficient to answer the question. Not all policies are alike. Various insurance companies treat foster teenagers differently. For example, some automatically consider them covered without an increase in premium. Some cover them only with an additional rider. Some treat them like a natural child who obtains a license. Auto insurance is mandatory in Michigan; if there is any question after the foster family talks to their insurance company whether the foster teenager is covered by the foster family policy, the teenager should not be allowed to drive the family car.

The issue of insurance coverage may arise even if the foster family does not ever intend to allow the teenager to drive. If a foster teenager with a license is placed with a family, this may trigger coverage issues. Some companies require that any driver living in the home be reported for underwriting purposes. In Michigan, it is possible to specifically exclude from coverage a driver or certain categories of drivers (e.g. under 25 years of age). While this will keep the insurance premium down, excluding a driver is a risky proposition because of the constant temptation to let the teenager drive "Just this once" or "because it's an emergency." ^xi If the foster parents choose this route, it is best to have the caseworker and teenager sign an agreement that the child will never drive while in the placement. The agreement must be absolutely enforced. If the teenager then takes the car without permission (see below), the foster parents can raise the defense of theft if they are sued.

Who Should Sign for the Driver's Permit/License?

The issue of a foster teenager driving often arises in the context of taking driver's training or obtaining a license. Various agencies had quite different understandings of the law regarding drivers permits and licenses. Some were certain that only the natural parent could sign for a permit or license, some had experienced no problems when a foster parent or caseworker signed for both.

As previously noted, the Michigan Supreme Court has held that a natural parent who signed the driver's license application for a teenager was not responsible to the injured person when the teen had an accident. It is not clear whether the same would be true for a foster parent. It would appear that legally only the father, mother or guardian may sign the license application, unless the minor is emancipated. ^xii

Signing for the permit requires a more complex analysis. The statute does not discuss who may sign for a driver's permit. It limits its instruction to who is a permitted accompanying driver. ^xiii The most prudent course would be to permit only the natural parents to sign. However, since obtaining a permit does not require such a signature, agency policies could vary.

For a teenager under agency jurisdiction who is capable of signing the required paper (e.g. an emancipated minor or a foster child over 18), a foster placement agency may establish rules to deny driving privileges, but there is no legal impediment to obtaining a license from the Secretary of State. In these situations, both the foster placement agency and the foster parents should presume that the license will be obtained and should protect their liability by purchase of adequate insurance.

Associated Costs

For many foster families, perhaps too many, economic barriers become insurmountable, preventing the foster teen from driving.

Only one survey respondent indicated that the foster placement agency paid for a portion of the increased foster family insurance. Generally, agencies take the position that either the foster parent or the foster teen must pay the premium.

While various agencies have different policies on transporting children in their car, it does not appear that any have considered a policy for reimbursing the foster teenager who drives for the expense this saves the agency in transportation costs. Several agencies will allow a foster teenager to purchase a car if the teenager can afford it or if the natural parents pay for the vehicle. In addition, to the significant increase in insurance premium when a teenager driver is added to an insurance policy, there is also increased cost of gas and maintenance (not to mention the possible need for an additional vehicle.) The foster placement agencies place these burdens on the foster family and the foster teenagers.

Should an accident occur, there are additional cost factors such as placing the foster family in a high risk underwriting position. ^xiv Paying a deductible, or replacing a vehicle if no collision coverage was carried because the vehicle was an older model. ^xv There is only a limited possibility for reimbursement of attorney fees to foster parents who are sued. ^xvi

PROPOSED POLICY AND LEGISLATIVE ACTION

The Foster Teen Driver Survey revealed that while a majority of foster placement agencies considered driving an essential skill for independent living, far fewer allowed foster teenagers under their jurisdiction to acquire this skill. The anomaly was apparent to strongly supported further analysis and action regarding the legal ramifications of foster teenagers who drive.

The following proposed policy has been developed from the information obtained from the survey respondents and from the current state of the law relating to foster teenagers who drive. The proposed solution is based on the following premises:

1. An agency should establish a written policy which complies with the law and provides the flexibility needed to deal with the varied foster teenager placement situations.
2. The policy should reflect the realities inherent in situations with foster teenagers who drive, such as the real need for transportation, the cost of driving and the value of driving as an essential skill for independent living.
3. The policy should foster state statutory and agency goals and objectives for the foster teenager placement.
4. The established policy and the implications of a foster teenager who drives should be shared with the foster parents involved as partners in the placement.

This policy cannot and should not be adopted without careful consideration. No policy can address all situations nor can any policy foreclose potential legal liability. However, given that the majority of agencies are currently dealing with the foster teenage driving problem without any concrete guidelines, adoption of some plan, would seem to be in order.

Proposed Policy

1) Requirement of Responsible Behavior to Obtain Privileges:

Driving is a privilege, not a right. While it is an important skill for preparation for independent living, it shall be a strict prerequisite to obtain driving privileges that the foster teenager demonstrate a high degree of responsible behavior. If the foster teenager later demonstrates a lack of such responsible behavior, any privilege given under this policy shall be revoked.

2) Consent of Natural Parents:

1. Written Consent Required: Unless the foster teenager is an emancipated minor or a permanent ward, the written consent of the natural parents, or the written consent of the supervising judge shall be required for any driving privileges.
2. Signing for Driving Permits/Driver's License. Only the natural father, mother or guardian shall sign for a driver's license. A foster parent or caseworker may sign for a driver's permit if the written consent has been obtained as set forth in subsection 2a.
3. Release of Liability: If the natural parent gives written consent for driving privileges, the consent shall provide a release of liability for the foster placement agency and the foster parents.

3) Consent of Foster Parents:

1. Written Consent Required: The written consent of the foster parents is also required before any foster teenager is granted any driving privilege.
2. Advice Regarding Potential Liability: Prior to giving that consent, the foster parents shall be advised to consult with their insurance company or their attorney regarding their potential legal liability relative to a foster teenager with driving privileges. In no event shall a representative of the foster placement agency give advice regarding legal liability. If a foster teenager who already has a driver's permit or license is placed with a foster family, the foster parents shall be advised to consult with their insurance company or their attorney regarding their potential legal liability relative to the placement.

4) Emancipated Minors/ Foster Teenagers Over 18

1. If the foster teenager is an emancipated minor or a teenager over age 18, the teen shall be permitted to obtain a permit or license if the teen meets the requirement of Section 1 of this policy.
2. The emancipated minor or teenager over age 18 shall provide a release of liability for the foster placement agency and the foster parents.

5) Driving a Foster Family Vehicle

1. A foster teenager with driving privileges shall be permitted to drive a foster parents' vehicle only upon the granting of written permission by the foster parents, and after they have been advised to seek counsel from their insurance company or their attorney regarding their potential legal liability. In no event shall a representative of the foster placement agency give advice regarding legal liability. Nothing in this section should be construed to suggest that foster parents are required to provide a means of transportation for a foster teenager.
2. If a foster teenager is granted the privilege of driving a foster parents' vehicle, the caseworker should obtain a copy of the proof of insurance. The insurance applicable to the vehicle shall carry minimum residual liability limits of not less than $250,000.
3. The foster teenager should contribute to the cost of the foster parents' insurance and the cost of transportation relative to the foster parents' vehicle.

6) Seat Belt Use/Traffic Violations:

1. The foster teenager is required to wear a shoulder harness or seat belt at all times while driving any vehicle, and to otherwise comply with all the laws found in the Michigan Motor Vehicle Code. Any violation of the law (e.g. traffic ticket) or any vehicle accident shall be immediately reported to the agency, which shall investigate whether action should be taken under Section 1 of this policy.

7) Purchase of a Vehicle:

1. Purchase of a vehicle should be permitted by a foster teenager only in exceptional circumstances.
2. In the event that a foster teenager is permitted to purchase a vehicle, the title to the vehicle shall be placed in the foster teenager's name or a natural parent's name.
3. The insurance carried on the foster teenager's vehicle shall carry minimum residual liability limits of not less then $250,000, and proof of the insurance shall be on file at the agency.

8) Variation from Policy

Variation from this policy shall occur only upon written agreement of the natural parents, caseworker, foster parents and foster teenager. Careful consideration should be given to the need for variation from the policy, including the legal implications, before allowing a variation.

Proposal for Legislative Action

Several survey respondents suggested that foster parents and agencies be absolved from any legal liability relating to foster teenagers who drive. As a practical matter, this Is not a reasonable solution. When a parent determines that the teenager in the family is ready for driving responsibility, society has decided to place certain legal responsibilities on that parent. Similarly, if foster parents and agencies permit foster teens to drive, legal liability provides motivation for the foster parents and the foster placement agency to control their behavior.

Should the insurance implications of an accident extend to the foster family once the placement ends? While a foster teenager placement may be for three months, the increased insurance premium caused by a foster teenager who has an accident may last for several years. This situation could be addressed by a modification of the Insurance Code regarding insurance ratings for drivers along the following lines:

Further, the foster parent immunity statute could be modified to indicate that permitting a foster teenager to drive falls within "an act of reasonable parental discretion."

While these two changes will not substitute for a clear written policy, they would assist in providing some protection to foster parents.

CONCLUSION

Foster placement agencies and foster parents are faced with many difficult placement decisions. Driving privileges are only one of the issues, but the way the situation is handled may color other aspects of the placement. A foster teenager who has learned to handle driving privileges has obtained an important adult skill; a foster teenager who has been denied the opportunity is yet another step away from the normal path towards adulthood.

ⁱⁱ MCLA 712A.I(s).
ⁱⁱ Of the 235 Foster Care Placement Agencies surveyed, 79 percent responded, for a survey response rate of 34.35%. The responses represented a broad geographical and agency cross-section.
ⁱⁱⁱ The unclear nature of many agency responses made it impossible to compile valid statistics on driving versus nondriving. It was clear, however, that a majority of agencies place significant limits on driving.
^iv Michigan Department of Social Services: Services Manual: Item 722, pp. 42-43; Rev. 8-17-88, Eff. 10-1-88, SM 88-10, emphasis added.
^v MCLA 257.710e.
^vi Only seventeen of the seventy-nine agencies (21.5%) which responded to the survey had written policies. Many of the policies addressed only certain aspects of the problem.
^vii MCLA 257.401, quoted in relevant part.
^viii Shaler v. Reynolds, 360 Mich 688; 104 NW2d 779 (1960)
^ix Dortman v. Lester, 3 Mich App 600; 143 NW2d 130 (1966), rev'd 380 Mich 80; 155 NW2d 846 (1968). This cause of action exists even after Plumley, supra. See American States Inc. Co. v. Albin, 118 Mich App 201; 324 NW2d 574 (1982)
^x See Parks v. Pere Marquette R. Co., 315 Mich 38; 23 NW2ed 196 (1946)
^xi Slank, When Must Parents Pay: The Law of Parental Responsibility, Mich B), February, 1990, p. 151.
^xii MCLA, 257.308, 257.310(7)
^xiii MCLA, 257.306
^xiv MCLA 500.2101, et seq
^xv Four agencies reimbursed families to some extent for damage done to the family car. It should be noted that the MFAPA Foster Liability Insurance Plan specifically excludes:
. . . bodily injury or property damage occurring away from the premises used as a residence by the Foster Parent arising out of the operation or use of . . . any land motor vehicle…
^xvi MCLA 722.161

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