Indiana Relinquishes Liability – SB 366

By P J Klosinski

“WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being.”

What happens to a child’s right to life when they through no fault of their own are left to survive without the nurturing confines of a loving family?

What happens to a child with no one to care for them?

Indiana allows for Institutions to provide “for those persons who, by reason of age, infirmity, or other misfortune, have claims upon the sympathies and aid of society.”   Such children are known as a “Foster Child” who Indiana defines as a “ Child who has been placed in the State’s or county’s legal custody because the child’s custodial parents/guardians are unable to provide a safe family home due to abuse, neglect, or an inability to care for the child.”

Who is responsible for the foster child? 

“Foster Care” is the temporary care of a child by individuals who have no legal or custodial rights to the child.  Foster care is generally supervised by the State or a licensed child placing agency (LCPA) that has legal custody of the child.  Should the placement become more long-term because it is in the best interest of the child, it is deemed to be a planned or permanent living arrangement. “

With no legal rights to the child are foster parents burdened with the legal responsibilities for willful property damage done by a foster child?   According to the Indiana Department of Child services web site, no.  There are mandatory requirements for becoming a foster parent.   Indiana describes a foster parent as: “A person who acts in the best interest of children who are currently wards of the state.  A foster parent provides supervision and stability during a challenging time.  Foster parents are trained and licensed adults over the age of 21.

Why were foster children not included in Indiana Code for their ability to receive driving privileges?   

 Engrossed SB 366 would include foster children, who are currently not specified, granting the ability to apply for certain Indiana privileges.  The bill provides for and waives the payment of fees for “an individual who is at least 16 years of age but less than 18 years of age and is under the care and supervision of the department of child services (department) to: obtain an identification card, learner’s permit, or operator’s license.”  Current code has no provision for foster children to receive these documents until they reached the age of majority (18).

Conditions for foster children are specified to complete driving practice in order to receive an operator’s license.  The applicant must “complete the driving practice with:  a licensed driver with valid driving privileges who is:  at least twenty-five (25) years of age; and related to the applicant by blood, marriage, or legal status; a licensed driver with valid driving privileges who is:  at least twenty-five (25) years of age; and approved by the department of child services; or an individual with valid driving privileges who is: licensed as a driver education instructor; or  a certified driver rehabilitation specialist recognized by the bureau ”

 What are the requirements for minor applicants and the liability of signers? 

The current law which covers only non-foster children to receive a learners permit or license includes these requirements. 

“The application of an individual less than (18) years of age for a permit or driver’s license under this chapter must be signed and sworn to or affirmed by one of the following in order of preference: The parent having custody of the minor applicant or a designee of the custodial parent specified by the custodial parent.  The noncustodial parent or a designee of the noncustodial parent.   The guardian having custody of the minor applicant.   In the absence of a person described any other adult who is willing to assume the obligations imposed by the provisions of this chapter.“

What exactly are those obligations imposed by this chapter?  Or what must a responsible individual provide to satisfy Indiana before the child may obtain the privilege to drive?

For that answer we must locate the controlling section of this law IC 9-24-9-4.  Here we find  how the relationship between a child and the non-state responsible individual is defined.   “ An individual who signs an application for a permit or driver’s license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”  Result is that the responsible individual (parent etc.) must agree to be responsible for the minor in situations causing harm to another individual.

What are the requirements for minor foster applicants and the liability of Indiana?

Indiana proposes to add to the Indiana Code a new section exclusively covering foster children who are considered wards of the state.  This law exclusive to foster children states: “ The signature of an individual on a minor’s  application as described in section 3 of this chapter is not required if the minor applicant:  is less than eighteen (18) years of age; is under the care and supervision of the department of  child services; and  provides proof of ownership of a policy of motor vehicle insurance under IC 27-2-11.1-3.  The minor applicant is responsible for paying all costs of the policy of motor vehicle insurance and is liable for any damages caused because of the minor applicant’s operation of a motor vehicle. A state or local government agency, foster parent, or entity providing services to the minor applicant under a contract or at the direction of a state or local government agency shall not be required to pay any costs associated with the policy of motor vehicle insurance and shall not be held liable for any damages that result from the operation of a motor vehicle owned by the minor applicant.”

 

Currently, Indiana law requires: “Competence to contract for insurance    No person eighteen (18) years of age or over is incompetent because of age to contract for any insurance or exercise

every right, privilege, and benefit provided by any insurance contract.”

To provide this special privilege to a foster minor Indiana is proposing to add to the Chapter covering minors and insurance the following.  “ As used in this section, “policy of motor vehicle

insurance” means an insurance policy that provides the kind of insurance described in Class 2(f) of IC 27-1-5-1.  An individual who:  is at least sixteen (16) years of age;  is under the care and supervision of the department of  child services; and  obtains approval from the juvenile court with jurisdiction over the individual’s placement; may contract for a policy of motor vehicle insurance and exercise  every right, privilege, and benefit provided by a policy of motor  vehicle insurance.”

What are parent/guardian liability, consequences, and alternatives?

A parent/guardian will be financially responsible for a child until the child reaches the age of 18  at which  time Indiana  determines: “When a minor applicant becomes eighteen (18) years of age, the individual who signed the minor’s application is relieved from the liability imposed under this chapter and subsequently incurred by the applicant operating a motor vehicle.”

Indiana also places a limit on the damages caused by certain actions of their child of “not more than five thousand dollars ($5,000) in actual damages arising from harm to a person or damage to property knowingly, intentionally, or recklessly caused by the parent’s child if the parent has custody of the child; and the child is living with the parent”(IC 34-31-4-1).

Also provided is an escape from liability for the responsible individual.   The individual who has agreed to be responsible jointly and severally may subsequently file with the bureau “ a verified written request that the permit or driver’s license be canceled. The bureau shall cancel the permit or driver’s license, and the individual who signed the application of the minor applicant shall be relieved from the liability that is imposed under this chapter by reason of having signed the application and that is subsequently incurred by the minor applicant in operating a motor vehicle”.

As noted the only way a parent/guardian/responsible individual may be relieved from responsibility for damages caused by a minor is when the child reaches the age of majority (18) or if a verified written request for cancellation of driving privileges is properly filed.

What is the liability and alternatives for the state of Indiana covering wards of the state?

Indiana requires a minimum age of 18 to be competent to contract for insurance.  This also binds the responsible individual to the liability of those under 18.  Current code states:

IC 27-2-11.1-1 “Competence to contract for insurance Sec. 1. No person eighteen (18) years of age or over is incompetent because of age to contract for any insurance or exercise every right, privilege, and benefit provided by any insurance contract.”

SB 366 would change that law but only for foster children and the state of Indiana by adding:  “As used in this section, “policy of motor vehicle insurance” means an insurance policy that provides the kind of insurance described in Class 2(f) of IC 27-1-5-1.  An individual who:

is at least sixteen (16) years of age;  is under the care and supervision of the department of

child services; and  obtains approval from the juvenile court with jurisdiction  over the individual’s placement; may contract for a policy of motor vehicle insurance and exercise  every right, privilege, and benefit provided by a policy of motor vehicle insurance.”

SB 366 would also change the immunity from civil liability law (IC 34-30) but again only for foster children 16 to 18 years of age and the state of Indiana adding:”  Sec. 30.2. IC 9-24-9-4.1 (Concerning liability of a state or local government agency, foster parent, or entity providing services to a minor for costs and damages associated with the minor’s application for a driver’s license or permit or the operation of a motor vehicle).”

This covers the new section of the law quoted above which removes all liability from Indiana acting as surrogate parent with all legal responsibilities for the foster child.  The new law provides “The minor applicant is responsible for paying all costs of the policy of motor vehicle insurance and is liable for any damages caused because of the minor applicant’s operation of a motor vehicle. A  state or local government agency, foster parent, or entity providing services to the minor applicant under a contract or at the direction  of a state or local government agency shall not be required to pay any costs associated with the policy of motor vehicle insurance and shall not be held liable for any damages that result from the operation of a motor vehicle owned by the minor applicant.”

What could be the consequences of this new law? 

Indiana has determined that foster children beginning at age 16 are able to enter into a contract with permission from the government.  Non-foster children are not allowed to enter into contracts until the age of majority 18.

Indiana has determined that foster children beginning at age 16 are qualified and able to fund the purchase of motor vehicle insurance yet they are still qualified to receive care funding from the state.  Non-foster children are not able to enter into the purchase of motor vehicle insurance beginning at age 16.

Indiana has determined that any state or local government agency, foster parent, or entity providing services to the minor shall not be held liable for any damages resulting from the operation of a motor vehicle owned by the minor.  Non-foster children must have a responsible individual agree to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.

If a foster child causes damages beyond the liability amount of their insurance policy who pays?

Can a foster child age 16-18 be held individually responsible for their damages?

If a party is harmed by a foster child with no recourse beyond the limits of the insurance policy what is the remedy guaranteed under “Section 12. All courts shall be open; and every person, for

injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial;

speedily, and without delay”?

If Indiana has declared that a harmed individual cannot hold the entity who claims it is in control of the wards of the State responsible for the actions of foster children, then who is?

Indiana has chosen to provide special privileges and immunities to foster children and Indiana in violation of  “Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens”.

Parents/guardian and non-foster children receive no equal privileges or benefits from liability release or entering into contracts for those beginning at age 16.

So much for a simple bill declared to just provide a way for foster children to receive a driver’s license.

 

 

SOURCES

Indiana Department of Child Services http://www.in.gov/dcs/2955.htm

Senate Bill 366  http://iga.in.gov/legislative/2017/bills/senate/366

Indiana Constitution    http://iga.in.gov/legislative/laws/const/

IC 9-24-9-4 Minor applicants; liability of signers, cancellation of licenses and permits

http://iga.in.gov/legislative/laws/2016/ic/titles/009/articles/024/chapters/009/#section-4

IC 34-31-4 Limited Liability of Parents for Damages Caused by Child

http://iga.in.gov/legislative/laws/2016/ic/titles/034/articles/031/chapters/004/

IC 27-2-11.1  http://iga.in.gov/legislative/laws/2016/ic/titles/027/articles/002/chapters/11.1/

Rodney Benker
Rodney Benker
Rodney Benker is a husband and father to three children. His professional life involves Digital and Social Media Directorships as a private contractor. His Libertarian duties involve Vice Chairman - Libertarian Party of Indiana, Marketing Director - Libertarian Party of Indiana, and Vice Chairman - Libertarian Party of Johnson County. Rodney holds a Bachelor and Associate Degrees from Full Sail University in Digital Media and Business with a Certification from Northwestern University in Social Media. #LibertarianIN

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