Before the
Delaware Division of Family Services
1825 Faulkland Road, Wilmington, DE 19805
(302) 633-2657

__________________________________________________
)
In the Matter of Potential Legal Liability for Failing
)
to Provide Reasonable Protection for Foster Children
)
From the Well-Known and Easily-Preventable Dangers
)
of Unnecessary Exposure to Tobacco Smoke Pollution
)
_________________________________________________
)

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PETITION FOR RULEMAKING FOR:
RULES TO PROTECT FOSTER CHILDREN FROM TOBACCO SMOKE POLLUTION

Petitioner Action on Smoking and Health (ASH) 1 , on behalf of its many members who are taxpayers, and at least potentially subject to the jurisdiction of the agency, respectfully suggests and requests that your agency adopt rules and procedures to protect foster children from parental and other tobacco smoke in their cars and in their homes, as the State of Maine has done, for the following reasons:

I. to protect individual agency officials, the agency itself, and the State from liability law suits in both federal and state courts based upon several rapidly developing lines of legal precedent including: (A) Constitutional torts by prisoners exposed to smoke, (B) Awards of monetary damages to adult nonsmokers, and (C) Revocation of custody rights when parents smoke around children;
II. it's hypocritical and unfair to protect adults from occasional and easily avoidable exposure to tobacco smoke while subjecting child wards of the state to continuing tobacco smoke pollution;
III. to avoid legislative hearings, and the possible imposition of such requirements on your foster child agency by state law, as recently occurred in Maine;
IV. to substantially reduce unnecessary taxpayer costs for medical treatment, drugs, and other medical care costs associated with foster children’s exposure to tobacco smoke pollution;
V. because you and your agency have a moral – as well as legal – obligation to protect foster children, who are defenseless wards of the state, from easily preventable readily foreseeable harm;
VI. objections to such proposals lack validity and are easily met.

Should your agency fail to act in a timely matter, ASH – in addition to seeking legislation mandating such protection [discussed in III below] – respectfully suggests that it may consider bringing or encouraging (with state and/or local antismoking organizations) one or more legal actions against the agency, and its personnel in their individual capacities, and on behalf of one or more foster children, seeking a court order mandating such protection, as well as for monetary damages for asthmatic attacks, ear aches, and other medical problems caused by tobacco smoke.

BACKGROUND

Tobacco smoke has been proven to cause various cancers – and tens of thousands of cancer deaths annually in the United States – in nonsmokers, and is officially classified as a human carcinogen by the U.S. government and many other entities.2 INDEED, NO SCIENTIFIC OR MEDICAL BODY HAS EVER CONCLUDED THAT TOBACCO SMOKE POLLUTION DOES NOT CAUSE CANCER IN NONSMOKERS. It is also well documented that tobacco smoke is one of the most dangerous substances to which children are regularly exposed, and the consequences of that exposure are well known.3 http://www.law.arizona.edu/Journals/ALR/ALR2003/vol453/Chinnock.pdf [HEREINAFTER CHINNOCK] For example:

The U.S. Environmental Protection Agency has authoritatively determined that, even at the levels found in a home where only one parent smokes, tobacco smoke pollution annually causes in children 150,000-300,000 lower respiratory infections like pneumonia and bronchitis, 7,500-15,000 hospitalizations, 200,000-1,000,000 asthma attacks, 8,000-26,000 new cases of asthma, significantly reduced lung function, and also many other serious health problems.4

A study in the Archives of Pediatrics and Adolescent Medicine .5 shows that parental smoking each year kills at least 6,200 children; causes 5.4 million serious ailments such as ear infection and asthma; costs $4.6 billion annually in medical expenses alone; and ultimately costs the American economy $8.2 billion annually. It concludes that more young children are killed by parental smoking than by all unintentional injuries combined.

The journal PEDIATRICS.6 reported that tobacco smoke causes the following problems in children: between 136 and 212 deaths among children under 5 years of age from lower respiratory tract infections; 354,000 to 2.2 million episodes of otitis media (ear infections); 5,200-165,000 tympanotomies; 14,000-21,000 tonsillectomies and/or adenoidectomies; 529,000 physician visits for asthma; 1.3-2 million physician visits for coughs; 260,000-436,000 episodes of bronchitis in children younger than 5 years of age; and 15,000-190,000 episodes of pneumonia in children younger than 5 years of age. Newer research documents additional serious problems. .7

I. SEVERAL LINES OF LEGAL PRECEDENT

(A). PRISONERS EXPOSED TO TOBACCO SMOKE: A growing number of courts have held that prisoners may sue those responsible for their care in federal as well as in state court, and hold officials personally liable for their exposure to tobacco smoke. .8 The U.S. Supreme Court has gone so far as to say that deliberate indifference to the risks of exposing adult prisoners to tobacco smoke pollution can violate their constitutional rights and constitute “cruel and unusual punishment.”.9 This is directly relevant here because many courts have frequently said that foster children – who, like prisoners, are held against their will, and also are wards of the state – have at least the same legal rights to sue as do prisoners, and are entitled to no less protection. .10 Indeed, the application of this historic Supreme Court decision to the legal obligation to protect foster children has been specifically suggested. 11 Because many of these judicial decisions occurred years earlier when the deadly effects of tobacco smoke pollution were less well known to scientists, judges, and to those officials whose alleged “deliberate indifferent” to these risks were the basis of the legal actions, law suits brought today by foster children against those responsible for protecting their health are even more likely to be successful – not only for this reason, but also because children are more helpless, more sympathetic, and more vulnerable to tobacco smoke than adult prisoners.

(B). LIABILITY TO ADULT NONSMOKERS: In literally dozens of legal proceedings, both public and private entities have been found liable for medical problems caused by creating, maintaining, or permitting conditions which exposed adult nonsmokers to tobacco smoke pollution, 12 often even when the amounts of exposure were minimal. 13 Indeed, the U.S. Supreme Court has just upheld a wrongful death verdict against an airline in favor of the estate of a nonsmoker briefly exposed to tobacco smoke on an airplane flight. 14 Several courts have held that knowingly causing the exposure of another to tobacco smoke can constitute the intentional tort of battery, 15 thereby opening the door to potential punitive damage awards. One commentator has suggested the specific application of this line of cases to protecting children from tobacco smoke pollution. 16 In a recent law suit which has already resulted in a $300,000,000 settlement, 17 the major tobacco companies have stipulated – and now publicly admit on their web sites and in widely-broadcast television ads – that secondhand tobacco smoke causes a wide variety of serious medical problems including cancer in nonsmokers; a concession – and now common knowledge – which can be relied upon in any law suit against foster care officials and foster care agencies.

(C). CHILDREN AND TOBACCO SMOKE AT HOME: In at least fifteen states and several foreign countries, courts have held that, if parents subject children to tobacco smoke, it can be grounds for denial or even revocation of custody. 18 While most such legal proceedings have been brought by the nonsmoking parent, in several cases complaints were filed by relatives or outsiders such as physicians, 19 and willful exposure of children to tobacco smoke is increasingly being characterized as child abuse, child neglect, and/or reckless endangerment. 20 These cases show that judges regard the dangers of exposing children to tobacco smoke as serious enough to warrant termination of custody and visitation rights. It is only a matter of time before judges exhibit the same concern for foster children, 21 where the ultimate responsibility and blame for such exposure lies as much with the welfare agency and its personnel as with the foster parents, and where the agency is generally held to an even higher legal standard of care than natural parents.

In summary, at least three rapidly growing areas of legal liability – constitutional and common law torts for knowingly subjecting prisoners to tobacco smoke pollution, damage actions under a variety of legal theories for adults subjected to tobacco smoke pollution in workplaces and public areas, and court orders protecting children from tobacco smoke pollution in custody, child abuse, and related situations – all strongly suggest similar results should a law suit be brought against the agency or agency officials on behalf of one of more foster children who suffer from asthmatic attacks, ear aches, or other medical problems after being placed in a foster home where authorities knew or should have known that smoking was taking place. In addition, the thousands of laws prohibiting smoking in an ever growing number of places [see II below] show a growing public recognition – of which courts may, of course, take judicial notice – of the clear and present dangers of tobacco smoke pollution, and the public necessity and reasonableness of prohibiting smoking, even though such restrictions may be costly and disruptive – as in bars and restaurants. 

II. CHILD WARDS OF STATE NEED EVEN MORE PROTECTION THAN ADULTS

An ever-growing number of U.S. states and cities, as well as some foreign countries, have now banned smoking in virtually all public places, including – in many situations – even in bars in addition to restaurants. 22 This indicates a growing recognition of the strong need to protect nonsmokers from even temporary exposure to tobacco smoke pollution, even when the nonsmokers are adults who are free to avoid frequenting such places and/or are quite capable of moving away from smokers or objecting to their smoke – something foster children are ordinarily unable to do. These laws have been enacted despite major complaints and serious concerns that establishments such as bars and restaurants will suffer major declines in income from total smoking bans. In view of these attitudes and developments, it is hard to argue that foster children deserve any less protection from tobacco smoke. Indeed, some suggest that it would be hypocritical and inconsistent to protect adults from exposure to tobacco smoke in restaurants and not provide similar protection for foster children.23
Smoking Parents, Their Children, and the Home: Do the Courts Have the Authority to Clear the Air?, 12 Pace Envtl. L. Rev. 827 (1995). Their exposure occurs for much longer periods of time; childrens’ health is far more delicate than adults’; and children cannot avoid or effectively complain about the smoke. Moreover, officials obviously have a far higher legal duty to protect children who are wards of the state than to protect adults, and – unlike banning smoking in restaurants and bars – protecting foster children clearly will not result in any economic harm to businesses.

III. CONCERNS AND CONSIDERATIONS REGARDING STATE LEGISLATION

Recently the State of Maine passed legislation 24 requiring the Maine Department of Human Services to adopt rules to protect the health of foster children by prohibiting smoking when they are present – and even for a considerable period before they arrive – in the home, or in a motor vehicle. 25 Based upon this precedent, ASH will be writing to legislators in this state concerned about the problem of smoking, and asking them to propose legislation and to hold legislative hearings on the problem of protecting foster children from unnecessary exposure to tobacco smoke. In this request we expect to be joined by many of the other national, state-wide, and local organizations which have worked with us in the past to accomplish smoking bans in many venues including airplanes, buses, offices, public places, etc. For many reasons it may be more prudent for your agency to take the initiative and issue its own regulations without waiting for legislative prodding and a legal mandate. Such a move would avoid the embarrassment of having to explain in public hearings why the agency failed to act on its own despite the widespread knowledge about the well-known and well-documented risks of tobacco smoke pollution, and could permit the agency to avoid possible legislative requirements which might prove unduly restrictive, difficult to implement in practice, etc.

IV. HUGE SAVINGS IN MEDICAL CARE, DRUG, AND RELATED COSTS

A study in the Archives of Pediatrics and Adolescent Medicine shows that parental smoking each year causes 5.4 million serious ailments, costs $4.6 billion annually in medical expenses alone, and ultimately costs the American economy $8.2 billion annually. 26 The journal PEDIATRICS 27 concludes that parental smoking results in more than 1.5 million physician visits each year just to treat two very common childhood ailments: asthma and coughs. Secondhand tobacco smoke is also a major cause of inner ear infections, one of the most common reasons why young children are forced to seek medical attention, and often are prescribed expensive medications and/or undergo operations (e.g., for shunts). From these and many other studies and reports, it is clear that unnecessarily exposing foster children to tobacco smoke causes a wide variety of medical problems and seriously exacerbates others, with a resulting cost of hundreds of millions of dollars in totally unnecessary health care and related costs which must ultimately be borne by taxpayers. Prohibiting smoking around foster children can therefore be expected to result in very significant savings for the state and its taxpayers within a very short period of time.

V. AGENCY’S MORAL OBLIGATION TO PROTECT WARDS OF THE STATE

In many situations, states have only a limited and general obligation to protect citizens from harm (e.g., from crime). However, most people would agree with numerous court decisions and statutes – presumably well known to your agency – that states have a much stronger duty to protect their citizens from harm when the citizens are ordinary (non-foster) children. It is for this reason that states adopt very high standards of care for teachers and other employees of the state who care for children, and frequently intervene into situations – even to the point of removing children from the custody of natural parents – when those natural parents fail to provide a safe and healthful home environment for the child.

In the case of foster children, the moral – as well as legal – case is far stronger. Foster children are wards of the state whereas children living with their natural parents are ordinarily not. In the case of children living with their natural parents, the state can usually count on the love and feelings of natural affection parents have for their children to protect the welfare of the children – feelings which may not always be present in foster care situations. Moreover, officials are understandably reluctant to interfere in parental decisions made in an intact family; a consideration which is not present in a foster care situation where there is already a very substantial amount of official oversight, supervision, and intervention. For these reasons foster care officials should extend that oversight and supervision to include protecting foster children, whose health and safety are entrusted to their care, from what is probably the most common and the most deadly risk to which they are routinely and unnecessarily subjected.

VI. NO VALID – MUCH LESS COMPELLING – COUNTER-ARGUMENTS EXIST

With all due respect, there appear to be no valid – much less compelling – arguments against protecting foster children from the demonstrated and dangerous risks of tobacco smoke.

Courts and legislators have uniformly rejected the idea that there is any inherent legal right to smoke 28 – even in the home. For example, in literally thousands of divorce cases, parents have been forced to sign agreements promising not to smoke in the presence of their children, and the courts’ decisions to impose such orders, or even to remove the children from a smoking parent’s custody, have been repeatedly upheld. 29 Likewise, courts are now beginning to hold that smoking in a private apartment is not protected if the smoke affects others (e.g., if it drifts or re-circulates into another apartment) 30 and numerous apartment buildings, college dormitories, nursing homes, and other residences have banned smoking even over the objections of smokers who may not have much choice to live elsewhere.

There is little danger that smokers will cease serving as foster parents because of these requirements since the rules would not require them to quit smoking. Instead, all they are being asked to do is what they are already required to do every time they fly, take a bus, go to a movie, visit most offices, and, increasingly, eat at a restaurant – refrain from smoking for limited periods of time. Refraining from smoking in a car when a foster child is present imposes much less burden than refraining from smoking on an airplane because most automobile trips are far shorter, and on longer automobile trips the foster parent can smoke outside at one of the frequent stops which are necessary when children are taken on long rides. Similarly, the regulations would still permit parents to smoke outside the home (e.g., on a balcony or porch, in a garage, etc.) or perhaps even in certain rooms in the home which the child doesn’t frequent. In any event, Maine has apparently experienced no such problem as a result of adopting its rules banning smoking in foster homes and cars.

Those who might seek to argue that this proposal unfairly singles out smoking from among many behaviors which might be harmful to children have it backwards; on the contrary, it seeks to treat tobacco smoke as the agency and its employees would presumably treat unnecessary exposure of foster children to other dangerous chemicals. For example, if a parent regularly used benzene as a solvent to clean engine parts in the presence of a child (and thereby released benzene fumes into the air), or if a parent regularly used a grinding machine to grind down old asbestos brake shoes (thereby releasing asbestos particles into the air), one naturally assumes that the foster care system would take appropriate steps to protect the child without the need for a specific rule. After all, both benzene and asbestos are classified as “known human carcinogens,” and their release into the air in the presence of the child is totally unnecessary and completely preventable. But environmental tobacco smoke is likewise officially classified as a known human carcinogen, 31 and its release into the air around the child is likewise totally unnecessary and completely avoidable. In short, tobacco smoke is singled out in this petition for rulemaking only because it is not now treated the same way as other toxic airborne chemicals in the child’s environment, and because the exposure is so widespread that a separate rule for this danger seems appropriate, just as agencies frequently have rules dealing with other commonly-occurring situations such as unattended children.

Regulations prohibiting smoking around foster children will be much easier to enforce and monitor than many existing ones related to general cleanliness, unattended children, wholesome food, home sanitation, immoral conduct, etc. It’s obviously much easier for even a young child to state whether a foster parent has smoked in his or her presence than to evaluate how clean the house usually is, whether the food is wholesome, or whether there have been “inappropriate” bodily touchings or other immoral conduct. Moreover, if the agency adopts a policy that the strong odor of tobacco smoke, or the finding of ashtrays, cigarette butts, cigarette packs, etc. in a foster home, creates a presumption – which can only be rebutted by clear and convincing evidence – that smoking occurred in the room, its job of enforcement will be further simplified. In any event, significant exposure of the foster child to tobacco smoke can be easily ascertained even days after the exposure by a simple urine, saliva, or blood test if a child is unable or unwilling to provide the information.

In view of the enormous number of documented health problems even moderate exposure to tobacco smoke causes and the huge resulting costs which are largely borne by taxpayers, and the growing public acceptance if not insistence upon total smoking bans to protect even adult nonsmokers, it is hard to see any valid – much less compelling – arguments against adopting reasonable restrictions on smoking around a foster child. For all of the reasons stated in this petition for rulemaking, ASH most respectfully suggests and requests on behalf of our members that your agency adopt rules and procedures such as the following (which are suggestive only).

Respectfully submitted,

 

Professor John F. Banzhaf III
Exec. Dir. & Chief Counsel,
Chris Bostic, Esq.
ASH General Counsel, ASH
Action on Smoking and Health (ASH)
2013 H St., NW,
Washington, D.C., 20006
(202) 659-4310 // http://ash.org


PROPOSED RULES TO PROTECT FOSTER CHILDREN FROM TOBACCO SMOKE

1. Any person having custody of a foster child shall not smoke, nor permit others to smoke, in any motor vehicle in which they have an ownership interest or otherwise reasonably exercise control 32 both when their foster child is present and for 12 hours prior to the time when it can reasonably be anticipated that their foster child will be present. 33 Such persons shall also take all reasonable steps to prevent smoking in any other vehicle in which their foster child rides.34

2. Any person having custody of a foster child shall not smoke nor permit smoking in any room of the family residence in which their foster child is present or frequents.35 This shall include, but not necessarily be limited to: the room(s) in which the child frequently sleeps, eats, dresses, plays, does homework, relaxes, bathes or showers, has possessions, or performs bathroom activities such as brushing teeth. In addition, no smoking shall occur in any such room at least 12 hours prior to the time when it can reasonably be anticipated that a foster child will be present. 36

3. Any person having custody of a foster child shall not smoke nor permit smoking in any hotel or motel room which they have rented or leased or otherwise reasonably exercise control over and in which their foster child shall or will be present. Such persons shall also take all reasonable steps to prevent smoking in any room which a foster child uses or frequents when he or she temporarily visits friends or relatives.37

4. No person having custody of a foster child shall permit the child to enter nor to be placed in any public place where smoking is permitted, including a smoking section of any restaurant, bowling alley, bingo parlor, or other place of public accommodation, except where there is no reasonable alternative.38

5. The terms “smoke” and “smoking” include not only the physical act of puffing or inhaling smoke, but also the carrying or possession of any lighted cigarette, little cigar, cigar, pipe, or other product which emits any smoke of whatever kind and in whatever amount. 39

6. Any smoking products or accessories [including ashtrays, matches, lighters, cigarettes or cigar butts, or other tobacco residue] or the strong odor of tobacco smoke in any room or vehicle in which smoking is restricted as provided above shall create a strong presumption – which can be rebutted only by clear and convincing evidence – that smoking has occurred there very recently.40

 

NOTE: Footnotes for the proposed rules are designed solely to discuss and explain portions of the proposed rule. It is not the intent of the authors to suggest that these footnotes should appear in any rule adopted by the agency, although the agency may wish to incorporate some of the ideas expressed in these footnotes in its commentary to explain or clarify the rules.

 

 

Footnotes

1. Action on Smoking and Health (ASH), the nation’s oldest anti-smoking organization, serves as the legal-action arm of the anti-smoking and nonsmokers’ rights communities. It got anti-smoking messages on radio and TV, ended cigarette commercials, started the nonsmokers’ rights movement by first getting smoking restricted and then banned on airplanes, buses, and in public places and private offices. It also helped develop many of the theories underlying modern tobacco tort liability, and created and nurtured some of the legal developments described herein (e.g., custody and smoking, smoking and apartments, etc.). ASH is a scientific and educational organization exempt from taxation under Section 501(c)(3) of the IRS Code. See http://ash.org, ASH, 2013 H St., NW, Wash., DC 20006, (202) 659-4310.

2. 10th Report on Carcinogens, U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program, Pursuant to Section 301(b) (4) of the Public Health Service Act as Amended by Section 262, PL 95‑622 [http://ehp.niehs.nih.gov/roc/toc10.html]. See also Environmental Tobacco Smoke in the Workplace, Current Intelligence Bulletin 54, National Institute for Occupational Safety and Health (NIOSH); Environmental Tobacco Smoke: Measuring Exposures and Assessing Health Effects, National Research Council of the National Academy of Sciences (1986); , Environmental Tobacco Smoke, Report of the Scientific Committee on Tobacco and Health, Great Britain (3/20/98); Health Effects of Exposure to Environmental Tobacco Smoke, California Environmental Protection Agency (9/97); The Health Effects of Passive Smoking, National Health and Medical Research Council, Australia (11/97); Tobacco Use: A Public Health Disaster, World Health Organization (W.H.O.), http://www.who.int/ntday/ntday97/ta3e.htm.

3. For a very comprehensive summary written by a judge in the context of the need for legislative, regulatory, and judicial protection of young children, see generally, NO SMOKING AROUND CHILDREN: Judge William F. Chinnock, The Family Courts’ Mandatory Duty to Restrain Parents and Other Persons From Smoking Around Children, 45 Ariz. L. Rev. 801(1993). This article may be downloaded in its entirety from:

4. Respiratory Health Effects of Passive Smoking (Also Known as Exposure to Secondhand Smoke or Environmental Tobacco Smoke - ETS), U.S. Environmental Protection Agency, Office of Research and Development, Office of Health and Environmental Assessment, Washington, DC, EPA/600/6-90/006F (1992).

5. Tobacco and children. An economic evaluation of the medical effects of parental smoking, C. A. Aligne and J. J. Stoddard, Arch Pediatr Adolesc Med, Jul 1997; 151: 648-653.

6. Morbidity and mortality in children associated with the use of tobacco products by other people, JR DiFranza and RA Lew,Pediatrics, April 1, 1996, 97(4): 560-568.

7. See also, Secondhand Smoke May Slow Healing in Kids, Associated Press [ 4/7/04]: “A child's ability to heal from cuts, burns or infections could be slowed by exposure to secondhand tobacco smoke, a new study shows. . . . ‘The idea is to make people aware of the fact that secondhand smoke is just as bad, or maybe I could say worse, than firsthand smoke for certain kinds of problems,’ said Manuela Martins‑Green, an associate professor of cell biology who led the research team. . . .The research could have implications for larger problems, including the effect of secondhand smoke on the liver, kidney, heart and arteries, the professor said.” [emphasis added]

8. See, e.g., Warren v. Keane, 196 F.3d 330 (1999); Franklin v. Oregon, 662 F.2d 1337 (9th Cir. 1981); Clemmons v. Bohannon, 918 F.2d 858  (10th Cir. 1990); McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991); Steading v. Thompson, 941 F.2d 498, 500 (7th Cir. 1991); Johnson v. Laham, 9 F.3d 1543 (4th Cir. 1993);, Reilly v. Grayson, 1998 U.S. Dist. (E.D. Mich. 1998).

9. Helling v. McKinney, 509 U.S. 25, 33 (1993), “We affirm the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.”

10. See, e.g., Eugene D. v. Karmen, 889 F.2d 701 (6th Cir. 1989); Miracle by Miracle v. Spooner, 978 F. Supp. 1161 (N.D.Ga. 1997); Lipscomb v. Simmons, 884 F.2d 1242 (9th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987); Doe v. New York City Dep't of Social Servs., 670 F. Supp. 1145 (S.D.N.Y. 1987); Estate of Keffeler v. Dep't of Soc. & Health Servs., 32 P.3d 267 ( Wash. 2001); Kara B. by Albert v. Dane County, 555 N.W.2d 630 ( Wis. 1996).

11. “489 U.S. 189 (1989). DeShaney focuses upon the duty of the State to care for those taken into custody, specifically a child in the foster care system. Id. at 195. However, the case's application is intended to be broad. The case cites to both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), in its analysis. The DeShaney Court states that ‘when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g., food, clothing, shelter, medical care and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.’ DeShaney, 489 U.S. at 200" – Helling v. McKinney : Creating a Constitutional Right to Be Free from Environmental Tobacco Smoke, 7 Tul. Envtl. L.J. 249, fn 44 (1993).

12.See, e.g., Clemmons v. Bohannon, 918 F.2d 858 (10th Cir. 1990); McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991); Helling v. McKinney, 509 U.S. 25 (1993); Lizzio v. Lizzio, 162 Misc. 2d 701 (Fam. Ct. Fulton Cty. Ga. 1994); Warren v. Keane, 196 F.3d 330 (2d Cir. 1999); Alamin v. Scully, 2000 U.S. Dist. LEXIS 13143 (S.D.N.Y.); Alvarado v. Litscher, 267 F.3d 648 (7th Cir. Wis. 2001); Service v. Union Pac. R.R. Co., 153 F. Supp. 2d 1187 (E.D.Cal. 2001).

13. See, e.g., Schiller v. Los Angeles Unified School District PAS656, PAS 1750, LA 607109, Calif. Workers’ Comp. Appeals Board 3/20/92 (Smoke drifting up for a first-floor smoking area into a second-floor classroom was enough to trigger chronic lung disease in a teacher who was awarded $29,999.)

14. Olympic Airways v.. Husain, 2004 U.S. LEXIS 1620 ( 2/24/04).

15. See, e.g., Leichtman v. WLW Jacor Comm., 1994 WL 19097 (Ohio App. 1994); Richardon v. Hennly, 434 S.E.2d 772 (Ga. App. 1993); Portenier v. Republic Hogg Robinson Inc., BC028990, Los Angeles Sup. Ct.; See also Pechan v. Dynapro. Inc., 190 Ill. App.3d 1072 (2d Dis. IL 1993) (battery by secondhand smoke possible); McCracken v. Sloan, 252 S.E.2d 250 (N.C. 1979) (defendant would be liable for battery if he had known of harmful effect of ETS); Richardson v. Hennly, 434 S.E.2d 772, 775 (Ga. Ct. App. 1993), rev'd on other grounds, 444 S.E.2d 317 (Ga. 1994) (tobacco smoke can cause battery).

16. See generally, Ezra, Sticks and Stones Can Break My Bones, But Tobacco Smoke Can Kill Me: Can We Protect Children From Parents That Smoke?, 13 St. LouisU. Pu. L Rev. 547 (1994), and especially cases cited in footnote 26.

17. See, e.g . Decision of Note: Nonsmoking Flight Attendant Is a Winner In Secondhand Smoke Case, Product Liability Law & Strategy, July 2002.

18. See, e.g., Roofeh v. Roofeh, (NY Family Ct., Nassau County, Mineola 1988); Pizzitola v. Pizzitola, (TX 1988), Badeau v. Badeau, (LA 1989); Wilke v. Wilke, (MO 1989); Potter v. Potter, 3 Mich. L.W. 1468 (Mich. Ct. App. 1989); Satalino v. Satalino, 273 A.D.2d 632 (N.Y. App. Div. 1990); De Beni Souza v. Kallweit, (Cal. 1990); Robert Strathmann v. Linda Foster (Pa. Ct. Comm. Pl. 1991); Nocera v. Nocera, File No. B 89-2922 DM (Cir. Ct. of Kalamazoo, MI); Brett Lee Bryant/Department of Social Services v. Wakely, et al., No. 131708 (MI Ct. of App.); Lamacchia v. Lamacchia (Probate Ct. of Middlesex County, MA 1991); Sulva v. Isaacson (Ill. 1992); John Doe v. Jane Doe (S.C. 1992); Masone v. Tanner (Sacramento, CA 1993); Montufar v. Navot, Docket No. FM 04-0021-8789 (Sup. Ct., Fam. Div., Camden, NJ 1993); Swanson v. Swanson, 1997 Minn. App. LEXIS 194 (Minn. Ct. App. 1997); Lamirande v. Lamirande, Slip Op. 05555 (N.Y. 1998); In re Hunt, C.A. No. 18741 ( Ohio. Ct. App. 1998); Boaz v. Boaz, 817 So.2d 627 (Miss. Ct. App.); Johnita v. David, Slip Op. 22529 (N.Y. Gen. Term 2002); In re Julie Ann, No. 97-PR-755 (Ohio Ct. Com. Pl. 2002); Barnes v. Barnes, 2002 LEXIS 759 (Tenn. Ct. App. 2002); Mitchell v. Mitchell}fs20 , Appeal No. 01-A-01-9012-CV-00442 (Tenn. Ct. of App. 1991) (“The Trial Judge found that the failure of the mother and grandmother to discontinue smoking when recommenced by the child’s physician was strong evidence of a lack of proper concern for the welfare of the child. A belated cessation of smoking might evidence a desire for the custody of the child rather than concern for the welfare of the child.”). See generally, When Parents are on a Level Playing Field, Courts Cry Foul at Smoking: Smoking as a Determining Factor in Child Custody Cases, 40Fam. Ct. Rev. 238 (2002).

19. Even as early as 1989, a judge is Denton, Maryland, placed a three-year old girl with severe asthma in a foster home when her parents continued to smoke around her. More recently, a physician notified child welfare authorities when an 8-month old baby was suffering serious respiratory problems as a result of her mother’s smoking. The Oregon Children’s Services Division removed the child from the home, and returned her only when the mother agreed to stop smoking with the help of a nicotine patch. Smoking and Health Review, March-April 1994, p. 2

20. See generally, An Argument for Consideration of Prenatal Smoking in Neglect and Abuse Determinations, 46Emory L.J. 1661(1997).

21. See, e.g., CHINNOCK [n. 3] (“Administrative agencies can protect our children by enacting regulations and issuing directives that foster parents and other persons in close contact with children in their care shall not smoke around them.”)

22. California, Connecticut, Delaware, Florida, Idaho, Maine, Maryland (in non-bar areas), Massachusetts, New York, South Dakota, Utah, and Vermont have all passed laws banning smoking in virtually all workplace, including restaurants, as have hundreds of local jurisdictions. Seven countries – Bhutan, Ireland, Sweden, Norway, New Zealand, Scotland, and Uganda – have also agreed to go smokefree.

23. “There is a trend in the United States toward protecting adults from secondhand smoke exposure while children, ironically, are left to fend for themselves. For example, many states have already enacted laws regulating smoking in the workplace. {fn 183} In addition, nonsmoking prisoners are now, upon request, often relocated to smoke‑free cells. {fn 184} Restaurants, airlines, and many other facilities used by the public are also subject to smoking bans. {fn 185} For an adult, life in a smokefree world can be a reality.”

“It is a different story for children, who generally spend much of their time in the home. There are no statutes explicitly banning smoking in the home. As a result, children are often adversely affected by smoke in the home which irritates their eyes, offends their sense of smell, and damages their health. Furthermore, children are more susceptible to the dangers of secondhand smoke exposure than adults, increasing the seriousness of the situation. In short, federal and state governments have made great strides in protecting their adult constituents, but have left children largely unprotected.”

24. Code Me. R. § 1580-E (2003).

25. The draft rules promulgated by the Maine Department of Human Services prohibit smoking in the home or vehicle within 12 hours prior to the arrival of the foster child.

26. Tobacco and children. An economic evaluation of the medical effects of parental smoking, C. A. Aligne and J. J. Stoddard, Arch Pediatr Adolesc Med, Jul 1997; 151: 648 - 653.

27. Morbidity and mortality in children associated with the use of tobacco products by other people, JR DiFranza and RA Lew, Pediatrics, April 1, 1996, 97(4): 560-568.

28. See, e.g., Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir.1987) (no right of employee to smoke, even off the job); City of North Miami, v. Kurtz, 653 So.2d 1025 (1995) (same); Washington v. Tinsley, 809 F.2d 504 (S. Dis. TX 1992) (no right to smoke in jail, including those who are innocent and merely awaiting trial); Diefenthal v. CAB, 681 F.2d 1039 (5th Cir. 1982) (on airplanes, despite constitutional right to travel).

29. See generally, CHINNOCK [n 3]

30. See, e.g., Donath v. Dadah, No. 91-CV179 (Worcester Cty., MA, Housing Court Dept. 1991); Fox Point Apt. v. Kippes, No. 92-6924, (Lackamas County (OR) Dist. Ct. 1992); Snow v. Gilbert, Middlesex Cty., Docket No. MICV94-07373 (MA Sup. Ct. 1994); Pentony v. Conrad et al., (NJ Sup. Ct. 1994); Dworkin v. Paley, 638 N.E.2d 636 (93 Ohio App. 3d 1994); Layon v. Jolley, Case No. NS004483 ( Cal. Sup. Ct., Los Angeles Cty. 1996; 50-58 Gainsborough St. Realty Trust v. Haile, No. 98-02279 (Boston Housing Ct. 1998); see, generally, Ezra , Get Your Ashes out of my Living Room!: Controlling Tobacco Smoke in Multi Unit Residential Housing, 54Rutgers L. Rev. 135 (2001).

31. Asbestos, benzene, and environmental tobacco smoke are all officially classified as “known human carcinogens” in the 10th Report on Carcinogens, U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program, Pursuant to Section 301(b) (4) of the Public Health Service Act as Amended by Section 262, PL 95622 [http://ehp.niehs.nih.gov/roc/toc10.html].

32. Protecting children riding in cars is of critical importance because the levels of tobacco smoke pollution are much higher than in a typical home, or even in a smoking section of a restaurant, because the amount of air space is so small and ventilation is often very limited. Clearly foster parents can be expected to prohibit smoking if they own or lease the vehicle, or where they reasonably exercise control; e.g., where they have borrowed the automobile from a friend or relative, or are driving a company vehicle.

33. It is not enough to protect the child from smoking occurring only in his or her presence since many of the deadly chemicals in tobacco smoke can remain in the air for a very considerable period of time. Prohibiting smoking for a period of 12 hours before the child is expected to be present in the car seems a reasonable period of time to permit most of the chemicals to dissipate, and for the foster parent to be able to reasonably anticipate when the child will be present in the car. It is the time period adopted by the State of Maine in its foster care regulations, and by many judges issuing orders protecting children in custody proceedings – although some orders mandate longer periods of time.

34. This rule provides that foster parents shall at least request, and insist to the extent that it is reasonable, that other persons transporting foster children in their cars – e.g., adult friends or relatives, parents participating in car pooling, etc. – not smoke. Since foster parents do not have the same degree of control in these situations – as compared to where they own or control the vehicle – the rule requires only that they take reasonable steps to protect the children.

35. While a total ban on smoking in all rooms of a foster home would provide greater protection, be simpler to understand and easier to enforce, the less restrictive text set forth above as an alternative permits somewhat greater flexibility. For example, a smoking foster parent might still be able to smoke inside in a furnace or laundry room or storage room, or even a bedroom, provided that it is not frequented by the child.

36. See footnote 32 above.

37. Foster children may occasionally be cared for in the home of a relative or friend, or even on special occasions such as a sleep-over party. Here, too, protection from tobacco smoke pollution and the problems it may cause is important. This is especially true because the adult temporarily caring for the child may not be familiar with certain medical problems which can be triggered – e.g. a sudden possibly-life-threatening asthmatic attack– so they may not recognize the early warning signs, not know what emergency treatment to provide, nor have detailed information about the child’s medical condition, and might not even know where to bring the child for emergency or critical care. Since the foster parent does not exercise complete control as they do over smoking in their own home, the rule provides only that they “take all reasonable steps” – e.g., making a strong request that the temporary adult caretaker refrain from smoking.

38. In most situations, a child should not be taken into public places where smoking is permitted, including smoking sections in public places, because the concentrations of tobacco smoke are usually far higher than the child would encounter in a home where one parent smokes. Because the exposure takes place away from the home, the foster parent may be less able to deal with any resulting medical problems: e.g., by giving the child breathing medication kept at home, permitting the child to lie down, or taking the child to a nearby doctor’s office or hospital emergency room, etc. The proposed rule does however permit the child to be brought into a smokey public place where there is no reasonable alternative: e.g., a sudden need for a very young child to use a restroom, etc..

39. Any failure to define smoking precisely and expansively is likely to lead to arguments that the foster parent wasn’t actually smoking (i.e., inhaling or puffing) when the child was present; that he was smoking a so-called “smokeless cigarette”; that establishing a violation requires proof that the product contained tobacco, etc.

40. This provision is designed to avoid enforcement problems from a foster parent who might insist that a welfare official must catch him in the act of smoking to establish a violation. It creates a common-sense presumption that if an inspector or other official finds an ashtray with cigarette butts, or detects the strong odor of tobacco smoke, smoking probably was occurring in the room. However, the foster parent may rebut that presumption with contrary evidence. New York Cityuses a similar policy – e.g., the presence of an ashtray – as evidence of smoking in private offices where violations of the City’s no-smoking ordinance are even more difficult to detect.


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