Docket No. 86065–Agenda 15–May 1999.

GREGORY NICHOL et al., Appellants, v. JOHN STASS et al.,  								Appellees.

Opinion filed August 10, 2000.

	JUSTICE MILLER delivered the opinion of the court:

	The plaintiffs, Gregory Nichol and Ruby Nichol, brought this

action in the circuit court of Cook County individually and as

cospecial administrators of the estate of the decedent, Jonathan

Nichol, against the defendants, John Stass and Bonnie Stass, and

the Human Enrichment and Developmental Association (HEDA),

an independent child welfare agency. The plaintiffs alleged that

Jonathan, their son, died while in the care of the Stasses, who were

acting as Jonathan’s foster parents at the time of his death and who

were allegedly under the supervision of HEDA. The plaintiffs

sought recovery from the defendants under several different

theories. The trial judge dismissed the plaintiffs’ action against the

Stasses on the ground that it was barred by sovereign immunity.

The appellate court affirmed. 297 Ill. App. 3d 557. We allowed the

plaintiffs’ petition for leave to appeal (177 Ill. 2d R. 315(a)), and

we now reverse the judgments of the appellate and circuit courts

and remand the cause to the circuit court for further proceedings.

	According to the allegations in the complaint, Jonathan died on

June 16, 1995, while at the Stasses’ home and in their care, by

drowning in a toilet. He was two years old. The plaintiffs sought

recovery from each of the defendants under the Wrongful Death

Act (740 ILCS 180/1 (West 1996)), the Rights of Married Persons

Act (750 ILCS 65/15 (West 1996)), and the Survival Act (755

ILCS 5/27–6 (West 1996)), alleging that the defendants negligently

violated various duties imposed by the common law and by

administrative regulations, and, further, that liability was established

under the doctrine of res ipsa loquitur. The complaint alleged that the Stasses failed to supervise Jonathan, failed to protect him from

hazards within the home, failed to provide him with sufficient food

and water, and failed to provide him with immediate medical care

after the occurrence. The amended complaint described HEDA as

an independent licensed child welfare agency that has contracted

with the Department of Children and Family Services “to provide supervision, inspections, management, guidance and discipline” to

foster parents and foster

children. The amended complaint further asserted that HEDA “was

in charge of, supervisor of, manager of, and director of” the

Stasses. The plaintiffs alleged, among other things, that HEDA

negligently failed to supervise the Stasses, failed to ensure that the

child was provided with adequate food and water, failed to

complete background checks on the Stasses, and failed to place the

child in a home “free from observable hazards.”

	Pursuant to sections 2–619(a)(1) and (a)(9) of the Code of

Civil Procedure (735 ILCS 5/2–619(a)(1), (a)(9) (West 1996)), the

Stasses moved to dismiss the counts of the amended complaint that

were directed against them, arguing that the claims were barred by

the doctrines of sovereign immunity and public officials’ immunity.

Following a hearing, the trial judge stated that he would deny the

Stasses’ motion. Counsel for the Stasses then advised the trial

judge that a pending case in the appellate court raised a similar

issue, and the judge said that he would postpone his ruling on the

motion until the outcome of the appeal was known. The appellate

court soon filed its opinion in the other case, Griffin v. Fluellen, 283 Ill. App. 3d 1078 (1996), holding that the foster parent named

as a defendant in that action was a state employee and could

invoke the protection of the sovereign immunity doctrine. In a later

proceeding in the case at bar, the trial judge concluded that he was

required to follow Griffin and granted the Stasses’ motion to dismiss. The trial judge also entered a finding pursuant to Supreme

Court Rule 304(a) (155 Ill. 2d R. 304(a)) permitting the plaintiffs

to appeal immediately from that ruling; the plaintiffs’ separate

claims against HEDA remained pending in the circuit court of

Cook County, and they are not at issue in this appeal.

	The appellate court affirmed the circuit court’s dismissal

order. 297 Ill. App. 3d 557. The appellate court believed that the

Stasses should be considered agents of the state and therefore

could assert the protection of the sovereign immunity doctrine. The

court theorized that the state owed the foster child a nondelegable

duty of care and that the state would therefore be vicariously liable

for the foster parents’ conduct. The court rejected the plaintiffs’

contention that the Stasses, even as agents of the state, could still be liable for the Jonathan’s death because they owed the child a

duty of care that was entirely independent of their status as foster

parents. We allowed the plaintiffs’ petition for leave to appeal. 177

Ill. 2d R. 315(a).

	Before this court, the plaintiffs contend that the defendants are

neither employees nor agents of the state and therefore cannot

avoid suit through the sovereign immunity doctrine. The Stasses,

in response, maintain that the lower courts correctly concluded that

they are state employees or agents and that the plaintiffs’ action

against them is one in substance against the State of Illinois,

triggering the sovereign immunity doctrine. The Stasses also argue,

as an alternative ground in support of the judgments below, that

even if they are not protected from suit by sovereign immunity,

they may still assert parental immunity as an affirmative defense to

the plaintiffs’ action. We will consider these contentions in turn.

	Article XIII, section 4, of the Illinois Constitution provides,

“Except as the General Assembly may provide by law, sovereign

immunity in this State is abolished.” Ill. Const. 1970, art. XIII, §4.

The legislature has reinstated sovereign immunity. Section 1 of the

State Lawsuit Immunity Act reads:

			“Except as provided in the ‘Illinois Public Labor

Relations Act’, enacted by the 83rd General Assembly, or

except as provided in ‘AN ACT to create the Court of

Claims, to prescribe its powers and duties, and to repeal

AN ACT herein named’, filed July 17, 1945, as amended,

the State of Illinois shall not be made a defendant or party

in any court.” 745 ILCS 5/1 (West 1996).

Section 8(d) of the Court of Claims Act grants the court of claims

exclusive jurisdiction over, among other matters, “[a]ll claims

against the State for damages in cases sounding in tort, if a like

cause of action would lie against a private person or corporation

in a civil suit.” 705 ILCS 505/8(d) (West 1996).

	In Healy v. Vaupel, 133 Ill. 2d 295, 308 (1990), this court summarized the scope and effect of the preceding provisions:

			“Whether an action is in fact one against the State, and

hence one that must be brought in the Court of Claims,

depends not on the formal identification of the parties but rather on the issues involved and the relief sought. (Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 408; Hudgens v. Dean (1979), 75 Ill. 2d 353, 355-56; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37.) Thus, the prohibition ‘against making the State of

Illinois a party to a suit cannot be evaded by making an

action nominally one against the servants or agents of the

State when the real claim is against the State of Illinois

itself and when the State of Illinois is the party vitally

interested.’ (Sass v. Kramer (1978), 72 Ill. 2d 485, 491.) Sovereign immunity affords no protection, however, when

it is alleged that the State’s agent acted in violation of

statutory or constitutional law or in excess of his

authority, and in those instances an action may be brought

in circuit court. Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 188-89; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; Moline Tool Co., 410 Ill. at 37; Schwing v. Miles (1937), 367 Ill. 436, 441-42.”

	A threshold question in the present appeal is whether the

defendants are in fact state employees or agents. If they are neither,

then the doctrine of sovereign immunity can have no application

here. The appellate court has reached conflicting results on the

question whether foster parents are either agents or employees of

the state. In the present case and in Griffin v. Fluellen, 283 Ill. App. 3d 1078 (1996), cited by the trial judge below, the appellate

court concluded that foster parents are state agents or employees

and therefore are protected from suit by the doctrine of sovereign

immunity. The appellate court reached the opposite result in

Commerce Bank v. Augsburger, 288 Ill. App. 3d 510 (1997), and in Swanigan v. Smith, 294 Ill. App. 3d 263 (1998), holding in those cases that foster parents are not state agents or employees and

therefore cannot assert immunity from suit under the doctrine of

sovereign immunity. We conclude in the present case that the

defendants have failed to establish that they are state employees or

agents.

	The Foster Parent Law does not describe foster parents as

either employees or agents. 20 ILCS 520/1–10, 1–15, 1–20 (West 1996). Nor are foster parents deemed state employees in any of a

variety of statutes relating to state employment. See, e.g., 5 ILCS 375/3 (West 1996) (State Employees Group Insurance Act of

1971); 5 ILCS 340/3 (West 1996) (Voluntary Payroll Deductions

Act of 1983); 5 ILCS 410/10 (West 1996) (State Employment

Records Act); 5 ILCS 365/2 (West 1996) (State Salary and

Annuity Withholding Act); 40 ILCS 5/14–103.05 (West 1996)

(State Employees Retirement System of Illinois). The record in the

present case is not entirely clear concerning the relationship among

the Stasses, HEDA, and the Department of Children and Family

Services. According to the allegations in the complaint, HEDA, an

independent child welfare organization, was “in charge of,

supervisor of, manager of, and director of” the Stasses as foster

parents. Neither side appended to any of their pleadings copies of

the contracts between the Department and HEDA and between

HEDA and the Stasses. To be sure, it was the defendants’ motion

to dismiss, and therefore it was their duty to supply a record in

support of their motion. In the absence of those documents, and in

light of the relevant statutes and the allegations in the plaintiffs’

amended complaint, we must conclude that the Stasses were

independent contractors rather than employees or agents of the

state.

	The Stasses argue, however, that, as foster parents, they were

subject to a diverse and comprehensive set of requirements

concerning their care for foster children. For example, the

Department regulates the cleanliness, temperature, and lighting of

a foster home. 89 Ill. Adm. Code §402.8(a) (1996). Pets in the

home must be inoculated against rabies. 89 Ill. Adm. Code

§402.8(e) (1996). Foster parents must develop and rehearse fire

evacuation plans. 89 Ill. Adm. Code §402.8(g) (1996). Foster

parents must provide a child with closet and dresser space (89 Ill.

Adm. Code §402.8(h) (1996)) and adequate bedding (89 Ill. Adm.

Code §402.9 (1996)). Meals and discipline are also subject to

extensive regulation. 89 Ill. Adm. Code §§402.11, 402.21 (1996).

	We do not believe that the preceding measures are anything

more than licensing requirements or that they serve to establish the

defendants’ role as state employees or agents. The state licenses a

broad range of activities and professions, often in regulations as detailed and encyclopedic as those involved here. See, e.g., Pre- School Owners Ass’n of Illinois, Inc. v. Department of Children

& Family Services, 119 Ill. 2d 268 (1988) (licensing requirements for day-care centers). The existence of those administrative

requirements, however, does not mean that the persons subject to

them are state employees or agents.

	Nor is state employment established, for purposes of sovereign

immunity, through the State Employee Indemnification Act.

Section 1(b) of the Indemnification Act provides, “For the purpose

of this Act,” in pertinent part:

			“The term ‘employee’ means *** individuals who serve

as foster parents for the Department of Children and

Family Services when caring for a Department ward, ***

but does not mean an independent contractor except as

provided in this Section.” 5 ILCS 350/1(b) (West 1996).

“Employees” under the Indemnification Act are entitled to

representation by the Attorney General in civil proceedings

stemming from “any act or omission occurring within the scope of

the employee’s State employment.” 5 ILCS 350/2(a) (West 1996).

“Employees” also are entitled to indemnification under the Act for

any adverse judgment unless “the conduct or inaction which gave

rise to the claim or cause of action was intentional, wilful or

wanton misconduct and was not intended to serve or benefit

interests of the State.” 5 ILCS 350/2(d) (West 1996). We note that

the Attorney General’s office has represented the Stasses

throughout these proceedings.

	Even though the Indemnification Act terms foster parents

“employees,” we do not believe that the provision must be

construed as establishing foster parents’ position as state

employees for purposes of sovereign immunity. Rather, the

preceding definition simply affirms the entitlement of foster parents

to indemnification, without also establishing, for other purposes,

their status as government employees or agents. As noted, the

provision in the Indemnification Act begins with the restrictive

phrase “For the purposes of this Act,” limiting the scope of the

ensuing definition. Moreover, section 1 of the Act expressly

recognizes that some independent contractors might be considered

“state employees” for purposes of indemnification, but the provision does not purport to alter their status as independent

contractors for all other purposes.

	The appellate court also believed that sovereign immunity

could be invoked in the present case because, whether or not the

defendants are deemed state agents or employees, the state owed

Jonathan, a ward of the court, a continuing, nondelegable duty of

care. The appellate court further believed that the state would be

vicariously liable for conduct of the foster parents in violation of

that duty.

	We do not disagree with the broad proposition that the state

owes certain duties to persons whom it places in state-run

institutions (see Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982)) or even in private care (K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir. 1981)). Those cases are not applicable here, however. In general,

they involve actions under section 1983 (42 U.S.C. §1983 (1994))

against the state or state officers, and they concern what degree of

misconduct must be shown to give rise to public liability for

injuries occurring to a state ward while in private custody. Notably,

state liability in those circumstances does not extend to state

misconduct that is “merely negligent [citation] or even grossly

negligent.” K.H., 914 F.2d at 852. The court in K.H. thus framed the issue before it as follows:

			“We emphasize that the issue is not whether the state’s

duty follows the child into the private home in which he is

placed. We may assume, without having to decide, that it

does not, that the foster parents, even if paid by the state,

are not state agents for constitutional purposes. *** The

only right in question in this case is the right of a child in

state custody not to be handed over by state officers to a

foster parent or other custodian, private or public, whom

the state knows or suspects to be a child abuser.” K.H., 914 F.2d at 852.

	The issues raised in the present case are far different from

those involved in the cases cited previously. The plaintiffs in this

action are not attempting to recover from the state for its decision

to place Jonathan with the Stasses, and we do not believe that the state must be considered the real party in interest in this

proceeding.

	The appellate court below cited section 424 of the

Restatement (Second) of Torts in support of its nondelegable duty

analysis. Section 424 provides:

			“One who by statute or by administrative regulation is

under a duty to provide specified safeguards or

precautions for the safety of others is subject to liability to

the others for whose protection the duty is imposed for

harm caused by the failure of a contractor employed by

him to provide such safeguards or precautions.”

Restatement (Second) of Torts §424, at 411 (1965).

We do not believe that section 424 is applicable here. Under the

circumstances envisioned by section 424, it is the principal in the

first instance, and not the independent contractor, who must be

required by statute or regulation to provide specified safeguards.

In the present case, however, it is the principal–the state–who has

imposed these duties on the independent contractor; the

administrative regulations pertinent to this case are imposed by the

state on foster parents.

	The appellate court also cited sections 214 and 251 of the

Restatement (Second) of Agency in support of its discussion of this

question. Restatement (Second) of Agency §§214, 251 (1958).

Section 214 provides:

			“A master or other principal who is under a duty to

provide protection for or to have care used to protect

others or their property and who confides the performance

of such duty to a servant or other person is subject to such

others for harm caused to them by the failure of such

agent to perform the duty.” Restatement (Second) of

Agency §214 (1958).

Under section 251, a principal may be liable for physical harm

caused by the negligence of a “servant or a non-servant agent: (a)

in the performance of an act which the principal is under a duty to

have performed with care.” Restatement (Second) of Agency §251

(1958). Again, although foster parents are required to comply with

numerous administrative regulations, we do not find anything that imposes on the state an independent duty to guarantee compliance

by foster parents with those provisions. In addition, the hallmark

of a nondelegable duty is the right of the principal “to control

physical details as to the manner of performance” by the actor.

Restatement (Second) of Agency §250, Comment a (1958). The administrative regulations cited in this case, however, do not go so

far.

	We agree with the plaintiffs that whatever duty there is to

provide placement, to institute procedures, or even to exercise

general authority over foster children is not the same as a

continuing, nondelegable duty to provide for the care of children

placed in foster homes. Moreover, even if a continuing duty can be

said to exist, we agree with the plaintiffs’ observations that it

would pertain to the relationship between the state and the foster

children and not to the relationship between the state and foster

parents, and that it would not operate to confer sovereign

immunity on foster parents.

	The Stasses do not renew before this court their contention,

raised in the circuit court, that they are protected from liability

under the doctrine of public officials’ immunity. As a separate

ground in support of the judgment below, however, the defendants

now contend, for the first time in these proceedings, that they are

shielded from liability by the doctrine of parental immunity. They

argue that they stand in loco parentis in relation to the foster child and that they must therefore enjoy the same protection from

liability that a child’s biological parents could assert, if the latter

had retained custody of the child.

	In Cates v. Cates, 156 Ill. 2d 76 (1993), this court reevaluated the doctrine of parental immunity, abrogating its application in a

limited number of circumstances. The child in that case was injured

in an automobile collision that occurred as she was riding in a car

being driven by her father, and the court concluded that the father

was not immune from suit. The court distinguished the child’s

action in that case from conduct inherent to the parent-child

relationship, with respect to which the doctrine of parental

immunity survived. The court explained:

		“Thus, under our standard, parental discretion in the

provision of care includes maintenance of the family home, medical treatment, and supervision of the child. A child

may attempt to sue a parent alleging that the child fell on

a wet, freshly mopped floor in the home, but the immunity

would bar such an action because the parent was

exercising his discretion in providing and maintaining

housing for the child.” Cates, 156 Ill. 2d at 105.

	Courts in other states are divided on this question, with some

jurisdictions allowing the assertion of parental immunity by foster

parents (Mitchell v. Davis, 598 So. 2d 801 (Ala. 1992); Brown v. Phillips, 178 Ga. App. 316, 342 S.E.2d 786 (1986)), and other jurisdictions denying it (Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683 (1985)). We conclude that a limited form of parental

immunity should be available in negligence actions against foster

parents. It should be noted that one of the decisions cited favorably

by Cates, Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963), recognized a limited form of parental immunity in an action

against a foster parent. Moreover, although the relationship

between foster parents and foster children is not identical with the

relationship between biological parents and their children, we

believe that it would be anomalous to reject some form of the

defense in these circumstances. The rationale identified by the

Cates court as justifying the retention of some portion of the doctrine–the preservation of parental authority and discipline

(Cates, 156 Ill. 2d at 103-04)–is also applicable in the foster parent setting. Although foster parents receive compensation for their

role, they exercise a substantial amount of discretion in discipline,

supervision, and care, areas in which Cates found immunity to be appropriate. As the appellate court observed in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517 (1997), in allowing foster parents to assert parental immunity:

			“Unquestionably, foster parents under the circumstances

of the Augsburgers have responsibility in regard to the

supervision and discipline of those children under their

care. Negligence in that regard is what is charged here.

Foster parents are nearly as much in need of leeway in this

regard as are natural parents. Often animosity can exist

between natural parents and foster parents. Exposure to

suit for negligence in supervising and disciplining the children in their custody would be a deterrent to the best

performance by the foster parents in this regard. We find

no precedent for denying parental immunity here and deem

the granting of it consistent with the theory of Cates.”

	An analogous situation arises in the educational context. In

Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165 (1976), this court determined that sections 24–24 and 34–84a of the

School Code (Ill. Rev. Stat. 1967, ch. 122, pars. 24–24, 34–84a),

which conferred upon teachers the status of parents or guardians,

entitled teachers to a qualified immunity for their actions in

supervising and disciplining students. In a later case, Gerrity v. Beatty, 71 Ill. 2d 47 (1978), this court examined the considerations of public policy underlying the earlier decision in Kobylanski. Referring to sections 24–24 and 34–84a of the School Code, the court explained:

			“The statutory provisions in question reflect a legislative

determination that the orderly conduct of the schools and

the maintenance of a sound learning atmosphere require

that there be a personal relationship between teacher and

student in which the teacher has disciplinary and

supervisory authority similar to that which exists between

parent and child. It is evident that this relationship would

be seriously jeopardized if teachers and school districts

were amenable to ordinary negligence actions for

accidents occurring in the course of the exercise of such

authority.” Gerrity, 71 Ill. 2d at 51.

	We believe that a similar rationale provides further support for

our decision to extend a qualified form of parental immunity to

foster parents. Like teachers, foster parents receive compensation

for their work. Moreover, the relationship between a foster parent

and a foster child, like the relationship between a teacher and a

student, is not permanent and may even be relatively brief. Yet

foster parents, like teachers and biological parents, are responsible

for a broad range of decisions affecting the vital interests of the

children involved. It would be anomalous to grant a qualified

immunity to educators and biological parents but to deny immunity

entirely to foster parents, who, in their relationships with their

foster children, share many important similarities with the others. Thus, it can be seen that our result in this case does not represent

an undue expansion of the immunity doctrine; rather, our holding

is entirely consistent with this court’s previous decisions

recognizing immunity for persons who stand in loco parentis to children.

	To be sure, the defendants correctly suggest that the scope of

parental immunity in this context must be tempered by the

circumstances peculiar to the foster-child relationship. Thus, the

defendants acknowledge that parental immunity should not be

available when, for example, the underlying conduct resulted in the

revocation of a foster parent’s license or a finding of neglect, or

when it is the subject of a criminal charge. The defendants also

suggest that any recognized immunity should not override

Department regulations to the contrary. We believe that these are

appropriate restrictions on the scope of the immunity in these

circumstances.

	As we have noted, the Stasses moved to dismiss the present

action under sections 2–619(a)(1) and (a)(9) of the Code of Civil

Procedure. They did not, however, raise the defense of parental

immunity in the circuit court, choosing at that time to assert only

the defenses of sovereign immunity and public officials’ immunity.

Nonetheless,“[i]mmunity from suit is an ‘affirmative matter’

properly raised under section 2–619(a)(9)” (Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997)), and thus parental immunity could similarly be pleaded as a defense to the

present action in a motion for dismissal under section 2–619.

	The affirmative subject matter asserted by a defendant

pursuant to section 2–619(a)(9) must appear on the face of the

plaintiff’s complaint or be supported by affidavit or other

evidentiary material. Epstein, 178 Ill. 2d at 383; Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). “Once a defendant satisfies this initial burden of going forward on

the section 2–619(a)(9) motion to dismiss, the burden then shifts

to the plaintiff, who must establish that the affirmative defense

asserted either is ‘unfounded or requires the resolution of an

essential element of material fact before it is proven.’ Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116.” Epstein, 178 Ill. 2d at 383.

	The Stasses did not submit any affidavits or other material in

support of their dismissal motion, even under the two theories they

pursued in the circuit court, so in considering the defense of

parental immunity we are necessarily limited to an examination of

the amended complaint, and an assessment of whether the

allegations in the amended complaint on their face disclose that the

action is barred by parental immunity. In light of the procedural

posture of this case, we are not prepared at this time to determine

whether the plaintiffs’ action is completely barred by the doctrine

of parental immunity. Some of the allegations in the amended

complaint arguably fall within the scope of the immunity

recognized by Cates and further limited by the special circumstances like those in which the state acknowledges the

defense would not be available, as noted above. Other allegations,

however, perhaps fall outside those boundaries. The plaintiffs

should have an opportunity to amend their complaint further to

allege additional matters that, if true, could defeat a claim of

parental immunity in the foster family context.

	“If a cause of action is dismissed during hearing on a section 2–619 motion on the pleadings and affidavits, the question on

appeal is whether there is a genuine issue of material fact and

whether defendant is entitled to judgment as a matter of law.

[Citations.]” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 494 (1994). On the present record, we believe that there remains a

genuine issue of material fact concerning the Stasses’ parental

immunity defense. The defendants did not raise this particular

theory in the circuit court. Although that omission does not

preclude them from now arguing the theory as an alternative

ground in support of the ruling below (Wright v. City of Danville, 174 Ill. 2d 391, 399 (1996)), it does mean that the issues on this

point were not shaped as they ordinarily would have been through

the adversary process. We therefore believe that the plaintiff should

be entitled to plead anew.

	For the reasons stated, the judgments of the appellate and

circuit courts are reversed, and the cause is remanded to the circuit

court for further proceedings.

Judgments reversed;

cause remanded.

	JUSTICE HEIPLE, dissenting:

	Two-year-old Jonathan Nichol drowned in a bathroom toilet

while in the care of his foster parents, John and Bonnie Stass.

Jonathan’s biological parents filed a complaint against the Stasses

alleging negligent supervision, monitoring and care of Jonathan.

The majority correctly holds that foster parents are not employees

or agents of the state and therefore the Stasses cannot invoke

sovereign immunity as a defense to plaintiffs’ claims. Regrettably,

however, the majority also holds that foster parents enjoy a limited

but undefined form of parental immunity which apparently bars

some but not all of plaintiffs’ claims against the Stasses. I disagree.

There are fundamental differences in the relationship between

foster parents and foster children and the relationship between a

child and his actual parents which preclude extending parental

immunity to foster parents. Additionally, the majority provides

virtually no guidance to lower courts regarding the extent and

scope of such immunity because the majority declines to hold

whether or not parental immunity bars plaintiffs’ claims against the

Stasses. Therefore, I respectfully dissent.

	The majority’s holding that foster parents enjoy a limited form

of parental immunity is based on the assumption that foster parents

perform essentially the same functions as actual parents and

therefore it would be anomalous to extend immunity to actual

parents but not to foster parents. Slip op. at 8. Again, I disagree.

Fundamental differences between a foster parent and an actual

parent’s relationship with a child militate against extending parental

immunity to foster parents. A foster parent is not related to a foster

child by blood or adoption. The relationship between a foster

parent and a foster child is created exclusively by contract. Slip op.

at 5 (referring to foster parents as “independent contractors”).

Foster parents, unlike biological or adoptive parents, receive

reimbursement for expenses related to the care of the foster child.

89 Ill. Adm. Code §§353.5, 359.4 (1996); 20 ILCS 520/1–15(4)

(West 1996) (foster parents have “right to receive timely financial

reimbursement commensurate with the care needs of the [foster]

child”). Moreover, a foster parent’s relationship with a foster child

is purposely designed to be temporary. When a child is placed in

foster care, the state’s paramount goal remains to reunite the child

with his biological parents. 89 Ill. Adm. Code §§305.40(b)(2)(a), 315.45(b) (1996). See Johnson v. Burnett, 182 Ill. App. 3d 574, 582 (1989) (foster parents serve as “a temporary way station on

the road of a child’s life until the difficulties at home can be

straightened out”). A foster parent is a “professional member of the

child welfare team” (20 ILCS 520/1–15(1) (West 1996)), not a

foster child’s permanent family member and caregiver. The

licensing of foster parents, the placement of foster children and the

relationship between foster parents and foster children are all

extensively regulated by the state. Since foster parents voluntarily

assume a contractual duty to provide care and supervision for

foster children, they should not be immunized for failure to use

reasonable care in the performance of their duties. Mayberry v. Pryor, 422 Mich. 579, 586-87, 374 N.W.2d 683, 686 (1985) (holding parental immunity does not bar negligent supervision

claim against foster parents); Andrews v. Otsego County, 112 Misc. 2d 37, ___, 446 N.Y.S.2d 169, 172-74 (1982) (same); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963) (same).

	The majority states that the primary policy justification for

parental immunity–preservation of parental authority and

discipline–also applies to foster parents. The extensive regulations

governing foster parents’ ability to discipline foster children,

however, demonstrate that this justification is not viable when

applied to foster parents. Foster parents cannot decide for

themselves how to discipline foster children; their authority to

discipline foster children is strictly circumscribed by regulation.

Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 518 (1997) (Cook, J., dissenting). Foster parents, for example, cannot subject

foster children to corporal punishment (89 Ill. Adm. Code

§402.21(c) (1996)), but they are permitted to assign special or

additional chores as a disciplinary measure (89 Ill. Adm. Code

§402.21(j) (1996)). Foster parents cannot deprive a foster child of

a meal or part of a meal as punishment. 89 Ill. Adm. Code

§402.21(d) (1996). Foster parents are permitted to restrict a foster

child to his bedroom as punishment, but the bedroom must be

unlocked, the foster child can only be confined for a “reasonable”

amount of time, and he must be given full access to the bathroom.

89 Ill. Adm. Code §402.21(g) (1996). Foster parents are permitted

to withhold a foster child’s monthly personal spending money for

breaking family rules, but only if the child has been given an oral

warning. 89 Ill. Adm. Code §402.21(i)(1)(b) (1996). The State even regulates how much of the foster child’s spending money

(50%) that the foster parent can withhold for disciplinary reasons.

89 Ill. Adm. Code §402.21(i) (1996). The state places no such

restrictions on the authority of biological or adoptive parents to

discipline their children.

	The majority asserts that “ ‘[e]xposure to suit for negligence

in supervising and disciplining the children in their custody would

be a deterrent to the best performance by the foster parents in this

regard.’ ” Slip op. at 9, quoting Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 517 (1997). I have no idea what this means.

In any event, the majority has it exactly backwards. Immunizing

foster parents from liability eliminates a powerful incentive for

ensuring that foster parents adequately perform the duties for

which they were hired. The majority’s rationale,whatever it means,

has little relevance to this case. The Stasses have no more duties to

perform as foster parents; they no longer care for Jonathan Nichol.

He is dead.

	The majority gives great weight to the interest of preserving

foster parents’ authority to discipline foster children, but the

majority fails to consider the foster child’s interest in receiving

proper care and, if so indicated, compensation for his injuries.

Granting parental immunity to the foster parents in this case has the

perverse effect of protecting conduct which plaintiffs allege is

responsible for severing the only permanent family relationship

Jonathan Nichol had, his relationship with his biological parents.

	Finally, the majority’s failure to hold whether plaintiffs’ claims

are barred is inexcusable. The majority states:

		“"Some of the allegations in the amended complaint

arguably fall within the scope of the immunity recognized

by Cates and further limited by the special circumstances like those in which the state acknowledges the defense

would not be available, as noted above. Other allegations,

however, perhaps fall outside those boundaries. The

plaintiffs should have an opportunity to amend their

complaint further to allege additional matters that, if true,

could defeat a claim of parental immunity in the foster

family context.”" 192 Ill. 2d at 248.

The majority justifies its bizarre refusal to determine whether

plaintiffs’ claims are barred under the doctrine of parental immunity

by stating that “there remains a genuine issue of material fact concerning the Stasses’ parental immunity defense.” Slip op. at 11.

Yet, inexplicably, the majority never identifies what this genuine

issue of material fact is. This, however, is not the only thing

missing from the majority opinion. There is no resolution or

conclusion in the majority opinion. It winds down to nothing more

than an advisory opinion that foster parents should have a limited

form of parental immunity. A cryptic statement that some of

plaintiffs’ claims are barred and some are not is useless to the

parties in this case and provides no guidance to either litigants,

lawyers or judges who may be faced with this same issue. The

majority remands to the circuit court so that plaintiffs can replead,

but this disposition is absolutely useless if this court fails to identify

with any certainty which claims are barred by the undefined form

of parental immunity which the court now extends to foster

parents.

	Accordingly, I respectfully dissent.

	JUSTICE FREEMAN, also dissenting:

	The court today resolves the critical question of subject matter

jurisdiction on the basis of an incomplete record on appeal. The

court today also concludes that the state does not have a

nondelegable duty to provide for the care of children placed in

foster homes. Rather, the state’s duty is merely to “provide

placement, to institute procedures, *** [and] to exercise general

authority over foster children.” Slip op. at 9. Lastly, the court

today holds that foster parents stand in loco parentis to their foster children and, with certain exceptions, are entitled to the same

protection from lawsuits enjoyed by biological parents and

teachers. I respectfully dissent.

	Jonathan Nichol died in the care of his foster parents, John and

Bonnie Stass. Jonathan’s biological parents, Gregory and Ruby

Nichol, individually and as administrators of Jonathan’s estate,

brought an action in the circuit court of Cook County against the

Stasses and the Human Enrichment and Developmental

Association (HEDA), a child welfare agency supervising the

Stasses. In the complaint, the Nichols alleged, inter alia, that the Stasses failed to supervise Jonathan, to protect him from hazards

in the foster home, and to provide him with immediate medical

care. The Nichols alleged, inter alia, that HEDA negligently failed to supervise the Stasses, and failed to place Jonathan in a home

“free from observable hazards.”

	The Stasses filed a motion to dismiss the complaint pursuant

to sections 2–619(a)(1) and (a)(9) of the Code of Civil Procedure

(735 ILCS 5/2–619(a)(1), (a)(9) (West 1998)). They maintained

that an action against a foster parent is an action against the state,

and, as such, must be filed in the Illinois Court of Claims. See 705

ILCS 505/8 (West 1998). The circuit court agreed. The court

followed Griffin v. Fluellen, 283 Ill. App. 3d 1078 (1996), which held that a claim against a foster parent appointed by the

Department of Children and Family Services is in actuality a claim

against the state, and must be filed in the court of claims. The

circuit court concluded that the court of claims had exclusive

subject matter jurisdiction over the Nichols’ claim. The Nichols

appealed.

	The appellate court affirmed the circuit court’s order of

dismissal. The appellate court held that foster parents are agents of

the state because they are appointed by the Department of Children

and Family Services (DCFS), a state agency, and they are

performing duties statutorily mandated as government duties.

Furthermore, whether foster parents are agents of the state or

independent contractors, they perform the state’s nondelegable

duties toward its foster wards. Thus, the conduct of the foster

parent is the conduct of the state, and the foster parent is

considered an agent of the state whether or not he is in fact an

independent contractor. The appellate court ruled that, in the

performance of their duties as foster parents, the Stasses were

agents of the state, and, as such, could be sued only in the court of

claims. The Nichols sought and received leave to appeal to this

court.

	In this court, the Nichols maintain that the Stasses are neither

agents nor employees of the state and, therefore, the circuit court

erred in dismissing the complaint for lack of subject matter

jurisdiction. Contrarily, the Stasses contend that the court of claims

has exclusive jurisdiction over the Nichols’ claim, as it does over

all claims brought against the state. Thus, the question on appeal

is whether the Stasses are agents or employees of the state,

protected by the doctrine of sovereign immunity. If a foster parent

is neither an agent nor an employee of the state, the circuit court

erred in dismissing the complaint for lack of subject matter jurisdiction. If a foster parent is an agent or employee of the state,

and the claim against the Stasses is in fact a claim against the state,

the circuit court did not err in dismissing the complaint for lack of

subject matter jurisdiction. See Healy v. Vaupel, 133 Ill. 2d 295 (1990) (discussing when an action nominally against a servant or

agent of the state is actually an action against the state). The

subject matter jurisdiction of the circuit court, and consequently of

this court, turns on the question of state agency or employment.

	To begin its analysis, the majority notes that the Foster Parent

Law (20 ILCS 520/1–10, 1–15, 1–20 (West 1998)) “does not

describe foster parents as either employees or agents” of the state.

Slip op. at 4. The majority then examines “a variety of statutes

relating to state employment,” and concludes that foster parents

are not “deemed state employees” in these statutes. Slip op. at  5.

	It would seem that the next logical step for the majority would

be to determine that foster parents are not agents or employees of

the state. Instead, the majority looks to the contents of the record

on appeal to determine subject matter jurisdiction. The majority

notes:

		“The record in the present case is not entirely clear

concerning the relationship among the Stasses, HEDA,

and the Department of Children and Family Services.

According to the allegations in the complaint, HEDA, an

independent child welfare organization, was ‘in charge of,

supervisor of, manager of, and director of’ the Stasses as

foster parents. Neither side appended to any of their

pleadings copies of the contracts between the Department

and HEDA and between HEDA and the Stasses. To be

sure, it was the [Stasses’] motion to dismiss, and therefore

it was their duty to supply a record in support of their

motion.” Slip op. at 5.

Because the record on appeal is incomplete, the majority assumes

that the Stasses are not agents or employees of the state. From this

assumption flows another: the circuit court had subject matter

jurisdiction because the claim against the Stasses is not a claim

against the state. Thus, the contents of the record on appeal

determine subject matter jurisdiction.

	Given the importance of subject matter jurisdiction, I question

the propriety of deciding the issue in such a speculative manner. If the majority believes that state agency or employment is to be

determined on the basis of the record on appeal, why not defer the

question until the record is complete? Why not remand to the

circuit court so the Stasses can supplement the record? Once the

record is complete, this court could give full consideration to the

issue of state agency or employment. The majority identifies

correctly the threshold question on appeal: “whether the [Stasses]

are in fact state employees or agents.” Slip op. at 10. However, the

majority never answers the “threshold question” so identified.

	I believe it was neither necessary nor proper to refer to the

record on appeal to determine the question of state agency or

employment. Whether foster parents are agents or employees of

the state depends on the statutory framework under which they

operate, the administrative regulations with which they must

comply, and the duties they are required to perform. Do foster

parents perform services for the state? Are foster parents

reimbursed by the state for expenses related to the care of the

foster child? Does the state dictate the manner in which foster

parents perform their work? Are their actions controlled by the

state or subject to the state’s right of control? Based upon my

review of the statutory framework created by our General

Assembly and the regulations promulgated by DCFS these

questions must be answered in the affirmative. Consequently, I am

of the opinion that foster parents are agents of the state.

	In the case at bar, the Stasses were under the supervision of

HEDA, a child welfare agency. Nonetheless, they were subject to

control by the state, as I will demonstrate below. All foster parents,

whether supervised directly by DCFS or supervised by a child

welfare agency, are subject to DCFS licensing requirements, must

participate in DCFS training programs, must maintain records

required by DCFS, must provide access to DCFS, and must

comply with DCFS standards relating to the appearance,

cleanliness and safety of the facility; the discipline of children at the

facility; and the provision of care to children at the facility.

	There can be no doubt that foster parents perform services for

the state. DCFS “is a legislatively created agency charged with the

duty to protect and promote the welfare of the children of Illinois.”

In re C.J., 166 Ill. 2d 264, 269-70 (1995). DCFS is empowered to provide child welfare services aimed at protecting and promoting

the health, safety and welfare of children; assuring safe and adequate care of children away from their homes, in cases where

the child cannot be returned home or cannot be placed for

adoption; and restoring to their families children who have been

removed, by providing services to the child and the families when

the child can be cared for at home without endangering the child’s

health and safety. 20 ILCS 505/5(a)(3) (West 1998). DCFS relies

upon foster homes and child welfare agencies1 to provide substitute care for children away from home. Our legislature best describes

the role of foster parents:

		“Family foster care is an essential service for children and

their families who have been separated due to the tragedy of

child abuse, neglect, or dependency. When children have been

separated from their families, it is the responsibility of the child

welfare team to respond to the needs of the children and their

families ***.

			Foster parents are an essential part of and fulfill an

integral role on the child welfare team ***. By providing

care for children and supporting the attachment of children

to their families in a manner sensitive to each child’s and

family’s unique needs, the foster parent serves the child,

the family, and the community.” 20 ILCS 520/1–5 (West

1998).

	There can be no doubt foster parents are entitled to

reimbursement from the state for the services they provide to foster

children. A foster parent’s rights include “[t]he right to receive

timely financial reimbursement commensurate with the care needs

of the child.” 20 ILCS 520/1–15(4) (West 1998). DCFS is required

to disburse monies to the foster parent for the child’s care (89 Ill.

Adm. Code §353.5(a) (1996)), including payments for room,

board, clothing, and a personal allowance to the child (89 Ill. Adm.

Code §353.2 (1996)). DCFS also provides payment for goods and services necessary to ensure the personal and physical maintenance

of placed children, including payments for cultural enrichment,

education expenses, camp fees, clothing, and supplies. 89 Ill. Adm.

Code §359.7 (1996).

	Lastly, there can be no doubt that foster parents’ actions are

controlled by the state or subject to the state’s right of control.

Virtually all aspects of foster care are dictated by the state.

Facilities for child care or child care facilities2 are licensed by the state. Application for a license to operate a child care facility must

be made to DCFS in the manner and on forms prescribed by it. 225

ILCS 10/4 (West 1996). The application must include written

authorization by the applicant and all adult members of the

applicant’s household to conduct a criminal background

investigation; medical evidence in the form of a medical report that

the applicant and all members of the household are free from

communicable diseases or physical and mental conditions that

affect their ability to provide care for the child or children; the

names and addresses of at least three persons who can attest to the

applicant’s moral character; and fingerprints submitted by the

applicant and all adult members of the applicant’s household. 225

ILCS 10/4(b) (West 1998). DCFS issues a license to a child care

facility if, upon examination of the facility and investigation of

persons responsible for care of the children, DCFS is satisfied that the facility and responsible persons meet standards prescribed for

the facility. 225 ILCS 10/4(d) (West 1998). The license remains

valid for four years, unless revoked by DCFS. 225 ILCS 10/5(d)

(West 1998).

	DCFS is required to prescribe and publish minimum standards

for licensing child care facilities, which include foster family homes.

225 ILCS 10/7 (West 1998). The standards must touch upon the

character, suitability and qualifications of an applicant and other

persons directly responsible for the care and welfare of the children

served; the number of individuals or staff required to insure

adequate supervision and care of the children; the operation and

conduct of the facility and responsibility it assumes for child care;

the appropriateness, safety, cleanliness and general adequacy of the

premises, including maintenance of adequate fire prevention and

health standards conforming to state laws and municipal codes; the

maintenance of records pertaining to the admission, progress,

health and discharge of children; the filing of reports with DCFS;

the discipline of children; and the provisions for food, clothing,

educational opportunities, program, equipment and individual

supplies to assure the healthy physical, mental and spiritual

development of the children served. 225 ILCS 10/7(a) (West

1998). Each licensee is required to post a complete and current set

of the licensing standards in a common area so that all employees

of the facility may have unrestricted access to the standards, and

maintain documentation of the current review of licensing

standards by all employees. 225 ILCS 10/7(a) (West 1998). Lastly,

foster parents are also required to undergo training with DCFS.

DCFS standards provide that “[f]oster parents shall complete, as

a condition of initial licensure, at least six clock hours of training

on content approved by [DCFS].” 89 Ill. Adm. Code §402.12(i)

(1996).

	DCFS’s control over the child care facility extends beyond the

initial licensing of the facility. DCFS may revoke a child care

facility’s license, and issue a conditional license to the facility. 225

ILCS 10/8.2 (West 1998). The conditional license, issued for no

more than six months, affords the child care facility time to correct

deficiencies or meet licensing standards. 225 ILCS 10/8.2 (West

1998). A complete listing of deficiencies and a corrective plan approved by DCFS must exist at the time a conditional license is

issued. 225 ILCS 10/8.2 (West 1998).

	DCFS may revoke or refuse to renew the license of a child

care facility if the licensee fails or refuses to admit authorized

representatives of DCFS at any reasonable time for the purpose of

investigation; fails to maintain the standards prescribed and

published by DCFS; fails to provide, maintain, equip and keep in

safe and sanitary conditions premises established or used for child

care as required under standards prescribed by DCFS, or as

required by any law, regulation or ordinance applicable to the

facility; fails to correct any condition which jeopardizes the health,

safety, morals, or welfare of children served by the facility; fails to

exercise reasonable care in the hiring, training and supervision of

facility personnel; or fails to discharge or sever affiliation with the

child care facility of an employee or volunteer at the facility with

direct contact with children who is the subject of an indicated

report under section 3 of the Abused and Neglected Child

Reporting Act (325 ILCS 5/3 (West 1998)). 225 ILCS 10/8, 8.1

(West 1998).

	DCFS also controls the placement of children in child care

facilities (20 ILCS 505/7 (West 1998)), family-child visitation (89

Ill. Adm. Code §301.210 (1996)), and sibling visitation (89 Ill.

Adm. Code §301.220 (1996)). In making a placement, DCFS must

ensure that the child’s health, safety, and best interests are met. 20

ILCS 505/7(c) (West 1998). DCFS is required to develop a case

plan designed to reunify the child with his family when safe and

appropriate, or to move the child toward the most permanent living

arrangement possible. 20 ILCS 505/6a (West 1998). The foster

parent is a member of the child welfare team, and champions the

efforts of the team by providing care to the child and supporting

the attachment of the child to his family in a manner sensitive to the

child’s and family’s unique needs. 20 ILCS 520/1–5 (West 1998).

	Beyond the development of an overall case plan for each child,

DCFS delves into the everyday aspects of care provided to the

child. DCFS publishes standards relating to sleeping arrangements

for the foster child (89 Ill. Adm. Code §§402.9(a), (b), (c) (1996));

sharing a bedroom (89 Ill. Adm. Code §§402.9(c), (d), (e) (1996));

the size of the bedroom and ventilation (89 Ill. Adm. Code §§402.9(g), (h) (1996)); the springs and mattresses on the bed, and

mattress covers (89 Ill. Adm. Code §§402.9(i), (k) (1996)); linen

changes (89 Ill. Adm. Code §402.9(j) (1996)); the bedroom

furnishings (89 Ill. Adm. Code §402.9(l) (1996)); the number of

meals and time span between meals (89 Ill. Adm. Code §402.10(a)

(1996)); special diets (89 Ill. Adm. Code §402.10(c) (1996)); the

nutritional needs of the child (89 Ill. Adm. Code §402.10(d)

(1996)); the manner in which meals are served and sanitary

conditions (89 Ill. Adm. Code §402.10(f) (1996)); coerced feeding

(89 Ill. Adm. Code §402.10(g) (1996)); child assistance in meal

preparation (89 Ill. Adm. Code §402.10(h) (1996)); the use of food

products from home-raised animals (89 Ill. Adm. Code §402.10(b)

(1996)); medical and dental checkups (89 Ill. Adm. Code

§402.17(a) (1996)); immunizations and tests (89 Ill. Adm. Code

§402.17(c) (1996)); the use of prescription drugs or medicines (89

Ill. Adm. Code §402.17(e) (1996)); contagious diseases (89 Ill.

Adm. Code §402.17(g) (1996)); recreation and leisure time (89 Ill.

Adm. Code §402.19 (1996)); development of social relationships

through participation in schools, and other community and group

activities (89 Ill. Adm. Code §402.16(c) (1996)); participation in

extra-curricular activities including sports, art and music (89 Ill.

Adm. Code §402.20(b) (1996)); cooperation in the child’s

educational plan (89 Ill. Adm. Code §402.20(a) (1996)); contact

with educators (89 Ill. Adm. Code §402.20(c) (1996)); corporal

punishment, verbal abuse, threats or derogatory remarks (89 Ill.

Adm. Code §402.21(c) (1996)); meal deprivation (89 Ill. Adm.

Code §402.21(d) (1996)); deprivation of visits with family or other

persons (89 Ill. Adm. Code §402.21(e) (1996)); clothing or sleep

deprivation (89 Ill. Adm. Code §402.21(f) (1996)); restriction to

a room (89 Ill. Adm. Code §402.21(g) (1996)); use of physical

restraints (89 Ill. Adm. Code §402.21(h) (1996)); withholding

child’s spending money for disciplinary purposes (89 Ill. Adm.

Code §402.21(i) (1996)); special or additional chores as

disciplinary measure (89 Ill. Adm. Code §402.21(j) (1996));

removal of privileges as disciplinary measure (89 Ill. Adm. Code

§402.21(k) (1996)); inviting friends to the foster home or visiting

in the homes of friends (89 Ill. Adm. Code §402.16(c) (1996));

overnight stays with friends or relatives of the child or foster parents (89 Ill. Adm. Code §402.16(d) (1996)); personal allowance

money and earning additional spending money (89 Ill. Adm. Code

§402.16(e) (1996)); opportunity for the child to assume some

responsibility for himself and for household duties (89 Ill. Adm.

Code §402.16(g) (1996)); equitable treatment of all children in the

foster family (89 Ill. Adm. Code §402.16(a) (1996)); and

supervision of the child (89 Ill. Adm. Code §402.16(b) (1996)).

	DCFS also publishes standards relating to the number and ages

of children served in a child care facility (89 Ill. Adm. Code

§402.15 (1996)); the health of the foster parents and members of

the household (89 Ill. Adm. Code §402.14 (1996)); qualifications

of the foster family, including financial resources which must be

available to the foster family (89 Ill. Adm. Code §402.12 (1996));

the operation of other business enterprises in the child care facility

(89 Ill. Adm. Code §402.11(c) (1996)); employment of foster

parents outside the home (89 Ill. Adm. Code §402.11(d) (1996));

the operation of a rooming or boarding house on the premises (89

Ill. Adm. Code §402.11(a) (1996)); and general requirements for

the child care facility (89 Ill. Adm. Code §402.8 (1996)). The

general requirements for the foster home concern such matters as

the water supply of the foster home; the use of portable space

heaters; fire and emergency evacuation plans; closet and dresser

space for the foster child; the availability of a telephone; storage of

drugs, household supplies, dangerous tools, weapons, guns and

ammunition; household pets; the child’s right to privacy while

sleeping, washing and dressing; and ventilation, lighting and

cleanliness of the home. 89 Ill. Adm. Code §402.8 (1996). Lastly,

foster parents are required to maintain certain records for each

child, including a record of immunizations, a daily log of

medication prescribed and given, and a record of arrangements for

the child’s education. 89 Ill. Adm. Code §402.26 (1996).

	DCFS exercises pervasive control over foster parents, such as

the Stasses. The right to control the actions of another is a

hallmark of agency. Restatement (Second) of Agency §1, at 7

(1958); see also Taylor v. Kohli, 162 Ill. 2d 91, 95-96 (1994) (the principal factor to consider in determining whether a relationship

is that of principal/agent, employer/employee or

owner/independent contractor is the right to control the manner in which the work is done); Hansen v. Caring Professionals, Inc., 286 Ill. App. 3d 797, 801 (1997). In light of the fact that foster parents perform services for the state, receive reimbursement from

the state, and are subject to the state’s control in all aspects of the

provision of care to children at the facility, foster parents must be

considered agents of the state.

	An equally important reason to hold that foster parents are

agents of the state is that foster parents perform the state’s

nondelegable duty to provide for the care of its wards. By statute,

DCFS is required to provide child welfare services aimed at

protecting and promoting the health, safety and welfare of children;

assuring safe and adequate care of children away from their homes,

in cases where the child cannot be returned home or cannot be

placed for adoption; and restoring to their families children who

have been removed, by providing services to the child and the

family when the child can be cared for at home without

endangering the child’s health and safety. 20 ILCS 505/5(a)(3)

(West 1998). Further, DCFS is required to “establish rules and

regulations concerning its operation of programs designed to meet

the goals of child safety and protection, family preservation, family

reunification.” 20 ILCS 505/5(g) (West 1998). A decision to place

a child in foster care is to be made “with considerations of the

child’s health, safety, and best interests.” 20 ILCS 505/5(l–1)

(West 1996).

	As noted in the Restatement (Second) of Torts, “[o]ne who by

statute or by administrative regulation is under a duty to provide

specified safeguards or precautions for the safety of others is

subject to liability to the others for whose protection the duty is

imposed for harm caused by the failure of a contractor employed

by him to provide such safeguards or precautions.” Restatement

(Second) of Torts §424, at 411 (1965). This is so because the

statutory duty is nondelegable, and the principal is not relieved of

liability by hiring an independent contractor to perform his duty.

The independent contractor is deemed the agent of the principal.

Stated in other words,“[a] master or other principal who is under

a duty to provide protection for or to have care used to protect

others or their property and who confides the performance of such

duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to

perform the duty.” Restatement (Second) of Agency §214, at 463

(1958). The Restatement elaborates:

		“[O]ne may have a duty to see that due care is used in the

protection of another, a duty which is not satisfied by

using care to delegate its performance to another but is

satisfied if, and only if, the person to whom the work of

protection is delegated is careful in giving the protection.

In this *** class, the duty of care is non-delegable.”

Restatement (Second) of Agency §214, Comment a, at 464 (1958).

In the case at bar, the state had a duty to provide care to Jonathan

Nichol. The state attempted to fulfill this duty by placing Jonathan

in the home of the Stasses, where he died. The Stasses should be

deemed agents of the state, and the state should be vicariously

liable for the actions of the Stasses. The state could not relieve

itself of liability by entrusting the performance of its duty to the

Stasses.

	The majority here states:

		“[W]hatever duty there is to provide placement, to

institute procedures, or even to exercise general authority

over foster children is not the same as a continuing,

nondelegable duty to provide for the care of children

placed in foster homes.” Slip op. at 9.

I disagree. The majority’s analysis of this issue trivializes the duty

imposed upon the state. In his dissent in Lipscomb v. Simmons, 962 F.2d 1374, 1385-86 (9th Cir. 1992) (Kozinski, J., dissenting),

Judge Kozinski summarized the relationship between the foster

child and the state:

		“In removing children from the custody of parents who are

unable, unwilling or unfit to take care of them, the state

performs a very significant–and very

delicate–governmental function. Because children

normally have no resources of their own, and very young

children lack the wherewithal to provide for their own

upkeep, they depend on adults for the necessities of life

and for the other resources they need to become healthy, productive and well-adjusted adults. [Citations.] Normally

these resources are provided by their parents; every child

has a legitimate expectation, if not entitlement, to be

supported by the adults who brought him into the world.

But when, because of death or disability, criminality or

drug abuse, the child’s parents fail to provide these

resources, the state normally steps in to make sure the

child receives the necessary care. Indeed, every state in the

union has undertaken to care for its abandoned, neglected

and mistreated children. In so doing, states take on very

significant responsibilities.

			The process starts with removing the child from the

custody and control of those to whom he is entitled to

look for support and nurture. ‘When the minor must be

removed from the custody of his parents for his own

welfare ... the state assum[es] the parents’ role... .’

[Citations.] The weighty and sensitive responsibilities of

parenthood–with its focus on the well-being of the

child–devolve upon the state.”

 The state does not merely have a “duty to provide placement, to

institute procedures, or even to provide general authority over

foster children.” The state has a duty to care for its wards.

	Far from trivial, the state’s duty to its wards is of

constitutional proportions. Several courts have held, by analogy to Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), and Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), that a state may be liable under the due

process clause for failing to protect children in foster homes from

mistreatment by foster parents. See Hutchinson ex rel. Baker v. Spink, 126 F.3d 895 (7th Cir. 1997); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987); Doe v. New York City Department of Social Services, 649 F.2d 134 (2d Cir. 1981); Taahira W. ex rel. McCord-Salley v. Travis, 908 F. Supp. 533 (N.D. Ill. 1995); B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989). See also Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995).

	I do not wish to imply that foster parents, in general, are bad

persons. The vast majority of foster parents are persons of good nature, who undertake a difficult task and do so to the best of their

abilities. I approach this issue from the point of view that the state

has a nondelegable duty to care for its wards. Foster parents are

agents of the state. To the extent that certain foster parents, like

persons in the general population, are unqualified to provide care

to foster children, or do not possess the temperament or qualities

needed to serve as foster parents, the state must be held liable for

harm suffered by the state’s wards while in the care of these foster

parents.

	The state had a nondelegable duty to care for Jonathan,

whether the duty is said to be statutory or constitutional. The state

could not avoid liability by delegating this duty to the Stasses. As

a consequence, I believe that the Nichols’ action should have been

brought against the state in the Court of Claims. I also believe this

court does not have jurisdiction over this action, as subject matter

jurisdiction lies in the Court of Claims.

	Having assumed that the Stasses are not state agents or

employees, the majority next considers whether the doctrine of

parental immunity bars an action against a foster parent for

negligence. To begin its analysis, the majority explains the rationale

justifying the doctrine of parental immunity–preservation of

parental authority and discipline. Slip op. at 10. The majority then

compares the roles of biological parents, foster parents and

teachers. The majority acknowledges that “the relationship

between foster parents and foster children is not identical with the

relationship between biological parents and their children.” Slip op.

at 10. The relationship between a foster parent and foster child “is

not permanent and may even be relatively brief.” Slip op. at 11.

Also, foster parents “receive compensation for their work.” Slip

op. at 11. However, the majority concludes that foster parents

stand in loco parentis to their foster children and, with certain exceptions, are entitled to the same protection from lawsuits

enjoyed by biological parents and teachers.3 The majority explains:

		“[F]oster parents, like teachers and biological parents, are

responsible for a broad range of decisions affecting the

vital interests of the children involved. It would be

anomalous to grant a qualified immunity to educators and

biological parents but to deny immunity entirely to foster

parents, who, in their relationship with their foster

children, share many important similarities with the others.

Thus, it can be seen that our result in this case does not

represent an undue expansion of the immunity doctrine;

rather, our holding is entirely consistent with this court’s

previous decisions recognizing immunity for persons who

stand in loco parentis to children.” Slip op. at 11-12.

Again, I disagree.

	Like Justice Heiple, I believe that there are fundamental

differences in the relationship between a foster parent and foster

child and the relationship between a biological parent and child

which militate against extension of parental immunity to foster

parents. Foster parents do not stand in loco parentis to foster children. Thus, I join in Justice Heiple’s dissent on this issue.

However, I write separately to sound a cautionary note: the

majority has redefined the term in loco parentis, and its opinion may have unintended consequences.

	Prior case law established that one who stands in loco parentis is one who “take[s] upon himself the obligations of a parent.”

Busillo v. Hetzel, 58 Ill. App. 3d 682, 684 (1978); accord People ex rel. Smilga v. Hoyer, 345 Ill. App. 365, 368 (1952). As explained in Smilga,

		“ ‘ “a person in loco parentis, means a person taking upon himself the duty of a father to make provision for the

child.” [Citation].’ The cases dealing with this subject

emphasize the fact that one standing in loco parentis assumes the financial burdens arising out of the

relationship of parent and child.” Smilga, 345 Ill. App. at 369, quoting Capek v. Kropik, 129 Ill. 509, 515 (1889).

Thus, in Mid-American Lines, Inc. v. Industrial Comm’n, 82 Ill. 2d 47, 52 (1980), this court stated,“[a] showing of in loco parentis *** has come to require that the putative parent (1) intended to

assume parental functions and (2) discharged parental duties.”

“Mere affection, generosity, and exercise of care without assuming

the usual financial burdens of parenthood are insufficient to place

one in loco parentis to a child.” Busillo, 58 Ill. App. 3d at 684, citing Hawkey v. United States, 108 F. Supp. 941 (E.D. Ill. 1952).

	In Wallace v. Smyth, 301 Ill. App. 3d 75 (1998), our appellate court considered whether a not-for-profit academy, the director of

the academy, and counselors employed by the academy

(collectively defendants) stood in loco parentis to a child. DCFS had placed the child with the academy for a 90-day diagnostic

assessment. The child lived in the home of the director of the

academy, and died while being restrained by the director and two

counselors. The child’s biological parent filed an action alleging

that defendants acted negligently, willfully, and wantonly in the

death of the child. The trial court granted defendants’ motion to

dismiss the negligence claim on the basis of parental immunity. On

appeal, the court observed that “parties must assume the usual

financial burdens of parenthood before they can be considered in loco parentis, and such status is granted sparingly.” Wallace, 301 Ill. App. 3d at 79. The court observed further:

	“The relevant legislation here is the Illinois Administrative

Code, which states DCFS has legal and financial responsibility

for children of whom it is guardian, regardless of their

momentary location. That obligation entails providing for such

children’s clothing, mental health care, camp fees and supplies,

cultural enrichment, educational expenses, and medical care.”

Wallace, 301 Ill. App. 3d at 80-81.

The court found that DCFS, and not defendants, bore ultimate

responsibility for traditional parental functions with regard to the

child. Thus, the action against defendants was not barred by the

doctrine of parental immunity. See also Bland v. Department of Children & Family Services, 141 Ill. App. 3d 818, 822 (1986) (DCFS was the party in loco parentis to the child; the grandparents did not enjoy the right, nor were they burdened by the obligations of parents.)

	As noted in Justice Heiple’s dissent, foster parents receive

reimbursement for expenses related to the care of the foster child.

Slip op. at 14 (Heiple, J., dissenting). Although foster parents

provide housing and care to the foster child, foster parents have the

“right to receive timely financial reimbursement commensurate

with the care needs of the [foster] child.” 20 ILCS 520/1–15(4)

(West 1998). Under established law, a person who exercises “the

parental attributes of affection, generosity, and care without

assuming the usual financial burdens of parenthood does not stand in loco parentis to a child.” Lawber v. Doil, 191 Ill. App. 3d 323, 325 (1989). Consequently, a foster parent does not stand in loco parentis to the foster child.

	The majority concedes that foster parents do not assume the

financial burdens of parenthood. See slip op. at 10, 11. However,

citing Kobylanski v. Chicago Board of Education, 63 Ill. 2d 165 (1976), the majority notes this court has held that teachers stand in loco parentis to a student, although teachers are compensated for their work. Slip op. at 11. Sections 24–24 and 34–84a of the School Code (105 ILCS 5/24–24, 34–84a (West 1998)), which

were in effect at the time this court decided Kobylanski (see Ill. Rev. Stat. 1967, ch. 122, pars. 24–24, 34–84a), provide that “[i]n

all matters relating to the discipline in and conduct of the schools

and the school children, [teachers] stand in the relation of parents

and guardians to the pupils.” Thus, it is by legislative enactment

that a teacher stands in loco parentis to a student. The legislature has not seen fit to include a similar provision in the statutes relating

to foster parents.

	By its holding today, the majority has eliminated the

requirement that one who stands in loco parentis must assume financial responsibility for the child. The majority has redefined the

term in loco parentis. The implication in the present case is that the Stasses may invoke the doctrine of parental immunity to bar an

action for negligent supervision of Jonathan Nichol. The majority

opinion, however, may have unintended consequences. As noted

by the appellate court in Wallace, 301 Ill. App. 3d at 80, housing, care and education are also provided by summer camps, day-care

centers, medical and psychological treatment facilities,

grandparents and other relatives of a child. Do these persons or entities also stand in loco parentis to a child? Should the Wallace court have held that the academy and counselors stood in loco parentis to the child placed in their care? Moreover, use of the term in loco parentis is not restricted to the area of foster care or education. Under the Workers’ Compensation Act (820 ILCS

305/1 et seq. (West 1998)) death benefits are payable to a child to whom the deceased employee stood in loco parentis. A parent, or one who stands in loco parentis to a child may be guilty of the offense of contributing to the dependency or neglect of the child.

720 ILCS 130/2 (West 1998). By redefining the term in loco parentis, the majority opinion may have an impact on diverse areas of the law.

	In this case, we must, as a threshold matter, determine whether

a foster parent is an agent or employee of the state. The subject

matter jurisdiction of the circuit court, and of this court, turns upon

the answer to that question. The majority failed to answer this

question, choosing instead to assume subject matter jurisdiction

based on an insufficient record. To be sure, the majority might have

concluded that foster parents are not agents or employees of the

state. It would thus follow that the action against the Stasses is not

barred by the doctrine of sovereign immunity. However, the

majority chose not to determine whether foster parents are agents

or employees of the state, relying instead on the insufficiency of the

record on appeal. I suggest this court cannot assume subject matter

jurisdiction in the absence of a complete record. I also believe that

a foster parent is an agent of the state. The state’s control over various aspects of the care foster parents provide to foster children

is pervasive. Further, the state has a nondelegable duty to care for

its wards. In electing to place foster children with foster parents,

the state does not relieve itself of its obligation to care for its wards

or of its liability when its duty to its wards is breached. Lastly, I

believe that a foster parent does not stand in loco parentis to the foster child because the foster parent does not assume financial

responsibility for the foster child. Consequently, the doctrine of

parental immunity should not be extended to protect foster parents

from negligence actions. The majority asserts that the “result in this

case does not represent an undue expansion of the immunity

doctrine.” Slip op. at 11-12. I disagree. For these reasons, I

respectfully dissent.