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. 192 111. 2d at 246. 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. 192 Ill. 2d at 241 (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.W2d 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)(l)(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 “ ‘[ejxposure 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.’ ” 192 Ill. 2d at 245, 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.” 192 111. 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.” 192 Ill. 2d at 248. 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.