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.” 192 Ill. 2d at 243. 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. 192 111. 2d at 238. 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. 192 111. 2d at 238.
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.” 192 Ill. 2d at 239.
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.” 192 Ill. 2d at 238. 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 “[floster parents shall complete, as a condition of initial licensure, at least six clock hours of training on content approved by [DCFS].” 89 111. Adm. Code § 402.12G) (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 (89 111. Adm. Code § 301.210 (1996)), and sibling visitation (89 111. 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(1) (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 extracurricular 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 (89 111. 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(1 — 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:
“[0]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.” 192 Ill. 2d at 243.
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. 192 Ill. 2d at 244. 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.” 192 Ill. 2d at 244-45. The relationship between a foster parent and foster child “is not permanent and may even be relatively brief.” 192 Ill. 2d at 246. Also, foster parents “receive compensation for their work.” 192 Ill. 2d at 245. 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: “[FJoster 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.” 192 Ill. 2d at 246.
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. 192 111. 2d at 250 (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 192 Ill. 2d at 246. 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. 192 Ill. 2d at 246. 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.” 192 Ill. 2d at 246.1 disagree. For these reasons, I respectfully dissent.
A child welfare agency is a “public or private child care facility, receiving any child or children for the purpose of placing or arranging for the placement of the child or children in foster family homes or other facilities for child care, apart from the custody of the child’s or children’s parents. The term ‘child welfare agency’ includes all agencies established and maintained by a municipality or other political subdivision of the State of Illinois to protect, guard, train or care for children outside their own homes.” 225 ILCS 10/2.08 (West 1998).
Facility for child care or child care facility means “any person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility, apart from the parents, with or without the transfer of the right of custody in any facility *** established and maintained for the care of children.” 225 ILCS 10/2.05 (West 1998).
A foster family home is “a facility for child care in residences of families who receive no more than 8 children unrelated to them, unless all the children are of common parentage, or residences of relatives who receive no more than 8 related children placed by [DCFS], unless the children are of common parentage, for the purpose of providing family care and training for the children on a full-time basis.” 225 ILCS 10/2.17 (West 1998).
The majority imposes certain restrictions on the immunity afforded foster parents. Thus, parental immunity is not available when “the underlying conduct result [s] in the revocation of a foster parent’s license or a finding of neglect, or when it is the subject of a criminal charge.” 192 Ill. 2d at 247. Further, the immunity does not override DCFS regulations to the contrary. 192 Ill. 2d at 247.