dissenting:
I respectfully dissent. I would affirm the trial court. The majority correctly identifies the issue as whether defendant exerted control beyond DCFS licensing regulations over the Augsburgers’ day-to-day supervision of Louise. In response to this question, the majority stated defendant did have the right to control “a great deal of the day-to-day supervision and parenting” provided by the Augsburgers. 333 Ill. App. 3d at 155. However, the majority finds no agency relationship between defendant and the Augsburgers, stating:
“By merely acting in accordance with DCFS regulations, defendant did not have the right to exercise any more control over the Augsburgers than DCFS would have had if it were providing services directly.” 333 Ill. App. 3d at 155.
Finding “no evidence” that defendant’s control went beyond “merely subjecting” the Augsburgers to DCFS regulations, the majority finds no agency relationship. 333 Ill. App. 3d at 155. I disagree.
Through the testimony of Jim Smith (Smith), executive director of Youth Services, and William Sherman (Sherman), foster family supervisor for the Augsburgers, evidence was presented that defendant exercised control over the Augsburgers beyond merely subjecting them to DCFS regulations. Plaintiffs appellee brief summarizes Smith’s testimony as follows:
“A treatment plan was drafted by Youth Services, not DCFS or the foster parents, and the foster parents were required to follow it. Youth Services was in the home 2-4 times a week. Youth Services would visit the home to make sure [the] foster parents were doing what they were supposed to do[,] which even included maintaining a tidy house. Failure to comply with a Youth Services’ directive could result in discharge of the foster parents. Youth Services had the right to discharge Sarah Augsburger.” (Emphasis added.)
Sherman’s testimony further explained the extent of defendant’s control over the Augsburgers, and plaintiffs appellee brief summarized it as follows:
“Bill Sherman was the foster family supervisor for Sarah and Matthew Augsburger. As foster family supervisor!,] one thing Bill Sherman was required to do was make sure that the home complied with all foster care licensing requirements. If a licensing violation occurred, Sherman could take corrective action ranging from talking to the parents to discharging them. Sherman was constantly monitoring the care the Augsburgers gave Louise even for simple things!,] including! ] a comfortable bed, three balanced meals per day — eaten at appropriate times and not in a hurried manner. Sherman even admitted that he would monitor the Augsburgers to ensure they were providing appropriate supervision to Louise.
Separate from licensing guidelines, Youth Services drafted a treatment plan in which Youth Services required the Augsburgers to provide Sean and Louise ‘clean and safe living conditions,’ ‘adequate nutrition,’ and ‘adequate clothing.’ Youth Services could have discharged the Augsburgers had the goals identified in the treatment plans not been achieved to the satisfaction of Youth Services. It was his job to make sure the treatment plan was followed. The treatment plan which was drafted by Youth Services was a tool used in raising Louise and Sean. *** Sarah was present at ‘staffings.’ Youth Services had an absolute right to discharge the Augsburgers at any time and for any reason. Bill Sherman filled out [pjrogress [n]otes wherein he repeatedly memorialized a decision to maintain placement.” (Emphasis added.)
The clearest example of the reach of defendant’s control over the Augsburgers, however, was defendant’s illegal policy on reporting allegations of abuse and neglect. Plaintiffs appellee brief states:
“Youth Services had a policy (an illegal policy) regarding reporting allegations of abuse and neglect to DCFS. The policy was that in cases where the child reported the abuse or the abuse was obvious!,] Youth Services called it into the Hotline, but on cases that were in question, Youth Services investigated it and then wrote a note to Jim Smith!,] who would decide whether DCFS should be called. This policy was followed in relation to the Augsburgers when an anonymous call was received about some concerns in the home. Bill Sherman, along with Barbara Schneider, investigated the concerns and prepared investigation notes regarding their investigation of Sarah. On a separate occasion, Bill Sherman[,] along with Ron Webber (no relation to Dawn)[,] met with Jackie Blaine and fielded her concerns regarding the placement.”
Clearly, the majority’s finding that “every interaction defendant had with the Augsburgers was dictated by DCFS regulations” is erroneous. 333 Ill. App. 3d at 155. Sufficient evidence supported the jury’s finding of an agency relationship. The jury’s finding of an agency relationship should, therefore, be affirmed.