dissenting:
I respectfully disagree with the majority’s holding that in loco parentis status should not be extended to Maryville. Plaintiff alleged that Maryville was licensed to house, care for and educate wards of the state, its relationship with Waketta also entailed providing him with proper medication, discipline and supervision, and that “MARYVILLE ACADEMY acts as a contractual agent of the State of Illinois in caring for these children.” Based on these allegations, I believe that the trial court properly determined that Maryville stood in loco parentis to Waketta. I further would affirm the trial court’s dismissal of plaintiffs negligence claims against Maryville based on the doctrine of sovereign immunity because Maryville is an agent of the state, performing the state’s nondelegable duty to care for wards of the state and, therefore, the trial court lacked subject matter jurisdiction over this matter.-
In Cates, our supreme court held that parental immunity should be afforded to conduct that “concerns parental discretion in discipline, supervision and care of [a] child”; “conduct inherent to the parent-child relationship.” Cates, 156 Ill. 2d at 104-05. The Cates standard was subsequently applied in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 680 N.E.2d 822 (1997), where the defendants were foster parents who argued that they were immune from liability for the injuries and death of their foster child pursuant to the doctrines of parent-child tort immunity and sovereign immunity.1 In holding that the parent-child tort immunity doctrine barred the plaintiff’s negligence claims against the defendant foster parents, the Augsburger court reasoned that “foster parents *** have responsibility in regard to the supervision and discipline of those children under their care. *** Foster parents are nearly as much in need of leeway in this regard as are natural parents.” Commerce Bank, 288 Ill. App. 3d at 517.
Here, plaintiffs claims clearly arose out of Maryville’s supervision and discipline of Waketta. Waketta was a full-time resident of Maryville and it provided his day-to-day care, nurturing, housing, medical treatment, supervision and discipline, all of which are the types of duties and responsibilities recognized by Cates as “inherent to the parent-child relationship.” Additionally, just as the Augsburger court determined that a foster parent’s care of a state ward is nearly the same care given by a natural parent, Maryville’s care of Waketta in all practical respects had taken the place of Waketta’s parents. Similarly, with respect to the majority’s denial of in loco parentis status to Maryville based on the fact that DCFS was the legal guardian of Waketta and he was only allegedly placed with Maryville temporarily, it should be noted that foster parents do not have legal custody of the foster children placed with them, these children are generally placed on a temporary basis and foster parents nonetheless have been held to be in loco parentis.
While the majority cites to Cates for the proposition that summer camps, day-care centers, medical and psychological treatment facilities, and grandparents “have not generally [been] held in loco parentis” to children2 (301 Ill. App. 3d at 80), I believe, without expressing an opinion as to the legal correctness of this statement, that these situations are readily distinguishable from Maryville’s care of children. In the former, children are placed temporarily, presumably by their parents, and returned to their parents. In the case of a ward of the state, each placement of the child, be it for as little as a few days, 90 days as here, or more, is a permanent placement each time the ward is placed because the ward will always be in placement somewhere, each placement is where the child’s “family” is, and it is to another placement that a ward is “returned to,” rather than to the parents.
I also agree with defendants that the fact that no statutory provision exists conferring in loco parentis status to institutions such as Maryville is not determinative of whether this status should be conferred upon Maryville. In recognizing this statutory immunity, our supreme court stated that it “did not reexamine the public policies underlying the parent-child tort immunity doctrine, nor the scope of the immunity as applied to negligence cases between parent and child,” but that “the parameters of the tort immunity as applied to teachers are fully congruent with their statutorily defined status in loco parentis” in supervising and disciplining children. Cates, 156 Ill. 2d at 100. Clearly, therefore, the parent-child tort immunity doctrine factors of legal and financial responsibility, which the majority relies upon to deny Maryville in loco parentis status, had no bearing on the in loco parentis status conferred upon teachers. These factors thus are not a persuasive foundation for denying Maryville in loco parentis status.
I further believe that the trial court should have dismissed this case for lack of subject matter jurisdiction based on sovereign immunity. Although the trial court did not consider this doctrine and the parties have not raised it on appeal, “[l]ack of subject-matter jurisdiction is an issue that can be raised at any time.” Currie v. Lao, 148 Ill. 2d 151, 157, 592 N.E.2d 977 (1992). Additionally, “a reviewing court may sustain the decision of the trial court on any grounds called for by the record.” Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 502, 520 N.E.2d 37 (1988). In the present case, as stated above, plaintiff alleged in her complaint that “MARYVILLE ACADEMY acts as a contractual agent of the State of Illinois in caring for these children.” As an agent of the state, therefore, Maryville would be immune from liability for its negligence under the doctrine of sovereign immunity, as foster parents have similarly been held immune pursuant to the doctrine. See Nichol v. Stass, 297 Ill. App. 3d 557, 697 N.E.2d 758 (1998), appeal allowed, 179 Ill. 2d 588 (1998); see also Augsburger, 288 Ill. App. 3d at 512 (agents of the state are “clothed with governmental immunity,” which deprives the circuit court of jurisdiction “under the terms of section 8(d) of the Court of Claims Act (705 ILCS 505/8(d) (West 1994))”).
In Nichol, the plaintiffs filed a complaint against the defendant foster parents based on negligent supervision, monitoring and care of the foster child, who died of drowning while in the foster parents’ care. The trial court dismissed the count against the foster parents based on sovereign immunity and lack of subject matter jurisdiction. On appeal, this court affirmed, stating that even if the foster parents could be considered “independent contractors of the state, strong argument can be made that they were performing the state’s nondelegable duties toward its foster children/wards” and “[i]f the state’s duty is nondelegable, the conduct of the foster parent in performing that duty is by definition the conduct of the state, and the foster parent is an agent of the state for that purpose.” Nichol, 297 Ill. App. 3d at 562. Based on its finding that “the state is required by statute to provide direct child welfare services for foster children who are its wards [citation] and to establish rules and regulations concerning foster care” (Nichol, 297 Ill. App. 3d at 563), the Nichol court concluded “that the duties of the state to foster children are in fact nondelegable such that the breach of those duties would impose vicarious liability upon the state for the negligence of the foster parents” and, “Although the relationship between the state and the foster parents may not be that of employer-employee, it is analogous insofar as the state would be vicariously liable for the acts of the foster parents as if they were employees” (Nichol, 297 Ill. App. 3d at 564). The Nichol court further found that the duty of care owed by the foster parents was not “derived from a source independent of the foster parent’s relationship with the state” (Nichol, 297 Ill. App. 3d at 568), which supported the court’s finding that the plaintiffs action was in fact against the state. More specifically, the Nichol court stated:
“[T]he duties alleged to have been breached were the failure to exercise ordinary care in the supervision and care of the deceased foster child and the failure to comply with various standards, rules and regulations and guidelines established by [DCFS]. These duties do not have a source independent of the foster care relationship. Clearly, the duty to comply with [DCFS] rules and regulations would not exist outside of the relationship between the state and the foster parents. The former breach also is dependent on that relationship because without that relationship the foster parent would have no duty to exercise ordinary care in the supervision and monitoring of the foster child. That legal duty, which ultimately rests with the state, is only undertaken by the foster parent pursuant to agreement with the state.” Nichol, 297 Ill. App. 3d at 568.
See also Illinois Nurses Ass’n v. Illinois State Labor Relations Board, 196 Ill. App. 3d 576, 582, 554 N.E.2d 404 (1990), vacated on other grounds, 499 U.S. 944, 113 L. Ed. 2d 462, 111 S. Ct. 1406 (1991), on remand, 244 Ill. App. 3d 1, 614 N.E.2d 13 (1991) (holding “any corporation performing duties which are statutorily (and constitutionally) mandated as government duties must, at the very least, be acting on behalf of the State and is, thus, an agent of the State”);3 cf. Augsburger, 288 Ill. App. 3d 510.4
In the present case, the state has the nondelegable duty of caring for its wards; as the majority points out, “DCFS has legal and financial responsibility for children of whom it is guardian.” It is also manifest that Maryville’s conduct was regulated by DCFS through many specific licenses, contracts, regulations, and inspections. 225 ILCS 10/8 (West 1996) (allowing DCFS to revoke or not renew a license for such conduct as refusing to submit to an investigation and failing to follow the regulations prescribed by DCFS); see also 89 Ill. Admin. Code § 384.1 et seq. (eff. November 15, 1982) (providing guidelines for the discipline of wards, and the use of physical restraint). Maryville provides for the day-to-day care and living necessities of children placed with it by the state; it can bind the state legally to pay out monies expended to support the children placed with it; and it has the right to discipline and the responsibility to insure the children are adequately supervised, educated and nurtured. Maryville, like foster parents, must receive consent from DCFS before traveling outside the state and for major medical decisions concerning the children placed with it. Based on the duties Maryville performs for the state’s wards, Maryville is therefore an agent of the state. Additionally, the alleged negligence of Maryville arose only because of Maryville’s status as a licensed facility to care for state wards. Accordingly, just as in Nichol, the state’s sovereign immunity here operates to defeat the trial court’s subject matter jursidiction.
In conclusion, the majority fails to realize that state wards like Waketta will always be at a placement. The state is unable to do what the majority says it must under the Illinois Administrative Code; it is unable to provide the care its wards require and instead must pay someone else to actually give that care to its wards. Institutions such as Maryville provide that care; care which is inherent to a parent-child relationship and requires Maryville’s decision-making in disciplining and supervising the children. Notwithstanding that the legislature has not enacted law conferring in loco parentis status on institutions such as Maryville, the parent-child tort immunity doctrine may be judicially modified to correspond with the changes in our society with respect to institutions providing care to the state’s wards. See Cates, 156 Ill. 2d at 108 (“the parent-child tort immunity doctrine developed in an era which was vastly different from the present,” and “we must *** consider the very real needs of our children in today’s world.” “In this regard, *** the parent-child tort immunity doctrine was created by the courts and it is especially for them to interpret and modify the doctrine to correspond with prevailing public policy and social needs”). Additionally, because Maryville acts as an agent of the state, the doctrine of sovereign immunity precluded the trial court’s exercise of jurisdiction over plaintiffs negligence claims against Maryville.
For the reasons stated, I would affirm the judgment of the circuit court dismissing plaintiffs negligence claims against defendants.
The Augsburger court subsequently held that the foster parents were not agents of the state and, therefore, not protected under the sovereign immunity doctrine because the relationship between the foster parents and the state was too remote, i.e., the foster parents had contracted with a private corporation which had contracted with DCFS.
Cates in fact states only, without discussion, that an exception to the parent-child tort immunity doctrine allows children to sue their grandparents; Cates does not contain any discussion of summer camps, day-care centers or medical and psychological treatment facilities
"Illinois Nurses Ass’n v. Illinois State Labor Relations Board, 196 Ill. App. 3d 576, 554 N.E.2d 404 (1990), was vacated for reasons other than its agency analysis, based upon an issue of federal preemption first raised in the appeal of that case to the United States Supreme Court. Illinois Nurses Ass’n v. Illinois State Labor Relations Board, 244 Ill. App. 3d 1, 614 N.E.2d 13 (1991). However, notwithstanding that vacatur, the agency discussion in that case has since been cited in Commerce Bank v. Augsburger, 288 Ill. App. 3d 510, 680 N.E.2d 822 (1997).” Nichol, 297 Ill. App. 3d at 562 n.2.
In Augsburger, the court held that the plaintiff’s claims for negligence against foster parents were barred by parental immunity, but those claims were not barred by sovereign immunity. Augsburger is distinguishable from the present case regarding our holding on the issue of sovereign immunity because a third-party contractor was involved, making too remote the foster parents’ relationship to the state (i.e., the foster parents contracted with a private corporation which had contracted with DCFS), whereas here DCFS contracted directly with Maryville.