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THIRD DIVISION

October 21, 1998

No. 1-97-0467

PRESIDING JUSTICE LEAVITT delivered the opinion of the court:

On July 16, 1996, Shandoulia Wallace filed her Second AmendedComplaint alleging the defendants acted negligently, willfully, andwantonly with regard to Waketta Wallace (Waketta). The judgesubsequently granted the defendants' motion to dismiss thenegligence claims. She held Illinois' parental immunity doctrineshielded the defendants from liability for negligence because theystood in loco parentis to Waketta. We reverse and remand.

Twelve-year-old Waketta, a ward of Illinois', was, on July 11,1989, temporarily residing at Maryville Academy (Maryville) for a90-day diagnostic assessment which would yield recommendations forhis future placement. Maryville was an independent contractorproviding services to Illinois' Department of Children and FamilyServices (DCFS) for money. DCFS at all times remained the legalguardian of the children it placed at Maryville, including Waketta,and Maryville was required to consult DCFS staff members regardingimportant decisions affecting the children DCFS placed there. Forinstance, on June 13, 1989, Maryville obtained permission fromWaketta's guardian at DCFS to administer psychotropic medicationsto Waketta. Also, on July 5, 1989, assistant Maryville programdirector Laura Angelucci obtained permission from Waketta'sguardian at DCFS to take Waketta on a field trip to Wisconsin. While at Maryville, Waketta stayed in the home of Paul Voltzwho was the Maryville program manager. Waketta typically left theVoltz home to attend school for eight hours per day, then returnedto the Voltz home. On July 11, 1989, at approximately 12:50 p.m.,Waketta returned from school early. He reported to Voltz's office,and showed Voltz and Angelucci a note from his teacher statingWaketta had a "good day" at school.

At around 1:45 p.m., Jill Jacobe, a family educator atMaryville, came to Voltz's office and told him Waketta was in studyhall where he was supposed to be reading, but instead closed hiseyes and pretended to sleep. Angelucci called nurse Dee Le Bel andinquired whether Waketta's sleep could have resulted from hismedication. Le Bel said she believed Waketta was feigning sleep,although she never personally saw Waketta. Voltz told Jacobe tosend Waketta to his office.

Waketta reported to Voltz's office where Voltz confrontedWaketta about his behavior. Waketta threatened to leave the home,then Voltz followed Waketta out of his office to the back door ofthe Voltz home. Voltz told Waketta because of his bad behavior hecould not leave the home. The two returned to Voltz's office.

In Voltz's office, Waketta took a pick out of his pocket andbegan to pick his hair. Voltz asked him to put the pick away. After asking Waketta to put the pick down, Voltz said Waketta madethreatening gestures toward him, but never touched Voltz or evenstood up. Voltz walked over to Waketta and held Waketta's hands atthe wrists crossed on Waketta's lap. According to Angelucci, whowitnessed these events, Voltz had an awkward position with regardto Waketta and asked Waketta to stand up, which he did, and the twowalked to the hallway.

Once they reached the hallway, Voltz called for assistance. Angelucci responded. When Angelucci reached the hallway, Wakettawas on the floor, on his back with his arms crossed in front ofhim. Voltz held Waketta's wrists. Angelucci testified she "laidacross [Waketta's legs] and he began to struggle ***." Angeluccicalled for Jacobe to help her. Jacobe held Waketta's ankles whileAngelucci remained on his legs. Waketta struggled, and the threecounselors switched positions.

At some point before 3:00 p.m., the counselors flipped Wakettaonto his stomach. Jim Geidner, another family counselor, said whenhe arrived sometime before 3:00, Waketta was on his stomach in abaskethold with his arms crossed at the abdomen and his wrists heldfirmly to the floor. Voltz was straddling Waketta's lower back andAngelucci was lying on Waketta's legs. Geidner replaced Angeluccion Waketta's legs. At 3:00, Xavier Collier came on duty and aidedin the restraint.

This continued for approximately four hours in the middle ofthe hallway floor while other children walked past. Wakettastruggled mainly when other children were present. In the courseof his restraint, Waketta warned the counselors he had to urinateand that he might urinate upon himself. They continued to restrainhim. Even after Waketta urinated upon himself, the counselorscontinued to restrain him.

According to Angelucci, after Waketta was flipped to hisstomach, "he began to calm down again and was lying quietly." Atapproximately 6:00 p.m., Voltz instructed Angelucci to "get off[Waketta's] legs." Angelucci said she did so and immediatelynoticed Voltz checking Waketta's pulse and breathing. Thecounselors flipped Waketta onto his back and Voltz unsuccessfullyattempted to resuscitate Waketta. Angelucci called an ambulance. Waketta was dead.

Dr. Robert J. Stein, chief forensic pathologist at the CookCounty Medical Examiner's Office, performed Waketta's autopsy. Hetestified the cause of Waketta's death was asphyxia, a lack ofoxygen. According to Dr. Stein, that finding is consistent withthe scenario of Waketta lying face down with his arms crossed infront of his neck, and a 120-pound man on his back. Also, theautopsy revealed an abrasion on Waketta's elbow consistent with thescenario of Waketta lying face down struggling with his armscrossed at his chest.

Dr. Stein said with Waketta's arms crossed in front of hischest, and one person holding each arm, there was compression ofWaketta's carotid, his vagus nerve, and internal jugular. Dr.Stein also found evidence of petechial hemorrhages, a largerhemorrhage, pulmonary edema, and pulmonary congestion. Heexplained petechial hemorrhages are small hemorrhages ofcapillaries almost always caused by strangulation. However, henoted no evidence of intentional strangulation existed here.

Waketta's death certificate indicated the cause of his deathwas positional asphyxiation and stress due to restraint. Dr.Kirschner, another doctor at the Cook County Medical Examiner'soffice, testified positional asphyxiation "is a condition where anindividual requires a large intake of air usually because they areexcited or in an emotional state, and they are breathing rapidly,and they are in a position that does not allow them to breatherapidly or deeply enough to get sufficient air into their lungs tomaintain respirations."

Denise Kane, Inspector General for DCFS, testified shepreliminarily investigated Waketta's death. She learned Wakettawas diagnosed as hyperactive, emotionally disturbed, and possiblysuffering from attention deficit disorder while at the Old OrchardHospital just prior to his arrival at Maryville. Thesepsychological problems left Waketta unable to stay on task for verylong, and made him easily distractible. Ms. Kane also testifiedWaketta was going through a tremendous growth spurt at the time ofhis death, causing him to tire easily. This resulted from hisinternal organs, including his heart, growing rapidly, which causedhim to expend massive amounts of energy. Ms. Kane said thiscertainly should have been considered by Nurse Le Bel and the othercounselors who assessed Waketta's condition on July 11, 1989.

Finally, Ms. Kane said, in her expert opinion, the situationwas not an emergency, and, the restraint used on Waketta was noteffective, was not proportionate to his behavior, was nottemporary, and was inappropriate because it occurred in a publichallway with other children watching. She further saidalternatives to physical restraint were never explored by thecounselors.

After hearing this testimony, the jury found for thedefendants on the willful and wanton counts. The only issue Ms.Wallace raises for our review is whether the judge erred as amatter of law in granting the defendants' motion to dismiss hernegligence counts pursuant to 735 ILCS 5/2-615 (West 1996).

A cause of action should not be dismissed on the pleadingsunless it clearly appears no set of facts can be proved which wouldentitle the plaintiff to relief. Fitzgerald v. Chicago Title &Trust Co., 72 Ill. 2d 179, 187, 380 N.E.2d 790 (1978). We revieworders granting motions to dismiss de novo. Lawson v. City ofChicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377 (1996). Because we find Ms. Wallace's complaint alleged facts which tendedto establish Maryville was not in loco parentis regarding Waketta,we reverse the judge's order dismissing Ms. Wallace's negligencecounts, and remand.

The term in loco parentis implies "a standing in the place ofa parent; one charged fictitiously with parents' rights, duties,and responsibilities." Bland v. Department of Children & FamilyServices, 141 Ill. App. 3d 818, 822, 490 N.E.2d 1327 (1986). Atcommon law, in loco parentis status belonged to persons who putthemselves in a parent's shoes by assuming all parental obligationstoward a child without going through the formalities of legaladoption. See Hawkey v. United States, 108 F. Supp. 941, 943(D.Ill. 1952). We have held that parties must assume the usualfinancial burdens of parenthood before they can be considered inloco parentis, and such status is granted sparingly. Busillo v.Hetzel, 58 Ill. App. 3d 682, 684, 374 N.E.2d 1090 (1978); see alsoLawber v. Doil, 191 Ill. App. 3d 323, 326, 547 N.E.2d 752 (1989)(holding in loco parentis status was proper where child'sstepfather was unemployed and thus did not financially support thechild, but acted as a parent in all other respects, because heassumed the financial burden of parenthood but was simply,temporarily, unable to satisfy it).

In this case, Ms. Wallace alleged in her Second AmendedComplaint:

"4. That at all times relevant herein, MARYVILLEACADEMY was a not-for-profit corporation organized underthe laws of the State of Illinois and was licensed by theState of Illinois to house, care for and educatechildren, including those committed to the custody of theState of Illinois, or its agency Illinois DCFS. MARYVILLE ACADEMY acts as a contractual agent of theState of Illinois in caring for these children.

5. That at all times relevant herein, theplaintiff's decedent, WAKETTA, was a ward of the State ofIllinois who was committed to the custody of DCFS."(Emphasis added).

For purposes of a 2-615 motion, the judge was required to acceptthe preceding allegations and all reasonable inferences flowingtherefrom as true. Szajna v. General Motors Corp., 130 Ill. App.3d 173, 176, 474 N.E.2d 397 (1985).

The defendants claim Ms. Wallace conceded Maryville stood inloco parentis regarding Waketta when she plead Maryville "waslicensed by the State of Illinois to house, care for and educatechildren [including Waketta]." We disagree. While Ms. Wallacealleged Maryville "was licensed" to do those acts, housing, caringfor and educating a child do not alone confer in loco parentisstatus. Examples of situations where housing, care and educationare provided children by persons we have not generally held in locoparentis to those children include: summer camps, day-carecenters, medical and psychological treatment facilities, andgrandparents for example. See Cates v. Cates, 156 Ill. 2d 76, 99,619 N.E.2d 715 (1993) (holding parental immunity from negligenceliability will not invoke unless a case involves "conductintimately associated with the parent-child relationship," because"the immunity exists only to further the parent-child relationship,and where that relationship is not impacted, the policiessupporting the doctrine lose their persuasive strength.")

In certain circumstances teachers are in loco parentis withregard to students, but that is by legislative enactment, notjudicial fiat. 105 ILCS 5/24-24 (West 1996). Additionally, as oursupreme court explained in Cates, a teacher, whose in loco parentisstatus is legislatively defined, is immune based on his specialstatus "only to the extent he acts within the confines of hisduties in loco parentis." Cates, 156 Ill. 2d at 100. No statutoryequivalent insulating corporations, like Maryville, from liabilityfor negligently supervising or disciplining children exists. Therelevant legislation here is Illinois' Administrative Code whichstates DCFS has legal and financial responsibility for children ofwhom it is guardian, regardless of their momentary location. Thatobligation entails providing for such children's clothing, mentalhealth care, camp fees and supplies, cultural enrichment,educational expenses, and medical care. 89 Ill. Adm. Code 359.7,359.9 (1996).

Ms. Wallace alleged Waketta was at Maryville temporarily fora diagnostic evaluation, but remained a ward of Illinois. Shefurther alleged DCFS retained control over important decisionsaffecting Waketta as well as financial responsibility for Wakettaduring his interim stay at Maryville. Nonetheless, the trial courtdismissed Ms. Wallace's negligence claims, stating:

"I am convinced from the cases that the defendantshave tendered to me, and from the arguments made, andeverything that I know about the case that Maryville wasacting de facto as loco parentis for this child. Therefore, the motion to strike Counts I and III forordinary negligence -- that are based on ordinarynegligence, that motion will be granted. I do notbelieve that Maryville can be sued under theories ofordinary negligence."

Because the preceding allegations made by Ms. Wallace do not in anyway establish as an inevitable conclusion Maryville stood in locoparentis with regard to Waketta, but rather, in conjunction withIllinois' statutory scheme intone that DCFS bore ultimateresponsibility for traditional parental functions with regard toWaketta, we find the court improperly granted the defendants'motion to dismiss.

For all of these reasons, the order of the trial courtdismissing Ms. Wallace's negligence counts is reversed, and thiscause is remanded.

REVERSED AND REMANDED.

Cahill, J., concurs.

JUSTICE BURKE, dissenting:

I respectfully disagree with the majority's holding that in loco parentisstatus should not be extended to Maryville. Plaintiff alleged that Maryville waslicensed to house, care for and educate wards of the state, its relationship withWaketta also entailed providing him with proper medication, discipline andsupervision, and that "MARYVILLE ACADEMY acts as a contractual agent of the Stateof Illinois in caring for these children." Based on these allegations, I believethat the trial court properly determined that Maryville stood in loco parentisto Waketta. I further would affirm the trial court's dismissal of plaintiff'snegligence claims against Maryville based on the doctrine of sovereign immunitybecause Maryville is an agent of the state, performing the state's nondelegableduty to care for wards of the state and, therefore, the trial court lackedsubject matter jurisdiction over this matter.

In Cates, our supreme court held that parental immunity should be affordedto conduct which "concerns parental discretion in discipline, supervision, andcare of *** [a] child"; "conduct inherent to the parent-child relationship." Cates, 156 Ill. 2d at 104-05. The Cates standard was subsequently applied inCommerce Bank v. Augsburger, 288 Ill. App. 3d 510, 680 N.E.2d 822 (1997), wherethe defendants were foster parents who argued that they were immune fromliability for the injuries and death of their foster child pursuant to thedoctrines of parent-child tort immunity and sovereign immunity.⁽¹⁾ In holding thatthe parent-child tort immunity doctrine barred the plaintiff's negligence claimsagainst the defendant foster parents, the Augsburger court reasoned that "fosterparents *** have responsibility in regard to the supervision and discipline ofthose children under their care ***. Foster parents are nearly as much in needof leeway in this regard as are natural parents." Commerce Bank, 288 Ill. App.3d at 517.

Here, plaintiff's claims clearly arose out of Maryville's supervision anddiscipline of Waketta. Waketta was a full-time resident of Maryville and itprovided his day-to-day care, nurturing, housing, medical treatment, supervisionand discipline, all of which are the types of duties and responsibilitiesrecognized by Cates as "inherent to the parent-child relationship." Additionally, just as the Augsburger court determined that a foster parent's careof a state ward is nearly the same care given by a natural parent, Maryville'scare of Waketta in all practical respects had taken the place of Waketta'sparents. Similarly, with respect to the majority's denial of in loco parentisstatus to Maryville based on the fact that DCFS was the legal guardian of Wakettaand he was only allegedly placed with Maryville temporarily, it should be notedthat foster parents do not have legal custody of the foster children placed withthem, these children are generally placed on a temporary basis and foster parentsnonetheless 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, andgrandparents "have not generally [been] held in loco parentis" to children,⁽²⁾ Ibelieve, without expressing an opinion as to the legal correctness of thisstatement, that these situations are readily distinguishable from Maryville'scare of children. In the former, children are placed temporarily, presumably bytheir parents, and returned to their parents. In the case of a ward of thestate, each placement of the child, be it for as little as a few days, 90 daysas here, or more, is a permanent placement each time the ward is placed becausethe ward will always be in placement somewhere, each placement is where thechild'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 provisionexists conferring in loco parentis status to institutions such as Maryville isnot determinative of whether this status should be conferred upon Maryville. Inrecognizing this statutory immunity, our supreme court stated that it "did notreexamine the public policies underlying the parent-child tort immunity doctrine,nor the scope of the immunity as applied to negligence cases between parent andchild," but that "the parameters of the tort immunity as applied to teachers arefully congruent with their statutorily defined status in loco parentis" insupervising and disciplining children. Cates, 156 Ill. 2d at 100. Clearly,therefore, the parent-child tort immunity doctrine factors of legal and financialresponsibility, which the majority relies upon to deny Maryville in loco parentisstatus, had no bearing on the in loco parentis status conferred upon teachers. These factors thus are not a persuasive foundation for denying Maryville in locoparentis status.

I further believe that the trial court should have dismissed this case forlack of subject matter jurisdiction based on sovereign immunity. Although thetrial court did not consider this doctrine, and the parties have not raised iton appeal, "[l]ack of subject-matter jurisdiction is an issue that can be raisedat 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 onany grounds called for by the record. Estate of Johnson v. Condell MemorialHospital, 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 asa contractual agent of the State of Illinois in caring for these children." Asan agent of the state, therefore, Maryville would be immune from liability forits negligence under the doctrine of sovereign immunity, as foster parents havesimilarly been held immune pursuant to the doctrine. See Nichol v. Stass, 297Ill. App. 3d 557, 697 N.E.2d 758 (1998), pet. for leave to appeal allowed No.86065; see also, Augsburger, 288 Ill. App. 3d at 512 (agents of the state are"clothed with governmental immunity," which deprives the circuit court ofjurisdiction "under the terms of section 8(d) of the Court of Claims Act (705ILCS 505/8(d) (West 1994))").

In Nichol, the plaintiffs filed a complaint against the defendant fosterparents based on negligent supervision, monitoring and care of the foster childwho died of drowning while in the foster parents' care. The trial courtdismissed the count against the foster parents based on sovereign immunity andlack of subject matter jurisdiction. On appeal, this court affirmed, statingthat even if the foster parents could be considered "independent contractors ofthe state, strong argument can be made that they were performing the state'snondelegable duties toward its foster children/wards" and "[i]f the state's dutyis nondelegable, the conduct of the foster parent in performing that duty is bydefinition the conduct of the state, and the foster parent is an agent of thestate for that purpose." Nicol, 297 Ill. App. 3d at 562. Based on its findingthat "the state is required by statute to provide direct child welfare servicesfor foster children who are its wards *** and to establish rules and regulationsconcerning foster care" (Nichol, 297 Ill. App. 3d at 563), the Nichol courtconcluded "that the duties of the state to foster children are in factnondelegable such that the breach of those duties would impose vicariousliability upon the state for the negligence of the foster parents" and,"[a]lthough the relationship between the state and the foster parents may not bethat of employer-employee, it is analogous in so far as the state would bevicariously 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 dutyof care owed by the foster parents was not "derived from a source independent ofthe foster parent's relationship with the state" (Nichol, 297 Ill. App. 3d at568), which supported the court's finding that the plaintiff's action was in factagainst the state. More specifically, the Nichols court stated:

" *** [T]he duties alleged to have [been] breachedwere the failure to exercise ordinary care in thesupervision and care of the deceased foster child andthe failure to comply with various standards, rules andregulations and guidelines established by *** [DCFS]. These duties do not have a source independent of thefoster care relationship. Clearly, the duty to complywith *** [DCFS] rules and regulations would not existoutside of the relationship between the state and thefoster parents. The former breach also is dependent onthat relationship because without that relationship thefoster parent would have no duty to exercise ordinarycare in the supervision and monitoring of the fosterchild. That legal duty, which ultimately rests with thestate, is only undertaken by the foster parent pursuantto agreement with the state." Nichol, 297 Ill. App. 3dat 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(1991), on remand, 244 Ill. App. 3d 1, 614 N.E.2d 13 (1991) (holding "anycorporation performing duties which are statutorily (and constitutionally)mandated as government duties must, at the very least, be acting on behalf of theState and is, thus, an agent of the State");⁽³⁾ cf. Augsburger, 288 Ill. App. 3d510.⁽⁴⁾

In the present case, the state has the nondelegable duty of caring for itswards; as the majority points out, "DCFS has legal and financial responsibilityfor children of whom it is guardian." It is also manifest that Maryville'sconduct was regulated by DCFS through many specific licenses, contracts,regulations, and inspections. 225 ILCS 10/8 (West 1996) (allowing DCFS to revokeor not renew a license for such conduct as refusing to submit to aninvestigation, and failing to follow the regulations prescribed by DCFS); seealso 89 Ill. Admin. Code