The Journal of The DuPage County Bar Association

Back Issues > Vol. 19 (2006-07)

What Happened To Protecting The Children? An Argument Against Parental Immunity For Foster Parents
By Kimberly A. Sackmann

"The role of a foster parent . . . is that of a temporary way station on the road of a child’s life until the difficulties at home can be straightened out."1


Last December, 16,326 children were living in foster care in Illinois.2 Children are placed in foster care when it is determined that they are abused, neglected or dependent,3 basically meaning that their parents cannot or will not care for them properly at this particular time. The Illinois Department of Child and Family Services (DCFS) views foster care not "as a permanent living arrangement but [a way] to protect the child with the ultimate goal of returning the child home."4 Reunification of the natural family has always been and continues to be one of the main goals of foster care.

If the goal of foster care is to protect the child from an unsafe or unhealthy environment, why has the Supreme Court of Illinois chosen to protect the foster parents instead of the foster child? In 2000 the Illinois Supreme Court extended a limited form of parental immunity to foster parents.5 In essence, foster parents will not be held liable for their negligence if it concerns the care, discipline or supervision of the foster children in their care.

Parental immunity is a doctrine that protects parents (or a person standing in loco parentis to the child) from being liable to children in their care for harms they commit against the child.6 The doctrine, in Illinois, has an interesting history with many changes.7 The three major public policy considerations relied on by the courts in Illinois are: preservation of family harmony; discouragement of fraud and collusion; and preservation of parental authority and discipline.8 The courts applying parental immunity created a trend narrowing the doctrine; however, in the past decade Illinois courts have moved away from this tradition and created an extension for foster parents.9 This change comes as the courts choose to recognize that foster parents stand in loco parentis to the child and are therefore entitled to some protection for their negligence when it comes to the supervision, care and discipline of the children in their care.10 However, some justices have vehemently opposed this extension and argued as such.11

This article will give a brief history of parental immunity in Illinois, examine the arguments for and against the extension of parental immunity to foster parents, and finally consider whether the overarching goal of protecting the child and reuniting the child with his or her natural family is really served by this extension.

History of Parental Immunity in Illinois

Parental immunity and its first exception were adopted in Illinois in 1956.12 Since that time the courts have created seven exceptions to the original doctrine.13 These exceptions are: Willful and wanton conduct, conduct that is beyond the family purpose, dissolution of the family relationship, breach of a public duty, parental contribution, temporary custody or control and non-inherent parental conduct.14 All of these exceptions broadened the scope for children suing their caretakers.

The first exception was created to allow suit against parents for their willful and wanton actions.15 In Nudd v. Matsoukas, the court recognized that lawsuits between parents and children could have a negative impact on the family; it also recognized, however, that willful and wanton actions against a child could not be tolerated.16 In 1968 the second Illinois exception to the parental immunity doctrine was created, which considers actions that are "beyond the family purpose."17 Under this doctrine, a parent’s action must relate to a familial duty in order to be protected under parental immunity.18

The final two exceptions mentioned (temporary custody and non-inherent parental conduct) are essential to the understanding of the subsequent extension of immunity to foster parents. Under the temporary custody and control exception, a family member who has only temporary control or custody of a child, may be sued in tort by the child.19 This includes grandparents, aunts and uncles, and others in the family who may care for a child. In addition, any conduct that is not inherent to the parent-child relationship (any conduct other than supervision, discipline, discretion in care of the child) does not protect the parent from suit.20 Therefore, if the conduct does not relate to supervision, discipline or parental decision on how to care for the child, the parents may be subject to liability. This exception is especially important in the foster care arena because this exception defines extent of the immunity granted to foster parents in Illinois.21

Cates v. Cates, decided in 1993 (creating the non-inherent parental conduct exception), is now relied on heavily by courts in Illinois when determining when a person is protected by the doctrine of parental immunity.22 In Cates, a daughter sued her father after she was injured in a car accident in which her father was driving.23 The charge was negligence and the father claimed parental immunity.24 Because of the non-inherent parental conduct exception and the public duty exception the father was unable to invoke the doctrine of parental immunity.

The exceptions and limitations placed on the parental immunity doctrine make it more difficult for parents to retain immunity; however, the limitations have solid reasons in law and public policy, and as long as the conduct is inherent to the parent-child relationship (care, supervision and discipline), their conduct will likely be protected.

The Extension to Foster Parents

A. Goller and Cates

The two cases referred to most frequently in parental immunity determinations are Goller v. White25 and Cates v. Cates.26 Cates was discussed previously, however, Cates is controlling authority in Illinois and it relied on and cited to Goller in its decision.27 Goller is a Wisconsin Supreme Court case decided in 1963.28 In Goller a foster son brought suit against his foster father for injuries sustained while riding on a tractor the father was driving on a public road.29 The court continually referred to the foster parent as the child’s "father" and did not discuss whether a foster parent is any different from a biological parent.30 Despite the fact that the trial court found the "father" to stand in loco parentis the court’s final decision was to hold the foster father liable because his actions did not relate to the care, supervision or discipline of the child.31 The court at that time stated that parental-immunity for actions not relating to the care, supervision or discipline of the child were henceforth abolished.32 This case is not viewed as an extension of immunity to foster parents but as a limitation of the scope of the parental-immunity doctrine.

The main point from this case, to the Illinois courts, is that the foster father was treated no differently than a biological parent, and that it was not even a question.33 One concurring justice stated that he agreed that Mr. White should not receive immunity, but that he came to the conclusion because the same rights should not be attributed to White that are attributable to a "true parent."34 This was the only statement made by a justice implying that foster parents should receive different treatment.

The court in Cates chose to cite and rely on Goller when making its determination on parental immunity for a biological father.35 Like in Goller, no discussion ensued on whether different rights would be afforded to foster and natural parents. As Cates is controlling authority in Illinois the courts have followed that decision and have deduced that because Cates relied on Goller parental immunity must extend to foster parents.36

B. The Majority Opinions

Commerce Bank v. Augsburger changed the status of foster parents in Illinois by being the first case in Illinois to extend parental immunity to foster parents.37 The court noted that there was no Illinois case directly on point, but stated that the foster parents stood in loco parentis to the child and that courts in other states were mixed with their approaches.38 In this case, a 3-year-old girl was placed on a shelf in a closet as a punishment and she died of asphyxia and hyperthermia.39 The natural parent did not claim willful or wanton treatment, but claimed negligence.40 The court found that "[f]oster parents are nearly as much in need of leeway in this regard as are natural parents . . . [and] exposure to suit for negligence . . . would be a deterrent to the best performance by the foster parents."41

The first Illinois Supreme Court extension of parental immunity to foster parents came about in 2000 in the case of Nichol v. Stass.42 In Nichol a 2-year-old boy, Jonathan, died while under the care of his foster parents.43 The exact circumstances surrounding Jonathan’s death appear to be relatively unknown.44 Jonathan’s biological parents sued and claimed that the Stasses, the foster parents, failed to; supervise, protect from hazards, provide adequate food and water and provide immediate medical care after the drowning.45 The court held foster parents were independent contractors, not employees or agents of the state, and therefore could not claim sovereign immunity, but that a limited form of parental immunity was available to foster parents in negligence actions.46 The court found the relationship between a foster parent and a foster child to be analogous to the relationship between a teacher and a child, where statutory qualified immunity has been recognized.47 While the legislature had not seen fit to give statutory protection to foster parents, the court felt the situation was comparable enough to judicially create this immunity.

The most recent decision in Illinois, concerning parental-immunity was in Wallace v. Smyth where a child care facility (Maryville) sought parental-immunity after the death of one of the children living in the facility.48 The child, 12-year-old Roy, was restrained by Maryville staff members for more than four hours and died from positional asphyxia.49 The court in Wallace "decline[d] to extend the immunity to a corporate entity . . . [because] the corporation-child relationship simply does not mirror the parent-child relationship."50

C. The Dissenting Opinions

In Commerce Bank Justice Cook dissented and took the stance that the court’s decision ran contrary to the trend of narrowing the parental immunity doctrine.51 Justice Cook argued that permanency of the relationship creates a significant difference between foster parents and natural, step or adoptive parents.52 He argued that foster parents do not have the leeway to choose how to supervise or discipline the child, as that is closely regulated by DCFS.53

In the Illinois Supreme Court case of Nichol, two dissenting opinions were written.54 Justice Heiple, one of the dissenters, points out that 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."55 The relationship between the foster parent and the foster child is created by contract, the foster parents are compensated monetarily for caring for the child, and the relationship is designed to be temporary.56 Foster parents are also given little leeway when determining the discipline imposed on foster children in their care.57 Justice Heiple also argued that while the majority believed exposing foster parents to liability for negligence would "be a deterrent to the best performance by the foster parents . . . ." that the opposite actually seemed to be true.58 "Immunizing foster parents from liability eliminates a powerful incentive for ensuring that foster parents adequately perform the duties for which they were hired."59

Justice Freeman also wrote a dissent in which he stated that "[t]here can be no doubt foster parents’ actions are controlled by the state and subject to the state’s right of control. Virtually all aspects of foster care are dictated by the state."60 Justice Freeman argued that foster parents are agents of the state. He also wrote a separate opinion from Justice Heiple to "sound a cautionary note" that by the decision in this case the term in loco parentis has been redefined.61 In loco parentis, until this decision, meant to take on the duties, obligations and responsibilities of a parent for the child.62 Many of the cases speaking on the issues of in loco parentis focus on the assumption of financial obligations and the majority seems to have abolished that requirement because foster parents are compensated.63

Justice Freeman also wrote a concurring opinion in Wallace because he agreed with the decision but felt that Wallace was the perfect opportunity for the court to revisit and correct its decision in Nichol which it failed to do.64 Freeman believes that foster parents and institutions such as Maryville should be treated similarly and not afforded immunity. Both are charged with supervising and disciplining state wards and are subject to the same DCFS supervision and regulation and receive financial compensation.65 "The court should [have] reconsider[ed] the holding in Nichol rather than create an unreal distinction between foster parents and Maryville Academy."66

Goal of Protection and Reunification

Children are removed from their homes because they need care and protection and foster parents are hired to fulfill those needs. In order to ensure that foster children are treated appropriately in the foster home DCFS is required to train and license all foster parents and sets out very specific standards, duties and responsibilities by which foster parents must abide.67 Foster parents are allowed little to no discretion in determining how to care for, supervise or discipline the foster children in their care.68 The court stated that foster parents may be protected under parental immunity when the issue dealt with the care, supervision or discipline of the child.69 This seems completely contrary to DCFS regulations. The court appears to be granting foster parents more discretion than is granted to them through DCFS. Giving foster parents additional discretion goes against the policy of protecting the best interests of the child.

In making a placement, DCFS must ensure that the child’s health, safety, and best interests are met.70 DCFS sets out in § 402 of the Code very specific requirements for foster parents in order to help ensure the children are placed in an appropriate environment.71 These regulations deal with some very obvious requirements and others that are extremely obscure. Some examples include: a requirement that bed linens be changed at least weekly for each child;72 dangerous household appliances must be inaccessible to the foster child if under the age of 12, and must remain unreachable when the appliance is being used;73 the foster child can be encouraged to eat what is served but the foster parents cannot force the child to eat a particular food;74 the foster parents are required to supervise the children at all times as appropriate to their age75 and the children have to be allowed to have friends over and visit other friends homes.76 In addition, as stated previously, DCFS has very specific standards for how the child can be disciplined. For example, the foster children cannot be subjected to corporal punishment or any verbal threats;77 food cannot be withheld as punishment78 and if sent to their room, it must be for a reasonable time, the room must remain unlocked, and the child must have access to the bathroom.79 These regulations are in place to protect the children, but in turn will protect the foster parents. If foster parents follow the regulations set out for them they are less likely to be put in a position where their negligence will become an issue.

Foster parents are not analogous to natural parents. Their relationship with the foster child is designed to be a temporary placement until the child can be placed back in their permanent environment.80 While the majority in Commerce Bank implied that animosity between natural and foster parents could invite frivolous law suits81 that appears to be a frivolous reason to impair the protection of the child. The goal of the foster care system is to protect children and reunite natural families. The protection of children should come before the possibility of a few unnecessary law suits.


While a great number of foster parents are caring, wonderful, benevolent people, they are not the people this extension protects. This extension protects the foster parents that are not satisfactorily doing their job. "Designed to be a safe haven for abused children, foster care often becomes a vehicle for heaping additional injury upon children who have already borne grievous abuse."82 The cases discussed above came about because a child died while under the care of a foster parent. Admittedly, accidents happen. However, when those accidents happen because of the negligence of a foster parent, immunity should not exist. The foster children in our system must be protected from the foster parents who are not "adequately performing the duties for which they were hired."83

If the foster parent was not negligent, he or she will have little to fear because negligence will still need to be proven.

The Illinois Supreme Court has chosen to protect the parties that can arguably protect themselves. The children, the true victims in these cases, do not have the ability to guard against the negligence of their foster parents. They are at the mercy of the system. In addition, if greater protections are to be given to foster parents, or hopefully, to foster children, the legislature should be enacting statutes, as opposed to the judiciary creating exceptions to rules. Hopefully, the court will reconsider its decision and remember next time that it is the children who need protecting.

1 Johnson v. Burnett, 182 Ill.App.3d 574, 582, 538 N.E.2d 892, 897 (1989).

2 Department of Child and Family Services, Foster Care, http://www.state. (last visited January 19, 2007). [Hereinafter DCFS].

3 Id.

4 Id. emphasis added.

5 Nichol v. Stass, 192 Ill.2d 233, 735 N.E.2d 582 (2000).

6 Sarie E. Winner, Note, Nichol v. Stass: Ending Predictability for Foster Parents in the Law of Sovereign and Parental Immunity, 32 Loy. U. Chi. L. J. 735, 744-45 (2001).

7 See generally, Geoffrey A. Vance, Note, Rock-A-Bye Lawsuit: Can a Baby Sue the Hand that Rocked the Cradle?, 28 J. Marshall L. Rev. 429 (1995) (Gives a thorough overview of parental immunity in the United States and Illinois) and Nichol, 192 Ill.2d 233, 735 N.E.2d 582.

8 Cates v. Cates, 156 Ill.2d 76, 619 N.E.2d 715 (1993).

9 See Commerce Bank v. Augsburger, 288 Ill.App.3d 510, 680 N.E.2d 822 (1997).

See also, Nichol, 192 Ill.2d 233, 735 N.E.2d 582.

10 See Commerce Bank, 288 Ill.App.3d at 517, 680 N.E.2d at 827-28.

11 See id. at 517, 828 (Cook. J., dissenting). See also, Nichol, 192 Ill.2d at 249-73, 735 N.E.2d at 592-604 (Heiple, J. and Freeman, J., dissenting) and Wallace v. Smyth, 203 Ill.2d 441, 453-56, 786 N.E.2d 980, 988-89 (2002) (Freeman, J., concurring).

12 See Nudd v. Matsoukas, 7 Ill.2d 608, 131 N.E.2d 525 (1956). An Illinois appellate court first recognized parental immunity in 1895; however, the Illinois Supreme Court’s official adoption of the doctrine came in 1956. See Cates, 156 Ill.2d at 81, 619 N.E.2d at 718.

13 Vance, supra note 2 at 436.

14 Id. at 436-42. This article will only briefly discuss four of the seven exceptions. For a more thorough explanation of the seven exceptions see id.

15 Nudd, 7 Ill.2d 608, 131 N.E.2d 525.

16 Id.

17 See Schenk v. Schenk, 100 Ill.App.3d 199, 241 N.E.2d 12 (1968).

18 Id.

19 Gulledge v. Gulledge, 51 Ill.App.3d 972, 367 N.E.2d 429 (1977).

20 See Cates v. Cates, 156 Ill.2d 76, 619 N.E.2d 715. (1993).

21 See Nichol v. Stass, 192 Ill.2d 233, 735 N.E.2d 582 (2000).

22 Commerce Bank v. Augsburger, 288 Ill.App.3d 510, 512, 680 N.E.2d 822, 824 (1997). "The binding Illinois case on the subject of parental immunity is the comparatively recent case of Cates v. Cates." Id.

23 Cates, 156 Ill.2d at 77, 619 N.E.2d at 716.

24 Id.

25 Goller v. White, 122 N.W.2d 193 (1963).

26 Cates, 156 Ill.2d 76, 619 N.E.2d 715.

27 Id.

28 Goller, 122 N.W.2d 193.

29 Id.

30 Id.

31 Id. at 196-97.

32 Id. at 198.

33 Nichol v. Stass, 192 Ill.2d 233, 735 N.E.2d 582 (2000).

34 Goller, 122 N.W.2d 193 (Brown, Chief J., concurring).

35 Cates v. Cates, 156 Ill.2d 76, 619 N.E.2d 715 (1993).

36 Commerce Bank, 288 Ill.App.3d at 516, 680 N.E.2d at 827.

37 Id. at 516, 827-28.

38 Id. at 516, 827. Courts in Arizona, Michigan and New York have denied parental immunity for foster parents where Courts in Georgia and Alabama have granted some immunity to foster parents.

Id. (citations omitted).

39 Id. at 511, 823.

40 Id.

41 Commerce Bank, 288 Ill.App.3d at 516, 680 N.E.2d at 827.

42 192 Ill.2d 233, 735 N.E.2d 582 (2000).

43 Id. at 234, 584. Jonathan, the 2-year-old foster child, drowned in a toilet while in the care of the Stass’ and in their home. Id.

44 Aaron Chambers, Justice Asked to Pierce Foster-Parent Shield, Chi. Daily L. Bull., May 19, 1999, at 1.

45 Nichol, 192 Ill.2d at 234, 735 N.E.2d at 584.

46 Id. at 235, 586.

47 Id. at 238, 590.

48 203 Ill.2d 441, 786 N.E.2d 980 (2002).

49 Id. at 444, 982.

50 Id. at 452-53, 987.

51 Commerce Bank v. Augsburger, 288 Ill.App.3d 510, 518, 680 N.E.2d 822, 828 (1997) (Cook, J., dissenting).

52 Id.

53 Id.

54 Nichol v. Stass, 192 Ill.2d 233, 249-273, 735 N.E.2d 582, 592-604 (2000) (Heiple and Freeman, J., dissenting).

55 Id. at 249, 592 (Heiple, J., dissenting).

56 Id. at 250, 592.

57 Id. See also, 89 Ill.Admin.Code § 402 (2007). (There are numerous subsections which set out the everyday aspects of care that needs to be provided to the child). For example, §§ 402.21(g)-(k) state requirements concerning various punishments such as restriction to a room, removal of privileges, withholding the child’s spending money, special or additional chores, and use of physical restraints.

58 Nichol,192 Ill.2d at 252, 735 N.E.2d 582 at 593.

59 Id.

60 Id. at 259, 597 (Freeman, J., dissenting). See also, 89 Ill.Admin.Code § 402 (2007).

61 Nichol, 192 Ill.2d at 269, 735 N.E.2d at 602. (Freeman, J., dissenting).

62 Id. at 269-70, 602.

63 Id. at 272, 604.

64 Wallace v. Smyth, 203 Ill.2d 441, 455, 786 N.E.2d 980, 989 (2002) (Freeman, J., concurring).

65 Id.

66 Id.

67 See 89 Ill.Admin.Code § 402 (2007).

68 See id.

69 See Nichol v. Stass, 192 Ill.2d 233, 735 N.E.2d 582 (2001).

70 20 Ill. Comp. Stat. 505/7(c) (West 1998).

71 See 89 Ill.Admin.Code § 402 (2007).

72 § 402.9(l).

73 § 402.8(e).

74 § 402.10(g).

75 § 402.16(b).

76 § 402.16(d).

77 § 402.21(c).

78 § 402.21(d).

79 § 402.21(g).

80 See DCFS, supra note 2. See also, Nichol v. Stass, 192 Ill.2d 233, 249-73, 735 N.E.2d 582, 592-604 (Heiple, J. and Freeman, J., dissenting).

81 Commerce Bank v. Augsurger, 288 Ill.App.3d 510, 877, 680 N.E.2d 822, 827 (1997).

82 Brendan P. Kearse, Abused Again: Competing Constitutional Standard for the State’s Duty to Protect Foster Children, 29 Colum. J.L. & Soc. Probs. 385, 385 (1996).

83 Nichol, 288 Ill.2d at 252, 735 N.E.2d at 593.

Kimberly Sackmann is a 3rd year law student at Northern Illinois University. She is currently a Lead Article Editor on the Northern Illinois University Law Review. Ms. Sackmann received her B.A. in May of 2004 from Lewis and Clark College in Portland, Oregon.

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