--------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00012Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 2 times) Subj: 11 court and his work directly related to that testimony should clearly be afforded witness immunity. *633 III. STATUTORY IMMUNITY The Legislature has now accorded broad immunity to a caseworker when responding to abuse or neglect allegations, so long as the caseworker is acting in good faith. (FN16) The majority assumes that because the Legislature has extended a broad immunity to caseworkers in emergency removal situations, that it thereby meant to foreclose the possibility of other immunities in less exigent circumstances. The immunity granted in RCW 26.44.056(3) is a portion of a statute dealing with emergency 72-hour removal of endangered children and hence addresses only those situations. I do not read a broader negative legislative intent into this enactment. However, after the majority opinion herein, if the Legislature wishes caseworkers to have immunity any broader than the very narrow immunity accorded by the majority opinion, then it will have to act. IV. QUALIFIED IMMUNITY While the majority refuses to define or apply any quasi- prosecutorial or quasi-judicial immunity, or any witness immunity, it does purport to accord protection from liability for caseworkers by a grant of what it terms "qualified immunity". I use the word "purport" advisedly, because this so-called grant is so qualified as to be virtually nonexistent and illusory. I fail to see that the majority affords any degree of genuine protection to caseworkers at all. The majority opinion states: [809 P.2d 163] On remand, the caseworkers can only win immunity by establishing that the entire chain of events leading up to the placement at the Michael home was in accordance with statutory and regulatory procedures in every respect, that their actions were reasonable, and that their statutory duties required their actions. (Italics mine.) Majority opinion, at 155. *634 If all of this were so, then the caseworkers have done nothing wrong and no liability would attach in any event and the "immunity" would be superfluous. If an official's duties are performed without error of any kind, then no immunity would ever be necessary. Essentially, what the majority has done here is to take the qualified immunity afforded to police officers, then substantially reduce the degree of that immunity, while at the same time ignoring case law which holds that a police officer's immunity is not broad enough for caseworkers given their prosecutorial-type functions and judicial reporting duties. (FN17) With the exception of witness immunity (which is absolute) and quasi-prosecutorial immunity (which is also absolute), I agree with the majority that caseworkers should not be accorded absolute immunity for the other functions they perform. However, I believe we must balance the needs of overburdened caseworkers, who are usually honestly (and often hastily) attempting to protect weak, vulnerable and endangered children in our society, with the need to protect family privacy and to make society's protecting arm (DSHS and its agents) accountable to a reasonable standard of care. While these competing goals are inherently difficult to reconcile, some balance must be struck so as to address both needs. It is because the majority opinion does not strike such a balance that I write this separate opinion. I would accord a broader qualified immunity to DSHS caseworkers than does the majority. I would hold that to the extent caseworkers' conduct is not encompassed by witness or quasi-prosecutorial or quasi- judicial immunity and therefore absolutely immune (as discussed above), their conduct should be qualifiedly immune from liability so long as their actions were taken in substantial compliance with statutes and regulations governing their behavior and were *635 taken in good faith. This qualified immunity would be similar in its effect to that afforded by a number of federal courts. (FN18) The majority grants qualified immunity to caseworkers so long as they carry out a statutory duty, according to procedures dictated by statute and supervisors, and act reasonably. Majority opinion, at 154-155. What is not clear from the majority opinion is whether this qualified immunity will ever spare caseworkers from the rigors of a trial, that is, whether the question of qualified immunity can ever be resolved on summary judgment. The majority states that it is extending an immunity which is similar to that granted in Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir.1989) and in Hodorowski v. Ray, 844 F.2d 1210 (5th Cir.1988). Majority opinion, at 154-155. In Hodorowski, at 1217, the court concluded that the caseworkers' actions were not absolutely immune but were qualifiedly immune but nonetheless dismissed the action because their conduct was "objectively reasonable, and as a matter of law violated no clearly established right." (Italics mine.) In Spielman, the court concluded that the trial court properly granted summary [809 P.2d 164] judgment in favor of the defendant caseworkers based upon their qualified immunity. The majority also relies upon Austin v. Borel, 830 F.2d 1356 (5th Cir.1987). Majority opinion, at 151-152. In Austin, the court refused to afford absolute immunity but granted qualified immunity and went on to explain: *636 Our conclusion does not, however, necessarily mean these workers must go through the expense of discovery and trial. "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendants are entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. In remanding this case to the district court for further proceedings, we express no opinion regarding defendants' right to dismissal on the ground of qualified immunity. (Footnotes omitted.) Austin, 830 F.2d at 1363. The majority also relies extensively on Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987) (Majority opinion, at 150, 152, 153 and 154) which in fact afforded absolute immunity for some acts and qualified immunity for other acts but upheld the trial court's summary dismissal based upon both absolute and qualified immunity. In discussing the practical usefulness of a qualified immunity, the United States Supreme Court has held that a denial of a claim of qualified immunity is an appealable final decision because qualified immunity, like absolute immunity, is an entitlement not to stand trial under certain conditions. Such "entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). See also Russell v. Hardin, 879 F.2d --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00013Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 2 times) Subj: 12 417, 420 (8th Cir.1989). In light of the above authority, relied upon by the majority, I think it is incumbent upon the majority to explain to the trial court whether and under what circumstances a qualified immunity will support a summary judgment. I assume in the absence of such guidance that the trial court must analogize to the case law cited by the majority and *637 conclude that this grant of qualified immunity allows caseworkers to seek and obtain summary judgment on liability. Under the majority's definition of qualified immunity, I fail to see why some lawsuits against caseworkers could not be disposed of by summary judgment. According to the majority, a caseworker must (1) carry out a statutory duty, (2) according to procedures dictated by statute and superiors and (3) act reasonably. I would think that in most cases if caseworkers carried out a statutory duty according to procedures dictated by statutes and superiors they would thereby necessarily be acting "reasonably". The first two inquiries should normally be amenable to disposition by summary judgment. V. DSHS IMMUNITY While the majority's purported "qualified-immunity" to caseworkers is illusory, it affords no immunity whatsoever to DSHS. The majority opinion relies upon authority from other jurisdictions to conclude that any immunity afforded to a caseworker is not extended to his or her employer (DSHS in this case). Majority opinion, at 155-157. In this regard, the majority states: Accordingly, the immunities of governmental officials do not shield the governments which employ them from tort liability, even when liability is predicated upon respondeat superior. [809 P.2d 165] (Italics mine). Majority opinion, at 156. That is simply not the law in Washington. The very immunity which the majority purports to extend to the caseworkers (that of police officers) does indeed extend to their employers. Guffey v. State, 103 Wash.2d 144, 153, 690 P.2d 1163 (1984) made this as clear as words can do when it held as follows: In Nyman v. MacRae Bros. Constr. Co., 69 Wn.2d 285, 287, 418 P.2d 253 (1966), citing Restatement (Second) of Agency Sec. 217B(2) (1958) and Restatement (Second) of Torts Sec. 883, comment b, illustration 4 (1939), we held that there can be no liability as a master unless the servant is liable. Therefore, under the theory of respondeat superior, the only theory asserted in trial, the State and State Patrol cannot be held liable. *638 (Italics mine.) See also Spurrell v. Bloch, 40 Wash.App. 854, 869, 701 P.2d 529, review denied, 104 Wash.2d 1014 (1985) (a finding of a police officer's qualified immunity precludes a finding that the employer is liable when liability is based on respondeat superior); Frost v. Walla Walla, 106 Wash.2d 669, 673-75, 724 P.2d 1017 (1986) (the statutory immunity accorded to police officers runs also to the jurisdiction employing them, as otherwise the goal of unhampered police work would be unduly restricted). Furthermore, in this state, prosecutorial immunity not only protects the prosecutor individually but also immunizes the county or state for which that prosecutor works. (FN19) In Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 (1966), this court addressed this issue, holding as follows: The plaintiff-appellant urges that, though the individual official may be immune from civil action, the state and the county, in light of the abrogation of sovereign immunity, should not share his immunity. This contention is bolstered by citing 4 Restatement, Torts Sec. 880, which states that the immunity of one of two or more persons, who would otherwise be liable for a harm, does not bar recovery against the others. This rule, however, applies only in situations where policy reasons dictate that one of the parties be immune--policy reasons which do not operate as to the other. The public policy which requires immunity for the prosecuting attorney, also requires immunity for both the state and the county for acts of judicial and quasi-judicial officers in *639 the performance of the duties which rest upon them; otherwise, the objectives sought by immunity to the individual officers would be seriously impaired or destroyed. If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state against his action in any criminal case, his freedom and independence in proceeding with criminal prosecutions will be at an end. (Footnote omitted. Italics mine.) Creelman, 67 Wash.2d at 885, 410 P.2d 606. The same public policy rationale applies to child protective service caseworkers and DSHS. I would thus hold that to the extent that liability of DSHS is predicated upon actions of its caseworkers who are afforded immunity (whether quasi-prosecutorial, witness, statutory or qualified), DSHS as the employer, under a respondeat superior theory, would also not be liable. I do, however, agree with the majority that if there is a valid cognizable cause of [809 P.2d 166] action directly against DSHS for its own actions, then the individual caseworker's immunity would be irrelevant to DSHS' potential liability. DSHS has the responsibility to develop procedures which will gather information reasonably necessary to see to it that the children it places are placed in safe environments. It also has the responsibility to reasonably supervise and train its employees. To the extent that DSHS may have breached such duties, I would hold that it is not immune from civil liability to those injured as a result of such breaches. VI. REGARDING THE MAJORITY'S ASSUMPTION THAT A "PRIOR" COURT ORDER WAS NEEDED FOR ONE OF THE PLACEMENTS IN QUESTION In reviewing DSHS's potential liability in this case, it is also necessary to comment on one important assumption made by the majority which, to my view, is not supported by either law or fact. The majority opinion implies that DSHS and its caseworkers acted in violation of statute or policy when it placed the Babcock girls with the Long girls in the Michael home and did not obtain a court order for *640 this placement until 2 weeks later. Majority opinion, at 150-151. The record before us is not at all clear that this is so. The majority cites no authority, case law, statutes or regulations for the proposition that DSHS needed a prior court order to change foster care placement from one relative's home to another relative's home. The Louisiana court, from whence this case originally came, had declared the four girls in need of care, assumed control over them and placed them temporarily in the senior Babcocks' home in this state. This appears to be simply a foster care placement in a relative's home. There was no termination of parental rights. Jurisdiction was then accepted by the State of Washington and our state's DSHS assumed control over the girls. No permanent placement decision was as yet called for. (FN20) After Rudolph Babcock illegally took the Babcock girls from his parents' home and left the state, the Long girls were placed, pursuant to court order, with their maternal aunt and uncle (the Michaels). The senior Babcocks were not relatives of the Long girls and their --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00014Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 2 times) Subj: 13 biological father agreed with the court order to place them in the Michaels' home. When the Babcock girls were returned by DSHS to Washington, they were placed with their half sisters in their aunt and uncle's home. In a contested court proceeding approximately 2 weeks later, the court approved this foster care placement. This was simply a change in foster care from their paternal grandparents' home to their maternal aunt and uncle's home. If the majority is indicating that this change necessarily had to be preceded by a court order, I disagree and I would remand to the trial court to make this determination in light of statutes, DSHS regulations and policies existing at the time of that placement. *641 VII. REGARDING CHIEF JUSTICE DORE'S DISSENT Although I fully concur in the concern of Chief Justice Dore in his separate dissent, as to the ability of caseworkers and child protective services to function if not afforded any immunity, I cannot agree with his reasoning. First, the determination of negligence, which the dissent appears to make, is not an appellate decision here. Insofar as the dissent concludes that the parties are not negligent, it invades the province of the factfinder. In any event, to the extent that absolute immunity would be afforded under Chief Justice Dore's analysis, negligence would be irrelevant as immunity would protect the immune defendant from [809 P.2d 167] liability even if he or she may have been negligent to some degree. The factual determination of negligence, or the lack thereof, leaves the case once the court determines a defendant is afforded immunity for the conduct claimed to have been negligent. Second, the dissent confuses the doctrine of immunity and the public duty doctrine. The latter asks whether a duty was owed by a public entity to a particular plaintiff. Assuming a duty was owed, the immunity issue then becomes whether the defendant should nonetheless be immune from liability. The public duty doctrine is irrelevant to this case since any time the State assumes a parens patriae role over a minor child, then by definition, it owes a duty to that child. As I analyze the case before us, it is about immunities and the scope of those immunities; the case is not about whether a duty was owed to these children. I thus feel that the dissent's discussion confuses the concept of duty (one of the elements of a negligence cause of action) with the concept of immunity. To bring the public duty doctrine into discussion serves no purpose but to impart another layer of confusion to an already confusing area of the law. Whether a duty does or does not exist is irrelevant if a defendant is immune from liability for reasons of public policy. *642 VIII. CONCLUSION I am persuaded that if we afford no immunity to caseworkers, and if we hold child protective service caseworkers personally liable for mistakes of any kind they might make in placing a child, the system will cease to function in a way that serves the best interests of the children of this state. One of my very real concerns is that the Eli Creekmores (FN21) of tomorrow will be left in unsafe homes to suffer untold miseries. It can reasonably be assumed that as a result of the majority's decision herein which grants, at best, a purely illusory immunity, DSHS caseworkers will henceforth be tempted to take the actions least likely to result in a lawsuit against them, regardless of what their best judgment call is under the facts known to them at the time action is needed. Under the doctrine enunciated by the majority opinion today, the future is fraught with the possibility of manifold tragedies. To hold DSHS (the State) liable is one thing; it is equivalent to holding ourselves and all of our state taxpaying society liable. But to impose civil liability on a caseworker who has acted according to statute and in utmost good faith, in a way which that caseworker genuinely believed to be in the best interests of the child, is both unfair and counterproductive to the safety of dependent children. In sum, I would hold as follows. With regard to caseworkers, I would accord and apply the following: (1) quasi-prosecutorial absolute immunity for functions which are essentially prosecutorial in nature (actions connected with the initiation of, or pursuit of, dependency or dependency review proceedings) and quasi-judicial immunity when they act pursuant to court order following an adversarial proceeding; (2) absolute witness *643 immunity for their testimony in contested court proceedings, reports prepared for such proceedings and investigatory work directly related to that court reporting function; and (3) qualified immunity when not functioning in the prosecutorial or witness roles or under court order, and which immunity would afford protection so long as they substantially complied with statutes and DSHS regulations and acted in good faith. With regard to DSHS, I would accord and apply immunity for actions of its employees when its liability is premised on actions of those DSHS employees which are themselves immune, but I would not accord immunity for the direct actions of DSHS which are negligent and based upon failure to have reasonable guidelines for [809 P.2d 168] their employees or for failure to reasonably supervise or train those employees. Accordingly, I would reverse the summary judgment entered by the trial court and remand the case for further proceedings in accordance with the principles of law enunciated herein, and for a determination of whether or not there is a triable issue as to the caseworkers' and/or the state's allegedly negligent conduct. DOLLIVER and DURHAM, JJ., concur. DORE, Chief Justice, dissenting. I dissent. The majority opinion holds that DSHS caseworkers can be sued for negligence in any case where a party alleges negligence and can show some omission or mistake in their testimony or case study reports which are submitted to the courts in custody proceedings. The devastating impact of turning each one of these administrative matters into a court case would cripple the already overwhelmed caseworker system. Current DSHS statistics show that there are an estimated 850 caseworkers addressing children's matters and approximately 25,000 to 27,000 children to monitor. *644 MISLEADING AND PREJUDICIALLY FALSE REPRESENTATION OF MICHAEL'S CRIMINAL RECORD The majority's opinion states that: In preparing this document [the Court Summary and Agency Plan], Tyler never asked anyone whether Michael had a criminal background. In fact, Michael had a criminal record dating back to 1967 which included charges of forcible rape, sexual assault, and attempted rape. Majority opinion, at 146. The record actually shows that Mr. Michael (the husband of the girls' maternal aunt) had the following criminal involvement: 1967--Michael pleaded guilty to one count of robbery while "not armed with a dangerous weapon". Clerk's Papers, at 1641-42, 1644, 1652, 1829. Deposition of Michael. 1968--Michael "ran up" a string of DWIs. Clerk's Papers, at 1656, 1700. Deposition of Michael. 1975--Michael charged with one count of forcible rape of a woman he met in a bar. He was acquitted of the forcible --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00015Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 2 times) Subj: 14 rape charge in 1975. Clerk's Papers, at 1700, 1702, 1708. Deposition of Michael. 1979--Michael charged with sexual assault and attempted rape of a woman acquaintance. The State dropped the assault and rape charges. Clerk's Papers, at 1709-1711, 1713. Deposition of Michael. Mr. Michael acknowledged the past criminal charges, explained the resolution of those charges, and confirmed the burglary and DWI convictions that comprise his criminal history after criminal charges were filed against him, when deposed during discovery, before his trial. See discussion above. There is no statutory definition of the term "criminal record" as used by the majority. The term "criminal history", as defined by Washington statutory and case law, includes only a defendant's convictions, not crimes with which the defendant was charged, but then acquitted, or charges that were dismissed. State v. Bartholomew, 98 Wash.2d 173, 196-97, 654 P.2d 1170 (1982), State's cert. granted, judgment vacated and remanded, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383, defendant's cert. denied, 463 U.S. 1212, 103 S.Ct. 3548, 77 L.Ed.2d 1395 (1983), conviction *645 aff'd on remand, 101 Wash.2d 631, 683 P.2d 1079 (1984); State v. Adcock, 36 Wash.App. 699, 703, 676 P.2d 1040, review denied, 101 Wash.2d 1018 (1984); RCW 9A.94.030; RCW 13.40.020(6)(a)(b). Under the reasoning in Bartholomew and Adcock, Michael's "criminal record" includes only the robbery and the DWI charges, it does not include the rape or assault charges. The majority's failure to present the resolution of the sexual offense charges, at best, is misleading. The omission clearly suggests that defendant was convicted of the sexual offenses, and it is highly prejudicial to the caseworkers and DSHS in this case. Absent the "criminal [809 P.2d 169] record" of sexual offenses upon which the majority relies heavily, the allegations of negligence in this case do not amount to much. Had the caseworkers asked Michael in 1981 if he had ever been convicted of a crime, Michael truthfully could have answered "yes", he was convicted of robbery more than 13 years before and of traffic offenses, but no sexual offenses. MAJORITY OPINION POTENTIALLY EXPOSES CASEWORKERS TO RUINOUS LAWSUITS FOR ANY MISTAKE The majority's ruling exposes caseworkers to financially devastating litigation. Today, caseworkers are severely overburdened by heavy caseloads and often are responsible for monitoring children living in hazardous home environments with physically abusive and/or drug dependent parents. Absent immunity, caseworkers faced with the difficult decision of removing an abused or neglected child from such a home will be reluctant to act out of fear of being sued. Theoretically, the majority opinion would expose 850 caseworkers to some 27,000 lawsuits. To deny caseworkers quasi-judicial and quasi- prosecutorial immunity would be irresponsible and, in my opinion, would ultimately result in the destruction of the caseworker system. I would hold that caseworkers are entitled to quasi-judicial and quasi-prosecutorial immunity in testifying before courts and/or in preparing reports and making recommendations to the courts on custodial matters. This immunity would not apply if the caseworkers become aware *646 of information detrimental to custody and fail to make this information available. In the subject case there is a total lack of any evidence that the caseworkers were aware of Michael's criminal activities. If they were and they failed to make that information available in their reports then they could be sued for damages under the exception to the public duty doctrine set forth in Bailey v. Forks, 108 Wash.2d 262, 737 P.2d 1257, 753 P.2d 523 (1987), where a police officer saw a man he knew to be intoxicated driving a truck and he took no steps to stop him. In Bailey, it was foreseeable that the driver in all probability would seriously injure someone, and the general duty of the police was turned into a special duty owed to the injured victims. That is not the case here as the caseworkers had no prior knowledge at any time of Michael's criminal record. In the subject case, absent any evidence that the caseworkers knew of Michael's criminal record and failed to disclose it, the caseworkers are entitled to quasi-judicial and quasi-prosecutorial immunity in the plaintiffs' cause of action. SUMMARY JUDGMENT When bringing a motion for summary judgment the moving party bears the initial burden of showing an absence of an issue of material fact. Hines v. Data Line Sys., Inc., 114 Wash.2d 127, 148, 787 P.2d 8 (1990). If the defendant moves for summary judgment and makes this initial showing, the inquiry then shifts to the party bearing the burden of proof at trial. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case then the trial court should grant the motion. Hines, 114 Wash.2d at 148, 787 P.2d 8. In responding to the motion, the nonmoving party cannot simply rely upon the allegations set forth in its pleadings. CR 56(e) provides that the response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." The trial court then views all evidence and all reasonable inferences therefrom in the light most favorable to *647 the nonmoving party. Young, 112 Wash.2d at 226, 770 P.2d 182. On appeal, the reviewing court places itself in the position of the trial court and considers the facts in the light most favorable to the nonmoving party. Del Guzzi Constr. Co. v. Global Northwest Ltd., 105 Wash.2d 878, 889, 719 P.2d 120 (1986). The majority asserts that Babcock v. State, 112 Wash.2d 83, 768 P.2d 481 (1989) (Babcock I) erroneously presented the undisputed[809 P.2d 170] facts in the light most favorable to the moving party. Majority, at 144-145. However, viewing the facts in the light most favorable to the nonmoving party does not mean treating the allegations of that party as proven facts as the majority does in this case. The plaintiffs' complaint states that Aryn and Angela allegedly ran away prompting their removal from the senior Babcocks' home. Clerk's Papers, at 3733, 3734. The majority accepts as true the plaintiffs' assertion that the girls had not run away from home but, rather, DSHS had concocted that story as a pretext for removing the girls. See majority, at 146 n. 2. The majority fails to acknowledge that at the hearing on defendants' motion for summary judgment before Judge Staples the attorney seeking to represent the girls, Robert Crotty, specifically stated that both girls had, in fact, run away at the times stated by the defendants. (FN1) Furthermore, the majority misconstrues the evidence in order to support its resolution of the case. The majority states that "On October 16, 1981, DSHS again took Aryn from her grandparents' home with Michael's assistance. Clerk's Papers, at 3395, Admission 17." Majority, at 146. The majority takes great liberty with the language of the *648 admission cited for support of that proposition. Request for Admission 17 asked On or about October 15, 1981, the DSHS assumed physical control of Aryn Long. --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00016Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 1 times) Subj: 15 RESPONSE: Admitted that DSHS assumed physical custody of Aryn Long on 10/16/81. Clerk's Papers, at 3395. The majority has decided that not only did DSHS take Aryn from her grandparents' home, but that Lee Michael assisted DSHS in that activity. Is this a "reasonable inference" for the court to draw from the evidence before it? While the majority purports to adhere to the standard for reviewing a motion for summary judgment, it clearly exceeds those rules by characterizing the facts in the light most favorable to bolster its determination of the case. CASEWORKER IMMUNITY Regardless of the existence of disputed facts, the issue of immunity from suit is a threshold inquiry which should be decided at the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987); Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir.1990). Although there is case law to the contrary, I would hold that caseworkers are entitled to quasi-judicial and quasi- prosecutorial immunity in testifying before the court, preparing reports and making placement recommendations to the courts on custodial matters. Further, I believe the Ninth Circuit's decision in the plaintiffs' federal suit represents a well-reasoned approach when addressing the issue of caseworker immunity. See Babcock v. Tyler, 884 F.2d 497 (9th Cir.1989), (Babcock II) cert. denied, --- U.S. ----, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990). Therefore, I would hold that the caseworkers are entitled to quasi-judicial and quasi-prosecutorial immunity and affirm the trial court's order granting summary judgment in favor of the defendants. In Bruce v. Byrne-Stevens & Assocs. Engr's, Inc., 113 Wash.2d 123, 776 P.2d 666 (1989), we held that an engineer who testified as an expert witness on behalf of respondents at a previous trial was entitled to immunity from suit based *649 on his testimony. The client had sued the engineer alleging that the cost of restoring lateral support later proved to be double the amount [809 P.2d 171] of the engineer's estimate. They alleged he was negligent in preparing his analysis and testimony and that, but for his low estimate of the cost of restoring lateral support, they could have obtained judgment against the defendant for the true cost of restoration. In Byrne- Stevens, we stated: As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.... . . . . . Guardians, therapists and attorneys who submit reports to family court are absolutely immune. Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, 484 U.S. 828 [108 S.Ct. 97, 98 L.Ed.2d 58] (1987). Probation officers who allegedly include false statements in pretrial bond reports have been held immune. Tripati v. United States Immigration & Naturalization Serv., 784 F.2d 345, 348 (10th Cir.1986), cert. denied, 484 U.S. 1028 [108 S.Ct. 755, 98 L.Ed.2d 767] (1988). . . . . . ... However, the rationale behind quasi-judicial immunity, as set out in Briscoe v. LaHue, 460 U.S. 325, 75 L.Ed.2d 96, 103 S.Ct. 1108 (1983) ], sweeps more broadly. The purpose of granting immunity to participants in judicial proceedings is to preserve and enhance the judicial process. "The central focus of our analysis has been the nature of the judicial proceeding itself." Briscoe, 460 U.S. at 334 [103 S.Ct. at 1115]. The various grants of immunity for judges and witnesses, as well as for prosecutors and bailiffs, are all particular applications of this central policy. They are best described as instances of a single immunity for participants in judicial proceedings. (Footnote omitted.) Bruce v. Byrne-Stevens & Assocs. Engr's, Inc., 113 Wash.2d at 125, 127-28, 776 P.2d 666. If, as a matter of public policy, this court extended an engineer witness immunity, how much more important is it to give quasi-judicial immunity to state caseworkers investigating custody matters. Addressing the plaintiffs' section 1983 claim, which concerned the same allegedly negligent conduct by the caseworkers raised in state court, the Ninth Circuit recently held that the individual caseworkers were absolutely *650 immune from suit (under section 1983). Babcock, 884 F.2d at 504. The court related Absolute immunity from liability under 42 U.S.C. Sec. 1983 has been accorded state employees responsible for the prosecution of child neglect and delinquency petitions, the guardian ad litem who serves as an advocate for the children in such proceedings, and psychologists and psychiatrists who provide information and findings for use in the proceedings by the State Department of Social Services. Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984). Such persons are accorded absolute immunity because their participation in the court proceedings is an integral part of the judicial process. Id. See also Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S.Ct. 1108, 1120-21, 75 L.Ed.2d 96 (1983) (police officer as witness).... Thus, the crucial inquiry in resolving a claim of absolute immunity is whether the function for which immunity is claimed is so much an integral part of the judicial process that to deny immunity would disserve the broader public interest in having participants such as judges, advocates and witnesses perform their respective functions without fear of having to defend their actions in a civil lawsuit. See Butz [v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978) ]. Babcock, 884 F.2d at 501-02. The court rejected the plaintiffs' argument that the involvement of the caseworkers occurred during the postadjudicatory phase of the dependency proceedings and constituted merely administrative or ministerial functions. Babcock, 884 F.2d at 502-03. The court stated Dependency proceedings include post-adjudication activities as well as acts by which the proceedings are initiated. See Meyers [v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. [809 P.2d 172] 98, 98 L.Ed.2d 59 (1987) ]. The reason for this is apparent. Caseworkers' duties do not end with the adjudication of child dependency. Depending on state law, caseworkers will have various statutory duties to perform during the time between the initial adjudication of dependency and final disposition of a case. See R.C.W. 13.34.120 (1983). In Washington, the dependency process does not end until six months after the dependent child returns home. R.C.W. 13.34.130 (1983). Throughout this process, caseworkers need to exercise independent judgment in fulfilling their post-adjudication duties. Babcock, 884 F.2d at 503. Extending absolute immunity to the individual defendants when carrying out their postadjudicatory duties the Ninth Circuit held that *651 The fear of financially devastating litigation would compromise caseworkers' judgment during this phase of the proceedings and would deprive the court of information it needs to make an informed decision,Meyers, 812 F.2d at 1157. There is little sense in granting immunity up through adjudication of dependency, and then exposing caseworkers to liability for services performed in monitoring --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00017Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 1 times) Subj: 16 child placement and custody decisions pursuant to court orders. These post-adjudication actions by social caseworkers may or may not be prosecutorial in nature. See Coverdell [v. Department of Social & Health Servs., 834 F.2d 758, 764 (9th Cir.1987) ]; cf.Meyers, 812 F.2d at 1156. In any event, however, all of Tyler's and Bronson's actions of which the plaintiffs complain were taken in connection with, and incident to, ongoing child dependency proceedings. Whether their immunity is characterized as quasi-prosecutorial or as quasi- judicial, seeCoverdell, 834 F.2d at 765, Tyler and Bronson are entitled to absolute immunity. 884 F.2d at 503. Several federal courts recognize absolute immunity for social service caseworkers performing quasi-prosecutorial functions related to the initiation and pursuit of child dependency proceedings. See Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.) (extended absolute immunity to social service caseworkers participating in the initiation and pursuit of child dependency proceedings), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987); Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 764 (9th Cir.1987) (absolute immunity for caseworker obtaining and executing a court order for seizure and placement of a newborn); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (state social service employees responsible for prosecution of child neglect and delinquency petitions in state court perform functions comparable to a prosecutor, entitling them to absolute immunity from liability for damages under section 1983); Mazor v. Shelton, 637 F.Supp. 330, 334- 35 (N.D.Cal.1986) (acts of county social service worker in removing child from custody of mother and temporarily placing child with adoptive father merit absolute immunity; "role of a social worker in the care of minors is sufficiently analogous to the role of a prosecutor to warrant absolute immunity" *652 Hennessey v. Washington, 627 F.Supp. 137, 140 (E.D.Wash.1985) (social service caseworker who allegedly used false and misleading information to cause county prosecutor to initiate child dependency proceedings was absolutely immune from damages liability under section 1983); Pepper v. Alexander, 599 F.Supp. 523, 526 (D.N.M.1984) (state Department of Human Services employees absolutely immune from damage liability under section 1983 for their decision to file petition for termination of parental rights and for their participation in that proceeding); Whelehan v. County of Monroe, 558 F.Supp. 1093, 1098 (W.D.N.Y.1983) (employees of county Department of Social Services sued under section 1983, for alleged malicious prosecution of child protective proceedings, entitled to absolute immunity; "roles of the employees of the Department are sufficiently like the role of a prosecutor to warrant coverage by absolute immunity ..."). STATE OF LOUISIANA DEPENDENCY JUDGMENT In the subject case, the Louisiana court made the initial determination of the dependency[809 P.2d 173] of the Long and Babcock girls and placed the children in the elder Babcocks' home in Washington. Pursuant to the Louisiana court's order of dependency, the Louisiana Department of Health and Human Resources transferred the case to Washington State and the Washington court accepted jurisdiction. With the girls living in this state, the Washington monitor the girls' dependent status. The record here established that the actions of the caseworkers assigned to the case were taken in pursuit of child dependency proceedings. The DSHS Service Episode Record, in which Tyler and Bronson recorded their notes regarding the case, revealed that the caseworkers conducted several interviews with the Babcocks, the Michaels, the children and others. The Service Episode Record also established that the caseworkers conducted home studies on the Babcocks and the Michaels and gathered extensive *653 information relevant to the placement of the girls. Based upon the information collected, the caseworkers made recommendations regarding the placement of the children and caseworker Bronson, acting on behalf of DSHS, testified as to that evidence before the juvenile court. The trial judge, based on such information and other evidence developed in open court, made the final decision on custody. The judge need not have followed DSHS' recommendation. Although the actual determination of the girls' dependency occurred months earlier in Louisiana, Washington DSHS caseworkers Tyler and Bronson were actively engaged in pursuing the dependency ruling once the case was transferred to this State. The dependency process in Washington does not end until 6 months after the dependent child returns home. RCW 13.34.130. The record shows that several hearings were held before the juvenile court to determine if the children should be returned to the custody of Rudolph Babcock. The court refused to order that Rudolph Babcock be given custody of the girls and consequently their dependent status did not change. As found by the Ninth Circuit, "all of Tyler's and Bronson's actions of which the plaintiffs complain were taken in connection with, and incident to, ongoing child dependency proceedings" entitling the caseworkers to the protection of absolute immunity. Babcock, 884 F.2d at 503. Therefore, I would dismiss the plaintiffs' suit against the individual defendants. TYLER WAS NOT NEGLIGENT IN CONDUCTING THE MICHAEL HOME STUDY The plaintiffs' claim of negligence against caseworker Tyler and DSHS centers on the investigation of the Michaels as potential foster parents. When conducting the home study of the Michaels, Tyler used an "Adoption Application" form which contained a question regarding the criminal history of the party being investigated as a prospective adoptive parent. Since Tyler was investigating the Michaels for the purpose of serving as foster parents, *654 she did not ask that question. The plaintiffs allege that Tyler's failure to inquire into Lee Michael's criminal background constituted negligent investigation of a foster home. According to the plaintiffs, had Tyler asked that question and received information concerning Lee Michael's criminal history, Tyler would not have recommended the placement that resulted in the sexual abuse of the minor plaintiffs. Tyler was not negligent for her failure to inquire into Lee Michael's criminal history. When conducting the home study of the Michaels as potential foster parents, she used the incorrect form which contained the criminal background question. Had she used the correct form, it would not have had that question as it was not standard DSHS policy at that time to investigate the criminal background of prospective foster parents. By not asking the criminal background question, Tyler's actions were compatible with using the proper form as prescribed by DSHS and did not constitute negligence. DSHS WAS NOT NEGLIGENT The plaintiffs allege negligence on the part of DSHS for its failure to establish [809 P.2d 174] proper hiring, training, promotion and supervision standards for its caseworkers. Essentially, the plaintiffs' claim centers on DSHS' failure to discover Lee Michael's criminal background. Had DSHS required its caseworkers to inquire into the criminal history of potential foster parents, DSHS might have --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00018Date: 04/27/96 From: RICK THOMA Time: 02:25am \/To: ALL (Read 1 times) Subj: 17 discovered Lee Michael's criminal record and the caseworker, if such discovery had been made, would not have recommended that the court place the girls in the Michael home. A. DSHS policy did not require a criminal background check. At the time caseworker Tyler conducted the home study of the Michaels, it was not standard DSHS policy to investigate as a matter of routine any prior arrests or convictions of individuals seeking to serve as foster parents. The statute in force at the time this cause of action arose did not *655 require DSHS to conduct a criminal background investigation of an individual acting as a foster parent prior to placing the child in that foster home. See former RCW 74.15.030; Laws of 1980, ch. 125, Sec. 1, p. 387. The statute did require the secretary of DSHS to investigate the criminal record of each agency and its staff seeking licensure as a foster-family home. Former RCW 74.15.030 provided in part: The secretary shall have the power and it shall be his duty: . . . . . (2) In consultation with the child welfare and day care advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to adopt and publish minimum requirements for licensing applicable to each of the various categories of agencies to be licensed. The minimum requirements shall be limited to: . . . . . (b) The character, suitability and competence of an agency and other persons associated with an agency directly responsible for the care and treatment of children, expectant mothers or developmentally disabled persons. In investigating the character of an agency and the persons employed by or under contract to an agency, the secretary may have access to conviction records or pending charges of the agencies [sic ] and its staff. The secretary shall use the information solely for the purpose of determining eligibility for a license and shall safeguard the information in the same manner as the child abuse registry established in RCW 26.44.070. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose[.] (Underscoring omitted.) Laws of 1980, ch. 125, Sec. 1, p. 387. Former RCW 74.15.030(2). (FN2) However, the statutory definition of "agency" explicitly excluded relatives. Former RCW 74.15.020 stated: *656 "Agency" shall not include the following: (a) Persons related by blood or marriage to the child, expectant mother or developmentally disabled persons in the following degrees: Parent, grandparent, brother, sister, stepparent, stepbrother, [809 P.2d 175] stepsister, uncle, aunt, and/or first cousin[.] (Italics mine.) Laws of 1979, ch. 155, Sec. 83, p. 861. In the present case, Janet Michael is the natural aunt of all four of the children and, therefore, she and her then husband, Lee Michael, clearly fall within the statutory exclusion. The reasoning behind such a legislative decision is obvious. Children adjudged dependent often suffer emotional damage from the traumatic experience of being removed from their homes and placed with strangers. Recognizing this potential harm, the Legislature seeks to place a dependent child in a familiar and comfortable environment as soon as possible after a court makes a dependency determination in order to minimize any adverse effects to the child. Relatives of the dependent child can often provide such an environment, and their relationship to the child gives a preliminary assurance that the child will be safeguarded from harm. The statutory scheme, which favors placement of dependent children with relatives, clearly reflects that legislative goal. The statute did not specifically describe how the secretary was to proceed when placing a child in the foster home of an individual not falling under the statutory definition of agency. The Legislature left to the discretion of the secretary the method of determining the suitability of an individual selected to serve as a foster parent. Given that *657 discretion, the secretary chose not to require an investigation of the criminal history of such foster parents. B. The discretionary function exception applies to the DSHS. This State abolished sovereign immunity by RCW 4.96.010. That statute provides that the State and its officers shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers, agents or employees to the same extent as if they were a private person or corporation[.] RCW 4.96.010. This court recognizes a narrow exception to that rule for discretionary acts performed at an executive level. Chambers- Castanes v. King Cy., 100 Wash.2d 275, 281-83, 669 P.2d 451, 39 A.L.R.4th 671 (1983). "A governmental entity's exercise of discretionary acts at a basic policy level is immune from suit, whereas the exercise of discretionary acts at an operational level is not." Chambers-Castanes, 100 Wash.2d at 282, 669 P.2d 451. To determine whether an act falls within this exception, the court engages in a 4-part inquiry: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional,statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? Chambers-Castanes, 100 Wash.2d at 281 n. 2, 669 P.2d 451 (quoting Evangelical United Brethren Church v. State, 67 Wash.2d 246, 255, 407 P.2d 440 (1965)). An affirmative answer to all of the questions is required to find the challenged act within the discretionary function exception. Chambers-Castanes, 100 Wash.2d at 281 n. 2, 669 P.2d 451. A negative response to one or more of the questions indicates that further inquiry is necessary. Chambers-Castanes, 100 Wash.2d at 281 n. 2, 669 P.2d 451. *658 The challenged decision at issue in this case was DSHS' method of investigating potential foster parents. The foster parent home study required at the time by DSHS did not include an inquiry into the potential foster parent's criminal history. Utilizing the discretionary function analysis, I would find that DSHS' decision not to require a criminal background check of potential foster[809 P.2d 176] parents constituted a discretionary act at a basic policy level which this court holds is immune from suit. The Department's investigation of prospective foster parents necessarily involved a basic governmental program. The Legislature, seeking to provide a familiar environment for dependent children, enacted statutes governing the treatment of children found to be abused or neglected. Under those statutes, a dependent child could be placed with a foster parent following completion of a home study by --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00019Date: 04/27/96 From: RICK THOMA Time: 02:26am \/To: ALL (Read 1 times) Subj: 18 DSHS. The Department's decision as to the contents of the home study was essential to the realization of the Legislature's statutory program to place dependent children in a safe and comfortable environment. The Legislature granted the secretary of DSHS the authority to establish the standard for investigating potential foster parents, former RCW 74.15.030, and left to the discretion of the secretary the means by which DSHS would implement the Legislature's objectives. Furthermore, the Legislature left to the discretion of the secretary the promulgation of standards to utilize in the evaluation of prospective foster parents. Establishing those standardsrequired the exercise of basic policy evaluation, judgment and expertise on the part of the secretary and DSHS. I would hold that the discretionary function exception bars plaintiffs' suit against DSHS. CONCLUSION I would hold quasi-judicial and quasi-prosecutorial immunity for caseworkers Tyler and Bronson and affirm the trial court summary judgment of dismissal. The caseworkers here had no prior knowledge of *659. Michael's criminal background of sexual assault. If they did know and failed to act by notifying their superiors or putting it in their case study, they possibly would have owed plaintiffs a special duty and an exception to the public duty doctrine would apply to establish tort liability. Bailey v. Forks, 108 Wash.2d 262, 737 P.2d 1257, 753 P.2d 523 (1987). Discretionary immunity applies to DSHS unless they act capriciously or arbitrarily. The summary judgment in favor of DSHS should be affirmed, as there is a total absence of any negligence by such agency. The procedures set up by DSHS for investigative methods for its caseworkers on custody cases was in accordance with its discretion as provided in the statute. FN1. Michael was married to Janet Michael, who was the sister of Rudolph Babcock's deceased wife, Ann. Thus, Lee Michael was the maternal uncle by marriage of the four girls DSHS placed with him. FN2. The plurality opinion in Babcock I contained an apparent error with respect to the events in October. That opinion states that Aryn Long ran away twice in October. Babcock I, at 85, 768 P.2d 481. The pages cited in the Brief of Respondent do not support this assertion. DSHS prepared a document in January 1982, 3 months after Aryn supposedly ran away, which said she had run away from the Hanford School on October 2, not from home. Clerk's Papers, at 3533. DSHS may be able to establish this fact at trial. But we cannot construe disputed factual allegations unsupported in the record in favor of the moving party in reviewing a motion for summary judgment. FN3. Aryn Long is not a party to this lawsuit, but her stepfather, Rudolph Babcock, and his parents, with whom she also lived, are parties. FN4. This section of the statute has been amended in the years since the placement at the Michael home was made. FN5. Placement is not among the functions of the dependency review hearing listed in the statute. See former RCW 13.34.130(3) (1987). By contrast, the Legislature has designed the dispositional procedure specifically to make placement decisions and included important procedural protections for parents in that procedure. See RCW 13.34.110; 13.34.120. The adequacy of these protections is relevant to the immunity questions raised in this case. By making this distinction we do not wish to question the judge's authority to change a placement during a dependency review hearing. See RCW 13.34.150. The legality of the court order is not at issue. Babcock v. State, 112 Wash.2d at 92-94, 768 P.2d 481. Nor do we decide, on this appeal, whether DSHS had a legal obligation to initiate a Washington dependency under RCW 13.34.110-.120 as alleged by the Babcocks. This issue will be relevant only if the caseworkers raise a qualified immunity argument on remand. FN6. The girls' natural father, Dan Long, consented to the placement. FN7. "The Babcocks" is used to refer to all of the plaintiffs, Rudolph Babcock, Willis Babcock, Elizabeth Babcock, Beth Babcock, Erika Babcock, and Angela Long. FN8. The Ninth Circuit decision also erroneously states that the sexual abuse occurred after a court order was issued confirming the placement of the children with Michael. Babcock, 884 F.2d at 504. The record shows, however, that Michael abused Aryn Long prior to the order. Clerk's Papers, at 1913. The Ninth Circuit opinion apparently copied some questionable factual statements verbatim from our first Babcock opinion without citation. Compare Babcock, 884 F.2d at 503 n. 6, with Babcock, 112 Wash.2d at 85, 768 P.2d 481. FN9. Child Protective Services is part of DSHS, the defendant in this case. See RCW 26.44.020(5), (13). FN10. By distinguishing Coverdell we do not mean to indicate that we agree with its reasoning. We do not think that ex parte orders can establish quasi-judicial immunity for those carrying them out. Ex parte orders do not offer sufficient procedural protections to warrant the establishment of absolute immunity. See Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1158 (9th Cir.1987) (arguing persuasively that the protections of the adversarial process justify absolute immunity and that absent these protections they are not justified). FN11. The federal district court cases that have extended absolute immunity to caseworkers likewise deal with emergency responses to allegations of child abuse and often with the attempt to limit parental rights. See Mazor v. Shelton, 637 F.Supp. 330 (N.D.Cal.1986); Hennessey v. Washington, 627 F.Supp. 137 (E.D.Wash.1985); Pepper v. Alexander, 599 F.Supp. 523 (D.N.M.1984) (immunity bars action for malicious prosecution); Whelehan v. County of Monroe, 558 F.Supp. 1093, 1093-98 (W.D.N.Y.1983). Moreover, significant contrary authority exists on the district court level. See, e.g., John Doe v. Connecticut Dep't of Children & Youth Servs., 712 F.Supp. 277 (D.Conn.1989) (no absolute immunity protects caseworkers' emergency removal, application for temporary custody, and foster care placement); Rinderer v. Delaware Cy. Children & Youth Servs., 703 F.Supp. 358, 361 (E.D.Pa.1987) (social workers, unlike prosecutors, do not enjoy absolute immunity); Czikalla v. Malloy, 649 F.Supp. 1212 (D.Colo.1986) (denying absolute immunity to caseworker removing child in response to alleged child abuse); Pinkney v. Clay Cy., 635 F.Supp. 1079, 1082-83 (D.Minn.1986) (prosecutor absolutely immune, but not caseworker); Jane Doe v. County of Suffolk, 494 F.Supp. 179 (E.D.N.Y.1980) (caseworker filing a petition in child abuse case not entitled to absolute immunity); Cameron v. Montgomery Cy. Child Welfare Serv., 471 F.Supp. 761, 765-66 (E.D.Pa.1979) (failure to provide adequate services to foster child pursuant to court ordered custody not shielded by quasi-judicial immunity). FN12. The trial court confused the issue of qualified immunity with the issue of what degree of culpability suffices to create liability under 42 U.S.C. Sec. 1983. See Doe v. New York City Dep't of Social Servs., 649 F.2d 134, 141 (2d Cir.1981) (culpability under 42 U.S.C. Sec. 1983 requires deliberate indifference). It also read Spurrell v. Bloch, 40 Wash.App. 854, 865, 701 P.2d 529 (1985) as stating that, absent a positive showing of malice, qualified immunity --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00020Date: 04/27/96 From: RICK THOMA Time: 02:26am \/To: ALL (Read 1 times) Subj: 19 applies under 42 U.S.C. Sec. 1983. We have held that under 42 U.S.C. Sec. 1983 the absence of a reasonable good faith belief that actionable conduct was constitutional can justify a denial of qualified immunity. Hocker v. Woody, 95 Wash.2d 822, 825, 631 P.2d 372 (1981). We have never required an affirmative showing of malice as a prerequisite to suit under 42 U.S.C. Sec. 1983. Moreover, the scope of immunities under 42 U.S.C. Sec. 1983 does not determine the scope of immunities from state tort claims. FN1. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Butz v. Economou, 438 U.S. 478, 508-13, 98 S.Ct. 2894, 2911-14, 57 L.Ed.2d 895 (1978); Alicia T. v. County of Los Angeles, 222 Cal.App.3d 869, 878-80, 271 Cal.Rptr. 513, 517 (1990); Spielman v. Hildebrand, 873 F.2d 1377, 1381 (10th Cir.1989); Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119, 75 L.Ed.2d 96 (1983). FN2. Loveridge v. Schillberg, 17 Wash.App. 96, 99, 561 P.2d 1107 (1977); Filan v. Martin, 38 Wash.App. 91, 96, 684 P.2d 769 (1984); Coffel v. Clallam Cy., 47 Wash.App. 397, 402, 735 P.2d 686 (1987); Mitchelle v. Steele, 39 Wash.2d 473, 474, 236 P.2d 349 (1951); Frost v. Walla Walla, 106 Wash.2d 669, 673, 724 P.2d 1017 (1986); Creelman v. Svenning, 67 Wash.2d 882, 884, 410 P.2d 606 (1966); Kuchenreuther v. Whatcom Cy., 24 Wash.App. 716, 718, 604 P.2d 499 (1979); Collins v. King Cy., 49 Wash.App. 264, 271, 742 P.2d 185 (1987); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir.1986); Imbler, 424 U.S. at 425-27, 96 S.Ct. at 992-93. See also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts Sec. 132, at 1057-58 (5th ed. 1984). FN3. Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990); Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 763-64 (9th Cir.1987); Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987); Mazor v. Shelton, 637 F.Supp. 330, 335 (N.D.Cal.1986); Fogle v. Benton Cy. SCAN, 665 F.Supp. 729, 733-34 (W.D.Ark.1987); Whelehan v. County of Monroe, 558 F.Supp. 1093, 1098 (W.D.N.Y.1983). FN4. See, e.g., Coverdell, 834 F.2d at 763-64 and cases cited therein; Meyers, 812 F.2d at 1157; Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984); Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990); Alicia T., 271 Cal.Rptr. at 518. FN5. Kurzawa, 732 F.2d at 1458. FN6. Alicia T., 271 Cal.Rptr. at 519; Babcock, 884 F.2d at 503; Meyers, 812 F.2d at 1157. FN7. Coverdell, 834 F.2d at 764-65. See also K.H. v. Morgan, 914 F.2d 846, 854 (7th Cir.1990). FN8. Bender v. Seattle, 99 Wash.2d 582, 593, 664 P.2d 492 (1983); Austin v. Borel, 830 F.2d 1356, 1361 (5th Cir.1987). FN9. Bender, 99 Wash.2d at 594, 664 P.2d 492; Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 502, 125 P.2d 681 *659. (1942). FN10. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash.2d 123, 776 P.2d 666 (1989); Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913-14, 57 L.Ed.2d 895 (1978); Briscoe v. LaHue, 460 U.S. 325, 330-33, 103 S.Ct. 1108, 1110, 75 L.Ed.2d 96 (1983). FN11. Austin v. Borel, 830 F.2d 1356, 1359 (5th Cir.1987); Briscoe, 460 U.S. at 335, 342-46, 103 S.Ct. at 1119-21. FN12. Bruce, 113 Wash.2d at 135, 776 P.2d 666. FN13. Bruce, 113 Wash.2d at 127, 776 P.2d 666. FN14. Tobis v. State, 52 Wash.App. 150, 159, 758 P.2d 534 (1988). FN15. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash.2d 123, 776 P.2d 666 (1989); Babcock v. Tyler, 884 F.2d 497, 501 (9th Cir.1989) (citing Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978)); Meyers v. Contra Costa Cy. Dep't of Social Servs. 812 F.2d 1154, 1156 (9th Cir.) (holding it to be beyond doubt that the testimony a caseworker gave is afforded absolute immunity because witnesses, including government witnesses, are immune from liability for their testimony), (citing Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987). FN16. RCW 26.44.056(3); RCW 26.44.060(1). FN17. See, e.g., Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 763-64 (9th Cir.1987). FN18. See Austin v. Borel, 830 F.2d 1356, 1363 (5th Cir.1987) (holding a caseworker's qualified immunity provides protection to all but the plainly incompetent or those who knowingly violate the law); Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988) (holding caseworkers' actions objectively reasonable and not violative of clearly established right and therefore shielded from liability under their qualified immunity); Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1158 (9th Cir.) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (holding qualified immunity shields from liability where conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known)), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987). FN19. Creelman v. Svenning, 67 Wash.2d 882, 885, 410 P.2d 606 (1966) (the objectives for granting immunity would be destroyed if the prosecutor needed to be concerned with potential tort litigation against the county or state each time a prosecutorial decision was made); Collins v. King Cy., 49 Wash.App. 264, 271, 742 P.2d 185 (1987) (absolute immunity enjoyed by prosecuting attorneys applies to the government entity under which they work and to the workers they employ); Kuchenreuther v. Whatcom Cy., 24 Wash.App. 716, 718, 604 P.2d 499 (1979) (county is also immune from liability for acts of its prosecuting attorney in the performance of his duties); Frost v. Walla Walla, 106 Wash.2d 669, 673, 724 P.2d 1017 (1986) (the public policy objectives sought by immunity to an individual prosecutor would be seriously impaired or destroyed if immunity for the prosecutor's acts did not extend to the state and county); Coffel v. Clallam Cy., 47 Wash.App. 397, 402, 735 P.2d 686 (1987). FN20. In re Coverdell, 30 Wash.App. 677, 679-80, 637 P.2d 991 (1981) (noting that in a dependency phase, initial attempts to reconstruct the family unit occur and only if those efforts fail is a hearing held to terminate parental rights and make disposition of the children), review denied, 97 Wash.2d 1007 (1982); RCW 13.34.120, .180. FN21. See State v. Creekmore, 55 Wash.App. 852, 783 P.2d 1068 (1989), review denied, 114 Wash.2d 1020, 792 P.2d 533 (1990). FN1. While addressing the court on behalf of the girls, Crotty stated Actually, the first time--the first runaway was Aryn.... Well, after Aryn's first runaway, Your Honor, which occurred in October of 1981, ... Well, Aryn runs away again a second time.... In December, 1981, Angela runs away the first time.... Report of Proceedings, at 70, 71 (October 1, 1986). Crotty's statements were not cast in terms of allegations that the girls ran away, rather he was simply restating the facts to the court. FN2. The Legislature has amended that portion of RCW 74.15 several times since this cause of action arose. The current statute requires a criminal background check of any relative selected --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124) --------------- FIDO MESSAGE AREA==> TOPIC: 210 VICTIMS/FALSEACC Ref: D4X00021Date: 04/27/96 From: RICK THOMA Time: 02:26am \/To: ALL (Read 1 times) Subj: 20 (End) as a foster parent. However, that investigation need not be completed prior to placing the child in the relative's home. The most recent version of RCW 74.15.030 states: "The secretary shall have the power and it shall be the secretary's duty: (3) To investigate any person, including relatives by blood or marriage except for parents, for character, suitability, and competence in the care and treatment of children, expectant mothers, and developmentally disabled persons prior to authorizing that person to care for children, expectant mothers, and developmentally disabled persons. However, if a child is placed with a relative under RCW 13.34.060 or 13.34.130, and if such relative appears otherwise suitable and competent to provide care and treatment the criminal history background check required by this section need not be completed before placement, but shall be completed as soon as possible after placement[.]" (Italics mine.) RCW 74.15.030(3). -------------- 2CF841173642-- --- FMail/386 1.0g * Origin: Parens patriae Resource Center for Parents 540-896-4356 (1:2629/124)