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Babcock v. the

April 4, 1991

RUDOLPH BABCOCK, ET AL, APPELLANTS,
v.
THE STATE OF WASHINGTON, RESPONDENT



En Banc. Utter, J. Brachtenbach and Smith, JJ., and Callow and Wieland, JJ. Pro Tem., concur. Andersen, J. (concurring in part, dissenting in part). Dolliver and Durham, JJ., concur with Andersen, J. Dore, C.j., dissents by separate opinion; Guy and Johnson, JJ., did not participate in the disposition of this case.

Author: Utter

In Babcock v. State, 112 Wash. 2d 83, 768 P.2d 481 (1989) (hereinafter Babcock I), this court granted the Washington Department of Social and Health Services (DSHS) and its caseworkers absolute immunity from liability for negligent foster care investigation and placement. We granted a motion to reconsider Babcock I because its legal conclusions were based upon a factual error. We now conclude that the caseworkers are not absolutely immune from suit for negligent foster care placement and reverse the trial court decision granting the caseworkers and DSHS immunity from suit.

I

[1, 2] This tort suit involves allegations flowing from the placement of several young girls with a relative, Lee Michael, who raped them.*fn1 Because the trial court disposed of the case on a motion for summary judgment, we may only affirm if no issues of material fact exist. CR 56(c); Hartley v. State, 103 Wash. 2d 768, 774, 698 P.2d 77 (1985). This rule prevents courts from assuming the function of a jury by weighing the facts as presented in documents prior to trial. See Palmer v. Waterman S.S. Corp., 52 Wash. 2d 604, 608-09, 328 P.2d 169 (upholding denial of summary judgment when facts were at issue), cert. denied, 359 U.S. 985

(1958). Summary judgment exists to examine the sufficiency of legal claims and narrow issues, not as an unfair substitute for trial. See Graves v. P.J. Taggares Co., 94 Wash. 2d 298, 302-03, 616 P.2d 1223 (1980) (summary judgment only appropriate when facts are susceptible to only one interpretation). Accordingly, we construe facts in the light most favorable to the nonmoving party in reviewing a motion for summary judgment. Wendle v. Farrow, 102 Wash. 2d 380, 383, 686 P.2d 480 (1984).

In this case, most of the facts are undisputed. However, the plurality's previous opinion erroneously construed at least one disputed fact in favor of the State as the moving party. Compare Babcock I, at 85 (Aryn ran away from her grandparents' home twice) with Reply Brief of Appellants Rudolph Babcock, Beth Babcock, Erika Babcock, and Angela Long, at 6-7. The plurality's previous opinion also erroneously presented the undisputed facts in the light most favorable to the State as moving party instead of in the light most favorable to the nonmoving party as required by our case law. There was, in addition, a critical factual error which forced us to reconsider our previous decision: the mischaracterization of the juvenile court proceedings which confirmed the caseworkers' placement decisions. All of these errors are corrected in this opinion.

Rudolph Babcock married Ann Babcock in 1970. In 1970, Ann Babcock already had two daughters from a previous marriage to Dan Long, Angela Long, aged 3, and Aryn Long, aged 2. The marriage between Rudolph and Ann produced two more daughters, Erika and Beth Babcock.

In 1978, Ann Babcock committed suicide in Louisiana, where the family had moved earlier that year. In July 1981, a Louisiana court determined that the children were in need of care. Exhibit 2, at 325-26. The Louisiana court held a 4-day adjudicatory and dispositional hearing during which the court indicated that Lee Michael, who was present, could not have custody of the children. Exhibit 2, at 432-35. The court issued an order placing the children with Rudolph Babcock's parents, Elizabeth and Willis

Babcock of Richland, Washington. On August 25, 1981, Washington's Department of Social and Health Services agreed to supervise the Babcock placement pursuant to an interstate compact. See RCW 26.34.

On August 31, 1981, Michael visited caseworker Tyler at the DSHS office. Clerk's Papers, at 3585. Tyler made a note in the service record kept by caseworkers to complete a home study of the Michael and Babcock homes. Clerk's Papers, at 3586. On October 2, 1981, DSHS was notified that Michael had taken Aryn Long to the residence of his sister-in-law. Clerk's Papers, at 3392, Admission 4. Later that evening DSHS placed Aryn in 72-hour protective custody at the Michael residence. Clerk's Papers, at 3392-93, Admissions 5-7. On October 6, 1981, an attorney representing DSHS requested that their counterparts in Louisiana obtain an order from Louisiana relinquishing jurisdiction to Washington, subject to acceptance by the Washington court. Clerk's Papers, at 3463. The next day the Louisiana Department of Health and Human Resources obtained orders from the Louisiana court relinquishing jurisdiction and requiring Rudolph to leave his parents' home where he had been residing with his children. Clerk's Papers, at 3463.

On October 16, 1981, DSHS again took Aryn from her grandparents' home with Michael's assistance. Clerk's Papers, at 3395, Admission 17. DSHS first placed Aryn in a foster home and 2 or 3 days later moved her to the home of Marilyn Wallace, a friendly neighbor of Michael.*fn2 Clerk's Papers, at 3398-99, 3563. Aryn Long's deposition indicates that Michael may have begun sexually abusing her while she was at the home of Marilyn Wallace, before DSHS

secured a court order placing her with Lee Michael.*fn3 On November 4, 1982, caseworker Tyler entered a notation in the service record indicating she planned to recommend placement of Angela and Aryn Long with Lee Michael. Clerk's Papers, at 3601-02.

On November 5, 1981, the juvenile division of Benton County Superior Court accepted jurisdiction in an ex parte proceeding. On December 3, 1981, DSHS placed Angela Long with Marilyn Wallace without providing either Rudolph Babcock or the grandparents with notice or a hearing. Clerk's Papers, at 3396-97, 3403, 3405.

On January 8, 1982, Tyler prepared a document labeled "Court Summary and Agency Plan" which recommended placement at the Michael home. In preparing this document, 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.

In February 1982, Rudolph Babcock took the two remaining girls, Erika and Beth, with him to Wisconsin. DSHS obtained a warrant for Rudolph's arrest on custodial interference charges and an ex parte order of requisition for the return of the Babcock girls through interstate compact procedures. The arrest warrant was later quashed.

On March 30, 1982, the Benton County juvenile court conducted a dependency review hearing pursuant to former RCW 13.34.130(3) (in effect in 1987).*fn4 Babcock I mischaracterized this hearing and several others as dispositional hearings. Babcock I, at 86-87. Dependency review hearings determine whether court supervision of a child will continue. Former RCW 13.34.130(3). Dispositional hearings, on the other hand, establish where children being removed from their parents will be placed and what services will be

required. RCW 13.34.110, .120.*fn5 At this dependency review hearing, DSHS submitted a copy of caseworker Tyler's home study report on the Michaels which recommended placing Angela and Aryn at the Michael home. The court accepted the caseworker's recommendation without reading the home study report, accepting evidence, or delaying action until Rudolph Babcock, who had raised the Long girls, returned from Wisconsin. Clerk's Papers, at 3488, 3498.*fn6 A Wisconsin court remanded Rudolph Babcock's natural daughters, Erika and Beth, to the custody of the Washington DSHS on April 14, 1982.

The caseworkers placed Erika and Beth Babcock first with Michael's sister-in-law, Sandra Hanson, and then, 2 days later, with Lee Michael. Clerk's Papers, at 3407. They placed these children with no court order authorizing this placement and without providing Rudolph Babcock with notice or an opportunity to be heard. Clerk's Papers, at 3408, 3435.

On May 4, 1982, the juvenile court attempted to hold another dependency review hearing. Because the Louisiana court had failed to produce any findings of fact and conclusions of law or a transcript of the 1981 dispositional hearing, the juvenile court continued the review hearing to permit the issue of the girls' dependency to be fully addressed. The court ordered that all of the girls were to

remain at the Michaels', where DSHS had placed them, until the next hearing.

The juvenile court commissioner held a full dependency review hearing on August 26 and 27, 1982. At that hearing, all parties were represented by counsel. The court heard testimony from the girls' therapists, social service caseworker Bronson, a family counselor, Lee and Janet Michael, and Rudolph Babcock. At the end of the hearing the court did not terminate the dependency, but instead ordered the girls to remain with the Michaels. The court held several subsequent dependency review hearings.

In October 1983, it was discovered that Lee Michael had sexually abused the four girls, as well as his own daughter. Lee Michael was subsequently convicted of three counts of statutory rape and two counts of indecent liberties and sentenced to 55 years in prison.

Because this opinion addresses the caseworkers' claims to absolute immunity based on the alleged intimate connection between their actions and the judicial process, the facts relevant to this issue must be discussed at the outset. Caseworker Tyler never appeared in any judicial proceeding at any time and the trial court did not enter the home study she prepared into evidence. Caseworker Bronson did not appear in court until the August 26-27 dependency review hearing held after the girls had been placed with Michael. Neither caseworker ever filed a petition to establish a dependency. The caseworkers made placements of all these children with parties connected to Michael without prior authorization of a court. DSHS secured court orders authorizing placement of Erika and Beth with Michael after physically placing them with Michael but before the abuse began. It secured court orders authorizing Aryn and Angela's placement with Michael before actually moving them there but after Michael began abusing Aryn. DSHS obtained all of these court orders during the course of dependency review hearings, not dispositional hearings.

II

Rudolph Babcock, his parents, Beth, Erika, and Angela Long filed suit in state and federal courts seeking damages against the State and the individual caseworkers for negligence, outrage, alienation of affections, and violation of their civil rights. See 42 U.S.C. § 1983. The complaint alleged that DSHS's actions in this case violated the Louisiana court order, the Department's rights and responsibilities under the compact with Louisiana, and the department's statutory obligations to reunite the Babcock family. The trial court granted the State's motion for summary judgment. The trial court held that the complaint failed to state a claim for alienation of affections or outrage. It also held that qualified immunity certainly shielded the caseworkers and DSHS and commented that absolute immunity might apply as well. Finally, it ruled that the juvenile court proceedings occurring prior to this tort suit barred this action through res judicata and collateral estoppel. The Babcocks*fn7 only appealed the state law claims to this court, and pursued their federal claims in federal court. We therefore consider only the state court claims in this opinion.

This court affirmed the trial court's dismissal of the Babcocks' claims in Babcock I. It held that the absolute immunity granted participants in judicial processes shielded the caseworkers and DSHS from liability. Moreover, it held that the complaint did not state a cause of action for alienation of affections or outrage. On the other hand, the court rejected DSHS's res judicata and collateral estoppel arguments. We granted a motion to reconsider our decision in Babcock I because the plurality opinion stated and relied upon erroneous facts.

The plurality's decision in Babcock I stated that the juvenile court had ordered DSHS to place the four children

in Michael's care pursuant to the procedure for court approval of placement decisions, a type of disposition under RCW 13.34.110. See Babcock I, at 86-87.

If DSHS had used Washington's disposition procedure, it would have completed and filed a predisposition study. See RCW 13.34.120. The parents would be entitled to a hearing if they disagreed with the disposition. RCW 13.34.110. The court would have then entered an order placing the child. See RCW 13.34.130(1)(b).

The court did none of this because the Louisiana court had completed the dispositional phase of the process, ordering the children to live with their grandparents in Washington. Washington's juvenile court never adjudicated the question of foster care placement. Because of this, DSHS never brought a petition before the court or presented a predisposition study.

The juvenile court never formally reviewed DSHS's placement decision. Indeed, DSHS has taken the position in this lawsuit that its custody over the girls gave it the power "to make such placements as were necessary." Brief of Respondent, at 29.

The juvenile court did, however, conduct review hearings concerning the children. It tried to fulfill its statutory responsibility to review the children's "dependency" status. During the course of these hearings it issued orders allowing DSHS's placement decisions to stand.

Dependency review does not focus upon the correctness of DSHS's placement decisions. It focuses on the question of whether the children's "dependency" continues and the issue of whether the children can return to their parents, in this case, Rudolph Babcock. See former RCW 13.34.130(3). Review hearings determine issues such as visitation rights, parental cooperation with DSHS, and whether additional services are required. See former RCW 13.34.130(3)(b).

After this court issued the decision containing this important factual error, the Ninth Circuit concluded that the caseworkers were entitled to absolute immunity under the federal civil rights statute, 42 U.S.C. § 1983. The Ninth

Circuit, apparently relying on the plurality in Babcock I, mistakenly stated that the hearings were dependency disposition hearings. See Babcock v. Tyler, 884 F.2d 497, 499 (9th Cir. 1989), cert. denied, 110 S. Ct. 1118 (1990).*fn8

III

In reviewing the trial court's decision, we confine ourselves to the issues the parties have raised and which the trial court considered. See RAP 12.1(a); State v. Hubbard, 103 Wash. 2d 570, 573-74, 693 P.2d 718 (1985) (Court of Appeals reversed because it decided an issue not raised). Our role is not to determine whether the caseworkers' action constituted actionable negligence. The questions concerning whether the caseworkers were negligent have not yet been decided at trial.

[3] We must decide whether the absolute immunity granted judges under state common law should extend to caseworkers. The Legislature has already chosen to deny caseworkers absolute immunity. In addition, binding state precedent and federal precedent under 42 U.S.C. § 1983 show that the common law does not support absolute immunity from tort liability for negligent foster care investigation and placement in this case.

Absolute immunity shields the recipient from liability for willful misconduct as well as negligence. A caseworker cloaked in absolute immunity could deliberately arrange a foster care placement with a known rapist in order to facilitate the sexual abuse of a child and escape tort liability. This should not be the law.

Were we to grant caseworkers an absolute immunity for foster care placement decisions, we would create a situation

where caseworkers who often must act hurriedly in removing children from abuse receive a qualified immunity, while those making placement investigations receive absolute immunity. RCW 26.44.056 allows DSHS to detain a child until a court assumes custody for up to 72 hours if it has "reasonable cause to believe" that leaving the child in his or her residence "would present an imminent danger to that child's safety". (Italics ours.) RCW 26.44.056.

The same section of the statute creates an immunity for caseworkers. This immunity applies to a "child protective services employee" taking a child into custody, " if done in good faith under this section."*fn9 (Italics ours.) RCW 26.44.056(3). Thus, even in the area of emergency removal of children from child abuse, the Legislature has only granted caseworkers qualified immunity.

The Legislature has passed no statute directly governing caseworker immunity for negligent placement investigations. Inasmuch as the Legislature has granted caseworkers only a qualified immunity in an emergency situation, it would be inappropriate for us to extend to politically unaccountable caseworkers an immunity traditionally granted judges.

Not-only does the Legislature's policy decision preclude the extension of absolute immunity, binding state precedent also requires us to deny the absolute immunity claimed. Our decision in Bender v. Seattle, 99 Wash. 2d 582, 664 P.2d 492 (1983) controls this case. In Bender, we held that an officer who obtains an arrest warrant from a magistrate is nevertheless liable for false arrest. Bender, 99 Wash. 2d at 592; accord, Malley v. Briggs, 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). The magistrate's warrant does not absolve the officer. The court explained that the officer "is not merely directed to fulfill the order of the court; he is in a position to control the flow of information

to the magistrate upon which probable cause determinations are made." Bender, 99 Wash. 2d at 592. Similarly, a caseworker cannot escape liability for negligent investigation because the juvenile court commissioner relies on the caseworker's recommendation to allow a caseworker's placement decision to stand. In the absence of a preplacement adversary hearing in which a predisposition study is entered into evidence, the caseworker controls the flow of information to the court.

DSHS cites no case where this court has extended prosecutorial or judicial immunity to anyone but prosecutors and judges. Judges and prosecutors in this state are usually elected and highly visible officials.

State precedent and legislative policy compel us to reject the caseworkers' claim to absolute immunity. The precedent of intermediate and lower federal courts under 42 U.S.C. § 1983 supports the same result. The one federal court facing a caseworker immunity problem where a state statute granted only qualified immunity has respected the state's policy by declining to extend absolute immunity to the caseworker. See Jane Doe v. County of Suffolk, 494 F. Supp. 179, 182-83 (E.D.N.Y. 1980).

Because of the extraordinary sweep of absolute immunity, the United States Supreme Court has been reluctant to extend absolute prosecutorial or judicial immunity to anyone but prosecutors and judges. See Achterhof v. Selvaggio, 886 F.2d 826, 829 (6th Cir. 1989) (citing Malley v. Briggs, supra); Imbler v. Pachtman, 424 U.S. 409, 429, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) (justifying absolute immunity for prosecutors by stating that "a prosecutor stands perhaps unique . . . in his amenability to professional discipline by an association of his peers.").

Even in cases involving emergency responses to allegations of child abuse, most federal appellate courts have not granted absolute immunity to caseworkers. Rinderer v. Delaware Cy. Children & Youth Servs., 703 F. Supp. 358, 361 (E.D. Pa. 1987). The case for absolute immunity in the instant case is much less compelling than in the federal

cases because the caseworkers in the case at bench were not responding to an emergency and performed no prosecutorial or judicial functions.

IV

[4] Bender precludes the conclusion that the caseworkers deserve quasi-judicial immunity. Because they controlled the flow of information, they could not escape liability even if they had acted under court order. Because the court never ordered the actions complained of, the federal precedent under 42 U.S.C. § 1983 does not support the conclusion that quasi-judicial immunity bars this suit either. Had the court ordered the actions complained of, quasi-judicial immunity would attach.

The Ninth Circuit extended quasi-judicial immunity to a caseworker removing a newborn pursuant to court order in Coverdell v. Department of Social & Health Servs., 834 F.2d 758 (9th Cir. 1987).*fn10 Because the court specifically ordered the caseworker to remove the child, the court granted her absolute immunity. Coverdell, 834 F.2d at 765.

But in the case at bench the court did not order the investigation or the placement recommendation forming the basis of the Babcocks' action in negligence. The caseworkers removed all of the children from the Babcock home without receiving any court order requiring disruption of the Louisiana court's placement decision. They moved Babcock's natural daughters to the Michael residence without court order. DSHS procured a court order authorizing the placement of Aryn and Angela Long after they had already placed them with Wallace, but before they actually moved them to the Michael home.

Not only did the negligence occur prior to the issuance of a court order, the orders confirming the Michael placement would not have prevented DSHS from remedying the placement had they discovered that Michael was a rapist. The caseworkers have taken the position in this litigation that they need no judicial order to change foster care placement. Brief of Respondent, at 29. Accordingly, they removed the children from their grandparents and made several temporary placements in apparent violation of an outstanding court order from Louisiana placing the children with their grandparents.

If they had discovered that Michael was a rapist, they would surely have removed the children from his care, just as they removed the children from their grandparents' care in spite of an outstanding judicial order. The gravamen of the complaint is not the procurement of a court order. The plaintiffs claim that DSHS did not adequately investigate the Michaels. Cf. Coverdell (challenging removal of a child based on allegations of child abuse). This action occurred outside of the judicial process.

V

Because these caseworkers performed investigative, rather than quasi-prosecutorial functions, they cannot claim prosecutorial immunity.

[5] The Supreme Court has granted prosecutors absolute immunity for "initiating a prosecution and in presenting the State's case". Imbler v. Pachtman, 424 U.S. at 431. It purposefully left standing appellate case law holding that absolute immunity did not apply to a prosecutor's investigative function. Imbler, at 430.

The gravamen of this complaint is negligent investigation. Even prosecutors cannot claim unqualified immunity for performing investigatory functions under 42 U.S.C. § 1983. See Mancini v. Lester, 630 F.2d 990, 992-94 (3d Cir. 1980) (remanding case to determine whether prosecutor's acts were investigatory or advocatory); Marrero v. Hialeah, 625 F.2d 499, 506-10 (5th Cir. 1980) (overturning grant of

absolute immunity to prosecutor), cert. denied sub nom. Rashkind v. Marrero, 450 U.S. 913 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.) (prosecutor denied absolute immunity for obtaining perjured testimony through threats), cert. denied, 449 U.S. 861 (1980); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir. 1978) (no absolute immunity for wiretap), cert. denied, 442 U.S. 930 (1979).

The federal courts have accordingly denied immunity to prosecutors' and caseworkers' investigations of child abuse. The Second Circuit in Robison v. Via, 821 F.2d 913 (2d Cir. 1987) held that a prosecutor was not immune for taking a child out of her parents' custody to investigate direct complaints of child abuse. Robison, at 919. Although the prosecutor obtained a judicial temporary detention order within hours, the court held that prosecutorial immunity did not shield the prosecutor. Robison, at 917, 920.

Similarly, the Oregon Supreme Court recently ruled that child custody workers did not enjoy prosecutorial immunity under § 1983 for their investigation of child abuse. Tennyson v. Children's Servs. Div., 308 Or. 80, 775 P.2d 1365 (1989). The defendants in that case removed the child in response to reports of a bruised child. Tennyson, at 83-84. The next day a juvenile court heard the caseworker's complaint and placed the child in foster care.

The caseworker returned the child to the parents after a month. Later, a sheriff's detective took the child into custody again. The juvenile court, after a hearing, again placed the girl in foster care upon the caseworker's recommendation. The complaint alleged that the court decision was based "'on the complaint allegations filed by [the caseworker] and the failure of [the caseworker and detective] to present an . . . informed report based on full . . . investigation", allegations remarkably similar to some of those made in this case. Tennyson, at 84.

The court based its decision not to grant the caseworkers absolute immunity in part on the fact that the workers need not have involved the court in the removal decision. Tennyson, at 89. In the case at bench, defendants have

similarly argued that they did not need a court order to change the children's foster care placement. Brief of Respondent, at 29.

The Fifth Circuit has also declined to extend absolute immunity to caseworkers' investigations of child abuse. See Hodorowski v. Ray, 844 F.2d 1210, 1212-16 (5th Cir. 1988); Austin v. Borel, 830 F.2d 1356 (5th Cir. 1987). In Hodorowski, the caseworkers removed children from their parents' custody and sought a court order within days. 844 F.2d at 1212. In Austin, the court responded to a caseworker's accusation of child abuse by entering an order giving the State custody and holding a hearing a few days later. 830 F.2d at 1358.

The most recent cases have followed Austin and Hodorowski and have distinguished Ninth Circuit precedent extending absolute immunity to caseworkers in some situations. The Tenth Circuit recently refused to extend quasiprosecutorial immunity to caseworkers who removed children from their foster parents without following statutory procedures, one of the actions complained of in the case at bench, even though a judge held a hearing and issued an order in the matter. Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989). The Sixth Circuit Court of Appeals declined to extend prosecutorial immunity to a caseworker's investigation of child abuse in Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989).

Because the federal appellate courts agree that a caseworker's investigation of a child abuse complaint is not a quasi-prosecutorial act, we cannot extend the prosecutor's immunity to the caseworker's investigation of a foster care placement. Had the caseworkers initiated a petition to establish a Washington dependency and then had the results of the investigation entered into evidence and made a part of an adversary process focusing on disposition, the caseworkers would have a stronger case for absolute immunity.

Because caseworker Tyler never appeared in court or submitted a study admitted into evidence, she cannot

escape liability as a prosecutor "intimately associated with the judicial phase" of the process. Cf. Imbler, 424 U.S. at 430.

Caseworker Bronson's court appearance does not establish his role as quasi-prosecutorial, either. Caseworker Bronson's appearance occurred after the caseworkers had placed both children at the Michaels' home and the State's attorney had obtained judicial orders confirming the placement.

The Fifth Circuit's decision in Austin also establishes that prosecutorial immunity does not apply to caseworkers' appearances in court even in pursuance of court orders. Caseworkers not initiating proceedings by petition have not enjoyed quasi-prosecutorial immunity. See Austin v. Borel, 830 F.2d 1356, 1360-61 (5th Cir. 1987).

Those federal courts that have granted immunity to caseworkers responding to child abuse complaints have carefully limited immunity to functions " intimately associated with the judicial phase of the criminal process". (Italics ours.) Imbler, 424 U.S. at 430. In particular, several federal appellate cases have extended quasi-prosecutorial immunity to caseworkers initiating proceedings which deprive parents of custody because of allegations of child abuse. See Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1156 (9th Cir. 1987) (caseworkers granted immunity for attempt to deprive allegedly abusive parent of custody by filing a petition seeking creation of a dependency, but not for prior actions); Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 760 (9th Cir. 1987) (caseworkers obtained and executed court order directing them to take a newborn infant from its mother who had lost custody of another child because of abuse allegations); Kurzawa v. Mueller, 732 F.2d 1456, 1457 (6th Cir. 1984) (court order terminated parental rights); Vosburg v. Department of Social Servs., 884 F.2d 133, 134, 138 (4th Cir. 1989) (extending immunity to caseworkers seeking a temporary removal order, but recognizing that

extending immunity to caseworkers' investigations would violate Imbler and other federal precedent).*fn11

Because Mr. Bronson did not file a petition initiating either civil or criminal proceedings, he acted like a complaining witness not immune at common law, not like a prosecutor. Had he initiated proceedings, he might have some claim to prosecutorial immunity under the case law upon which the dissent relies. His appearance as a witness at a hearing in which the State's counsel, Mr. Miller, acted as the prosecuting attorney, cannot justify bestowing prosecutorial immunity upon Bronson.

The Meyers case illustrates how careful federal appellate courts have been to limit absolute immunity to duties related to a caseworker filing a petition seeking removal of children in response to allegations of child abuse. Meyers, 812 F.2d at 1155. The Ninth Circuit panel in Meyers refused to extend immunity to the same caseworker who had filed the petition for actions not prosecutorial in nature. Meyers, at 1157.

In particular, the court held that immunity did not bar a suit arising out of the caseworker's order that Meyers stay away from his home. "Haaland acted unilaterally prior to the operation of the judicial process." Meyers, at 1157. This result directly supports the conclusion that the caseworkers in the case at bench cannot claim immunity for their unilateral placement decisions with respect to the Babcock girls nor for their pre-judicial investigation.

The court carefully articulated the reasons for limiting immunity to the filing of a petition seeking to deprive parents of custody of their children through adjudication. In spite of the benefits of immunity for certain decision makers, "the balance might not be struck in favor of absolute immunity were it not for the presence of safeguards built into the judicial process that tend to reduce the need for private damage actions". Meyers, at 1158. The court then described a list of safeguards present in the judicial process which make private damage actions unnecessary. These include the independence of the judge, the importance of precedent, the adversary nature of the process, and the ability to correct errors on appeal. Meyers, at 1158 (citing Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978)).

Had DSHS used the statutory procedure provided for placement decisions, the judicial process would have provided these kinds of protections. DSHS, however, obtained a court order prior to placement with the Michaels only with respect to Angela Long and Aryn Long. Michael had already abused Aryn at that time. DSHS procured the court order without an adversary process evaluating the placement recommendation. Precisely because placement was not at issue, the caseworkers prepared no predisposition study nor sent one to the parties. For that reason, the court accepted the caseworkers' recommendation without reading or admitting into evidence the home study which was prepared, and without argument by the parties. Moreover, because these proceedings were dependency review proceedings, the court orders at issue were not appealable

as of right. In re Chubb, 112 Wash. 2d 719, 773 P.2d 851 (1989).

The Ninth Circuit decision in Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989), cert. denied, 110 S. Ct. 1118 (1990), which granted these caseworkers absolute immunity from suit for their civil rights claims, is not determinative because it is based on the incorrect factual statements in Babcock I. A proper understanding of the facts compels the conclusion that absolute immunity does not shield these caseworkers given the limitations on absolute immunity described in Meyers.

It is good policy to grant caseworkers a qualified immunity for initiation of dependency proceedings without granting absolute immunity for everything they do while a dependency review process continues. See Meyers, at 1157 (not characterizing pre-judicial action as in pursuit of court order and declining to extend immunity); cf. Babcock, 884 F.2d at 503. This distinction roughly parallels the state legislation which limits caseworker immunity to responses to child abuse in an emergency. As this case illustrates, a dependency review proceeding cannot protect against erroneous placement investigations because it does not focus adversarial attention on a placement study or provide an order appealable as of right. Finally, a caseworker's role in dependency review proceedings resembles that of a complaining witness not immune at common law. The caseworker does not initiate court proceedings addressing the criminal act of child abuse.

In any case, the caseworkers' fear of financially devastating litigation would not "deprive the court of information it needs", as the Ninth Circuit panel stated. Babcock, 884 F.2d at 503. Rather, it would encourage thorough investigation.

Removing caseworker fear of liability is appropriate in an emergency. In other situations, the law ought to encourage careful investigation and the use of adversarial judicial

processes. Because the wrongs to which the Babcocks complain occurred almost entirely outside of the judicial process, neither prosecutorial immunity nor judicial immunity protects the caseworkers' actions.

VI

Although both parties have focused primarily upon the absolute immunity issue, the trial court actually ruled that the caseworkers were entitled to qualified immunity. Clerk's Papers, at 103-04. The trial court stated that the caseworkers were entitled to qualified immunity because the record showed no evidence of malicious intent or deliberate ...


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