following the Ninth Circuit’s cases culminating in Babcock: “We recognize that there may be cases where the dependency process could be abused. However, the opportunity for abuse is lessened considerably when judicial proceedings have commenced and there is an impartial deci-sionmaker participating”
How later courts described this case
- following the Ninth Circuit’s cases culminating in Babcock: “We recognize that there may be cases where the dependency process could be abused. However, the opportunity for abuse is lessened considerably when judicial proceedings have commenced and there is an impartial deci-sionmaker participating”
- holding that a CPS caseworker was entitled to absolute immunity for activities relating to the initiation and filing of a dependency petition
- in determining applicability and scope of immunity of state official in federal civil rights action, court stated that interpretation of a statute does not change prior law; rather, it clarifies what law meant all along
- Child Protective Services caseworker entitled to absolute immunity in initiating and conducting dependency proceedings
Written by the judges who cited it.
The opinion
JACOBSON, Judge,
dissenting in part; concurring in part:
I write separately to express my disagreement with the majority on the issue of the quality of the immunity to be afforded child protective service caseworkers in 42 U.S.C. § 1983 actions.
I agree with the majority that the trial court applied the wrong legal test in determining whether excusable neglect existed for the plaintiffs’ failure to timely file a claim under A.R.S. § 12-821. It is clear that the trial court treated this failure as a jurisdictional prerequisite and did not consider, or allow the jury to consider, whether the failure was excusable. Reasonable people could differ on this issue, and the majority is correct in remanding the matter for further proceedings.
This does not, however, render moot the claims under § 1983 as the trial court may conclude the failure to timely file a claim was not excusable, a finding that could be made under the facts presented, and thus the state tort claims could be barred.
*257 I turn then to the § 1983 claim. I agree that the issue of the type of immunity to be afforded under the federal statute is a matter of federal law. See Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980). If the federal law were clear on this issue and if the blackboard upon which this issue was to be written were clean, I might agree with the majority that absolute immunity should be afforded persons charged with the statutory obligation to investigate and institute judicial proceedings affecting children. However, the United States Supreme Court has not spoken on the immunity to be afforded a CPS caseworker and the federal circuits are not in agreement. Compare Austin v. Borel, 830 F.2d 1356 (5th Cir.1987) (affording only qualified immunity to state child protection worker in filing verified complaint seeking removal of children from parents) with Meyers v. Contra Costa County Dep’t of Social Servs., 812 F.2d 1154 (9th Cir.1987) (holding social service worker entitled to absolute immunity in connection with preparation and filing of child dependency proceedings).
Given this split, I might be persuaded, as is the majority, that the Ninth Circuit approach best suits the public policy reasons underlying the granting of absolute immunity. However, the blackboard upon which this public policy decision is to be made is not clean. The Arizona legislature has spoken on the exact issue facing this court, that is, absolute versus qualified immunity. A.R.S. § 8-546.04(A) provides:
Any person making a complaint, or providing information or otherwise participating in the program authorized by this article [child protective services] shall be immune from any civil or criminal liability by reason of such action, unless such person acted with mal ice____
(Emphasis added.) This is a classic definition of qualified immunity.
Although this is a federal law issue, 42 U.S.C. § 1988 provides that the jurisdiction to be exercised for the protection of persons in the civil rights shall
... be exercised and enforced in conformity with the laws of the United States ..., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held____
While § 1988 may not be fully applicable to all aspects of § 1983 actions, it has been applied in determining the applicable statute of limitations to be imposed in such an action. Wilson v. Garcia, 471 U.S. 261 , 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985). Contrary to defendant’s assertion, Martinez v. California does not hold that a state immunity statute can never be considered in determining § 1983 immunity. I see no federal impediment in applying the state statute in determining the extent of the immunity to be granted state officials in a § 1983 action.
Moreover, in view of this statute, the underlying rationale for granting absolute immunity disappears. This rationale was expressed in Meyers:
The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker’s independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit.
812 F.2d at 1157 . Granting absolute immunity alleviates that fear; qualified immunity does not because the issue whether the caseworker acted with malice is still on the judicial table. Thus, in Arizona at least, the public policy reason for granting absolute immunity is not present because that same caseworker is going to be faced with a state tort claim in which only qualified immunity is afforded. 7
*258 I therefore conclude that, although the issue of granting immunity is a federal question, in the absence of a federal decision in the matter, deference should be given to the Arizona statute.
I would therefore affirm the trial court’s action on the § 1983 claim, 8 and remand on the state tort claim.
. The defendant has not argued that the immunity established by A.R.S. § 8-546.04 is not applicable to the acts complained of here.
. I likewise agree with the majority’s reasoning concerning the alleged interference with the removal of the child from the hospital, the granting of only qualified immunity for that act, and the resolution flowing from that qualified immunity.