Petition for Writ of Certiorari — Babcock ex rel. Babcock v. Tyler

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no. 89-912

In The :

JOSEPH: F. :

Supreme Court of the United St@tes ©.

October Term, 1989

BETH BABCOCK, by and through her guardian;

ERIKA BABCOCK; and ANGELA LONG,

Petitioners

WANDA TYLER and MARK BRONSON,

Respondents

,’

——

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

—

CaROLYN A. Kusitsciirk

Counsel of Record for

Petitioners

MIcHAEL R. Seip

BULLIVANT, Houser, BaAILicy,

PrENDERGRASS & HorrMaANn

1400 Pacwest Center

1211 S.W. Fifth Avenue

Portland, Oregon 97204

Rosert J. Crorry

Lukins & ANNIS

1600 Washington Trust Bank Bldy

Spokane, Washington 99204

Please Serve:

CAROLYN A. KuBITSCHEK

Hofstra University School of Law

Hempstead, New York 11550

516/560-5934

COCKLE LAW BRIEF PRINTING CO., (800) 225.694

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. In this case of first impression, is a caseworker

entitled to absolute immunity under 42 U.S.C. § 1983 for

having conducted a constitutionally inadequate investi-

gation of a dangerous prospective foster father and hav-

ing placed foster children in the foster father’s care where

he subsequently abused them sexually, by reason of the

fact that the placement was approved by a juvenile court

without knowledge of the inadequate investigation?

2. Is a caseworker entitled to absolute immunity for

having failed to protect foster children from abuse inflic-

ted by a foster father by reason of the fact that a juvenile

court conducted periodic reviews of the children’s contin-

ued foster care placement?

LIST OF PARTIES

The parties to the proceedings and before this Court are

not the same.

Petitioners:

Beth Babcock, a minor, by and through Rudolph G. Bab-

cock, her guardian and father.

Erika Babcock, who has reached the age of majority since

the commencement of this action.

Angela Long.

Respondents:

Wanda Tyler, a caseworker employed by the Washington

Department of Social and Health Services.

Mark Bronson, a caseworker employed by the Washing-

ton Department of Social and Health Services.

Other Parties:

Rudolph G. Babcock, a plaintiff below in his individual

capacity. He is the father of Beth Babcock and Erika

Babcock, and the stepfather of Angela Long.

Willis and Elizabeth Babcock, husband and wife, were

plaintiffs below. They are the parents of Rudolph Babcock

and the grandparents of Beth Babcock and Erika Babcock.

Arthur J. Bieker, attorney at law, was a defendant below.

He acted as a court-appointed attorney for petitioners in

the juvenile court proceedings. The claims against him

were voluntarily dismissed.

ee eit eR

ili

LIST OF PARTIES - Continued

Lee Edward Michael, an uncle to petitioners, and a defen-

dant below. An order of default has been entered against

him below.

TABLE OF CONTENTS

Page

RR CE TIE a 6c is rewavncactandeccsssuyaaues Vv

CORA TI os os ka Neeckntcunsavesvaanewonewns 2

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te: Ts 6s oso res bckget Genesee sancancaxeer 2

Seabees: GF Te Ga ia ons kak wesc ace ccoseviven ds 2

Reasons for Granting the Writ..................05- 9

I. A Uniform National Standard For Caseworker

Kenmmaamity fe WOOUGR ks oo. 6c ccs cic sec evnas tenes 9

II. The Decision Below Conflicts With A Decision

Cr Fe SS ow ik cov da co Veaswene tien eae 11

III. The Decision Below On This Important Issue Of

Public Policy Ignored This Court’s Prior Rulings

ooverssanbscedas cwel teeees wanes bebe See—N seem 13

A. Common Law Immunities ................ 13

WD. Pebble FRG oi iciccccsecacassecuueavesets 14

IV. The Circuits Conflict As To The Immunity Of

Foster Cave Copewothass «.<. 65s ssnvcseuses 18

Oe MT er 20

Appendin. . 2... .cccccsescscsnsvestececsasseeniee App. 1

Opinion of the Court of Appeals.............. App. 1

Opinion of the District Court................ App. 18

TABLE OF AUTHORITIES

Page

Cases:

Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989) .... 18

Austin v. Borel, 830 F.2d 1356 (5th Cir. 1987) ........ 19

B. H. v. Johnson, 715 F.Supp. 1387 (N.D. Ill. 1982) .... 10

Briscoe v. Lahue, 460 U.S. 325 (1983)................. 16

Butz v. Economou, 438 U.S. 478 (1978) ............... 16

Cleavenger v. Saxner, 474 U.S. 193 (1985)............. 15

Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989), reh. den.

Ne Low cae ances 19

Doe v. New York City Department of Social Services,

649 F.2d 134 (2d Cir. 1981) (“Doe I”) .............. 8

Doe_v. New York City Department of Social Services,

709 F.2d 782 (2d Cir.), cert. den. 464 U.S. 864

A an re .

Estelle v. Gamble, 429 U.S. 97 (1976) ............... oe

Eugene D. v. Karman, _ F.2d ___, 1989 WL 135366

An oe ie ewes es 14, 19

Forrester v. White, 484 U.S. 219 (1988) ............ 14, 16

Gibson v. Merced County Department of Human

Resources, 799 F.2d 582 (9th Cir. 1986).............. s

Harlow v. Fitzgerald, 457 U.S. 800 (1982).......... 14, 15

Hodorowski v. Ray, 844 F.2d 1210 (Sth Cir. 1988) ..... 18

Imbler v. Pachtman, 424 U.S. 409 (1976)....... 13, 15, 16

TABLE OF AUTHORITIES - Continued

Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984)..... 19

Lassiter v. Department of Social Services of Durham

County, North Carolina, 453 U.S. 18 (1981)......... 15

Lipscomb v. Simmons, 884 F.2d 1242 (9th Cir. 1989) ..... 8

L. J. v. Massinga, 838 F.2d 118 (4th Cir.), cert. den.

_.. US » WP BER Gab Gree vas scciscnceses aa 10

Malachowski v. City of Kiene, 787 F.2d 704 (1st Cir.)

cert. denied 479 US. 828 (1986). .......0-ceceeeeees 19

Malley v. Briggs, 475 U.S. 335 (1986)

cccvevceusuustendusesénee a aun 11, 12, 13, 14, 17, 18

Malpica-Orsini, Matter of, 36 N.Y.2d 568, 331

N.E.2d 486, 370 N.Y.S.2d 511 (1975), appeal dis-

missed sub nom. Orsini v. Blasi, 423 U.S. 1042

CID7E) . . cence sccscesess ¢eswesme din eeeeeeteeeies 16

Mitchell v. Forsyth, 472 U.S. 511 (1985) ........ 8, 15, 16

Robison v. Via, 821 F.2d 913 (2d Cir. 1987)........... 19

Santosky v. Kramer, 455 U.S. 745 (1982) .............. 15

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 15

Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir.

1989)... .ccccenseceep eis came eWennee neaennae 18

Stump v. Sparkman, 435 U.S. 349 (1978).............- 16

Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.), cert. den.

__. US. __, 000. BAK. Sir Sats teenesteouents 8

Tower v. Glover, 467 U.S. 914 (1984).............20055 14

Youngberg v. Romeo, 457 U.S. 307 (1982) .............. 8

OT Pree Hee

Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

es Se NEED. CEUUMOD ooo cnc ccc cnecesasevrsees 10

a 10

a a 10

EC Soc cit eiceessesseascecavsabecusss a 3

OrTHER AUTHORITIES:

J. W. K. International Corp., Comparative Study of

State Case Review Systems (1982)................... 10

H. Kempe and R. Helfer, The Battered Child (1980).... 14

National Council of Juvenile and Family Court

Judges, The Judicial Review of Children in Place-

I I ibe ce wc ccvesnveveveseresers 10

No.

sa.

In The

Supreme Court of the United States

October Term, 1989

BETH BABCOCK, by and through her guardian;

ERIKA BASBCOCK; and ANGELA LONG,

Petitioners,

WANDA TYLER and MARK BRONSON,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ss.

Petitioners Beth Babcock, by and through her guard-

ian, Erika Babcock and Angela Long respectfully pray

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit, entered in the above-entitled proceeding

on September 6, 1989.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 884 F.2d 497, and is reprinted in the

appendix, App. 1-17, infra.

The opinion and order of the United States District

Court for the Eastern District of Washington (Myers,

Magis.) has not been reported. It is reprinted in the

appendix, App. 18-39, infra.

JURISDICTION

The jurisdiction of this Court to review the judgment

of the United States Court of Appeals for the Ninth

Circuit is invoked under 28 U.S.C. §1254(1). This petition

is filed within 90 days from the entry of the judgment

below on September 6, 1989.

’*

STATUTE INVOLVED

42 U.S.C. §1983.

STATEMENT OF THE CASE

The instant case involves three girls in foster care in

the state of Washington — sisters Beth and Erika Babcock

and their half-sister Angela Long — who were repeatedly

raped, sodomized, and sexually assaulted by their foster

father over an eighteen-month period, from May or June,

1982, to October 31, 1983, beginning when they were six,

eight, and twelve years old, respectively. The District

Court held that a jury could have determined that the

abuse could have been avoided entirely if the state foster

care caseworker who supervised the girls had simply

checked the foster father’s criminal record. (App. 21)

The foster father, Lee Michael, was an unemployed

alcoholic who had been convicted of armed robbery, pro-

bation violations, drunk driving, and traffic violations,

and charged with raping a 63-year-old widow and sexu-

ally assaulting a friend of his wife. (CR 289, Ex. 26) In

addition to abusing the three petitioners in this case, he

also raped a fourth foster child and his own daughter.

(App. 6) He was ultimately convicted of multiple counts

of rape and sexual abuse, (CR 289, Ex. 48) and is currently

incarcerated in a state prison.

The caseworker, respondent Wanda Tyler, knew of

Michael’s alcoholism and unemployment when she

selected him to be the foster father. (Supp. ER 241-42) She

conducted a cursory investigation of him, consisting of

only one interview, which she termed a “home study.”

(Supp. ER 79, 232-33) In the home study, Tyler failed to

ask Michael about his criminal background, though the

questionnaire that she and all other workers in the

agency used required that that question be asked. (Supp.

ER 233) She failed to check records which were readily

available in her own agency’s office, and which would

have revealed Michael’s criminal history. (Supp. ER 190)

She failed to interview anyone other than Michael. And

she placed the children in Michael’s home even though

she did not license Michael as a foster parent.

Tyler knew that Michael had previously sought cus-

tody of the girls in the state of Louisiana and that the

Louisiana court had rejected his bid. (App. 25) She knew

that, after this rejection, Michael had returned to Wash-

ington and tried to encourage the girls to leave their

foster home and come to live with him. (Supp. ER 63,

67-68, 78) Tyler’s supervisor had told Michael that he

should stay away from the girls because he was a disrup-

tive influence on them. (CR 289, Ex. 31) Nevertheless, as

the District Court found, Tyler encouraged Michael in his

efforts by not only permitting Michael to arrange surrep-

titious meetings with the girls, but also by advising the

girls not to tell anyone about these meetings. (ER Tab J

12)

When Michael made allegations about the girls’

father and about prior events in the girls’ lives, (Supp. ER .

61, 65, 67, 76) Tyler failed to check those allegations. (Had

she done so, she would have learned that Michael's alle-

gations were untrue.) Instead, Tyler submitted those alle-

gations as “background information” in her report to the

Washington Juvenile Court, (Supp. ER 236) as if she had

verified their accuracy. It was this report, and its recom-

mendation that the children be moved to Michael’s home,

that the juvenile court accepted. The subsequent move set

the stage for all the abuse which followed.

Petitioner Beth Babcock, her sister Erika, and her

half-sister Angela Long had entered foster care in

August, 1981, in the state of Washington, following an

order issued by a Louisiana court in a dependency pro-

ceeding brought in that State. (ER Tab A) Angela’s sister

Aryn, who is not a party to this matter, entered foster

My Oe ea

AB Ah ant ea VLA the \ ony,

care along with the other three girls. Prior to the initia-

tion of the Louisiana dependency proceeding, the four

minor girls had been living in the state of Louisiana with

Rudolph Babcock, who is the father of Erika and Beth and

the stepfather of Angela and Aryn.

Petitioners concede for purposes of this appeal that

when the girls arrived in Washington, they were under

the “care, custody and control” of the Washington

Department of Social and Health Services (“DSHS”)!

(App. 26) DSHS assigned respondent Wanda Tyler, one of

its caseworkers, to supervise the four girls. (CR 139, Ex.

21)

Initially all four girls lived in the home of Rudolph

Babcock’s parents, but, within the next four months, Tyler

moved Angela to two different foster homes. DSHS did

not seek court approval or ratification of either move;

having custody and control of the children, the agency

claimed that it had no legal obligation to do so. (App. 26)

During the same time period, Tyler conducted her home

study of Lee Michael and his wife Janet, who was the

sister of all four girls’ deceased mother. (Supp. ER 236)

On March 31, 1982, in a routine Juvenile Court

review to determine “the efforts which [the girls’ father]

ha[d] made to correct the conditions which led to removal

[of his daughters],” pursuant to RCW 13.34.130(3)(a),

1 Petitioners had disputed that issue below, and the Dis-

trict Court did not resolve it. (See discussion at App. 28.)

Respondents have always contended that the Louisiana order

gave DSHS “care, custody, and control,” such that DSHS did

not need court approval to change foster homes.

DSHS submitted a report from Tyler which recom-

mended, among other things, that the children reside

with Michael. (Supp. ER 240)

At this review, the Juvenile Court Commissioner,

after engaging ina brief colloquy with the DSHS attorney,

approved Tyler’s recommendation that Aryn and Angela

reside in the Michaels’ home.

Mr. Miller [attorney]: You should have a home

study in your file, your Honor.

Court: And they are recommending it?

Mr. Miller: Yes, sir.

Court: I will honor that. (CR 289, Ex. 13).

Tyler immediately moved Angela and Aryn into Mic-

hael’s home. She then transferred the children’s case to

respondent Mark Bronson, also a DSHS caseworker. On

April 19, 1982, Bronson moved Beth and Erika into Mic-

hael’s home. (App. 5) By May or June, 1982, Michael had

begun raping Aryn, Beth, and Erika, and sexually molest-

ing all four of the girls.

On May 4, 1982, the Juvenile Court again reviewed

the status of the dependency. (CR 139 Ex. 14) At the

conclusion of that review, again without taking testimony,

the court ratified the move of Erika and Beth to Michael’s

home. (CR 139 Ex. 14)

In August, 1982, the Juvenile Court held another

review, at which Rudolph Babcock sought to regain cus-

tody of the girls or, alternatively, to have them moved to

foster care in Wisconsin, where he resided. This was the

first hearing in Washington at which any sworn testi-

mony was taken.

WDB i deniyoiiniazs

At the review, Bronson testified to his work on the

girl’s case, which did not include any follow-up investi-

gation on Michael’s background. Babcock cross-examined

Michael regarding Michael’s hostility to Babcock and his

refusal to‘help reunify the family. No one produced evi-

dence as to Michael’s criminal record, alcoholism,

employment problems, or sexual abuse of the girls. At the

end of the hearing, the court agreed to Bronson’s request

that the children remain in the Michael home.

Michael continued his sexual assaults upon all four

girls. Respondent Bronson, though charged with the duty

to supervise and monitor the children in Michael’s home,

failed to do so. It was not until October 31, 1983, that the

authorities learned of the abuse and removed the girls

from Michael’s home. (Supp. ER 137) Michael’s arrest,

conviction, and incarceration followed.

Petitioners commenced this damage action under 42

U.S.C. §1983 in March, 1984, in the United States District

Court for the Eastern District of Washington. Petitioners

claimed that respondents violated their Fourteenth

Amendment liberty interest in being free of harm while

in the state’s custody by placing petitioners in a dan-

gerous foster home after having conducted a constitu-

tionally insufficient and professionally deficient

investigation of the foster father; and by subsequently

failing to protect the children from the sexual abuse

which the foster father inflicted upon them. (Petitioners

included other federal and state claims which they do not

raise in this Court.)

On January 11, 1988, the Eastern District entered an

opinion and order on cross-motions for summary judg-

ment. The court upheld the legal and factual sufficiency

of petitioners’ constitutional claims, relying upon Doe v.

New York City Dept. of Soc. Serv., (“Doe I”), 649 F.2d 134

(2d Cir. 1981) and Doe v. New York City Dept. of Soc. Serv.,

(“Doe II”), 709 F.2d 782 (2d Cir.), cert. den. 464 U.S. 864

(1983); and Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.) cert.

den., _ U.S. ___, 109 S.Ct. 1337 (1989). The court found

that “it seems clear that the girls have a protected right to

be free from the harm which befell them here.” (App. 19).

Under a standard of either deliberate indifference, as

enunciated by this Court in Estelle v. Gamble, 429 U.S. 97

(1976), or substantial departure from professional stan-

dards, Youngberg v. Romeo, 457 U.S. 307 (1982), the court

held that petitioners possessed sufficient evidence to sub-

mit the claim to a jury. (App. 21)

The Eastern District also denied respondents’ motion

for summary judgment on absolute and qualified immu-

nity. (App. 35-37) The respondents appealed this part of

the order to the Ninth Circuit, invoking appellate juris-

diction under 28 U.S.C. §1291 and the collateral order

doctrine as applied to the denial of immunity in Mitchell

v. Forsyth, 472 U.S. 511 (1985).

Respondents’ appeal was limited to the issue of abso-

lute immunity.? The Ninth Circuit reversed and dismissed

2 However, the Ninth Circuit law is that the state has the

affirmative constitutional obligation to protect the welfare of

children in its care. Lipscomb v. Simmons, 884 F.2d 1242, 1247

(9th Cir. 1989). Previously, in Gibson v. Merced County Depart-

ment of Human Resources, 799 F.2d 582, 589 (9th Cir. 1986), the

court had assumed, without deciding, the existence of this

right.

ee ea ee ees a MOET. Ce en ee piewon el

the case. It held that respondents had absolute “quasi-

prosecutorial” or “quasi-judicial” immunity for placing

the petitioners in a dangerous foster home and for subse-

quently failing to protect them from the assaults by the

foster father. (App. 14) As a matter of public policy, the

court found that caseworkers required absolute immunity

“to permit them to perform their duties without fear of

even the threat of section 1983 litigation.” (App. 15)

,’

REASONS FOR GRANTING THE WRIT

A Uniform National Standard For

Caseworker Immunity Is Needed.

This Court has addressed the entitlement to absolute

immunity for numerous types of government employees,

such as police officers, parole officers, administrative law

judges, public defenders, prosecutors and judges. These

cases have provided uniform precedent to lower courts in

cases where those officials claim immunity. This Court

has yet to address the issue of the existence and extent of

immunity for foster care caseworkers.

More than 250,000 children are presently in foster

care in the United States, according to information from

the Child Welfare League of America. Almost all of them

are in foster care systems which are similar to Washing-

ton’s in ways material to this case.

Most placements of children in foster care begin with

a court proceeding and involve subsequent periodic court

reviews.? Federal law encourages such proceedings, since

it prohibits states from obtaining federal reimbursement

for foster care of children unless those children are placed

in care by a court order, 42 U.S.C. §§672(a)(1), 672(e)

(1980), and have reviews of their placements at least once

every six months. 42. U.S.C. §675(5)(B) (1980) The purpose

of these reviews is for the court to determine whether the

parents are able to care for the child, and whether the

agency has made “reasonable efforts . . . to make it

possible for the child to return to his home...” 42 U.S.C.

§671(a)(15), to further Congressional reunification goals.

The purpose of the hearings is not for the court to deter-

mine the suitability of the foster parents or whether the

foster parents are caring for the child properly; that is the

responsibility of the caseworkers.

Like petitioners in this case, a disturbing number of

foster children are physically and/or sexually abused by

their foster parents. See, e.g., discussion in B. H. v. John-

son, 715 FSupp. 1387, 1392 (N.D. Ill. 1989); L. J. v. Mas-

Singa, 838 F.2d 118 (4th Cir.), cert. denied, ___ U.S. __, 109

S.Ct. 816 (1989). ee

The decision of the court below has potentially grave

consequences for all of these children. According to the

court, government-employed caseworkers are entitled to

absolute immunity for all acts and omissions which they

take with respect to foster children because those actions

3 For a compilation and discussion of relevant state laws,

see J. W. K. International Corp., Comparative Study of State Case

Review Systems (1982); National Council of Juvenile and Family

Court Judges, The Judicial Review of Children in Placement Hand-

book (1981).

are necessarily “taken in connection with, and incident

to, ongoing child dependency proceedings.” (App. 14)

This holding potentially grants absolute immunity to vir-

tually all actions taken by virtually all caseworkers with

respect to foster children in all states which receive fed-

eral foster care funds.

Il.

The Decision Below Conflicts

With A Decision Of This Court.

This Court has denied immunity in a factually analo-

gous circumstance. In Malley v. Briggs, 475 U.S. 335 (1986)

a police officer allegedly conducted a constitutionally

insufficient criminal investigation, and requested and

received an arrest warrant based upon that investigation

by submitting to a magistrate an affidavit lacking in

probable cause. In the ensuing §1983 damage action,

which the arrestee brought after a grand jury failed to

indict him, the police officer claimed absolute immunity,

arguing that his acts were functionally equivalent to

those of a prosecutor or a complaining witness. This court

rejected the comparison with a prosecutor because

requesting a warrant is further removed from the judicial

process than is a grand jury proceeding. /d. at 342-43.

Similarly, in the case at bar, the respondents argue

that they have absolute immunity because their actions

were equivalent to functions performed by a prosecutor.

However, like the police officer’s unconstitutional acts in

Malley, respondents’ unconstitutional conduct in failing

to secure a safe environment for petitioners and failing to

protect the children from injury occurred completely out-

side the context of the judicial proceeding.

The police officer in Malley also argued that he

should be shielded from liability because the magistrate’s

issuance of the warrant rendered the officer’s conduct per

se reasonable. Although the officer made this argument in

the context of qualified immunity, it is substantially iden-

tical to respondents’ principal contention in the instant

matter that they are absolutely immune because the juve-

nile court accepted their recommendation to place the

children with Michael. This Court, in rejecting Malley’s

argument, exposed the fallacy of the officer’s attempt to

hide behind the immunity of the judge: “If the magistrate

issues the warrant [without probable cause], his action

is . . . an unacceptable error indicating gross incompe-

tence or neglect of duty. The officer then cannot excuse

his own default by pointing to the greater incompetence

of the magistrate.” Id. at 346 n. 9.

No meaningful distinction exists between the police

officer’s claim for immunity in Malley and the case-

workers’ claim of immunity here. The actionable conduct

in Malley was the investigation of a crime leading to the

issuance of an arrest warrant by a judge. The actionable

conduct here was the investigation of a prospective foster

home leading to a court-approved placement of foster

children, followed by failure to supervise that home and

to protect the children from an abusive foster father. Both

cases involved unilateral investigations followed by judi-

cial decisions relying upon those investigations. In fact a

police officer has a more persuasive argument for immu-

nity than a caseworker because the analogy to a pros-

ecutorial function has “some force.” Id. at 343.

The court below all but ignored this Court’s decision

in Malley. (App. 11) The court did not carefully scrutinize

the caseworker’s precise function in investigating the

suitability of Michael and compare that function to a

prosecutor, witness or judge, as this Court carefully

analyzed a police officer’s function in investigating a

crime and seeking an arrest warrant. Instead the court

below swept aside the rationale in Malley and broadly

extended absolute immunity to shield all of a case

worker’s responsibilities to a child in foster care, not

merely those responsibilities which are “intimately asso-

ciated” with the judicial phase of foster care. Imbler v

Pachtman, 424 U.S. 409, 430 (1976).

ITI.

The Decision Below On This

Important Issue Of Public Policy

Ignored This Court’s Prior Rulings

This Court’s careful and cautious “approach to ques

tions of immunity under §1983 is by now well estab

lished.” Malley v. Briggs, 475 U.S. 335, 339 (1986). Because

§1983 “on its face admits of no immunities,” /d., all new

claims of absolute immunity must be carefully and pre-

cisely analyzed under this Court’s approach. This Court

has admonished that no room exists for the type of “free

wheeling policy choices” made by the court below in the

instant case. Id. at 342.

A. Common Law Immunities

The first step in determining the existence of absolute

immunity under §1983 is to determine whether the

defendant “was accorded immunity from tort actions at

common law when the Civil Rights Act was enacted in

1871...” Malley v. Briggs, 457 U.S. 335, 340 (1986); Tower

v. Glover, 467 U.S. 914, 924 (1984). The court below did not

consider this issue. In fact, caseworkers were not immune

from liability at common law because they did not exist

in 1871. The first child welfare organization in the Ui’ 2d

States, the Society for the Prevention of Cruelty to Chil-

dren, was not founded until 1874.4 Moreover, there is

authority supporting the lack of immunity at common

law for individuals in a position similar to caseworkers:

guardians of orphans. See, discussion of common law

liability in Eugene D. v. Karman, __ F.2d __, 1989 WL

135366 (6th Cir., Nov. 13, 1989) (Merritt, C. J., dissenting).

The lack of common law immunity may itselt be

sufficient to preclude a finding of absolute immunity for

caseworkers. A court cannot create immunities where

none existed before, solely because of what it considers

“to be sound public policy.” Tower v. Glover, 467 U.S. 914,

923 (1984). In failing to analyze the historic immunity of

caseworkers, the court below ignored this Court’s ana-

lytic framework for assessing claims of immunity.

B. Public Policy.

As a matter of public policy, this Court has been

“quite sparing” in the extension of immunity because of

the “undeniable tension between official immunity and

the ideal of the rule of law.” Forrester v. White, 484 U.S.

219, 223-224 (1988). “For executive officers in general, . . .

qualified immunity represents the norm.” Harlow v.

* H. Kempe and R. Helfer, The Battered Child (1980), p. ix.

Fitzgerald, 457 U.S. 800, 807 (1982). This Court has refused

to provide absolute immunity to state governors, Scheuer

v. Rhodes, 416 U.S. 232 (1974); Cabinet officers, Mitchell 7

Forsyth, 472 U.S. 511 (1985), Harlow v. Fitzgerald, 457 U.S

800 (1982); and members of prison disciplinary commit

tees, Cleavenger v. Saxner, 474 U.S. 193 (1985).

The court below, in determining that caseworkers are

entitled to absolute immunity, ruled that they performed

a “quasi-judicial” or “quasi-prosecutorial” function. The

fact that the court below could not decide whether the

function was judicial or prosecutorial tends to indicated

that it was neither. That fact also demonstrates how

broadly and dramatically the court below extended the

doctrine of absolute immunity. Several other factors,

which the court beiow failed to consider, might also lead

to the conclusion that the caseworkers performed neithe!

a “quasi-prosecutorial” nor a “quasi-judicial” funtion

First, this Court has held that those seeking absolute

prosecutorial immunity must perform functions “inti

mately associated with the judicial phase of the criminal

process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976)

(emphasis added) This immunity both protects the integ

rity of the criminal process and stems from the common

law immunity of prosecutors in criminal proceedings

Proceedings to interfere with parental rights are not

criminal proceedings, and this Court has so recognized

Santosky v. Kramer, 455 U.S. 745, 768 (1982); Lassiter ¢

Department of Social Services of Durham County, North Caro

lina, 453 U.S. 18 (1981). Because of the underlying differ-

ences between criminal and dependency proceedings,

absolute immunity may not be appropriate for the latter

while it is for the former. The Court below, in its haste to

find absolute immunity, failed to consider these

differences.

Second, proceedings to interfere with parental rights

are not part of the common law; they are in derogation of

the common law. Matter of Malpica-Orsini, 36 N.Y.2d 568,

331 N.E.2d 486, 370 N.Y.S.2d 511 (1975), app. dismissed

sub nom. Orsini v. Blasi, 423 U.S. 1042 (1976). The historic

considerations which protect the integrity of the criminal

process, mandating absolute immunity for prosecutors,

do not exist for those who bring dependency proceed-

ings. Several Circuits have concurred, holding that when

caseworkers remove children from their parents, the case-

workers perform a function more closely analogous to

police officers than to prosecutors and therefore are not

entitled to absolute immunity. See Point IV, infra. Accord-

ingly, a careful analysis is needed before deciding to

extend immunity to an entirely new class of individuals.

Third, the functions of the government official seek-

ing immunity must be truly analogous to the duties of |

judges or prosecutors. Butz v. Economou, 438 U.S. 478, |

514-15 (1978). The Court has declined to grant absolute

immunity when those functions are not. Thus, while a

prosecutor have absolute immunity in prosecuting a case,

Imbler v. Pachtman, 424 U.S. 409 (1986), he does not have

absolute immunity in authorizing wiretaps. Mithchell v.

Forsyth, 472 U.S. 511 (1985). Even a judge, who has abso-

lute immunity for all his decisions, Stump v. Sparkman, |

435 U.S. 349 (1978), loses that immunity when he decides

to fire an employee. Forrester v. White, 484 U.S. 219 (1988).

And a police officer, who has absolute immunity when

testifying in a criminal trial, Briscoe v. Lahue, 469 U.S. 325

——

(1983), does not have absolute immunity for presenting a

warrant request to a magistrate. Malley v. Briggs, 475 U.S.

335 (1986).

Certiorari should be granted where a circuit court

has failed to follow this Court’s “well established”

approach in an important case of first impression. The

immunity issue centers around whether the caseworkers’

conduct, in investigating Michael as a prospective foster

parent and failing to supervise or monitor the children

after they were in Michael’s home, was so “intimately

associated” with the juvenile court proceeding to deserve

extension of absolute immunity for that conduct. The

Ninth Circuit failed to engage in the necessary careful

analysis.

Here, Tyler unilaterally decided to conduct a home

study of Lee Michael and then made the sole judgments

concerning how it would be done. The juvenile court

neither ordered nor supervised that home study. Tyler’s

failure to inquire into Michael’s criminal background was

never before the juvenile court, and petitioners had no

way of knowing about Tyler’s omissions. Tyler’s report

did not contain evidence of Michael’s criminal back-

ground, nor did it describe the scope or adequacy of

Tyler’s investigation. In fact Tyler admitted that if she

had discovered Michael's criminal background she would

not have recommended the placement.

It is undisputed that in failing to conduct a rudimen-

tary criminal background check, Tyler was not acting as

an “advocate” in the courtroom and her background

investigation was not subjected to the rigors of the adju-

dicatory process. Similarly, respondents’ failure to super-

vise the children in Michael’s home and to protect them

from his sexual assaults was never part of the juvenile

court proceeding.

More importantly, the court below ignored this

Court’s careful analytical framework. In failing to engage

in the careful analysis of the caseworkers’ functions in

initially investigating and subsequently supervising the

Michael home, the court below ignored this Court’s prior

rulings.

IV.

The Circuits Conflict As To The

Immunity Of Foster Care Caseworkers.

Not only does the Ninth Circuit opinion conflict in

principle with Malley, but it conflicts with decisions on

caseworker immunity from other circuits as well.

The recent proliferation of cases on the issue of case-

worker immunity demonstrates the present need for this

Court’s guidance. Most circuits have followed the analyt-

ical framework mandated by this Court, and have care-

fully limited immunity to cases where the particular

function of the caseworker is “intimately associated with

the judicial phase” of a dependency proceeding and not

to cases where caseworkers function like police officers.

Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989) (no

absolute immunity for investigating a complaint of child

maltreatment); Spielman v. Hildebrand, 873 F.2d 1377 (10th

Cir. 1989) (no absolute immunity for removing a child);

Hodorowski v. Ray, 844 F.2d 1210 (Sth Cir. 1988) (no

absolute immunity for removing a child); Austin v. Borel,

830 F.2d 1356 (Sth Cir. 1987) (no absolute immunity for

removing a child from the child’s parents without court

order); Robison v. Via, 821 F.2d 913 (2nd Cir. 1987) (no

absolute immunity for removing a child); Malachowski v.

City of Kiene, 787 F.2d 704 (1st Cir.) cert. denied 479 U.S.

828 (1986) (absolute immunity for the “quasi-pros-

ecutorial” removal of children); Kurzawa v. Mueller, 732

F.2d 1456 (6th Cir. 1984) (absolute immunity).

Two circuits have recently decided cases in which

foster children sued, claiming that foster care case-

workers failed to protect them from dangerous foster

parents. In both Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989),

reh. den. October 26, 1989, and Eugene D. v. Karman, __

F.2d __, 1989 Westlaw 135366 (6th Cir. 1989) the courts

ruled that the caseworkers were entitled to qualified

immunity because the foster child’s right to protection

was not clearly established at the times of the injuries.

The attorneys for the plaintiff Brenda Doe have informed

counsel of record for petitioners in the instant matter that

they intend to file a petition for certiorari in this Court.

Most, if not all, of the other decisions have followed

the analytical framework mandated by this court for

determining claims of absolute immunity. In the instant

case, by contrast, the court below abandoned that frame-

work. It based its ruling upon the freewheeling policy

assertion that caseworkers’ “immunity must be absolute

to permit them to perform their duties without fear of

even the threat of section 1983 litigation.” (App. 15) In so

doing, the court drastically expanded its prior rulings on

caseworker immunity, and ignored the rules of law estab-

lished by this Court and by the other circuits.

CONCLUSION

This Court should answer the call to provide uniform

national precedent on the issue of immunity for case-

workers. The petition should be granted.

Respectfully submitted,

CarROLyn A. KuBITSCHEK

Counsel of Record for Petitioners

Hofstra University School of Law

Hempstead, New York 11550

Telephone: (516) 560-5934

MICHAEL R. SEIDL

Attorney for Petitioners

BULLIVANT, Houser, BAILEY,

PENDERGRASS & HOFFMAN

1400 Pacwest Center

1211 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503) 228-6351

Rosert J. Crotty

Attorney for Petitioners

Luxkins & ANNIS

1600 Washington Trust Bank Bldg.

Spokane, Washington 99204

Telephone: (509) 455-9555

December 5, 1989.

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RupDoLPH BABCOCK,

individually and as

guardian for two No. 88-3521

minor children, Beth D.C.No

Babcock and Erika ge iy

Babcock; ANGELA Lona; CV-84-271-SPM

Wi.us Bascock AND OPINION

ELIZABETH Bascock and

ELIZABETH BABCOCK,

husband and wife,

Plaintiff-Appellees,

WANDA TYLER; MARK BRONSON,

in their individual capacities,

Defendants-Appellants,

ee eee eee ee i ie ie i

Appeal from the United States District Court

For the Eastern District of Washington

Smithmore, P. Myers, Magistrate, Presiding

Argued and Submitted

May 4, 1989 - Seattle, Washington

Filed September 6, 1989

Before: Arthur L. Alarcon and David R. Thompson, Cir-

cuit Judges, and A. Wallace Tashima, District

Judge.*

Opinion by Judge Thompson

*Honorable A. Wallace Tashima, United States District Judge

for the Central District of California, sitting by designation.

App. 2

SUMMARY

Courts and Procedure

Reversing and remanding the district court’s judg-

ment with instructions to dismiss, the court held that

Washington Department of Social and Health Services

caseworkers are entitled to absolute immunity.

Appellee Rudolph Babcock, on behalf of himself and

the two Babcock girls and Angela Long, filed a civil

rights action pursuant to 42 U.S.C. § 1983 against Wash-

ington DSHS caseworker appellants Wanda Tyler and

Mark Bronson. Tyler and Bronson performed investiga-

tive and placement services in child dependency proceed-

ings which had been transferred from Louisiana to

Washington. Consistent with a recommendation of the

DSHS, the girls were placed in the home of Lee and Janet

Michael, Lee Michael sexually abused the children, and it

was discovered later that he had a prior criminal record

which included charges of forceable and attempted rape

and sexual assault. No inquiry was made concerning his

criminal record during the caseworker’s investigation.

The district court determined that Tyler and Bronson

were not entitled to absolute immunity.

COUNSEL

Owen F. Charke, Jr., Senior Assistant Attorney General,

and Michael E. Grant, Assistant Attorney General,

Spokane, Washington, for the defendants-appellants.

Michael R. Seidl, Bullivant, Houser, Bailey, Pendergrass &

Hoffman, Portland, Oregon, and Robert J. Crotty, Lukins

& Annis, Spokane, Washington, for the plaintiffs-

appellees.

App. 3

OPINION

THOMPSON, Circuit Judge:

In this case we consider whether Washington Depart-

ment of Social and Health Services (“DSHS”) caseworkers

are entitled to absolute immunity. The caseworkers per-

formed investigative and placement services in child

dependency proceedings which had been transferred to

Washington from Louisiana pursuant to interstate com-

pact. Consistent with a recommendation of the DSHS, the

Washington court placed the children in the home of Lee

and Janet Michael. Lee Michael sexually abused the chil-

dren. He had a prior criminal record which included

charges of forceable rape, attempted rape and sexual

assault. No inquiry was made concerning this criminal

record during the caseworker’s investigation. Had it

been, the criminal record would have been discovered.

In this ensuing lawsuit which was brought pursuant

to 42 U.S.C. § 1983, the district court determined that the

caseworkers were not entitled to absolute immunity,

denied their motion to dismiss and denied their motion

for summary judgment. Relying on principles we articu-

lated in Meyers v. Contra Costa County Dep’t of Social

Servs., 812 F.2d 1154 (9th Cir.), cert. denied, 108 S. Ct. 98

(1987), and Coverdell v. Dep't of Social and Health Servs., 834

F.2d 758 (9th Cir. 1987), we concluded that the case-

workers are entitled to absolute immunity; and we

reverse.

FACTS

Rudolph and Ann Long Babcock were married in

1970. Their family included four children: Erika and Beth

App. 4

Babcock, and Angela and Aryn Long. Ann was the natu-

ral mother of all four girls. Aryn and Angela (“the Long

girls”) were Ann’s children form a prior marriage.

Rudolph was the natural father of Erika and Beth (“the

Babcock girls”). Ann committed suicide in 1978. All four

children continued to live with Rudolph. He remarried,

but the marriage lasted less than a year. Rudolph was

apparently unable to care for the children alone, and in

July 1981 the Louisiana Department of Health and

Human Resources obtained an order of dependency

which mandated removal of the children from Rudolph’s

care and custody. Following a four-day hearing, the Loui-

siana court ordered all four girls placed with Rudolph’s

parents, Willis and Elizabeth Babcock, who were resi-

dents of Richland, Washington. The Louisiana court

ordered the Louisiana Department of Health and Human

Resources to transfer the case to Washington. The girls

arrived at the elder Babcocks’ home in Washington about

three weeks later. Rudolph also moved in with his

parents.

On October 7, 1981, the Louisiana court ordered

Rudolph to leave his parent’s home and to reside apart

from the girls. He did so, traveling to Wisconsin where he

established a new residence. On the same date, the Loui-

siana court formally relinquished jurisdiction on condi-

tion that Washington accept jurisdiction of the case.

On November 5, 1981, the Washington DSHS

requested and obtained from the Washington juvenile

court an order by which Washington accepted jurisdic-

tion. The Washington court order contained recitals that it

was based on a finding of dependency having been made

by the Louisiana court; a dispositional order having been

entered by the Louisiana court placing the children with

a EEaE=:=»z0cOOOreeee EE —eeEESISEE eer

App. 5

the elder Babcocks in the State of Washington; appropri-

ate interstate compact proceedings having been instituted

by Louisiana; the Washington court’s review of the case

record to the date of its order; and the agreement of the

parties.

Fe lowing Washington's acceptance of jurisdiction, a

depem ency disposition hearing was held in the Washing-

ton ju,enile court on March 31, 1982. Rudolph Babcock

obtaii«d a continuance of the hearing as to the Babcock

girls.’ he court entered a “temporary order” placing the

Long girls in the home of Lee and Janet Michael, Janet

Michael is the sister of the Long girl’s natural mother,

Ann Long Babcock.

Meanwhile, back in February 1982, Rudolph Babcock

had removed the Babcock girls from his parents’ home

taking them to his new home in Wisconsin. A Wisconsin

court granted full faith and credit to a Washington order

of requisition and remanded the Babcock girls to the

custody of the Washington DSHS. The Babcock girls

returned to Washington on April 19, 1982. By that time

the Long girls had been placed in the home of Lee and

Janet Michael. Washington caseworker Mark Bronson,

acting without a court order placed the Babcock girls

there as well.

On May 4, 1982, a second hearing was held before the

Washington juvenile court in the Long/Babcock girl's

case. In her report, Wanda Tyler, a DSHS “caseworker,

recommended that all four girls remain with the Mic-

haels. Rudolph objected to this recommendation, and the

case was continued for further hearing. Pending the con-

tinuance, the court determined that the girls should

remain with the Michaels.

App. 6

The record indicates that several hearings were held

thereafter as Rudolph Babcock continued his efforts to

regain custody of his daughters. These efforts proved

unsuccessful. As late as September 1983, the Washington

DSHS reported that the girls were “fitting in very well” in

the Michaels’ home, and counselors who conducted psy-

chological examinations were convinced that the girls

were experiencing family stability. The Long and Babcock

girls remained in the Michaels’ home until October 1983,

when it was discovered that Lee Michael had sexually

abused all four girls, in addition to his own daughter. Lee

Michael was arrested and subsequently convicted on

three counts of statutory rape and two counts of indecent

liberties. He is presently serving a 55-year sentence.!

In 1984, Rudolph Babcock, on behalf of himself and

the two Babcock girls, and Angela Long, one of the Long

girls, filed in the district court a civil rights action pur-

suant to 42 U.S.C. § 1983 against Washington DSHS case-

workers Wanda Tyler and Mark Bronson.? The plaintiffs

alleged deprivation of their first amendment right of

family association, violation of the children’s fourteenth

amendment liberty interests in being free from harm

1 After the departure of Lee Michael, the Long and Bab-

cock girls asked to be allowed to continue living with Janet

Michael. They were permitted to do so. In December 1983,

following a successful home study, the two Babcock girls were

returned to the custody of Rudolph, who had moved to Okla-

homa. Aryn and Angela Long continued in the custody of Janet

Michael until they reached the age of majority. Babcock v. State,

768 P.2d 481, 486 n.1 (Wash. 1989).

2 The elder Babcocks, Willis and Elizabeth, the grand-

parents of the Babcock girls, initially joined in the lawsuit.

Their claims, however, were dismissed with prejudice and are

not involved in this appeal.

a ey

App. 7

while in the state’s custody, and violation of fourteenth

amendment liberty interests which the plaintiffs claimed

existed by virtue of Washington statutes that require the

DSHS to provide family reunification services.*

JURISDICTION

In February 1986, defendants Tyler and Bronson filed

a motion in the district court to dismiss the plaintiffs’

complaint on the ground of absolute immunity. The dis-

trict court denied the motion. Subsequently, we decided

Meyers and Coverdell. In 1988, Tyler and Bronson moved

for summary judgment. They contended they were enti-

tled to absolute immunity, as well as qualified immunity

3 The plaintiffs also included state claims in their com

plaint. These claims was dismissed by the district court and

were pursued by the plaintiffs in Washington state court. In

their state case, the plaintiffs alleged causes of action based on

negligence, outrageous conduct, alienation of affection, and the

violation of federal civil rights under color of state law, 42

U.S.C. § 1983. The Washington superior court granted sum-

mary judgment in favor of the defendants and dismissed all of

the plaintiffs’ claims. Babcock v. State, 768 P.2d 481, 486 (Wash.

1989). Because the section 1983 action was then pending in the

federal district court, the plaintiffs did not appeal the state

court’s dismissal of it. Id. They did appeal the dismissal of the

other claims. Id. The Supreme Court of Washington affirmed

dismissal of the claims on the ground that the caseworkers

were entitled to absolute immunity. /d.

Because we hold that the defendant caseworkers are enti-

tled to absolute immunity under applicable Supreme Court

and Ninth Circuit authority, we do not consider the separate

question of whether the Washington Supreme Court's decision

should be given preclusive effect on the issue of federal immu-

nity in this section 1983 suit.

App. 8

The district court ruled on the defendant’s motion for

summary judgment in its order dated January 11, 1988. In

that order, it also reconsidered its earlier ruling by which

it had denied the defendant court’s reconsideration of its

earlier order was prompted by our decisions in Meyers

and Coverdell. The district court denied the defendants’

motion for summary judgment, and refused to dismiss

the case on the ground of absolute immunity.

Tyler and Bronson appeal from the district court’s

January 11, 1988 order. The plaintiffs move to dismiss the

appeal on the ground that it is not timely as to the issue

of absolute immunity, because, they contend, the 1986

order which initially denied the motion to dismiss is the

order from which an appeal of the absolute immunity

ruling should have been taken, and as to that order the

appeal is untimely; and in any event, they argue of the

January 11, 1988 order is an impermissible appeal from

an interlocutory order.

We deny the motion to dismiss the appeal. In making

its January 11, 1988 order, the district court reconsidered

its earlier 1986 order and reached the merits of the case-

workers’ claim to absolute immunity. Reconsideration

was appropriate in view of the intervening Meyers and

Coverdell decisions as the district court discussed in its

January 11, 1988 order. See Kennedy v. LeFebvure, 847 F.2d

482 (8th Cir. 1988). Having reconsidered the merits of the

defendant’s claim to absolute immunity, the district court

rejected the defense, resolved the issue against the defen-

dants, and denied the motion for summary judgment.

Thus, the appeal from the January 11, 1988 order raises

App. 9

the issue of the defendants’ entitlement to absolute

immunity, and the appeal is timely.4

With regard to the plaintiffs’ argument that this

appeal is not taken a final judgment, we agree this is the

posture of the case. However, a district court’s “denial of

a substantial claim of absolute immunity is an order

appealable before final judgment, for the essence of abso-

lute immunity is its possessor’s entitlement not to have to

answer for his conduct in a civil damages action.” Mit

chell v. Forsyth, 472 U.S. 511, 525 (1985). The plaintiffs

argue that Mitchell permits an appeal from an interlocu

tory order denying absolute immunity only if the issue

being appealed is a “purely legal” one.

In Mitchell, the Court stated that “A district court's

denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” Mitchell, 472 U.S. at 530

(emphasis added). The Court placed no such limitation

on an interlocutory appeal from an order denying absolute

* Plaintiffs rely on Sierra On-Line, Inc. v. Phoenix Software

Inc., 739 F.2d 1415, 1418 n.4 (9th Cir. 1984), in support of their

contention that we can only review in this appeal “new matter”

raised in the defendant caseworkers’ 1988 motion. This

reliance is misplaced. Without deciding whether the plaintiffs

characterization of Sierra On-Line’s footnote 4 is correct, we

note that there were intervening decisions from this circuit

which caused the district court to reconsider it earlier order

Thus, there was “new matter” for the district court to consider,

and it did so. This “new matter” was the effect of our Meyers

and Coverdell decisions on the defendants’ claim to absolute

immunity, the very issue we consider in this appeal.

App. 10

immunity. See id. at 525. Nevertheless, we do not have to

resolve the question whether an appeal from an interlocu-

tory order denying absolute immunity must relate only to

a district court’s determination of an issue of law. Here.

there is no dispute that the children were the subjects of

child dependency proceedings which began in Louisiana

and were transferred pursuant to interstate compact to

Washington. Nor is there any dispute that all of the

defendant's actions of which the plaintiffs complain were

taken during the course of the Washington child depen-

dency proceedings. The question is whether, under facts

which are not in dispute, or which may be conceded for

purposes of this appeal, the defendants are entitled to

absolute immunity. This is an issue of law.° See United

States v. McConney, 728 F.2d 1195, 1202 (9th Cir. 1984) (en

banc).

It is well established that judges, advocates and wit-

nesses enjoy the absolute immunity from liability for acts

performed in judicial proceedings, “to assure that [they]

can perform their respective functions without harass-

ment or intimidation.” See Butz v. Economou, 438 U.S. 478,

512 (1978). Similarly, prosecutorial immunity protects acts

taken “ ‘in initiating a prosecution and in presenting the

state’s case.’ ” Ashelman v. Pope, 793 F.2d 1072, 1076 (9th

Cir. 1986) (en banc) (quoting Imbler v. Pachtman, 424 U.S.

409, 431 (1976)). Prosecutorial immunity, like judicial

immunity, is absolute rather than qualified in order to

5 Because we resolve this dispute on the basis of absolute

immunity, we do not consider whether this court has appeliate

jurisdiction over the issue of qualified immunity or whether

defendants were entitled to qualified immunity.

eee —

Di le:

App. 11

permit performance without fear of litigation. Imbler, 424

U.S. at 424.

Absolute immunity from liability under 42 U.S.C

§ 1983 has been accorded state employees responsible for

the prosecution of child neglect and delinquency peti-

tions, 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 immu-

nity 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 (police officer as

witness). In contrast, police officers have been denied

absolute immunity in their submission of affidavits in

support of warrants on the theory that this function is too

removed from the judicial process. Malley v. Briggs, 475

U.S. 335, 342 (1986). 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 dis-

serve 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, 438 U.S. at 512.

Applying this rationale, we have extended absolute

prosecutorial immunity to social service caseworkers in

initiating and pursuing child dependency proceedings,

Meyers v. Contra Costa County Dep't of Social Servs., 812

F.2d 1154, 1157 (9th Cir.), cert. denied, 108 S.Ct. 98 (1987),

and in seeking and obtaining a court order for the seizure

App. 12

and placement of a newborn child, Coverdell v. Dep’t of

Social & Health Servs., 834 F.2d 758, 764 (9th Cir. 1987). We

have also held that a child protective services worker

who executes a court order for seizure and placement of a

child is entitled to absolute quasi-judicial immunity. Id. at

765.

The plaintiffs argue that in contrast to the broad

public policy underpinning the doctrine of absolute

immunity, and our application of this policy in Meyers

and Coverdell, the acts of the caseworkers in the present

case exceeded the boundaries which limit the reach of

absolute immunity. They contend that absolute immunity

in the case now before us may only be extended to the

initiation of dependency proceedings in Louisiana, not to

any acts which occurred thereafter in Washingto1 ‘hey

also assert that defendant caseworker Tyler con. © ired

with Lee Michaelto engineer a state court decision which

placed the children in the custody of the Michaels. The

plaintiffs further contend that Tyler and Bronson acted

outside the scope of their protected functions when, with-

out any court order, they took it upon themselves to make

placement changes of the children.

It is undisputed that neither Tyler or Bronson partici-

pated in the initiation of the dependency proceedings.

The proceedings were initiated in Louisiana. The girls

were “adjudicated children in need of care [and] placed

in the care and custody of the State of Louisiana, Depart-

ment of Health and Human Resources” by order of the

Louisiana court on September 3, 1981. The Louisiana

court then placed the children with Willis and Elizabeth

Babcock in Richland, Washington.

ee a aS lB a! A, lah tt tn ae tals

App. 13

On November 5, 1981, the Washington court accepted

jurisdiction over the girls “due to their current placement

in the care of their paternal grandparents who reside in

Benton County[, Washington].” From this point on, the

DSHS Service Episode Record (the “SER”), in which the

Washington caseworkers recorded their notes as the case

progressed reveals numerous and extensive interviews

with the Babcocks, the Michaels, the children and others.

The SER also reflects visits by caseworkers to the Bab-

cocks’ and Michaels’ homes to conduct home studies, and

it shows that Tyler and Bronson gathered extensive infor-

mation bearing upon placement of the children. The case-

workers also made recommendations for the placement of

the children and testified in court on behalf of tiie DSHS.

The plaintiffs argue that Tyler’s and Bronson’s

involvement in the case occurred during the “post-adju-

dication reunification phase of [the] dependency” pro-

ceedings. They characterize this involvement as

consisting of “purely administrative or ministerial” acts

performed by the caseworkers in connection with the

supervision and placement of the children. And they

contend such activity is not protected by absolute immu-

nity. We disagree.

Dependency proceedings include post-adjudication

activities as well as acts by which the proceedings are

initiated. See Meyers, 812 F.2d at 1157. 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

App. 14

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 judg-

ment in fulfilling their post-adjudication duties. The fear

of financially devastating litigation would compromise

caseworkers’ judgment during this phase of the proceed-

ings 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 case-

workers to liability for services performed in monitoring

child placement and custody decisions pursuant to court

orders. These post-adjudication actions by social case-

workers may or may not be prosecutorial in nature. See

Coverdell, 834 F.2d at 764; cf. Meyers, 812 F.2d at 1156. In

any event, however, all of Tyler’s and Bronson’s actions

of which the plaintiff's complain were taken in connec-

tion with, and incident to, ongoing child dependency

proceedings. Whether their immunity is characterized as

quasi-prosecutorial or as quasi-judicial, see Coverdell, 834

F.2d at 765, Tyler and Bronson are entitled to absolute

immunity.

The plaintiffs assert that Tyler should not be entitled

to immunity because she conspired with Lee Michael to

skew the DSHS recommendation in favor of the Michaels

and to obtain a court order placing the children in the

Michaels’ home. We reject this contention. A social case-

worker’s entitlement to the defense of absolute immunity

in the performance of her duties incident to child depen-

dency proceedings cannot be defeated by allegations that

the caseworker conspired with one of the parties to affect

App. 15

the outcome of the case. The Supreme Court has recog-

nized that with regard to prosecutors,

[T]his immunity does leave the genuinely

wronged defendant without civil redress [under

section 1983] against the prosecutor whose mali-

cious or dishonest action deprives him of liberty.

But the alternative of qualifying a prosecutor’s

immunity would disserve the broader public

interest. It would prevent the vigorous and fear-

less performance of the prosecutor’s duty that is

essential to the proper functioning of the crimi-

nal justice system.

Imbler, 424 U.S. at 427-28. The performance of a social-

worker’s duty in child dependency proceedings is no less

entitled to the protection of absolute immunity than is the

performance of a prosecutor’s duty ina criminal proceed-

ings. Coverdell, 834 F.2d at 762-63. Their immunity must

be absolute to permit them to perform their duties with-

out fear of even the threat of section 1983 litigation. Id.

Plaintiffs also contend that even it Tyler and Bronson

are entitled to immunity with regard to their placement

recommendations, they should not be accorded immunity

for two temporary placements of the children which they

made without a court order.© These two instances of

6 During October 1981, Aryn Long ran away from the

elder Babcocks’ home twice. Following there incidents, Tyler

placed Aryn in a licensed foster home under the supervision of

Marilyn Wallace. Wallace was a secretary at the school

attended by the girls. Angela Long asked to be placed in the

Wallace home with his [sic] sister. Tyler acquiesced, and in

December 1981, Angela also was placed in the Wallace foster

home. This was a temporary placement until the Long girls

(Continued on following page)

App. 16

placement, however, do not affect the result in this case.

Tyler’s temporary placement of the Long girls in a

licensed foster home without a court order did not result

in any harm. Bronston’s temporary placement of the Bab-

cock girls in the Michaels’ home in April 1982 without a

court order did not result in any harm during the period

of that temporary placement; the sexual abuse occurred

after the Washington juvenile court made its order in May

1982 confirming Bronson’s placement of the children with

the Michaels.

CONCLUSION

Defendant's Tyler and Bronson are entitled to abso-

lute immunity. As we have previously stated, “the poli-

cies in support of immunity can only be fulfilled if

immunity is freely granted and the exceptions are few

and narrowly drawn.” Ashelman, 793 F.2d at 1079. This

case meets the criteria for the application of the doctrine

of absolute immunity as articulated by us in Meyers v.

Contra Costa County Dep't of Social Servs., 812 F.2d 1154

(Continued from previous page)

were placed in the Michael’s home as a result of the March 31,

1982 Washington Juvenile Court hearing. At the time this hear-

ing, the Babcock girls were in Washington. The temporary

order for placement of the Long girls in the Michaels’ home

did not extend to the Babcock girls; their placement was

deferred pending a continuance of their case for further hear-

ing. The Babcock girls returned from Wisconsin to Washington

in April 1982, and, without a court order, the defendant Bron-

son placed them in the Michaels’ home with the Long girls.

This was a temporary placement which was confirmed by the

juvenile court by an order made at a hearing held May 4, 1982.

App. 17

(9th Cir.), cert. denied, 108 S.Ct. 98 (1987), and Coverdell v.

Dep't of Social and Health Servs., 834 F.2d 758 (9th Cir.

1987).

REVERSED and REMANDED with instructions to

dismiss the action.

App. 18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

RUDOLPH BABCOCK, et al.,

Piaintiffs, NO. C-84-271-SPM

ORDER

WANDA TYLER, et al., (Filed Jan. 11, 1988)

)

vs. )

)

Defendants. )

)

BEFORE THE COURT are plaintiff’s Motion for Par-

tial Summary Judgment (Ct. Rec. 287) and defendant’s

Motion for Summary Judgment (Ct. Rec. 285). A hearing

was held on November 24, 1987. Michael R. Seidl and

Robert J. Crotty appeared for plaintiffs; Owen F. Clarke,

Jr. and Michael E. Grant represented defendants. The

court makes the following rulings based upon the origi-

nal and supplemental briefing by the parties and the oral

arguments of counsel. The factual basis of this suit has

been related by this court in previous orders and will be

discussed here as relevant to the various legal issues.

A. Protection Claim

In their Motion for Partial Summary Judgment, plain-

tiffs Angela (Long) Frederiksen, Beth and Erika Babcock

(the girls) contend that because they had been placed

with the Michaels as the result of State action, defen-

dants, as State actors, owed them a duty of adequate

protection such as afforded to prisoners. The incarcera-

tion claims arise under the Eighth Amendment's prohibi-

tion of cruel and unusual punishment. Estelle v. Gamble,

429 U.S. 97 (1976). The Estelle-type claim has been

App. 19

extended under Fourteenth Amendment auspices to

instances of a “special relationship” between the state

actors and the plaintiffs. A child who is a ward of the

State has been held to possess such a protected right to be

free from foreseeable injury. Taylor v. Ledbetter, 818 F.2d

791 (11th Cir. 1987); Doe v. New York City Dept. of Soc.

Servs., (Doe I), 649 F.2d 134 (2d Cir. 1981). Defendants do

not respond to this portion of plaintiffs’ motion, but it

seems clear that the girls have a protected right to be free

from the type of harm which befell them here. The crucial

question, however, is whether defendants’ actions were

the legal cause of the injury suffered by the girls.

The issue then becomes what level of conduct is

required to hold defendants. liable. Plaintiffs assert that

they must show defendants acted with deliberate indif-

ference to plaintiffs’ safety. Such is the standard under

the Eighth Amendment and that applied by the Taylor

court to the county officials charged with failing to -pro-

tect a foster child from abuse by the foster mother. 818

F.2d at 795. See Doe I, supra. However, in Doe v. New

York City Dept. of Soc. Servs. (Doe II), 709 F.2d 782, 789

(2d Cir. 1983), the court discussed whether the standard

announced in Youngberg v. Romeo, 457 U.S. 307 (1982),

which was decided subsequent to Doe I, was applicable

to claims of inadequate protection by a caseworker. In

Youngberg, a case dealing with an involuntarily commit-

ted retarded adult, the court held that a professional's

decision would be presumed correct and liability could

be found only by demonstrating that the decision was

such a “substantial departure from accepted professional

judgment, practice, or standards as to demonstrate that

the person responsible actually did not base the decision

App. 20

on such a judgment.” Id. at 323. The court held that the

lower courts erred in applying the Eighth Amendment

standard to that factual situation. Id. at 325. The Doe II

court interpreted the Youngberg standard to be one of

gross negligence. 709 F.2d at 790. Rather than deciding

the exact nature of the standard, the court reasoned that

even it the Youngberg decision did apply outside of an

institutional setting, the deliberate indifference standard,

which was satisfied in Doe I, may have been more strin-

gent, and thus refused to reconsider its prior decision. Id.

The only Ninth Circuit case in this general area dis-

cusses both the deliberate indifference and the Youngberg

professional judgment standards, without recognizing or

resolving any apparent conflict between them. Gibson v.

Merced Cy. Dept. of Human Resources, 799 F.2d 582 (9th

Cir. 1986). Plaintiff there brought a claim against the

county under 42 U.S.C. § 1983 alleging that her removal

from a foster home had adversely affected her medical

condition. The court assumed, without deciding, that a

foster child has a right to be free from the arbitrary

infliction of harm by the state, but found that the county

had not acted with deliberate indifference to her medical

needs. Id. at 589. The court further found, however, that

the county’s decision to remove plaintiff also did not

violate her constitutional rights under the Youngberg

analysis. Id. at 590.

In the present case, it seems that the factual trigger of

the protection claim is the defendants’ failure to ade-

quately investigate Lee Michael’s criminal history. Under

either the Estelle or Youngblood standard, the court con-

cludes that neither side is entitled to summary judgment

on the question of whether defendants’ actions were of

App. 21

such a character to violate plaintiffs’ constitutional rights.

This court cannot conclude as a matter of law that defen-

dants exhibited deliberate indifference or acted in sub-

stantial departure from professional standards. In light of

evidence that criminal checks were run on other tempor-

ary custodians and other evidence, the court does find

that a reasonable jury could conclude that the failure to

investigate the criminal background of a foster parent

could give rise to a constitutional violation. Plaintiffs’

and defendants’ motions for summary judgment are

DENIED in regard to this claim.

B. Roth Due Process Claim

Plaintiffs contend that the girls and Rudy Babcock

have a state-created liberty interest in the protections and

procedures embodied in the Washington child custody

laws. In Board of Regents v. Roth, 408 U.S. 564 (1972), the

Supreme Court recognized that an individual may have a

federally protected right to benefits conferred under state

law. The Eleventh Circuit utilized this theory to find that

a foster child had a protected due process liberty interest

in services and safeguards established by Georgia child

welfare laws. Taylor, supra, 818 F.2d at 794.

The central issue in determining whether a state law

creates a federally protected interest is whether the lan-

guage is mandatory in nature so as to create a reasonable

expectation of entitlement to the interest. Greenholtz v.

Inmates of Nebraska Penal & Correctional Complex, 442

U.S. 1 (1979); Allen v. Board of Pardons, 792 F.2d 1404

(9th Cir. 1986). A review of the Washington dependency

statutes demonstrates that the agency charged with the

App. 22

care of a dependent child is required to provide certain

services in furtherance of certain specified goals.

In the introductory provision of the statutes, the fol-

lowing legislative policy is found:

The legislature declares that the family unit

is a fundamental resource of American life

which should be nurtured. Toward the continu-

ance of this principle, the legislature declares

that the family unit should remain intact in the

absence of compelling evidence to the contrary.

RCW 13.34.020. In keeping with this policy, upon removal

of a child from his or her home, the agency charged with

the child’s care “shall provide the court with a specific

plan as to where the child will be placed, what steps will

be taken to return the child home, and what actions the

agency will take to maintain parent-child ties.” RCW

13.34.130(2). “This plan shall specify what services will be

offered to the parent and what requirements must be met

in order to facilitate resumption of custody by the par-

ent.” RCW 13.34.130(2) (a). “Such services shall actually

be provided to the parent and maximum parent-child

contact is to be encouraged.” RCW 13.34.130(2) (b) (c).

(All emphasis added.) The repeated use of the word

“shall” clearly shows the mandatory nature of the

agency’s actions. Accordingly, plaintiffs had a “legitimate

claim of entitlement” to the services and process estab-

lished in the Washington dependency statutes. See Roth,

supra, 408 U.S. at 577.

Mr. Babcock is the natural father of Erika and Beth.

He is the step-father of Angela, and although he raised

App. 23

her for several years, he never established a legal rela-

tionship with Angela. The Washington dependency

statutes delineate the rights of a “parent” in those pro-

ceedings. The word “parent” for purposes of Chapter

13.34 means the biological or adoptive parents of a child.

RCW 13.04.011. Accordingly, Mr. Babcock does not have a

state created right to his association with his step-daugh-

ter, Angela. Nonetheless, this court previously recognized

that Mr. Babcock has a clearly established right under the

First Amendment to familial relationship with his natural

daughters and with Angela (Ct. Rec. 238). Thus, this court

must determine whether defendants’ actions violated the

Washington statutory scheme and/or also impermissibly

interfered with Mr. Babcock’s First Amendment rights.

1. Transfer of Jurisdiction.

Plaintiffs protest the-+transfer of jurisdiction over the

girls from Louisiana to Washington without notice or

hearing. The transfer occurred pursuant to the Interstate

Compact on Placement of Children (ICPC). RCW 26.34

(Ct. Rec. 289, App. A). Plaintiffs contend that in order for

Washington to accept jurisdiction over the girls’ place-

ment, a dependency petition must be filed and that the

caseworkers are responsible for initiating such

proceedings.

In support of their theory, plaintiffs cite to Chapter 30

of Manual G, a manual of Department of Social & Health

Services (DSHS) regulations, which relates to the ICPC

(Ct. Rec. 139, Ex. 9). Plaintiffs contend that these regula-

tions mandate that Washington may assume jurisdiction

under the ICPC only by the initiation of a dependency

a a nT ren

App. 24

proceeding. The regulations, however, are notably silent

on the method for asserting jurisdiction over a depen-

dency-type situation initiated in another state. The only

mention of such is in § 30.98, which states:

The service worker may confer or coordinate with:

A. Juvenile courts to:

2. Establish court jurisdiction of a child (e.g. depen-

dency petition, Chapter 23).

(Ct. Rec. 139, Ex. 9, p. 5). Neither the statutes regarding

the ICPC, RCW 26.34 (Ct. Rec. 289, App. A) or that

relating to dependency proceedings, RCW 13.34 (Ct. Rec.

289, App. B) specify the procedure for transferring juris-

diction from the sending state (Louisiana) to the receiving

state (Washington). Because there is no clearly-defined

process which is required for such a transfer, this court

concludes that plaintiffs do not have a state created inter-

est in receiving notice of such an intent to transfer juris-

diction. Accordingly, any involvement by defendants in

obtaining the ex parte order transferring jurisdiction on

November 5, 1981 (Ct. Rec. 139, Ex. 7) could not be the

basis of liability against them.

The court also concludes that this transfer of jurisdic-

tion did not impinge upon plaintiffs’ First Amendment

right. The interruption of the familial relationship already

had occurred and the Benton County order merely

changed the supervising court. The court DENIES plain-

tiffs’ motion for summary judgment as it relates to the

App. 25

transfer of jurisdiction, but GRANTS defendants’ motion

as it relates to the same.

2. Removal of the Girls From the Home of Willis

and Elizabeth Babcock.

In its oral ruling, the Louisiana court placed the girls

with the Louisiana Office of Human Development and

directed it to transfer the custody of the children to the

equivalent agency in Washington for placement with the

grandparents (Ct. Rec. 136, Ex. C, p. 490-91). This oral

ruling, however, was not presented to the Benton County

court until sometime subsequent to that court’s accep-

tance of jurisdiction. The written order from the Louisi-

ana court transferring jurisdiction makes no mention of

placement with either the Babcocks or any state agency

(Ct. Rec. 139, Ex. 6). No mention of the placement was

made during the Benton County hearing regarding the

jurisdictional transfer (Ct. Rec. 136, Ex.D, Vol. |, p. 4).

Benton County accepted jurisdiction based in part on

the Louisiana order placing the children with the paternal

grandparents, who resided in that county, and on its

statement that the parties agreed to that placement (Ct.

Rec. 139, Ex. 7). The order further stated that the court

accepted jurisdiction due to the girls’ current placement

with the elder Babcocks.

In fact, however, on November 5, 1981, when the

Benton County order was signed, Aryn Long was no

longer residing with the Babcocks. Because that fact was

not stated in the Benton County order and had appar-

ently never been brought to the court’s attention, defen-

dant Taylor and other caseworker determined that a copy

App. 26

of the Benton County order would not be distributed to

the families (Ct. Rec. 289, Ex. 32).

Defendants contend that the girls were under the

care, custody and control of DSHS and not the senior

Babcocks, and thus defendants did not need to notify

anyone or obtain a court order prior to changing the girls’

placement. Defendants cite two cases in support of their

theory that no notice was necessary in this situation. The

first case, In re Lowe, 89 Wn.2d 824, 576 P.2d 65 (1978),

involved a delinquent youth committed to the care of

DSHS under RCW 13.04. In that case, the juvenile court

had ordered that the minor not be transferred from one

institution to another without prior court approval. The

court remanded the action to the juvenile court, stating:

Thus, the juvenile court in committing a juvenile

to the department may not prescribe require-

ments that must be followed by department,

except that it may direct that it receive notice in

advance of specified action by department. In

this case, the court might properly have

required notice of the intended placement

decision.

Id. at 827.

The Court of Appeals in In re Gakin, 22 Wn. App.

822, 592 P.2d 670 (1979) extended the reasoning of the

Lowe court from delinquencies to dependencies. In ruling

that the juvenile court could not order DSHS to provide a

dependent minor with specific types of treatment in a

specific facility, the Gakin court cited the language in

Lowe which provided that following commitment of a

juvenile to the care and custody of the department, the

juvenile court’s jurisdiction is limited to: (1) revoking or

App. 27

modifying its order of commitment, or “(2) upon proper

petition and hearing, modify[ing] or set[ting] aside

department’s decision on placement or transfer of the

juvenile.” Id. at 824 (quoting Lowe, 89 Wn.2d at 827.)

Both of the above cases cite to RCW 13.04.095, which

defined the power of the court to commit a delinquent or

dependent child to DSHS. That statute was repealed

effective July 1, 1978. Also, in 1978 the statute governing

modification of court orders was amended and

recodified. The current statute provides: “Any order

made by the court in the case of a dependent child may at

any time be changed, modified or set aside, as to the

judge may seem meet and proper.” RCW 13.34.150. Addi-

tionally, the statute which gives the parent the right to

participate and be represented “at all stages of a proceed-

ing in which a child is alleged to be dependent” became

effective in July 1978. RCW 13.34.090.

RCW 13.34.130 controls the court’s options in order a

disposition of a child found to be dependent. In regard to

the present situation where the girls were to be removed

from their home, the court could have ordered them into

the care, custody and control of (1) a relative; (2) DSHS;

(3) a licensed child-placing agency; or (4) a home not

required to be licensed. RCW 13.34.130(1)(b). The Benton

County court accepted jurisdiction over these girls based

upon their current placement with their paternal grand-

parents, who were residing in Benton County (Ct. Rec.

139, Ex. 7). The court did not order them into the care,

custody and control of DSHS with placement in the

grandparents’ home, but rather referred only to the

App. 28

grandparents. In fact, other than the notice of present-

ment signed by a DSHS attorney, the agency is not men-

tioned at all in the court’s order.

A review of the Washington and Louisiana statutory

schemes shows that the Louisiana finding of “in need of

care” is closely akin to a Washington dependency deter-

mination. Pursuant to the “in need of care” decision, the

Louisiana court orally placed the girls in the care of that

state’s agency which is equivalent to the Washington

DSHS, with placement at the home of the grandparents. It

was the jurisdiction over that placement which was trans-

ferred to Washington. However, the record reveals that

the Benton County court had not seen a copy of the

Louisiana court’s oral ruling on this matter, but, rather,

had only that court’s written order which made no men-

tion of the agency or its custody. Thus, at this time a

factual issue remains regarding whether the girls were

placed under the care, custody and control of DSHS.

If the girls were placed with DSHS, it is this court’s

impression, but not ruling, that they could be removed

from the Babcocks’ without notice. If they were not, how-

ever, DSHS could obtain care, custody and control of the

girls only by obtaining an order modifying the previous

order which states that the giris are placed with their

grandparents. Because no such modification had been

obtained at the time Erika and Beth were removed or at

any subsequent time, the defendants would have no

authority to remove the girls from the senior Babcocks’

care. Because of the remaining factual disputes, the court

DENIES both plaintiffs’ and defendants’ motions for

summary judgment as to the removal of Erika and Beth.

App. 29

In regard to Angela, however, as stated above, Mr.

Babcock does not have a state created liberty interest and,

thus, may not complain about statutory violations related

to her removal. Because Angela already had been

removed from Mr. Babcock’s custody, the court does not

find that changing her from one foster care placement to

another without notice and hearing violated Mr. Bab-

cock’s First Amendment rights. Mr. Babcock has not

shown that he had less access to his step-daughter once

she was removed from his parents’ home. Accordingly,

defendants’ motion as it relates to Mr. Babcock’s claims

on Angela’s removal, is GRANTED, and Mr. Babcock’s

motion is DENIED. Angela, however, would be covered

by the statute and, thus, would be protected by the stat-

ute. In light of the factual questions discussed above,

both Angela and defendants’ motions are DENIED in

regard to her removal.

3. Placement Decisions.

Plaintiffs contend they were entitled to an evidenti-

ary hearing similar to that held in Louisiana prior to

placement of the girls with the Michaels. Although the

court finds that the Benton County court was not

required to relitigate the issue of the girls’ dependency,

the court does conclude that certain processes were

required throughout the handling of this matter.

Once jurisdiction was established in Washington,

plaintiffs had a protected right in obtaining the services

due them under the Washington dependency statutes. In

essence, it is this alleged failure to follow the statutory

mandates which most deeply troubles plaintiffs. As noted

App. 30

above, the Legislature found that the primary purpose of

the dependency statutes was to preserve the family unit.

The statutes repeatedly refer to the duties of the agency

charged with the care of the minor to work toward

reunification , that entity. In order to achieve the goal,

the law provides that the caseworker shall devise a plan

and set forth requirements which lead to the eventual

placement of the child with the parent, if such is possible.

A review of the Service Episode Record (SER) reveals

evidence that could support a finding that the present

defendants were not always working toward this statu-

tory goal. The Louisiana court, after several days of testi-

mony, concluded that reunification of the family would

be difficult if the children were placed with the Michaels,

in light of the hostility evident between the father, Rudy

Babcock, and the Michaels. Thus, the girls were ordered

into the care, custody and control of the Louisiana social

agency with physical placement in the senior Babcocks’

home. On August 20, 1981, in the initial intake in Wash-

ington by DSHS caseworker Jan Palmer, there is a nota-

tion regarding a phone call from a Louisiana caseworker

in which that caseworker indicated she recommended

that the children be placed with the Michaels (Ct. Rec.

136, Ex. B, p. 1).

The first recording of an individual service plan was

made by defendant Tyler in September 1981. Defendant

there noted that a complete home study should be done

on both the senior Babcocks’ and the Michaels’ homes

(Ct. Rec. 136, Ex. B, p. 5). Throughout the rest of the

record, virtually every entry has some connection to the

Michaels. Moreover, it is clear from these entries that

AE EES

REINO Up ApR Canenae TanUN ry AI tae ae atime aalpg

App. 31

defendants were or should have been aware of the antag-

onism between Rudy Babcock and the Michaels. The case-

workers supported the Michaels in their attempts to

contact the girls and, in fact, on occasion, counseled the

girls that they should not tell their grandparents or their

father of their communication with the Michaels.

Little mention is found in the SER of what steps were

being taken to reunite the girls with their father. The

court acknowledges that Rudy Babcock’s absence from

the local area may have burdened defendants’ ability to

provide services to him, but defendants have failed to

point the court to any evidence that they were attempting

to achieve the statutory goal of preserving the family

unit.

Although this court cannot conclude as a matter of

law that defendants’ actions exhibited deliberate indif-

ference toward the girls and Mr. Babcock’s constitu-

tionally protected rights to reunification services, it does

conclude that a genuine question of fact exists regarding

whether defendants were so violative as to allow this

issue to go to a jury. Moreover, the court finds that even

though Mr. Babcock was not entitled to these statutory

benefits in regard to Angela, there is a material issue of

fact regarding whether defendants’ actions represented

deliberate indifference to his fundamental right of protec-

tion of the family unit. Both parties’ motions for sum-

mary judgment are DENIED as to this ground.

App. 32

4. Creation of Michael Guardianship.

This guardianship was created only as to Angela.

Because Mr. Babcock does not fit into the statutory defini-

tion of a parent, he cannot claim entitlement to the pro-

cess set forth in the guardianship provisions. RCW

13.34.230-.236. The court must determine, however,

whether the defendants’ actions were violative of his

fundamental familial rights.

Mr. Babcock contends he did not receive notice of a

guardianship hearing. A review of the Benton County

transcript, however, reveals that Mr. Babcock and his

attorney were present at the dependency review hearing

when evidence was taken and arguments were made

regarding the Michael guardianship (Ct. Rec. 136, Ex.D,

Vol. 1, pp. 48-165). At that hearing, Mr. Babcock and his

attorney fully participated by cross-examining, calling

their own witnesses and presenting argument. Whether

or not this hearing was formally designated as a guard-

ianship hearing, it is clear that Mr. Babcock was given

amply opportunity to contest the guardianship prior to

its establishment. Mr. Babcock is not entitled to summary

judgment on this basis, but, rather, such should be

entered for defendants.

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

Defendants’ Motion for Summary Judgment presents

five separate issues. The first three have some cross-

relationship and will be set forth initially:

ia ari ob Stereo ita

App. 33

1. The Benton County Superior Court’s rulings as to

state law claims, and as to the lack of requisite intent or

deliberate indifference necessary to show violations of

civil rights, are res judicata.

2. The Benton County Superior Court was correct in

ruling that plaintiffs failed to show the requisite intent or

deliberate indifference necessary to maintain a civil rights

action against defendants Tyler and Bronson.

3. The plaintiffs’ constitutional claims are for viola-

tions of procedural due process, subject to the limitations

of Daniels and Davidson.

As to 1, this court has previously decided, in an

opinion and order filed April 20, 1987 (Ct. Rec. 272) that

since plaintiffs did not freely and without reservation

elect to litigate fully the federal issues in state court, they

have a right to return to federal court on the federal

issues. The court relied principally upon Colorado River

Waver [sic] Conservation Dist. v. United States, 424 U.S.

800 (1976), and Tovar v. Billmeyer, 609 F.2d 12391 [sic]

(9th Cir. 1980). This would logically include determina-

tion of all elements and issues of the federal litigation. It

would be an empty right to be able to return to federal

court if the state court’s ruling on state issues controlled

the decisions of the federal court on federal issues. The

state court rulings on state claims are, of course, entitled

to res judicata effect.

The issue of whether return to federal court is per-

missible is a close one, since plaintiffs filed a complaint in

state court which included these federal claims. It can be

argued that this constituted a voluntary election to fully

App. 34

litigate the federal issues in state court. However, plain-

tiffs later vacations as set forth in the Order Granting

Plaintiffs’ Motion to Lift Stay in Proceedings (supra, p. 3,

4, 5) seem to the court to show cleariy an intent and

purpose to litigate all federal questions in federal court.

That, the court believes, is sufficient to bar preclusive

effect to the state court decision.

The court concludes that there is evidence in the

record from which a trier of fact could determine that the

acts or omissions of which plaintiffs claim, were per-

formed either intentionally or with deliberate indif-

ference to known rights. The court is not bound, as to

these federal claims, by any conclusion of the state court

that nothing more than negligence can be involved in

these claims. Further evidentiary hearing gives the court

an opportunity to determine precisely the nature and

sources of the claims, now a matter of serious dispute

between the parties.

The issue presented in 2, above, whether the Benton

County Court was correct in its rulings as to the existence

of intent or deliberate indifference as to state claims, does

not concern this court. It has no appellate function as to

the state claims, and as indicated earlier, concludes that it

is not bound by any state court decisions on the elements

of the federal claims.

As the court has mentioned in previous opinions in

this case, in a § 1983 action in federal court, collateral

estoppel or res judicata effect will not be given to a state

court conclusion where the complaining party did not

have full and fair opportunity to litigate a claim in state

court or where the state court demonstrated inability or

App. 35

unwillingness to protect federal rights. Haring v. Prosise,

462 U.S. 306 (1983). As plaintiffs have urged, if this court

did not apply England, supra, this would require a full

hearing as to the adequacy of plaintiffs’ opportunity to

litigate their claims in state court and as to the state

court’s willingness to protect federal rights. While a fed-

eral court must face this disagreeable task if the facts

require it, this court’s application of the England excep-

tion to res judicata makes it unnecessary here.

In 3, above, defendants urge that the doctrines of

Daniels v. Williams, 474 U.S. 327 (1986) and Davidson v.

Cannon, 474 U.S. 344 (1986), hold that the Due Process

Clause is simply not implicated by a negligent act of an

official causing unintended loss of or injury to life, liberty

or property. Defendants assert that plaintiffs’ constitu-

tional claims are for procedural due process, subject to

the limitations of Daniels and Davidson. Plaintiffs vehe-

mently dispute this. It is not necessary to decide this

controversy in advance of trial, because the court has

already determined that the nature of defendants’ con-

duct (whether negligent, intentional, deliberately indif-

ferent or none of these) will be decided during the course

of the federal litigation. This issue can be raised again at

an appropriate time during the trial.

Defendants’ next issue is:

4. Even if an actionable civil rights claim existed,

piaintiffs have failed to raise any facts which would

deprive defendants Tyler and Bronson of immunity.

The court has previously decided 12(b)(6) motions

raising the issues of absolute and qualified immunity.

App. 36

Defendants now move for summary judgment, claiming

the undisputed facts support their motion.

ABSOLUTE IMMUNITY

In this court’s Order Partially Granting and Partially

Denying Defendants’ Motions for Dismissal, filed Febru-

ary 13, 1986 (Ct. Rec. 128), this court declined to hold

social workers absolutely immune for functions other

than prosecutorial, which it considered to be removing

children from homes, filing petitions charging child abuse

or neglect, and testifying in such cases. Of course, actions

taken by social workers under court order would also be

absolutely immune.

Later decisions of the Court of Appeals for the Ninth

Circuit have been to the effect that “social workers are

entitled to absolute immunity in performing quasi-pros-

ecutorial functions connected with the initiation and pur-

suit of child dependency proceedings.” Meyers v. Contra

Costa County Dept. of Soc. Servs., 812 F.2d 1154 (9th Cir.

1987); Coverdell v. Department of Soc. & Health Servs.,

No. 86-3825 (9th Cir., slip op. filed December 15, 1987). In

this case, there will be evidence of numerous acts or

failures to act by defendants not within the above frame-

work, and claimed by plaintiffs to constitute constitu-

tional violations. As to the non-prosecutorial functions,

defendants are not entitled to absolute immunity.

The court confesses some concern in this area. Under

the later cases, absolute immunity relates to dependency

proceedings, broader in scope than child abuse or

App. 37

neglect. Also, absolute immunity attaches to quasi-pros-

ecutorial functions connected with the initiation and pur-

suit or dependency- proceedings.

While no dependency proceedings were instituted in

the state of Washington, it would appear the Louisiana

proceedings were the functional equivalent of Washing-

ton’s dependency proceedings. Upon transfer of jurisdic-

tion, the children plaintiffs may have had the status of

dependent children, even though the relevant regulations

had not been followed. However, it remains to be deter-

mined what actions of defendants were in pursuit of

dependency proceedings and which were quasi-pros-

ecutorial in character. The court will welcome further

discussion of this issue after precise evidence is on the

record.

QUALIFIED IMMUNITY

The court believes that defendants’ claim of qualified

immunity is a reargument of the earlier motion consid-

ered and denied by this court in February 1986 (Ct. Rec.

129). The law has not changed. The additional allegations

of fact by defendants are as to consultations with counsel

before certain actions complained of by plaintiffs. These

facts do not, in the view of the court, require a grant of

qualified immunity. The specific evidence as to advice of

counsel is, of course, relevant to the issue. It will be

considered during trial, along with all other relevant

testimony. Defendants are not entitled to qualified immu-

nity as a matter of law.

Next, defendants argue:

App. 38

5. Plaintiffs are collaterally estopped from alleging

that removal of the children from Willis and Elizabeth

Babcock’s home and placement in the Lee Michael home

was wrongful.

The court expresses its general agreement with the

position taken by plaintiffs in their memorandum in

opposition on this issue. We do not have complete tran-

scripts of the prior actions. More important, the specific

issues of fact and law claimed to be adjudicated have not

been specifically laid out, and the review hearings were

for the limited statutory purpose of determining whether

court supervision should continue. There was no final

decision on the merits; finally, this court would be

extremely reluctant to apply collateral estoppel in

advance of trial where a basic aspect of plaintiffs’ allega-

tions is that they did not have a full and fair opportunity

to litigate in the state court.

CONCLUSION

Plaintiffs’ motion for summary judgment is DENIED.

Defendants’ motion for summary judgment is GRANTED

in the following respects:

1. Plaintiffs’ claims regarding transfer of jurisdic-

tion are DISMISSED WITH PREJUDICE.

2. Mr. Babcock’s claims regarding removal of

Angela from the elder Babcocks’ home is DISMISSED

WITH PREJUDICE.

3. Plaintiffs’ claims regarding creation of the Mic-

haels guardianship are DISMISSED WITH PREJUDICE.

App. 39

Defendants’ motion for summary judgment is

DENIED in all other respects.

IT IS SO ORDERED. The Clerk is directed to enter

this Order and forward copies to counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.