Opposition Brief — Babcock ex rel. Babcock v. Tyler

Petitioners,

TABLE OF CONTENTS

Page

I EE II ic sve vcicabcecrnues duvevnccecsusccsssvervescecsecececs 1

Il. STATEMENT OF THE CASE ...........cccccccccccccccccscesesss 2

A. Nature Of Petitioners’ Claim ................................ 2

B. Counterstatement Of The Facts...............00...0000000 2

C. Correction of Petitioners’

DUET COMIERIOTIEE occ ccsceccccsccncccscecececesvececess 4

III. THE DECISION BELOW DOES NOT

CONFLICT WITH THIS COURT'S DECISION

Be IEE Wh. PIII ooccecsvcocsexeverevsceccsecervassdesvsseces 6

IV. THERE IS NO CONFLICT BETWEEN

CIRCUITS AS TO THE IMMUNITY OF

THOSE INTIMATELY INVOLVED IN

Te es BI vs vexitcs vecnveceececscesucccccvesescess 7

V. ASEPARATE “CASEWORKER IMMUNITY”

STANDARD IS UNNECESSARY .....................00.00005. )

is Io secccautdesunuacaounncsuenesen 10

TABLE OF AUTHORITIES

Cases

Page

Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989) ........ 7

Austin v. Borel, 830 F.2d 1356 (5th Cir. 1987) .................. 8

Babcock v. State, 112 Wn.2d 83, 768 P.2d 481 reh'g granted,

113 Wr.2dl 1306 Coe ocseciecscecee 5,6

Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) ..............0 2

Briscoe v. LaHue, 460 U.S. 325 (1983) ou... cece eeeeee eee 9

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

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(194@) ....ce.ccs2<ssenspenseeueepaniieleeeeinuanleneaiialtanannnan anna 2

Coverdell v. Dept. of Social and Health Services, 834 F.2d

758 (Sth Cir. 1969) <.cccsccsctendscreueeasen ee 9

Doe v. Bobbitt,881 F.2d 510 (7th Cir. 1989) «0... 7

England v. Louisiana State Board of Medical Examiners,

375 U.S. 411 (196@ .ccccccndeeeresethnaaean 5

Eugene D. v. Karman, 889 F.2d 701 (6th Cir. 1989) .......... 7

Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988) .......... ..8

Imbler v. Pachtman, 424 U.S. 409 (1976) ...................... 7,9

Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984) .......... 8

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

cert. denied 479 U.S. 828 (1986).............scccsssesseesesses 8

Malley v. Briggs, 475 U.S. 335 (1986) ............cceeeeees 6,7,8

ii

Meyers v. Contra Costa County Dep’t of Social Services, 812

F.2d 1154 (9th Cir.) cert. denied 484 U.S. 829

oe cedueevvuveusevscesionsere 9

Mitchell v. Forsyth, 472 US. 511 (1985) .......... er Cask 2

Robison v. Via, 821 F.2d 913 (2nd Cir. 1987) ...........0..000.. 8

Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989) 8

Statutes and Regulations

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ide caenahuxcinieinngbieaiaeinunsanaitigteteheenies 5

ae aictoessrecnsisndesevioesctenstessteeevsvoereoetnss 6

ETE 6

ETS yp SS Re 3

Mey Mae ME OPT F, OPO, DAS © G0... cccccccccccccccsccccccecccseses 4

Wash. Laws of 1979, ch. 155 § 46........................................ 3

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SS ES 3

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we aero om Pe ®,

NO. 89-912

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1989

BETH BABCOCK, by and through

her guardian; ERIKA BABCOCK;

and ANGELA LONG,

Petitioners,

V.

WANDA TYLER and MARK BRONSON,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

I. LIST OF PARTIES

Petitioners’ List of Parties is confusing in that it lists

individuals who are no longer parties in the case and are not

before this Court, and fails to identify Rudolph Babcock, who

was a party before the court below, as a petitioner in his

individual capacity. The claims of Willis and Elizabeth

Babcock were dismissed with prejudice in February, 1986,

and Arthur J. Bieker was voluntarily dismissed as a defen-

dant later that year. Defendant Lee Edward Michael offered

no defense and an Order of Default was entered against him

in 1988. The only parties to the interlocutory proceeding in

the Ninth Circuit Court of Appeals were:

Petitioners:

Rudolph Babcock.

Beth Babcock, by and through Rudolph

Babcock, her father and guardian.

Erika Babcock.

Angela Long.

Respondents:

Wanda Tyler.

Mark Bronson.

II. STATEMENT OF THE CASE

A. Nature Of Petitioners’ Claim

The issue in this Petition for Certiorari is whether

Washington Department of Social and Health Services

(DSHS) caseworkers are entitled to absolute immunity in

connection with the performance of their statutory duties in

child dependency proceedings. Those duties included a

placement recommendation to a court which resulted in that

court’s placement of four children in the home of a relative

where they were sexually abused.

The District Court below denied defendants’ motion for

summary judgment on absolute and qualified immunity

grounds. Defendants appealed to the United States Court of

Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 1291,

and the collateral order doctrine established in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), as

elaborated in Mitchell v. Forsyth, 472 U.S. 511 (1985). Re-

versing the District Court, the Ninth Circuit Court of Ap-

peals held that the caseworkers are entitled to absolute

immunity and remanded with instructions to dismiss.

Babcock v. Tyler, 884 F.2d 497, 504 (9th Cir. 1989). Petition-

ers seek review of that decision.

B. Counterstatement Of The Facts

Petitioners’ selective recitation of the facts in their

Statement Of The Case presents a misleading picture of the

3

record that was before the Court of Appeals. This counter-

statement corrects the pertinent inaccuracies and omissions

contained in Petitioners’ Statement Of The Case.

Initially, it should be understood that the Petitioners

were not in “foster care” under Washington law. The girls

were placed by the juvenile court in the care of their deceased

mother’s sister and her husband. Important distinctions

exist under the Washington dependency statute between

foster care and placement with relatives. At the time the Pe-

titioners were placed in the Michae! home, Washington law

required that pre-placement criminal background checks be

conducted on prospective foster parents, but specifically ex-

cluded relatives from that requirement. Laws of 1967, ch.

172 § 3. Washington dependency law at that time, and still,

lists relatives as the first order of preference for placement of

children. Laws of 1979, ch. 155 § 46; Laws of 1988, ch. 189 §

2. By using the generic term “foster care” Petitioners divert

the Court’s attention from the fact that the Respondents and

the juvenile court were operating under a statutory scheme

that establishes certain placement criteria and procedures

as a matter of state policy.

The assertion in the Petition that the District Court held

that a jury could have determined that the abuse could have

been avoided entirely if the caseworkers had simply checked

Michael’s criminal record, is false. (Pet., App. 21)

A pointed illustration of the selectivity with which Peti-

tioners have presented the facts is found in their description

of Lee Edward Michael’s “criminal record.” Petitioners have

failed to identify any conviction records that would have been

accessible to a Washington caseworker. But even more mis-

leading is Petitioners’ failure to inform the Court that the

rape charge against Michael resulted in acquittal by a jury

after a trial, and that the later allegation of sexual assault

'The dependency statute was amended in 1984 to include

relatives within the investigation requirement for the first time. Laws of

1984, ch. 188 § 5. In 1988, the legislature again amended the statute,

liberalizing the requirement for investigation of relatives. Under current

law, if a child is placed with a relative, the criminal history background

check need not be completed before placement. Laws of 1988, ch. 189 § 3.

4

was a complaint following an altercation with a woman

friend that was never criminally charged. The assertion that

Respondent Tyler “failed to check records which were readily

available . . . and which would have revealed Michael’s

criminal history” is not supported even by Petitioners’ own

record citation. (Pet. 3)

Petitioners’ failure to disclose these facts becomes sig-

nificant in the light of the Washington statutes by which Re-

spondents were constrained. The Washington Criminal

Records Privacy Act permitted access to conviction records

only. Laws of 1977, ch. 314§ 5. At the time Wanda Tyler

conducted the home study prior to recommending placement

of Petitioners with their aunt and uncle, not only was no

criminal record check required under Washington law, but

also there were no criminal convictions against Michael for

sex crimes.

It is well established in the record below that the form

used by Respondent Tyler in conducting the homestudy

interview of Janet and Lee Edward Michael was not “the

questionnaire that she and all other workers in the agency

used,” as represented by Petitioners. (Pet. 3) In fact, it was

an adoption questionnaire that she used as a checklist on

that particular occasion. (CR 305, Ex. B, Vol. IV, 119-20)

Petitioners seriously skew the facts when they state

that Tyler “placed the children in Michael’s home even

though she did not license Michael as a foster parent.” (Pet.

3) The Michael home was a ‘elative placement, and there-

fore, not subject to foster home licensing. Moreover, Tyler

never placed any of the children in the Michael home. They

were placed there by the juvenile court only after hearings

attended by all parties and their counsel. The placement

decisions were made by the juvenile court according to

Washington dependency law and procedure. (CR 305, Ex. D,

Vol. I, 15, 23, 37)

C. Correction of Petitioners’ Procedural State-

ments

Two matters regarding the litigation commenced by Pe-

titioners for damages arising from Lee Edward Michael’s

5

criminal acts require clarification. First, the Petition states

that “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.” (Pet. 7) That

is true. However, Petitioners neglect to mention that at the

same time they commenced an action in the state court in

Washington, asserting the same section 1983 claims as well

as state tort law claims. In October, 1986, all of Petitioners’

claims, including those under section i983, were dismissed

onimmunity grounds by the state trial court on Respondents’

motion for summary judgment.

Respondents appealed the dismissal of their state law

claims to the Washington Supreme Court, but returned to

federal court to pursue their section 1983 claims based on

this Court’s holding in England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411 (1964). On March 1, 1989,

the Washington Supreme Court affirmed the summary judg-

ment:

[W]e hold that caseworkers carrying out their statutory

duties in connection with dependency proceedings under

RCW 13.34 are entitled to immunity from subsequent

suit, on the ground that such immunity is required to

preserve the integrity of [the] adversarial process.’

Babcock v. State, 112 Wn.2d 83, 103, 768 P.2d 481, 492, reh’g

granted, 113 Wn.2d ff 1104 (1989). (Appendix)

The second procedural matter that requires correction

is Petitioners’ representation that the interlocutory appeal

to the Ninth Circuit in this case was limited to the issue of

absolute immunity. The appeal was based on Respondents’

assertion of both absolute and qualified immunity. Qualified

immunity was extensively briefed and supported by the rec-

2A dissenting opinion by Utter, J., concurred in by twoother justices,

stated that the caseworkers (Respondents herein) “were not liable. . .;

they were only following agency procedures.” 112 Wn.2d at 114, 768 P.2d

at 497. The dissent focused on whether the agency should be accorded the

same immunity to which its caseworkers were entitled.

The Washington Supreme Court has granted reconsideration of its

decision, specifically requesting additional argument on DSHS discretionary

function immunity. The court's decision has not yet been announced.

6

ord. However, the court decided the case on absolute immu-

nity as did the Washington Supreme Court.

Petitioners have sought to get this Court’s attention

through misstatement and omission of facts, rather than the

merits of their legal argument. But, as will be demonstrated

with the true facts in view, the Petition does not merit

granting a Writ of Certiorari

Ill. THE DECISION BELOW DOES NOT CONFLICT

WITH THIS COURT’S DECISION IN MALLEY v.

BRIGGS

Petitioners’ effort to analogize Respondents’ role in the

iependency proceedings to that of the police officer in Malley

Briggs, 475 U.S. 335 (1986) ignores important factual dif-

nces in those two situations

A caseworker’s statutory duties under RCW 13.34 are as

ntimately associated with the judicial phase of dependency

ases as are the duties of a prosecutor in acriminal case. The

idicial process begins with the filing of a dependency peti-

ion and does not end until six months after the child has

returned home. RCW 13.34.130. The procedures established

for dependency cases by Washington law often place case-

workers in adversarial roles vis a vis parents and other

family members, as is well illustrated by the juvenile court

proceedings actually conducted in this case. Throughout

those proceedings, the parties were represented by attor-

neys; they had a full opportunity to introduce evidence,

examine witnesses, and argue to the court, and those oppor-

tunities were fully exploited. The major point of contention

was whether the children should be placed in the Michael

home. “The proceedings were fully adversarial, as contem-

plated by the Legislature.” Babcock v. State, 112 Wn.2d 83,

102, 768 P.2d 481, 491 (1989). It is the integrity of that

adversarial process that absolute immunity protects. See

Butz v. Economou, 438 U.S. 478, 512 (1978).

Malley v. Briggs involved a much lower level of involve-

ment in the judicial process and was essentially nonadver-

sarial in character. The police officer in Malley presented

f+

ere

-

complaints and two supporting affidavits to a district court

judge for the purpose of establishing probable cause for issu-

ance of an arrest warrant. The proceeding was apparently

conducted ex-parte, and the information presented was not

subject to challenge by an opposing party at that phase.

Although arguably close to the point at which absolute

immunity would attach, the Court found, in part for histori-

cal reasons, that providing information to a judge in support

of an application for an arrest warrant was conduct not “in-

timately associated with the judicial phase of the criminal

process.” Id at 342 (quoting Jmbler v. Pachtman, 424 U.S.

409, 430 (1976)) (Emphasis in original). The Court held that

the police officer was only entitled to the qualified immunity

traditionally accorded to complaining witnesses at common

law prior to enactment of the Civil Rights Act in 1871.

The decision below was entirely consistent with this

Court’s immunity analysis in Malley v. Briggs.

IV. THEREIS NO CONFLICT BETWEEN CIRCUITS

AS TO THE IMMUNITY OF THOSE INTIMATELY

INVOLVED IN THE JUDICIAL PROCESS

Petitioners’ claim that the decision below is in conflict

with immunity decisions in other circuits is based on cases

which are distinguishable both on the facts and on the law

Two of the cases relied upon by Petitioners, from the Sixth

and Seventh Circuits, involved assertions of qualified immu

nity only. Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989

Eugene D. v. Karman, 889 F.2d 701 (6th Cir. 1989). The

qualified immunity issue in those cases was whether state

officials had violated a clearly established constitutional

right. Neither involved the issue decided below in this case

whether defendants were entitled to absolute immunity

based upon their role in the judicial phase of dependency

proceedings.

Four other cases cited by Petitioners, from the Second.

Fifth, Sixth, and Tenth Circuits, concern unilateral! actions

taken by caseworkers and other government officials where

no judicial proceedings were involved. Achterhof v. Selvag

8

gio, 886 F.2d 826 (6th Cir. 1989) (caseworker’s decision to

open investigation and place father’s name on central regis-

try); Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989)

(removal of child from preadoptive foster parents without

prior agency hearing); Hodorowski v. Ray, 844 F.2d 1210

(5th Cir. 1988) (removal of children from home without prior

court order); and Robison v. Via, 821 F.2d 913 (2nd Cir.

1987) (seizure of children suspected to be victims of abuse

without prior court order). In each of those cases the circuit

court held that the activities for which absolute immunity

was asserted were administrative, investigative, or more

akin to police functions than prosecutorial in nature. None

involved advocacy, testifying, or recommendations before a

judicial body. The intimate association with the judicial

process which Respondents had in this case was lacking.

Petitioners also rely on Austin v. Borel, 830 F.2d 1356

(5th Cir. 1987) to support their claim of conflict between the

circuits. That case is readily distinguishable on its facts.

The plaintiff sought to recover for the filing by a Louisiana

caseworker of an allegedly false verified complaint seeking

removal of children for suspected sexual abuse. Under Lou-

isiana law, a caseworker filing a complaint acts as a com-

plaining witness, not as a prosecutor. Jd at 1360-61. Com-

plaining witnesses in criminal cases were entitled to quali-

fied, rather than absolute immunity at common law. Malley

Briggs, 475 U.S. at 335. The prosecutorial analogy could

not be supported in Austin, thus the Fifth Circuit held that

the caseworker was not entitled to absolute immunity. 830

F.2d at 1363.

The other cases cited by Petitioners actually upheld

caseworkers’ claims of absolute immunity based on their

roles in initiating and pursuing juvenile court proceedings.

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

cert. denied, 479 U.S. 828 (1986) (police officer's filing of a

petition of delinquency against a minor was intimately as-

sociated with the judicial phase of the criminal process);

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

employees responsible for prosecution of child neglect peti-

9

tion, and psychologist and psychiatrists whose findings were

used to determine environment best suited for child’s inter-

ests, were integral parts of the judicial process). Accord,

Meyers v. Contra Costa County Dep’t of Social Services, 812

F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829, (1987)

(caseworkers are absolutely immune for their role in initiat-

ing and pursuing child dependency proceedings); Coverdell

v. Dept. of Social and Health Services, 834 F.2d 758, 764 (9th

Cir. 1987) (caseworker is absolutely immune for obtaining

and executing a court order for seizure and placement of a

newborn child).

A careful reading of the circuit court decisions on case-

worker immunity reveals that there is no inconsistency,

either in policy or analysis, among the circuits. Al] have

followed the analytical framework established by this Court

in Imbler v. Pachtman, 424 U.S. 409 (1976) for determining

claims of absolute immunity. In cases where there was no

connection between the function of the caseworker and the

judicial process, or where the connection was remote, the

circuit courts have denied claims of absolute immunity. But,

in cases where caseworkers’ functions were intimately asso-

ciated with the judicial process, the circuit courts have found

absolute immunity.

Overlooked in Petitioners’ analysis of the case is the

intense and constant involvement in the welfare of these

children by a duly established court of law. It is that judicial

involvement that sets this case apart from those cited by

Petitioners in which absolute immunity was not found.

V. A SEPARATE “CASEWORKER IMMUNITY”

STANDARD IS UNNECESSARY

The integrity of the judicial process is already wel] pro-

tected by existing decisions of this Court, which focus on the

relationship of the functions performed by officials asserting

immunity rather than their status. Jmblerv. Pachtman, 424

U.S. 409 (1976); Butz v. Economou, 438 U.S. 478 (1978

Briscoe v. LaHue, 460 U.S. 325 (1983). When activities are

intimately associated with the judicial process, as in the

10

instant case, this Court’s previous decisions make clear that

immunity must be extended to those functions. The circuit

courts have recognized this analytical framework and have

been consistent in its application. As is demonstrated above,

circuit court decisions have uniformly looked to the degree of

association with the judicia! process in determining absolute

immunity. Petitioners have failed to identify that underly-

ing principle—protection of the integrity of the judicial proc-

ess—and have instead urged this Court to “address the

existence and extent of immunity for foster care casework-

ers.” (Pet. 9)

To address absolute immunity for each category of gov-

ernment official, in place of a functional approach, would

depart radically from existing immunity analysis. This

Court’s function, traditionally and wisely, is to provide the

general legal and analytical framework for application to

specific fact patterns. That guidance already exists, and it

has been adhered to by the court. below in this case.

VI. CONCLUSION

Petitioners’ request that this Court review the Ninth

Circuit Court of Appeals decision granting Respondents ab-

solute immunity should be denied. Throughout the course of

this litigation, Petitioners have attempted to use the case-

workers as a lightning rod for their attacks on the Washing-

ton dependency statute and the placement decisions of a

court. But, as the Ninth Circuit recognized, the statutory

duties and functions performed by Respondents were inti-

mately associated with the judicial process. Operating within

the analytical framework previously established by this

Court, and consistently adhered to in the decisions of other

circuits as well as its own prior decisions, the Ninth Circuit

correctly found Respondents entitled to absolute immunity.

The principle of protecting the integrity of the judicial

process, through absolute immunity for those whose func-

tions play an integral role in that process, is well established

by this Court and has been consistently applied in the lower

courts. This case provides no opportunity for further clarifi-

1]

cation or elaboration of that principle. The Petition should be

denied.

Respectfully submitted,

KENNETH QO. EIKENBERRY

Attorney General

OWEN F. CLARKE, JR.

Senior Assistant Attorney General

MICHAEL E. GRANT

Assistant Attorney General

Attorneys for Respondents

Wanda Tyler & Mark Bronson

DATED: January 5, 1990

APPENDIX A

Mar. 1989 BABCOCK v. STATE 83

112 Wn.2d 83

{[No. 53376-8. En Banc. March 2, 1989.]

RUDOLPH BABCOCK, ET AL, Appellants, v. THE STATE

OF WASHINGTON, Respondent.

[1] Torts — Immunity — Adversarial Judicial Proceedings.

Participants in adversarial judicial proceedings are absolutely

immune from liability for their actions at the proceedings.

[2] Juveniles — Parental Relationship — Dependency —

Immunity of State and Its Agents. Social service caseworkers

and the State are absolutely immune from liability for the execution

of the full range of their duties under RCW 13.34 in connection with

their participation in child dependency proceedings.

[3] Principal and Agent — Vicarious Liability — Defenses of

Agent. Principals may assert all of their agents’ defenses that,

rather than being personal to the agents, relate directly to their

status as agents.

[4] Torts — Outrage — Elements — Nature of Conduct. Only

conduct that goes beyond all possible bounds of decency such that a

civilized community would regard it as atrocious and utterly intol-

erable is sufficiently extreme to be the basis for a claim for the tort

of outrage.

{5] Torts — Alienation of Affections — Elements — Malice. A

third person's interference with an existing family relationship must

be malicious and unjustifiable to be the basis for a claim for the tort

of alienation of affections.

[Note: Only 3 Justices concur in all of the above statements.]

Do.tiver and ANDERSEN, JJ., concur in the result only; Urrer, Bracu-

TENBACH, and Pearson, JJ., dissent by separate opinion; Smitn, J., did

not participate in the disposition of this case.

A-2

84 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

Nature of Action: The father and grandparents of

children who had been sexually abused by a foster parent,

as well as the children themseives, sought damages from

the State and individual social service caseworkers for neg-

ligence, outrage, and alienation of affections.

Superior Court: The Superior Court for Benton

County, No. 84-2-00850-1, Fred R. Staples, J., on

November 21, 1986, granted a summary judgment in favor

of the defendants.

Supreme Court: Holding that the individual defend-

ants and the State were immune from negligence liability

and that there were no unresolved material facts regarding

the claims of outrage and alienation of affections, the court

affirms the judgment.

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

& Hoffman, Robert J. Crotty, and Lukins & Annis, for

appellants.

Kenneth O. Eikenberry, Attorney General, Owen F.

Clarke, Senior Assistant, and Michael E. Grant, Assistant,

for respondent.

Dore, J.—We affirm a trial court's grant of summary

judgment and its dismissal of all plaintiffs’ claims for negli-

gence, alienation of affections and outrageous conduct aris-

ing out of the foster placement of four minor girls. Both the

State and individual caseworkers for the Department of

Social and Health Services are immune from suit. There is

no triable issue of outrageous conduct or of alienation of

affections.

FACTS

Rudolph and Ann Long Babcock were married in 1970.

Ann was the mother of two children from a prior marriage,

Angela Long and Aryn Long. Rudolph and Ann later had

two other daughters, Erika and Beth. Rudolph and all the

girls but Aryn are plaintiffs in the present suit.

A-3

Mar. 1989 BABCOCK v. STATE 85

112 Wn.2d 83

On August 28, 1978, Ann Babcock, the mother of the four

girls, committed suicide. Rudolph was apparently unable to

care for the four girls himself, and in July 1981, the Loui-

siana Department of Health and Human Resources (here-

inafter DHHR) obtained an order of dependency

mandating their removal from his care and custody. Fol-

lowing a 4-day hearing in July and August 1981, the Louis-

liana court ordered DHHR to place the girls with the

parents of Rudolph Babcock, Willis and Elizabeth Babcock.

The elder Babcocks were residents of Richland, Washing-

ton, and the court's order directed DHHR to transfer the

case to Washington under the interstate compact on the

placement of children, codified in this state at RCW 26.34.

The girls arrived in Richland approximately 3 weeks later.

Rudolph also moved in with his parents.

On October 7, 1981, the Louisiana court ordered Rudolph

to leave his parents' home and to reside apart from the

girls. He did so, traveling to Wisconsin, where he estab-

lished a new residence. On the same date, the Louisiana

court formally relinquished jurisdiction under the interstate

compact on the condition that Washington accept jurisdic-

tion over the case. The juvenile division of Benton County

Superior Court accepted jurisdiction on November 5, 1981.

DSHS assigned caseworker Wanda Tyler to the case of

the Long and Babcock girls. During October i981, Aryn

Long ran away from the elder Babcocks' home twice. Fol-

lowing these incidents, Tyler placed Aryn in a licensed fos-

ter 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

her sister. Tyler acquiesced, and in December 1981, Angela

also moved out of the elder Babcocks' home.

In February 1982 Rudolph Babcock removed his

daughters Erika and Beth from his parents’ home, taking

them to his new home in Wisconsin. DSHS, acting in con-

junction with the Prosecuting Attorney for Benton County,

A-4

86 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

obtained a warrant for Rudolph's arrest on charges of cus-

todial interference and an order of requisition for the Bab-

cock girls. The warrant was later quashed. At a hearing

held on April 14, the Wisconsin court granted full faith and

credit to the Washington order of requisition and remanded

the girls to the custody of Mark Bronson, who had replaced

Tyler as the DSHS caseworker responsible for the Long/

Babcock case. On April 19, 1982, Erika and Beth returned

to Washington.

Meanwhile, following Washington's acceptance of juris-

diction, a dependency disposition hearing under RCW

13.34.110 was held on March 31, 1982, in Benton County

Juvenile Court. Rudolph Babcock was represented by

counsel at that hearing, and his counsel moved for a con-

tinuance of the hearing. The juvenile court granted the

continuance as to the Babcock girls, and made a "tempor-

ary order" that the Long girls should be transferred to the

custody of Lee and Janet Michael. Janet Michael is the sis-

ter of the Long giris' natural mother, Ann Long Babcock.

Upon the return of the Babcock girls from Wisconsin in

late April, they too were placed in the Michael home.

On May 4, 1982 a second hearing was held in the Long/

Babcock case. As required by RCW 13.34.120, DSHS sub-

mitted a report and recommendation to the juvenile court.

In her report, Wanda Tyler recommended that ali four girls

remain in the custody of the Michaels. Tyler's report also

recommended that the court consider reuniting the girls

with Rudolph when he could show steady employment and

success in psychological counseling. Rudolph Babcock was

present at the May 4 hearing and again was represented by

counsel. Babcock objected to the recommendation of DSHS

on the ground that the Michaels had petitioned the Louis-

iana court for custody of the girls, and had been refused.

Babcock also contended that the Michaels would interfere

with his relationship with the girls, making reunification of

the family impossible. Finally, Babcock contended that the

conditions which led the Louisiana court to declare the girls

in need of care no longer existed. Responding to a question

A-5

Mar. 1989 BABCOCK v. STATE 87

112 Wn.2d 83

from the bench, Babcock indicated that he was employed.

Without taking further evidence, the juvenile court contin-

ued the matter on the ground that the record from Louis-

liana was incomplete. The court ordered that the girls

should remain with the Michaels during the continuance.

The next hearing in the matter was heard on August 12,

1982, on Rudolph Babcock's motion to dismiss the girls’

dependency cases. The motion was denied.

A third disposition hearing was held on August 26 and

27, 1982. The DSHS offered extensive expert testimony by

Maureen Shenker, the Long girls' therapist, and Elaine

Adolph, the Babcock girls' therapist. Both experts

described their evaluations of the girls, and both expressed

the opinion that, to the extent the girls remained troubled,

it was probably attributable to their lack of a permanent

home. Both experts expressed the opinion that the

Michaels were providing a stable, nurturing environment

for the girls. Rudolph Babcock was represented by counsel

at the hearing, and his attorney cross-examined both

experts thoroughly, particularily as to the Michaels’ influ-

ence over the girls’ views of Babcock.

At the August 1982 review hearing, the court also heard

testimony from Mark Bronson, the DSHS caseworker

responsible for the Long/Babcock matter and a defendant

here. Bronson testified that, based on the report prepared

for the court under RCW 13.34.120, the DSHS recom-

mended making the Michaels guardians of the Long girls.

The attorney for Daniel Long, the girls' father, joined in

that recommendation. As to the Babcock girls, the DSHS

recommended continued dependency placement with the

Michaels on the ground that keeping the sisters together

was preferable to attempting to reunite the Babcock girls

with their father, especially given residence in another

state. Bronson, too, was cross-examined at length by coun-

sel for Rudolph Babcock.

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88 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

Counsel for Babcock then introduced expert testimony

giving a psychological profile of Rudolph and recommend-

ing that the Babcock girls should be reunited with their

father rather than to remain with the Michaels.

Lee Michael testified on the second day of the August

1982 hearing regarding his relationship with the girls and

his hostile relationship with Rudolph Babcock. Babcock's

counsel cross-examined him extensively. Janet Michael, the

girls' aunt also testified and was also cross-examined by

Babcock's counsel.

The court also heard testimony from Rudolph Babcock

on the second day of the August hearing. Babcock was

examined in regard to his relationship with the Long girls,

his stepdaughters. He testified concerning his finances and

employment history, his family situation in Wisconsin—he

was living with a woman with four children of approxi-

mately the same age as his own daughters—the circum-

stances of his taking Erika and Beth from Washington to

Wisconsin without authority and his hostile relationship

with Lee Michael. Babcock stated his desire that his

daughters be placed in foster care in Wisconsin under the

interstate compact.

In closing statements, counsel for DSHS recommended

that the Long and Babcock girls remain with the Michaels

in a dependency placement under RCW 13.34.130. Guard-

ianship proceedings would be begun in the Long girls' case,

but that with regard to the Babcock girls, psychological and

home studies of Rudolph Babcock should be commenced in

Wisconsin under the interstate compact, with a view toward

reuniting the Babcock girls with their father.

Counsel for Rudolph Babcock asked the court to turn all

four girls over to the jurisdiction of Wisconsin under the

interstate compact, where they would remain in foster care

until they could be reunited with Rudolph by the courts of

that state. ;

The juvenile court ordered that all four girls should

remain with the Michaels, but that the Babcock girls

should be reunited with their father as soon as positive

A-7

Mar. 1989 BABCOCK v. STATE 89

112 Wn.2d 83

psychological and home studies could be completed and

submitted.

On November 2, 1982, following the receipt of the Wis-

consin reports, a review hearing under RCW 13.34.130 was

held as to the Babcock girls alone. The Wisconsin case-

worker reported that, because of insufficient information,

she could not make a recommendation regarding Rudolph

Babcock. The court heard argument of counsel, including

counsel for Babcock, and ordered that, because of the

inconclusive report, no final action could be taken. The

Babcock girls therefore remained in the Michaels’ care.

On November 11, 1982, Babcock moved for the transfer

of his daughters to Wisconsin. No further information had

been received from Wisconsin and Wisconsin had not

agreed to accept jurisdiction under the interstate compact.

The court heard arguments of counsel, including counsel

for Babcock, and denied the motion.

On December 16, 1982, the juvenile court heard a second

motion by Babcock for the placement of Erika and Beth in

foster care in Wisconsin. Wisconsin's position on the matter

remained unchanged. The court heard argument and

explanations from counsel regarding the inability of the

Wisconsin authorities to complete a successful home study

of Babcock. Counsel for Babcock offered the testimony of

Ertka and Beth regarding their experience living with

Rudolph in Wisconsin, and the court apparently heard that

testimony in camera. Supplemental Clerk's Papers, at 203

04. The court heard testimony of Suzanne Reinicke, the

mother of four with whom Rudolph Babcock was then liv-

ing in Wisconsin. Reinicke testified concerning the home in

Wisconsin and the period during which Erika and Beth had

lived with Babcock there. The court denied the moticn.

On December 28, 1982 Babcock again renewed his motion

for the return of his daughters. Given that no new circum-

stances were presented, the court denied the motion. The

Babcock girls remained in the Michael home.

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90 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

The juvenile court held another review hearing on the

Babcock girls’ case on March 7, 1983. Home study and psy-

chological reports from Wisconsin were received in evidence

and again were inconclusive. The court therefore accepted

DSHS's recommendation that the girls remain with the

Michaeis, again pending a successful home study and psy-

chological evaluation of Rudolph Babcock.

In early 1983, Babcock moved from Wisconsin to Okla-

homa, and on September 21, 1983 the juvenile court heard

a motion by Babcock to place the Babcock girls in foster

care in Oklahoma. The court heard extensive testimony

from Rudolph Babcock concerning his move, his employ-

ment, his relationship with Reinicke and the reasons for the

Wisconsin authorities to complete the home study the court

had requested in May 1982. The court also heard testimony |

from Reinicke. Lee Michael was also called to testify as to |

his continuing custody of the girls and his continuing hos-

tile relations with Babcock. The court denied Babcock's

motion on the ground that it lacked a complete and posi-

tive home study from Oklahoma or Wisconsin and because

the relationship between the girls and their aunt and uncle

appeared to be positive.

Now there are a couple of young ladies involved here.

Their best interest is my main purpose in being here.

And they are being well cared for. And there is a certain

bonding between them and the aunt and uncle. And for

me to, in a vacuum just order those kids to a strange

state and a strange environment, I would be out of my

mind to do that, without knowing that their welfare was,

in the future, very, very bright.

Supplemental Clerk's Papers, at 304-05.

The Long and Babcock girls remained in the Michael

home until October 1983, when it was discovered that Lee

Michael had sexually abused all four girls, in addition to his

own daughter. Michael was arrested and subsequently con-

victed on three counts of statutory rape and two counts of

Mar. 1989 BABCOCK v. STATE 9]

2 Wn.2d 8

indecent liberties. He is presently serving a 55-year

sentence.

At the time he was awarded custody of the four girls on

the recommendation of DSHS, Lee Michael had a substan-

tial criminal record, which included charges of forcible rape,

attempted rape and sexual assault. The DSHS admits that

had it discovered this criminal record, it would not have

recommended placing the girls in the Michael home. Clerk's

Papers, at 3363.

The DSHS recommendation was based on a single home

study conducted by Tyler in November 1981. Tyler testified

in her deposition that the purpose of the study was not to

evaluate the Michaels as adoptive parents, but only as fos-

ter parents. In conducting her evaluation, however, Tyler

used the home evaluation checklist on a form entitled

"Adoption Application." The checklist includes the ques-

tion "Have you ever been convicted of a crime?" Tyler did

not ask that question, thereby failing to discover Lee

Michael's criminal record. Tyler conducted no other inves-

tigation which would have or did reveal that record.

Based on Tyler's and DSHS's failure in this regard,

Rudolph, Willis and Elizabeth Babcock, Angela Long and

Beth and Erika Babcock filed identical suits in state and

federal court alleging negligence, the tort of outrage, alien-

ation of affections and the violation of federal civil rights

under color of state law, 42 U.S.C. § 1983.

The federal court at first denied the defendants’ motion

for abstention under the doctrine enunciated in Colorado

River Water Conserv. Dist. v. United States, 424 U.S. 800,

47 J.. Ed. 2d 483, 96 S. Ct. 1236 (1976). However, the fed-

eral court later reversed itself, sua sponte, and dismissed

‘Following the departure of Lee Michael, the Long and Babcock girls asked t

be allowed to continue living with Janet Michael. Ti:ey were permitted to do s

In December 1983, following a successful home study, the two Babcock girls were

returned to the custody cf Rudolph, who had moved to Oklahoma. Aryn and

Angela Long continued in the custody of Janet Michael until they reached the age

of majority.

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9? BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

the claims of the father and daughters without prejudice.

The grandparent's claims were dismissed with prejudice.

_ On October 1, 1986 Benton County Superior Court

granted defendants summary judgment on all plaintiffs’

claims. Subsequently, the federal court again revised its

order, reinstating the case of the father and daughters, but

staying federal proceedings pending the outcome of this

state court suit. On April 20, 1986, the federal court lifted

its stay as to the section 1983 claims of the father and

daughters.

As a consequence, the parties do not appeal the Superior

Court's dismissal of the section 1983 claims asserted in

state court. This case concerns only the claims for negli-

gence, alienation of affections and outrageous conduct.

PLAINTIFFS’ CLAIMS ARE Not BaRRED

BY Res JUDICATA

The State contends that the plaintiffs’ claims are pre-

cluded under the doctrine of res judicata, because they are

"no more than a thinly veiled attempt to relitigate facts

and issues previously litigated in the Benton County Juve-

nile Court." Brief of Respondent, at 15-16. The trial court

accepted this argument, but it erred in doing so. Res judi-

cata is inapplicable here.

The State fails to distinguish between claim preclusion

and issue preclusion in its brief, or to specify which sort of

preclusion it thinks is required here. We explained the dif-

ference in our recent decision in Shoemaker v. Bremerton,

109 Wn.2d 504, 507, 745 P.2d 858 (1987).

The genera! term res judicata encompasses claim pre-

clusion (often itself called res judicata) and issue preclu-

sion, also known as collateral estoppel. Under the former

a plaintiff is not allowed to recast his claim under a dif-

ferent theory and sue again. Where a plaintiff's second

claim clearly is a new, distinct claim, it is still possible

that an individual issue will be precluded in the second

action under the doctrine of collateral estoppel or issue

preclusion. In an instance of claim preclusion, all issues

which might have been raised and determined are pre-

cluded. In the case of issue preclusion, only those issues

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Mar. 1989 BABCOCK v. STATE 93

112 Wn.2d 83

actually litigated and necessarily determined are pre-

cluded.

Claim preclusion is proper only when the later suit pres-

ents the same claim as the earlier suit. For example, in

Sanwick v. Puget Sound Title Ins. Co., 70 Wn.2d 438, 441,

423 P.2d 624, 38 A.L.R.3d 315 (1967), the plaintiff sued

first for specific performance and then for damages under

the same contract. The second suit was dismissed on the

ground that the plaintiff had improperly split his claim.

The doctrine of claim preclusion prohibits claim splitting as

a matter of policy, primarily in order to conserve judicial

resources and to ensure repose for parties who have already

responded adequately to the plaintiff's claims. The key

inquiry is whether the second suit does indeed present the

same claim as the first. We have stated the standard for

that determination as follows:

(1) [W]hether rights or interests established in the

prior judgment would be destroyed or impaired by

prosecution of the second action; (2) whether substan-

tially the same evidence is presented in the two

actions; (3) whether the two suits involve infringement

of the same right; and (4) whether the two suits arise

out of the same transactional nucleus of facts.

Norco Constr., Inc. v. King Cy., 106 Wn.2d 290, 294, 721

P.2d 511 (1986).

Claim preclusion obviously is not appropriate here. Per-

haps the juvenile court proceedings and the plaintiffs’

claims arise out of the same nucleus of fact, but it would be

absurd to contend that the plaintiffs seek to affect rights

established by the juvenile court or that the juvenile court

was in any way concerned with the infringement of the

rights on which plaintiffs’ present claims are based. Most of

all, it is impossible to see how the two actions could possi-

bly involve the same body of evidence when the plaintiffs’

present claims are based primarily on the fact that key evi-

dence was omitted, allegedly through the fault of DSHS, at

the juvenile court proceedings. Claim preclusion is there-

fore not called for.

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94 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

The State is no more entitled to collateral estoppel. The

theory behind collateral estoppel is that, even where claim

preclusion is not proper, the two claims of the plaintiff may

involve common issues of fact. Under the doctrine of col-

lateral estoppel, or issue preclusion, those individual issues

will not be relitigated. The requirements for collateral

estoppel are: (1) identical issues; (2) a final judgment on the

merits; (3) the party against whom the plea is asserted

must have been a party to or in privity with a party to the

prior adjudication; (4) the issue to be precluded must have

been actually litigated and necessarily determined in the

prior action; and (5) application of the doctrine must not

work an injustice on the party against whom the doctrine is

to be applied. Shoemaker, at 507-08.

Since the State has not specified which issues it thinks

are precluded by the juvenile court proceedings, it is diffi-

cult to apply the test. On the record we have, however, it is

clear the requirements for collateral estoppel are not met.

The only issues actually determined by the juvenile court at

any of the many hearings held in the Long/Babcock cases

were those set forth in RCW 13.34.130, which governs the

disposition of children found to be dependent and in need

of care. None of those issues is identical to the issues raised

by the plaintiffs' claims for negligence, alienation or out-

rage. Therefore, no issues in this case are precluded under

the doctrine of collateral estoppel.

THE INDIVIDUAL DEFENDANTS ARE ABSOLUTELY

IMMUNE FROM SuIT

We hold that the individual defendants are entitled to

absolute immunity from suit on the ground that the acts

complained of occurred in the course of judicial proceedings

prescribed by statute. The gravamen of the plaintiffs’ com-

plaint for negligence is that the defendants failed to inform

the juvenile court of Lee Michael's criminal record, as a

result of which the girls were placed in his home, where

they suffered great harm. As the plaintiffs present the facts,

a

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Mar. 1989 BABCOCK v. STATE 95

112 Wn.2d 83

the placement decision was made by DSHS with the juve-

nile court acting solely on the Department's recommenda-

tion, more or less as a rubber stamp. As the statement of

facts above demonstrates, however, just the opposite is

true. The decision to place the girls in the Michael home

was not made by DSHS, but by the juvenile court. It would

be manifestly unjust to hold the caseworkers liable for a

decision of the court which was beyond their control.

The plaintiffs contend that the mere fact that a judicial

order intervened should not insulate the caseworkers and

the State from liability for their omissions in the investiga-

tion of the Michaels. There are two reasons why this is not

so. First, the report of DSHS, whatever its faults, was only

one part of the body of evidence considered by the court in

placing the girls with the Michaels and in permitting them

to remain there over so many months. A large body of evi-

dence was heard in the course of a number of separate

hearings. It included the testimony of experts who had

examined the girls as well as family members including

Rudolph Babcock and Lee Michael himself. The court was

willing from the first to return the Babcock girls to their

father, but was unable to do so because it never received

information sufficient under RCW 13.34.130 to permit it to

do so. On the record we have, we can say as a matter of law

that the report of the DSHS workers was not the proximate

cause of the injury complained of.

We need not even reach the proximate cause issue, how-

ever, because the caseworkers are absolutely immune from

suit. Their immunity rests on their status as participants in

the hearings conducted in this case as required under RCW

13.34.110. It is well established that the participants in

adversarial judicial proceedings are entitled to absolute

immunity as a safeguard on the integrity of such proceed-

ings.

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96 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

A. Immunity for Participants in Adversarial

Judicial Proceedings

The caseworkers’ role in this matter was established by

the Legislature in setting up procedures to govern the dis-

position of dependent children. RCW 13.34.110 mandates a

fact-finding hearing on the dependency petition to be fol-

lowed by a separate hearing on the dependent child's dis-

position. The initial dependency hearing in this case took

place in Louisiana. The disposition hearing was held, after

two continuances, on August 26 and 27, 1982. The DSHS's

role in the disposition hearing is specified in RCW 13.34-

120:

(1) To aid the court in its decision on disposition, a

social study, consisting of a written evaluation of matters

relevant to the disposition of the case, shall be made by

the person or agency filing the petition. The study shall

include all social records and may also include facts

relating to the child's cultural heritage, and shall be

made available to the court. The court shall consider the

social file and social study at the disposition hearing in

addition to evidence produced at the fact-finding hear-

ing. At least ten working days before the disposition

hearing, the department shall mail to the parent and his

or her attorney a copy of the agency's social study and

proposed service plan, which shall be in writing or in a

form understandable to the parents or custodians. In

addition, the department shall provide an opportunity

for parents to review and comment on the plan at the

community service office. If the parents disagree with the

agency's plan or any part thereof, the parents shall sub-

mit to the court at least twenty-four hours before the

hearing, in writing, or signed oral statement, an alterna-

tive plan to correct the problems which led to the finding

of dependency. This section shall not interfere with the

right of the parents or custodians to submit oral argu-

ments regarding the disposition plan at the hearing.

(2) In addition to the requirements set forth in subsec-

tion (1) of this section, a predisposition study to the

court in cases of dependency alleged pursuant to RCW

13.34.030(2) (b) or (c) shall contain the following infor-

mation:

———

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Mar. 1989 BABCOCK v. STATE 97

112 Wn.2d 83

(a) A statement of the specific harm or harms to the

child that interventio:. is designed to alleviate;

(b) A description of the specific programs, for both the

parents and child, that are needed in order to prevent

serious harm to the child; the reasons why such programs

are likely to be useful; the availability of any proposed

services; and the agency's overall plan for ensuring that

the services will be delivered;

(c) If removal is recommended, a full description of the

reasons why the child cannot be protected adequately in

the home, including a description of any previous efforts

to work with the parents and the child in the home; the

in-home treatment programs which have been considered

and rejected; and the parents’ attitude toward placement

of the child;

(d) A statement of the likely harms the child will suffer

as a result of removal. This section should include an

exploration of the nature of the parent-child attachment

and the meaning of separation and loss to both the par-

ents and the child;

(e) A description of the steps that will be taken to

minimize harm to the child that may result if separation

occurs; and

(f) Behavior that will be expected before determination

that supervision of the family or placement is no longer

necessary.

At the August hearing Mark Bronson testified for DSHS,

based on the report prepared by Wanda Tyler.

[1] The fact that the caseworkers acted as participants

in an adversary hearing renders their actions immune

under the common law doctrine of absolute immunity for

participants in judicial proceedings. This immunity is well

described by the United States Supreme Court in the cases

Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S.

Ct. 984 (1976), Butz v. Economou, 438 U.S. 478, 57 L. Ed.

2d 895, 98 S. Ct. 2894 (1978) and Briscoe v. LaHue, 460

U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983).°

2All three of these cases—I/mbler, Butz and Briscoe—were federal suits based

on 42 U.S.C. § 1983, which authorizes suit in federal and state court for injuries

inflicted by state officials under color of state law. As noted, these plaintiffs

claims under section 1983 are not before us. However, the immunities recognized

A-16

98 BABCOCK v. STATE Mar. 1989

112 Wn.2d 33

The defendants contend that these cases establish two

separate grounds of immunity. First, social services case-

workers are said to be entitled to quasi—prosecutorial

immunity because a caseworker's role in dependency pro-

ceedings under RCW 13.34 is analogous to that of a prose-

cutor in criminal proceedings. Second, the defendants argue

that the caseworkers are entitled to immunity as witnesses.

The defendants are almost correct. The leading cases actu-

ally set forth a single theory of immunity: that participants

in adversarial judicial proceedings are immune from suit as

a safeguard on the integrity of the adversarial process itself.

In Jmbler, the plaintiff alleged that a state prosecuting

attorney had knowingly used false evidence and had sup-

pressed exonerating evidence at his trial for felony murder.

The Court held the prosecutor immune from suit under

section 1983 on the ground that prosecutorial immunity at

common law was incorporated into the Civil Rights Act by

Congress.’ That common law immunity has several

grounds. There is the effect on the prosecutor himself: civil

suits would distract him from the business of his office.

There is also a question of efficiency, in that the civil suit

would require a virtual retrial of the criminal case. Above

all, however, prosecutorial immunity is required to preserve

the truth-finding function of the criminal trial. The threat

of liability to suit would have a chilling effect on the initia-

tion of criminal prosecutions and on the prosecutor's con-

duct at trial. The jury's function might be impaired by a

prosecutor's decision to withhold evidence that is relevant

but not ironclad. Finally, the judgment of those responsible

in Jmbler, Butz and Briscoe were all founded on common law. The immunities

and the logic behind them are, therefore, equally applicable to the plaintiffs’ tort

claims.

“The Court had previously recognized such incorporated immunity for legisla-

tors in Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951)

and for judges in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213

(1967).

RN CO ta tN a a A eH se a

Oe ee ee ae

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Mar. 1989 BABCOCK v. STATE 99

112 Wn.2d 83

for evaluating the fairness of the trial on appeal and collat-

eral review might be biased by the knowledge that a favor-

able decision for the prisoner could subject the prosecutor

to liability.

The important thing to notice about the Jmbler casé is

that it bases prosecutorial immunity on the nature of the

criminal proceeding; not on the nature of the prosecutor's

duties. The Court reinforced this point in its opinion rec-

ognizing "quasi-prosecutorial" immunity in Butz. The

plaintiff in Butz siled officials of the Department of Agri-

culture for their initiation and conduct of an adversarial

administrative hearing related to his status as a commodi-

ties broker. The Court held that the hearing examiner and

administrative law judge were entitled to absolute

immunity.‘

Butz's grant of immunity to the two officials was based

on the resemblance between the adversarial administrative

hearing and a criminal trial. Butz, at 512-13. The hearing

officer and administrative law judge in Butz were not held

immune because of their resemblance to a prosecutor and

trial judge. The critical fact was that they were participants

in an adversarial proceeding in need of the same safeguards

as a criminal trial. Justice White's opinion stresses that the

prosecutorial immunity recognized in Jmbler is based on

the prosecutor's status as one of "the various participants

in judge-supervised trials," a group which includes judges,

grand jurors, petit jurors and witnesses. Butz, at 509-12.

He discusses the features of a criminal trial stressed in

Imbler and also several others which justify immunity for

the various participants in any adversarial proceeding.

First, immunity serves the system's interest in finality.

The cluster of immunities protecting the various par-

ticipants in judge-supervised trials stems from the char-

acteristics of the judicial process ... [C]ontroversies

sufficiently intense to erupt in litigation are not easily

capped by a judicial decree. The loser in one forum will

“The Court rejected the contention that the Secretary and Assistant Secretary

of the Department were entitled to absolute immunity.

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100 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

frequently seek another, charging the participants in the

first with unconstitutional animus. Absolute immunity is

thus necessary to assure that judges, advocates, and wit-

nesses can perform their respective functions without

harassment or intimidation.

(Citations omitted.) Butz, at 512. Second, a variety of fea-

tures of adversary proceedings make civil suits based on

their conduct unnecessary or redundant.

[T]he safeguards built into the judicial process tend to

reduce the need for private damages actions as a means

of controlling unconstitutional conduct. The insulation of

the judge from political influence, the importance of

precedent in resolving controversies, the adversary nature

of the process, and the correctability of error on appeal

are just a few of the many checks on malicious action by

judges. Advocates are restrained not only by their pro-

fessional obligations, but by the knowledge that their

assertions will be contested by their adversaries in open

court. Jurors are carefully screened to remove all possi-

bility of bias. Witnesses are, of course, subject to the

rigors of cross-examination . . . and the impartiality of

the decisionmaking process, there is a less pressing need

for individual suits to correct constitutional error.

(Footnote omitted.) Butz, at 512. Since these considerations

are equally present in criminal trials and administrative

hearings, the Court recognized immunity for the hearing

officer and administrative law judge.

In Briscoe, the Court considered whether witnesses are

entitled to immunity in section 1983 suits. Given the logic

of Imbler and Butz, the Court had no difficulty in deter-

mining that they are. As the Court noted in discussing

Imbler and Butz: "The central focus of our analysis has

been the nature of the judicial proceeding itself." Briscoe,

at 334. Witnesses, the Court held, are entitled to immunity

for the sake of the adversary process.

In the words of one 19th-century court, in damages

suits against witnesses, "the claims of the individual

must yield to the dictates of public policy, which requires

that the paths which lead to the ascertainment of truth

should be left as free and unobstructed as possible." Cal-

kins v. Sumner, 13 Wis. 193, 197 (1860). A witness’

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Mar. 1989 BABCOCK v. STATE 101

112 Wn.2d 83

apprehension of subsequent damages liability might

induce two forms of self-censorship. First, witnesses

might be reluctant to come forward to testify. And once a

witness is on the stand, his testimony might be distorted

by the fear of subsequent liability.

(Citations omitted.) Briscoe, at 332-33.

Based on Jmbler and progeny, a number of courts have

recognized immunity for social services workers in cases

similar to this one, based on their role in judicial proceed-

ings. See Meyers v. Contra Costa Cy. Dep't of Social

Servs., 812 F.2d 1154 (9th Cir 1987); Kurzawa v. Mueller,

732 F.2d 1456 (6th Cir. 1984); Hennessey v. State, 627 F.

Supp. 137 (E.D. Wash. 1985); Whelehan v. County of

Monroe, 558 F. Supp. 1093 (W.D.N.Y. 1983).

B. The Defendants in This Case Are Immune

[2] In deciding whether immunity is appropriate in this

case, the question is whether the proceedings established

for dependency cases by RCW 13.34 are adversarial pro-

ceedings in need of the same sort of protection recognized

as a necessity in Jmbler, Butz and Briscoe. It should be

apparent from the proceedings actually conducted in this

case that they are, particularly where the report and rec-

ommendation of DSHS is concerned. First, the report of

DSHS cannot be received in a fact-finding or disposition

hearing "except as otherwise admissible under the rules of

evidence." RCW 13.34.110. Second, the Department is

required to make its report and recommendation available

to parents of dependent children, and the Legislature has

stipulated that: "This section [relating to the Department's

report] shall not interfere with the right of the parents or

custodians to submit oral arguments regarding the disposi-

tion plan at the hearing." RCW 13.34.120. In the August

1982 hearing, Rudolph Babcock was represented by counsel

who vigorously cross-examined Mark Bronson, the DSHS

witness who presented the report to the court. Babcock's

counsel was given a full opportunity to argue that the court

should disregard the DSHS report and recommendations

and he did so. In all the hearings conducted in this matter,

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102 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

all parties had a full opportunity to offer evidence, cross—

examine and argue to the court and those opportunities

were fully exploited. The proceedings here were fully

adversarial, as contemplated by the Legislature.

Under the logic of Jmbler and progeny, therefore, immu-

nity for DSHS caseworkers acting in dependency proceed-

ings is required. First, although it was not a consideration

here, the threat of subsequent civil suits would surely cause

Department employees to fail to initiate dependency pro-

ceedings in cases where they otherwise would do so. In this

the caseworkers resemble prosecutors, but note that what

matters is not the nature of the officials, but the nature of

the proceedings. Without immunity for DSHS caseworkers,

the adversarial character of dependency proceedings would

suffer in the same way that criminal trials would suffer if

prosecutors were threatened with liability: the cases would

never be brought.

Second, immunity is requized to protect the caseworkers

in their role as witnesses. This too bears on the adversarial

nature of dependency proceedings. The Department is

required to submit a broad range of information to the

juvenile court under RCW 13.34.120. It does so in both

written reports and in testimony before the court. Without

immunity, caseworkers may well hold back critical infor-

mation needed by the court in order to render a proper

decision. In adversarial dependency proceedings, this might

lead the court not to declare dependency where it would in

fact be in the best interests of the child, because DSHS has

not been able to do the vigorous job that RCW 13.34.120

contemplates.

Third, the adversarial nature of dependency proceedings

renders subsequent civil proceedings unnecessary as a

check on the fairness or thoroughness of the dependency

process or DSHS itself. Despite the tragic outcome in this

case, the fact remains that, to the best of the judiciary's

ability, the rights and interests of all participants were fully

protected in the dependency proceedings. The Babcocks, as

adversary parties, had every opportunity of notice, cross

A-21

Mar. 1989 BABCOCK v. STATE 103

112 Wn.2d 83

examination and argument to challenge the DSHS within

the dependency proceeding and to expose the shortcomings

of the Department's report. Permitting a second contest

over the same matter would have no deterrent or encourag-

ing effect on the Department not already provided by the

adversarial nature of the dependency proceeding itself.

Fourth, as a related matter, it is obvious that this depen-

dency matter was fought out in repeated, and redundant,

hearings over the course of many months. For the sake of

finality of judicial decisions and for the sake of efficiency of

the judicial process, the matter should rest there. The civil

suit contempiated by the plaintiffs here is not barred by

the strict rule of res judicata, but the redundancy and

expense of such suits is certainly a significant factor favor-

ing the grant of immunity to Department caseworkers.

Therefore, we hold that caseworkers carrying out their

statutory duties in connection with dependency proceedings

under RCW 13.34 are entitled to immunity from subse-

quent suit, on the ground that such immunity is required to

preserve the integrity of that adversarial process.

C. The Scope of the Caseworkers' Immunity

The scope of the caseworkers’ immunity must extend to

the full range of their duties under RCW 13.34. The aim of

the entire process is to inform the court as to the course of

action in the best interests of the child. The threat of lia-

bility is equally damaging to the adversarial process

whether liability is imposed for preparing the report or for

testifying on the basis of the report in court. In this case for

example, Mark Bronson testified on the basis of a report

prepared by Wanda Tyler. What would be the logic or jus-

tice in granting Bronson immunity, on the ground that he

was an actual courtroom witness, while denying immunity

to Tyler because she was not? If liability is imposed on

either task, the court's supply of information in the depen-

dency process will be diminished. The fact is that all the

duties set forth in RCW 13.34.120 are directly related to

the adversary proceedings mandated in RCW 13.34.110.

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104 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

Immunity must extend to all such functions, or it is mean-

ingless.

The dissent argues that certain courts have found child

welfare agencies liable for negligent placement. Dissent, at

112. That argument has no weight here. First, applying

those cases would require us to distinguish between the

caseworker's actions in removing the child from the home

and his actions in placing the child in dependent care.

However, removal is not an issue in this case because the

initial declaration that the girls were dependent and in

need of care was made in Louisiana, on the recommenda-

tion of that state's DHHR. The question here is whether

the caseworkers' role in the adversarial dependency pro-

ceedings conducted under RCW 13.34.110 entitles them to

immunity. As to that, there is no basis for distinguishing

between the removal and the placement of the child. Both

decisions are in the hands of the court, first in the fact—

finding hearing and then in the hearing on disposition. As

to both removal and placement, the Department functions

in the same advisory role, preparing a single report con-

taining a single recommended plan of action. The need for

immunity based on the integrity of the adversarial pro-

ceeding is the same in regard to both removal and place-

ment.

Second, the cases the dissent cites for its rule are irrele-

vant to its argument. Those cases concern the discretionary

function exception to the waiver of sovereign immunity.

That theory of immunity is not an issue here. See infra, at

105. The dissent's reliance on these cases indicates a fail-

ure to grasp the logic of that immunity as explained in

Imbier, Butz and Briscoe. The immunity of the caseworkers

must extend to the full range of their statutory duties.

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Mar. 1989 BABCOCK v. STATE 105

112 Wn.2d 83

THE STATE Is IMMUNE ON THE SAME GROUND

AS THE INDIVIDUALS

The State is immune to the same extent as its agents

because the caseworkers’ defense of immunity is not a per-

sonal one, but rather relates directly to their role as agents

of the State.

As a preliminary matter, we note that the State has no

general defense of sovereign immunity, since it was abol-

ished in this State by RCW 4.96.010. That statute which

provides that the State and its officers:

shall be liable for damages arising out of their tortious

conduct . . . to the same extent as if they were a private

person or corporation...

One exception to RCW 4.96.010 which this court has rec-

ognized is the "discretionary function" exception, under

which state officials engaged in the formulation of public

policy are immune from suits based on basic policy deter-

minations. Chambers—Castanes v. King Cy., 100 Wn.2d

275, 669 P.2d 451, 39 A.L.R.4th 671 (1983). However, it

would stretch that doctrine well past its limit to say that

the social workers involved here were engaged in the for-

mulation of basic policy. Therefore, the “discretionary

function" exception to the abolition of sovereign immunity

does not apply here, as many other courts have held in

similar suits. See National Bank v. Leir, 325 N.W.2d 845

(S.D. 1982); Koepf v. County of York, 198 Neb. 67, 251

N.W.2d 866, 90 A.L.R.3d 1205 (1977); Little v. State Div. of

Family Serus., 667 P.2d 49 (Utah 1983); Elton v. County of

Orange, 3 Cal. App. 3d 1053, 84 Cal. Rptr. 27 (1970); Bar-

tels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d

906 (1980).

[3] According to the very terms of RCW 4.96.010, how-

ever, the State still is not liable here. The State is liable

only to the extent a private defendant in a similar situation

would be. The State acted in this case only through the

caseworkers. As principal, the State may be liable for those

agents’ actions under the doctrine of respondeat superior.

However, like any principal, the State may take advantage

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106 BABCOCK v. STATE Mar. 1989

112 Wn.2d &3

of the defenses of its agent to the extent those defenses are

not purely personal to that agent. Vern J. Oja & Assocs. v.

Washington Park Towers, Inc., 89 Wn.2d 72, 77, 569 P.2d

1141 (1977).

The defense of immunity asserted by the caseworkers

here is not a personal defense. On the contrary, it is inti-

mately related to their status as agents of the State. The

whole theory behind the immunity we recognize here is to

permit DSHS caseworkers to more effectively carry out

their statutory duties under RCW 13.34.120. The State is

therefore equally entitled to assert the same defense.

This is no more than common sense. Suppose the case-

workers were immune but the State were not. The grant of

immunity would enable the caseworkers to pursue their

statutory duties without the adverse effects associated with

the threat of liability, as discussed above. However, if the

State were not similarly immune, the restraints on the

caseworkers and the consequent constraints on the flow of

information to the juvenile court would be imposed as a

matter of Department policy. Nothing is gained by holding

the individuals immune if the State is not also immune.

Therefore, we affirm the trial court in its grant of sum-

mary judgment to the State as well as to the individual

defendants.

THERE Is No TRIABLE ISSUE OF OUTRAGEOUS

ConpbuctT

The plaintiffs’ claims for outrage appear to relate to con-

duct within the scope of RCW 13.34.120 and therefore

within the scope of absolute immunity. Even to the extent

that claim may rest on conduct outside the bounds of

immunity, however, summary judgment was appropriate.

Nothing in the record indicates a triable issue of outrageous

conduct.

[4] The dispositive case is Guffey v. State, 103 Wn.2d

144, 690 P.2d 1163 (1984), in which we considered a claim

of outrage against a state trooper who, on the basis of a

radio report, believed the plaintiff to be a wanted felon.

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Mar. 1989 BABCOCK v. STATE 107

112 Wn.2d 83

The trooper drew his weapon, ordered the plaintiff out of

his car and subjected him to a pat—down search. The plain-

tiff was not the wanted man. This court held that, as a

matter of law, the trooper's conduct was not "'so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atro-

cious, and utterly intolerable in a civilized community.'"

Guffey, at 146 (quoting Grimsby v. Samson, 85 Wn.2d 52,

530 P.2d 291, 77 A.L.R.3d 436 (1975)).

We must reach the same conclusion here. The casework-

ers, of course, had nothing to do with the rape of the girls.

Their only offense was to fail to discover it. We can find

nothing else in the record which remotely approaches even

the trooper's conduct in Guffey. Like the trooper, the case-

workers were merely fulfilling their duties as public ser-

vants. If the trooper's conduct is not outrageous, as a

matter of law, then the caseworkers’ conduct certainly is

not. We therefore affirm the trial court's grant of summary

judgment.

THERE Is No TrIABLE ISSUE OF ALIENATION

OF AFFECTIONS

Like the plaintiff's claims for outrage, the Babcock's

claims for alienation of the girls affections probably fall

within the scope of the defendants' immunity. We never-

theless will discuss briefly the merits.

[5] This court has not yet had occasion to recognize a

cause of action for the alienation of a child's affection, nor

for the alienation of a grandchild's affection. As guidance in

considering such claims, however, courts of this state have

repeatedly relied on the opinion in Strode v. Gleason, 9

Wn. App. 13, 510 P.2d 250, 60 A.L.R.3d 924 (1973) (Callow,

J.). Strode states the elements as: (1) an existing family

relationship; (2) a malicious interference with the relation-

ship by a third person; (3) an intention on the part of the

third person that such malicious interference results in a

loss of affection or family association; (4) a causal connec-

tion between the third parties’ conduct and the loss of

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108 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

affection; and (5) resulting damages. Strode, at 14-15, 20.

"Malicious interference" refers to unjustifiable interference.

Strode, at 20.

Whatever interference in the parent-child relationship

occurred here, it cannot possibly be said to be malicious or

unjustifiable. The defendants were acting under the

authority of law in what was necessarily a complex and

emotionally charged case. As a matter of law, it is not pos-

sible for the plaintiffs to establish that the caseworkers

acted with malice. Furthermore, as a matter of law, the

plaintiffs could not establish that the actions of the case-

workers were the cause of any loss of affection. Confusion

on the part of the girls as to where their true affections lay

was, unfortunately, almost inevitable from the moment

Louisiana began its dependency proceedings. To lay that at

the door of the caseworkers would be unjust.

CONCLUSION

The individual defendants and the State are immune on

the ground that they were participants in an adversary

dependency proceeding. There is no triable issue of either

outrage or alienation of affections. We therefore affirm the

grant of summary judgment as to all claims.

Ca.Low, C.J., and DurHaM, J., concur.

DOLLIVER and ANDERSEN, JJ., concur in the result.

Urter, J. (dissenting)—The issue in this case concerns

the negligence of DSHS in conducting a home study for the

foster placement of children previously removed from their

natural parents.° The majority, by incorrectly focusing on

the liability of the caseworkers as individuals rather than

DSHS as an agency, needlessly deprives appellants, tragic

°*The agency's potential liability for negligence in removing children from the

home is not at issue in this case. As the majority points out, removal of the Bab-

cock children took place in Louisiana. Therefore, it is not necessary here, as the

majority states at page 104, for the court to make a distinction between place-

ment and removal. To do so would result in the court deciding issues not pre-

sented before it.

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Mar. 1989 BABCOCK v. STATE 109

112 Wn.2d 83

victims of preventable sexual abuse, from presenting their

case to a jury. The majority rule in this country would

allow appellants to do so. See Annot., Governmental Tort

Liability for Social Service Agency's Negligence in Place-

ment, or Supervision After Placement, of Children, 90

A.L.R.3d 1214 (1979). The majority in this case not only

incorrectly analyzes the controlling issue but also, in effect,

revives sovereign immunity, a doctrine abolished by the

Legislature in RCW 4.96.010. Because of this misapplica-

tion of immunity and because the petitioners make out a

case for negligence against the State, I dissent.

I

The trial court dismissed the appellants’ case upon the

defendants' motion for summary judgment. A motion for

summary judgment cannot be granted against a nonmoving

plaintiff if there exists an issue of material fact, either pre-

sented in the plaintiff's pleadings or in affidavits produced

in opposition to the motion. CR 56. Celotex Corp. v. Cat-

rett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548

(1986); Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77

(1985). In such a motion, the moving party bears the initial

burden of showing the absence of an issue of material fact.

LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975).

An appellate court reviewing a summary judgment places

itself in the position of the trial court and considers the

facts in a light most favorable to the nonmoving party. Del

Guzzi Constr. Co. v. Global Northwest Ltd., 105 Wn.2d

878, 882, 719 P.2d 120 (1986). The record in this case

reveals issues of material fact in support of plaintiffs Erika

and Beth Babcock's claim for negligence. The majority cir-

cumvents these by framing the legal issues improperly.

In framing the issues as it has, the majority neglects to

address the ultimate source of the harm experienced by the

Babcock girls. The record contains nothing to suggest that

the DSHS caseworkers were not following agency proce-

dures when conducting their background investigation of

Mr. Michael. The relevant inquiry, then, concerns not the

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110 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

acts of the individual caseworkers but the sufficiency of

DSHS's home study requirements and the adequacy of its

training and supervision of personnel conducting such

studies. This negligence occurred before the hearings; the

damage resulting from it was discovered only afterward.

Therefore, the real issue is not what happened in the hear-

ings, but what procedures took place in the information—

gathering process before they began. How did DSHS come

to recommend placement in the Michael home in the first

place?

On November 14, 1981, one of the DSHS caseworkers

visited the Michaels' home and conducted a home study to

determine that family's suitability. This was the only home

visit and the only occasion in which information for the

home study was gathered. The caseworker compiled the

information on an "Adoption Application" form, apparently

due to the Michaels' expressed interest in adopting the

children at some later date. The home study reveals that

Lee Michael was unemployed, had a dependence upon

alcohol, and was in counseling.

Inexplicably, the caseworker failed to complete one ques-

tion on the form: "Have you ever been arrested or con-

victed for a crime?" At the time, it was not standard DSHS

policy to investigate as a matter of routine any previous

arrests or convictions of prospective foster parents. Thus,

DSHS never researched Lee Michael's criminal back-

ground. Had it done so, it would have discovered that

Michael had a criminal history dating back to 1967 when he

pleaded guilty to armed robbery and had been convicted

several times in recent years of driving while intoxicated.

Michael had also been charged with forcible rape in 1975

and sexual assault and attempted rape in 1979. These

events occurred in Benton County. DSHS admits that had

it known about this criminal history it would not have rec-

ommended that the girls be placed with the Michaels.

The initial placement of the Babcock girls in the Michael

home was, in fact, made before the final hearing on the

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Mar. 1989 BABCOCK v. STATE 111

112 Wn.2d 83

matter. DSHS initially did this on its own initiative, with-

out juvenile court permission, a few days after returning

the girls from Wisconsin. Clerk's Papers, at 3407-08, 3638.

The fact that the Babcock girls were already in the Michael

home before the disposition hearings took place under-

scores the fact that the agency's negligence at issue here is

separate from anything that may have occurred in the

hearings.

Based on this factual situation, I find it inappropriate

that the majority extends the individual caseworkers’ wit-

ness—based immunity to DSHS through an analysis under

the law of agency. It is incongruous to protect the negligent

acts of the principal with the agent's immunity when the

agent's own negligence, if it exists at all, is not an issue.

The source of the harm was the agency's negligence, not the

acts of the caseworkers following agency procedures. To

protect the State this way artfully avoids getting to the

bottom of the matter. It effectively creates a sovereign

immunity for DSHS in foster placement cases.

Further, to extend the individuals’ immunity to DSHS

ignores the agency's statutory mandate. Under RCW 13.34-

.120, the person or agency filing the dependency petition—

here DSHS—must prepare a predisposition study for the

court to use in its decision. The study, in this case, included

the home study of the Michaels’ residence. We cannot min-

imize the importance of this study. Although the juvenile

court considers it along with other evidence produced at the

factfinding hearing under RCW 13.34.110, the facts in this

case show that the agency's recommendation is given great

weight. The juvenile court's ultimate decision not to place

the Babcock girls with their natural father illustrates the

impact of agency input. The court did this in part because

the agencies from the other involved states did not produce

enough data to make full recommendations of their own.

DSHS was the only agency providing information; the court

followed its recommendations.

Because the juvenile court relies on the agency study to

such a degree, the accuracy and completeness of this study

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112 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

is paramount. DSHS has a duty to the children involved to

provide accurate and complete information. This duty

includes proper training of caseworkers, home study design

and execution, and follow—up. It is foreseeable that some

prospective foster parents may have criminal records, some

of these pertaining to sex offenses. To ask the simple ques-

tion whether or not the foster parent has a criminal record,

or to request permission to investigate his or her records,

represents a minimal burden. Asking that simple question

concerning a foreseeable danger could have avoided placing

the Babcock and Long girls with a man repeatedly charged

with sex offenses. Failing to do so represents negligence on

the part of DSHS.

Courts in other states have addressed the sort of negli-

gence with which DSHS is associated here. These courts

have found that the agencies responsible for negligent fos-

ter placement are not immune from suit. See, e.g., National

Bank v. Leir, 325 N.W.2d 845 (S.D. 1982); Koepf v. County

of York, 198 Neb. 67, 251 N.W.2d 866, 90 A.L.R.3d (1977);

Little v. State Div. of Family Servus., 667 P.2d 49 (Utah

1983); Elton v. County of Orange, 3 Cal. App. 3d 1053, 84

Cal. Rptr. 27 (1970); Bartels v. County of Westchester, 76

A.D.2d 517, 429 N.Y.S.2d 906 (1980). The majority

attempts to distinguish these cases, implying that they

addressed issues of immunity not presented here, in partic-

ular the discretionary/nondiscretionary distinction applica-

ble to public entities. The majority then focuses on the role

of the juvenile court in the placement process, with the

implication that these proceedings purge all the parties of

liability.°

“The majority's claim that these cases are irrelevant, see majority at 104, can

only be made in the context of the improperly framed issue upon which the

majority bases its opinion. Again, the immunity based on participation in adver-

sarial proceedings is irrelevant because the caseworkers’ individual negligence is

not the issue here. The majority ignores this distinction and focuses on the indi-

viduals. See, e.g., majority at 104 ("applying those cases would require us to dis-

tinguish between the caseworkers actions in removing the child from the home

and his actions in placing the child"). (Italics mine.) The negligence at issue is

that of DSHS, a broader negligence concerning the manner in which it conducted

ee nT a ee

all

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Mar. 1989 BABCOCK v. STATE 113

112 Wn.2d 83

Many of the courts cited above faced similar statutory

schemes in which a juvenile court reviewed the agency's

foster placement recommendation before making the final

decision. See, e.g., Neb. Rev. Stat. §§ 43-208, 43-209; New

York Soc. Serv. Law §§ 384, 384—b; Cal. Welf. & Inst. Code

§ 600 (now repealed). Although they did not discuss it,

these courts decided their cases on the basis of the discre-

tionary/nondiscretionary analysis apparently because the

agencies’ function was, as it is here, essentially distinct

from what occurs in the dependency hearings. The Koepf

court in particular reviewed the immunities of each major

figure in the juvenile court proceedings—the judge, the

county attorney, and the sheriff—before finding that the

agency was not immune. 198 Neb. at 70-73. The court did

not even entertain the notion that the immunities arising

from the judicial proceeding could apply to the agency's

prior act of factfinding. The cases above represent the

majority rule in this country.

II

The law of torts serves two basic functions: it seeks to

prevent future harm through the deterring effect of poten-

tial liability and it provides a remedy for damages suffered.

By effectively reviving sovereign immunity, the majority

strips tort law of these essential functions as it relates to

the actions of the State in foster placement.

The majority implies that the fear of liability will dis-

courage DSHS from gathering accurate placement informa-

tion. On the contrary, this "fear" can only result in pressure

on DSHS to perform its duties properly. Rather than

inhibit the flow of placement information from DSHS,

exposure to liability will help insure that such information

home studies and supervised employees. The employees were only following

agency procedures. They may have immunity in the adversary process, but their

actions are not the crux of the problem. Therefore, grasping the logic of /mbler vu

Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Butz v.

Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); and Briscoe v

LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983) is not the point.

These latter cases are the irrelevant ones.

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114 BABCOCK v. STATE Mar. 1989

112 Wn.2d 83

is complete and accurate. If the agency's foster placement

actions are cloaked in immunity, we have no assurance that

the type of tragic event at issue here will not happen again.

In addition to failing to prevent similar occurrences in

the future, the majority overlooks the second function of

the law of torts. When two young girls, placed in a danger-

ous foster home when knowledge of its danger was readily

available, were repeatedly raped and molested due to

DSHS's easily avoided negligent omission, this court should

not leave them without a remedy.

It is all the more distressing that the denial of recovery is

based on an analysis that incorrectly frames the case's

issues. The majority spends much of its time discussing the

individual immunity of the caseworkers. The individuals

are not liable in the first place; they were only following

agency procedures. The real question concerns DSHS's

actions as an agency: it followed defective home study pro-

cedures and did not train and supervise its personnel ade-

quately. The majority does not directly address this and, as

a result, decides something that is not an issue in this case.

There is evidence from which it can be argred that

DSHS was negligent in the way it handled the Babcock

girls' foster placement. Because these actions were not

attributable to the individual caseworkers, the immunity

accorded the caseworkers through their participation in

adversarial proceedings is not applicable to the agency.

DSHS is not immune from suit. I therefore dissent.

BRACHTENBACH and Pearson, JJ., concur with Utrer, J.