Babcock v. State ( 1991 )

Dore, C.J.

I dissent. The majority opinion holds that DSHS caseworkers can be sued for negligence in any case where a party alleges negligence and can show some omission or mistake in their testimony or case study reports which are submitted to the courts in custody proceedings. The devastating impact of turning each one of these administrative matters into a court case would cripple the already overwhelmed caseworker system. Current DSHS statistics show that there are an estimated 850 caseworkers addressing children's matters and approximately 25,000 to 27,000 children to monitor.

Misleading and Prejudicially False Representation of Michael's Criminal Record

The majority's opinion states that:

In preparing this document [the Court Summary and Agency Plan], Tyler never asked anyone whether Michael had a criminal background. In fact, Michael had a criminal record dating back to 1967 which included charges of forcible rape, sexual assault, and attempted rape.

Majority opinion, at 601. The record actually shows that Mr. Michael (the husband of the girls' maternal aunt) had the following criminal involvement:

1967— Michael pleaded guilty to one count of robbery while "not armed with a dangerous weapon". Clerk's Papers, at 1641-42, 1644, 1652, 1829. Deposition of Michael.

1968— Michael "ran up" a string of DWI's. Clerk's Papers, at 1656,1700. Deposition of Michael.

1975—Michael charged with one count of forcible rape of a woman he. met in a bar. He was acquitted of the forcible rape charge in 1975. Clerk's Papers, at 1700, 1702,1708. Deposition of Michael.

1979—Michael charged with sexual assault and attempted rape of a woman acquaintance. The State dropped the assault and rape charges. Clerk's Papers, at 1709-11, 1713. Deposition of Michael.

Mr. Michael acknowledged the past criminal charges, explained the resolution of those charges, and confirmed the burglary and DWI convictions that comprise his criminal history after criminal charges were filed against him, when deposed during discovery, before his trial. See discussion above.

There is no statutory definition of the term "criminal record" as used by the majority. The term "criminal history", as defined by Washington statutory and case law, includes only a defendant's convictions, not crimes with which the defendant was charged, but then acquitted, or charges that were dismissed. State v. Bartholomew, 98 Wn.2d 173, 196-97, 654 P.2d 1170 (1982), State's cert. granted, judgment vacated and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983), conviction aff'd. on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984); State v. Adcock, 36 Wn. App. 699, 703, 676 P.2d 1040, review denied, 101 Wn. 2d 1018 (1984); RCW 9.94A.030; RCW 13.40.020(6)(a), (b).

Under the reasoning in Bartholomew and Adcock, Michael's "criminal record" includes only the robbery and the DWI charges, it does not include the rape or assault charges. The majority's failure to present the resolution of the sexual offense charges, at best, is misleading. The omission clearly suggests that defendant was convicted of the sexual offenses, and it is highly prejudicial to the caseworkers and DSHS in this case. Absent the "criminal record" of sexual offenses upon which the majority relies heavily, the allegations of negligence in this case do not amount to much. Had the caseworkers asked Michael in 1981 if he had ever been convicted of a crime, Michael truthfully could have answered "yes", he was convicted of robbery more than 13 years before and of traffic offenses, but no sexual offenses.

Majority Opinion Potentially Exposes Caseworkers to Ruinous Lawsuits for any Mistake

The majority's ruling exposes caseworkers to financially devastating litigation. Today, caseworkers are severely overburdened by heavy caseloads and often are responsible for monitoring children living in hazardous home environments with physically abusive and/or drug dependent parents. Absent immunity, caseworkers faced with the difficult decision of removing an abused or neglected child from such a home will be reluctant to act out of fear of being sued. Theoretically, the majority opinion would expose 850 caseworkers to some 27,000 lawsuits. To deny caseworkers quasi-judicial and quasi-prosecutorial immunity would be irresponsible and, in my opinion, would ultimately result in the destruction of the caseworker system.

I would hold that caseworkers are entitled to quasi-judicial and quasi-prosecutorial immunity in testifying before courts and/or in preparing reports and making recommendations to the courts on custodial matters. This immunity would not apply if the caseworkers become aware of information detrimental to custody and fail to make this information available. In the subject case there is a total lack of any evidence that the caseworkers were aware of Michael's criminal activities. If they were and they failed to make that information available in their reports then they could be sued for damages under the exception to the public duty doctrine set forth in Bailey v. Forks, 108 Wn.2d 262, 737 P.2d 1257, 753 P.2d,523 (1987), where a police officer saw a man he knew to be intoxicated driving a truck and he took no steps to stop him. In Bailey, it was foreseeable that the driver in all probability would seriously injure someone, and the general duty of the police was turned into a special duty owed to the injured victims. That is not the case here as the caseworkers had no prior knowledge at any time of Michael's criminal record.

In the subject case, absent any evidence that the caseworkers knew of Michael's criminal record and failed to disclose it, the caseworkers are entitled to quasi-judicial and quasi-prosecutorial immunity in the plaintiffs' cause of action.

Summary Judgment

When bringing a motion for summary judgment the moving party bears the initial burden of showing an absence of an issue of material fact. Hines v. Data Line Sys., Inc., 114 Wn.2d 127, 148, 787 P.2d 8 (1990). If the defendant moves for summary judgment and makes this initial showing, the inquiry then shifts to the party bearing the burden of proof at trial. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case then the trial court should grant the motion. Hines, 114 Wn.2d at 148. In responding to the motion, the nonmoving party cannot simply rely upon the allegations set forth in its pleadings. CR 56(e) provides that the response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” The trial court then views all evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Young, 112 Wn.2d at 226. On appeal, the reviewing court places itself in the position of the trial court and considers the facts in the light most favorable to the nonmoving party. Del Guzzi Constr. Co. v. Global Northwest Ltd., 105 Wn.2d 878, 889, 719 P.2d 120 (1986).

The majority asserts that Babcock v. State, 112 Wn.2d 83, 768 P.2d 481 (1989) (Babcock I) erroneously presented the undisputed facts in the light most favorable to the moving party. Majority, at 599. However, viewing the facts in the light most favorable to the nonmoving party does not mean treating the allegations of that party as proven facts as the majority does in this case. The plaintiffs' complaint states that Aryn and Angela allegedly ran away prompting their removal from the senior Babcocks' home. Clerk's Papers, at 3733, 3734. The majority accepts as true the plaintiffs' assertion that the girls had not run away from home but, rather, DSHS had concocted that story as a pretext for removing the girls. See majority, at 600 n.2. The majority fails to acknowledge that at the hearing on defendants' motion for summary judgment before Judge Staples the attorney seeking to represent the girls, Robert Crotty, specifically stated that both girls had, in fact, run away at the times stated by the defendants.³⁴

Furthermore, the majority misconstrues the evidence in order to support its resolution of the case. The majority states that "On October 16, 1981, DSHS again took Aryn from her grandparents' home with Michael's assistance. Clerk's Papers, at 3395, Admission 17." Majority, at 600. The majority takes great liberty with the language of the admission cited for support of that proposition. Request for Admission 17 asked

On or about October 15, 1981, the DSHS assumed physical control of Aryn Long.

RESPONSE: Admitted that DSHS assumed physical custody of Aryn Long on 10/16/81.

Clerk's Papers, at 3395. The majority has decided that not only did DSHS take Aryn from her grandparents' home, but that Lee Michael assisted DSHS in that activity. Is this a "reasonable inference" for the court to draw from the evidence before it? While the majority purports to adhere to the standard for reviewing a motion for summary judgment, it clearly exceeds those rules by characterizing the facts in the light most favorable to bolster its determination of the case.

Caseworker Immunity

Regardless of the existence of disputed facts, the issue of immunity from suit is a threshold inquiry which should be decided at the earliest possible stage of litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir. 1990). Although there is case law to the contrary, I would hold that caseworkers are entitled to «quasi-judicial and quasi-prosecutorial immunity in testifying before the court, preparing reports and making placement recommendations to the courts on custodial matters. Further, I believe the Ninth Circuit's decision in the plaintiffs' federal suit represents a well-reasoned approach when addressing the issue of caseworker immunity. See Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) (Babcock II), cert. denied, 110 S. Ct. 1118 (1990). Therefore, I would hold that the caseworkers are entitled to quasi-judicial and quasiprosecutorial immunity and affirm the trial court's order granting summary judgment in favor of the defendants.

In Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989), we held that an engineer who testified as an expert witness on behalf of respondents at a previous trial was entitled to immunity from suit based on his testimony. The client had sued the engineer alleging that the cost of restoring lateral support later proved to be double the amount of the engineer's estimate. They alleged he was negligent in preparing his analysis and testimony and that, but for his low estimate of the cost of restoring lateral support, they could have obtained judgment against the defendant for the true cost of restoration. In ByrneStevens, we stated:

As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.

Guardians, therapists and attorneys who submit reports to family court are absolutely immune. Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, 484 U.S. 828 (1987). Probation officers who allegedly include false statements in pretrial bond reports have been held immune. Tripati v. United States Immigration & Naturalization Serv., 784 F.2d 345, 348 (10th Cir. 1986), cert. denied, 484 U.S. 1028 (1988).

. . . However, the rationale behind quasi-judicial immunity, as set out in Briscoe [v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983)], sweeps more broadly. The purpose of granting immunity to participants in judicial proceedings is to preserve and enhance the judicial process. "The central focus of our analysis has been the nature of the judicial proceeding itself." Briscoe, 460 U.S. at 334. The various grants of immunity for judges and witnesses, as well as for prosecutors and bailiffs, are all particular applications of this central policy. They are best described as instances of a single immunity for participants in judicial proceedings.

(Footnote omitted.) Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d at 125, 127-28. If, as a matter of public policy, this court extended an engineer witness immunity, how much more important is it to give quasi-judicial immunity to state caseworkers investigating custody matters.

Addressing the plaintiffs' 42 U.S.C. § 1983 claim, which concerned the same allegedly negligent conduct by the caseworkers raised in state court, the Ninth Circuit recently held that the individual caseworkers were absolutely

immune from suit (under section 1983). Babcock, 884 F.2d at 504. The court related

Absolute immunity from liability under 42 U.S.C. § 1983 has been accorded state employees responsible for the prosecution of child neglect and delinquency petitions, the guardian ad litem who serves as an advocate for the children in such proceedings, and psychologists and psychiatrists who provide information and findings for use in the proceedings by the State Department of Social Services. Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984). Such persons are accorded absolute immunity because their participation in the court proceedings is an integral part of the judicial process. Id. See also Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S.Ct. 1108, 1120-21, 75 L.Ed.2d 96 [(1983)] (police officer as witness). . . . Thus, the crucial inquiry in resolving a claim of absolute immunity is whether the function for which immunity is claimed is so much an integral part of the judicial process that to deny immunity would disserve the broader public interest in having participants such as judges, advocates and witnesses perform their respective functions without fear of having to defend their actions in a civil lawsuit. See Butz [v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978)].

(Citation omitted.) Babcock, 884 F.2d at 501-02.

The court rejected the plaintiffs' argument that the involvement of the caseworkers occurred during the post-adjudicatory phase of the dependency proceedings and constituted merely administrative or ministerial functions. Babcock, 884 F.2d at 502-03. The court stated

Dependency proceedings include post-adjudication activities as well as acts by which the proceedings are initiated. See Meyers [v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829 (1987)]. The reason for this is apparent. Caseworkers' duties do not end with the adjudication of child dependency. Depending on state law, caseworkers will have various statutory duties to perform during the time between the initial adjudication of dependency and final disposition of a case. See R.C.W. 13.34.120 (1983). In Washington, the dependency process does not end until six months after the dependent child returns home. R.C.W. 13.34-.130 (1983). Throughout this process, caseworkers need to exercise independent judgment in fulfilling their post-adjudication duties.

Babcock, 884 F.2d at 503. Extending absolute immunity to the individual defendants when carrying out their postadjudicatory duties the Ninth Circuit held that

The fear of financially devastating litigation would compromise caseworkers' judgment during this phase of the proceedings and would deprive the court of information it needs to make an informed decision, Meyers, 812 F.2d at 1157. There is little sense in granting immunity up through adjudication of dependency, and then exposing caseworkers to liability for services performed in monitoring child placement and custody decisions pursuant to court orders. These post-adjudication actions by social caseworkers may or may not be prosecutorial in nature. See Coverdell [v. Department of Social & Health Servs., 834 F.2d 758, 764 (9th Cir. 1987)]; cf. Meyers, 812 F.2d at 1156. In any event, however, all of Tyler's and Bronson's actions of which the plaintiffs complain were taken in connection with, and incident to, ongoing child dependency proceedings. Whether their immunity is characterized as quasi-prosecutorial or as quasi-judicial, see Coverdell, 834 F.2d at 765, Tyler and Bronson are entitled to absolute immunity.

884 F.2d at 503.

Several federal courts recognize absolute immunity for social service caseworkers performing quasi-prosecutorial functions related to the initiation and pursuit of child dependency proceedings. See Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.) (extended absolute immunity to social service caseworkers participating in the initiation and pursuit of child dependency proceedings), cert. denied, 484 U.S. 829 (1987); Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 764 (9th Cir. 1987) (absolute immunity for caseworker obtaining and executing a court order for seizure and placement of a newborn); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (state social service employees responsible for prosecution of child neglect and delinquency petitions in state court perform functions comparable to a prosecutor, entitling them to absolute immunity from liability for damages under section 1983); Mazor v. Shelton, 637 F. Supp. 330, 334-35 (N.D. Cal. 1986) (acts of county social service worker in removing child from custody of mother and temporarily placing child with adoptive father merit absolute immunity; "role of a social worker in the care of minors is sufficiently analogous to the role of a prosecutor to warrant absolute immunity1'); Hennessey v. Washington, 627 F. Supp. 137, 140 (E.D. Wash. 1985) (social service caseworker who allegedly used false and misleading information to cause county prosecutor to initiate child dependency proceedings was absolutely immune from damages liability under section 1983); Pepper v. Alexander, 599 F. Supp. 523, 526 (D.N.M. 1984) (state Department of Human Services employees absolutely immune from damage liability under section 1983 for their decision to file petition for termination of parental rights and for their participation in that proceeding); Whelehan v. County of Monroe, 558 F. Supp. 1093, 1098 (W.D.N.Y. 1983) (employees of county Department of Social Services sued under section 1983, for alleged malicious prosecution of child protective proceedings, entitled to absolute immunity; "roles of the employees of the Department are sufficiently like the role of a prosecutor to warrant coverage by absolute immunity . . .").

State of Louisiana Dependency Judgment

In the subject case, the Louisiana court made the initial determination of the dependency of the Long and Babcock girls and placed the children in the elder Babcocks' home in Washington. Pursuant to the Louisiana court's order of dependency, the Louisiana Department of Health and Human Resources transferred the case to Washington State and the Washington court accepted jurisdiction. With the girls living in this state, the Washington DSHS took responsibility for the Long/Babcock case and assigned a caseworker to monitor the girls' dependent status.

The record here established that the actions of the caseworkers assigned to the case were taken in pursuit of child dependency proceedings. The DSHS Service Episode Record, in which Tyler and Bronson recorded their notes regarding the case, revealed that the caseworkers conducted several interviews with the Babcocks, the Michaels, the children and others. The Service Episode Record also established that the caseworkers conducted home studies on the Babcocks and the Michaels and gathered extensive information relevant to the placement of the girls. Based upon the information collected, the caseworkers made recommendations regarding the placement of the children and caseworker Bronson, acting on behalf of DSHS, testified as to that evidence before the juvenile court. The trial judge, based on such information and other evidence developed in open court, made the final decision on custody. The judge need not have followed DSHS' recommendation.

Although the actual determination of the girls' dependency occurred months earlier in Louisiana, Washington DSHS caseworkers Tyler and Bronson were actively engaged in pursuing the dependency ruling once the case was transferred to this State. The dependency process in Washington does not end until 6 months after the dependent child returns home. RCW 13.34.130. The record shows that several hearings were held before the juvenile court to determine if the children should be returned to the custody of Rudolph Babcock. The court refused to order that Rudolph Babcock be given custody of the girls and consequently their dependent status did not change. As found by the Ninth Circuit, "all of Tyler's and Bronson's actions of which the plaintiffs complain were taken in connection with, and incident to, ongoing child dependency proceedings" entitling the caseworkers to the protection of absolute immunity. Babcock, 884 F.2d at 503. Therefore, I would dismiss the plaintiffs' suit against the individual defendants.

Tyler Was Not Negligent in Conducting the Michael Home Study

The plaintiffs' claim of negligence against caseworker Tyler and DSHS centers on the investigation of the Michaels as potential foster parents. When conducting the home study of the Michaels, Tyler used an "Adoption Application" form which contained a question regarding the criminal history of the party being investigated as a prospective adoptive parent. Since Tyler was investigating the Michaels for the purpose of serving as foster parents, she did not ask that question. The plaintiffs allege that Tyler's failure to inquire into Lee Michael's criminal background constituted negligent investigation of a foster home. According to the plaintiffs, had Tyler asked that question and received information concerning Lee Michael's criminal history, Tyler would not have recommended the placement that resulted in the sexual abuse of the minor plaintiffs.

Tyler was not negligent for her failure to inquire into Lee Michael's criminal history. When conducting the home study of the Michaels as potential foster parents, she used the incorrect form which contained the criminal background question. Had she used the correct form, it would not have had that question as it was not standard DSHS policy at that time to investigate the criminal background of prospective foster parents. By not asking the criminal background question, Tyler's actions were compatible with using the proper form as prescribed by DSHS and did not constitute negligence.

DSHS Was Not Negligent

The plaintiffs allege negligence on the part of DSHS for its failure to establish proper hiring, training, promotion and supervision standards for its caseworkers. Essentially, the plaintiffs' claim centers on DSHS' failure to discover Lee Michael's criminal background. Had DSHS required its caseworkers to inquire into the criminal history of potential foster parents, DSHS might have discovered Lee Michael's criminal record and the caseworker, if such discovery had been made, would not have recommended that the court place the girls in the Michael home.

A. DSHS policy did not require a criminal background check.

At the time caseworker Tyler conducted the home study of the Michaels, it was not standard DSHS policy to investigate as a matter of routine any prior arrests or convictions of individuals seeking to serve as foster parents. The statute in force at the time this cause of action arose did not

require DSHS to conduct a criminal background investigation of an individual acting as a foster parent prior to placing the child in that foster home. See former RCW 74.15.030; Laws of 1980, ch. 125, § 1, p. 387. The statute did require the secretary of DSHS to investigate the criminal record of each agency and its staff seeking licensure as a foster-family home. Former RCW 74.15.030 provided in part:

The secretary shall have the power and it shall be his duty:

(2) In consultation with the child welfare and day care advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to adopt and publish minimum requirements for licensing applicable to each of the various categories of agencies to be licensed.

The minimum requirements shall be limited to:

(b) The character, suitability and competence of an agency and other persons associated with an agency directly responsible for the care and treatment of children, expectant mothers or developmentally disabled persons. In investigating the character of an agency and the persons employed by or under contract to an agency, the secretary may have access to conviction records or pending charges of the agencies [sic] and its staff. The secretary shall use the information solely for the purpose of determining eligibility for a license and shall safeguard the information in the same manner as the child abuse registry established in RCW 26.44.070. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose [.]

(Underscoring omitted.) Laws of 1980, ch. 125, § 1, p. 387. Former RCW 74.15.030(2).³⁵ However, the statutory definition of "agency" explicitly excluded relatives. Former RCW 74.15.020 stated:

"Agency" shall not include the following:

(a) Persons related by blood or marriage to the child, expectant mother or developmentally disabled persons in the following degrees: Parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, and/or first cousin[.]

(Italics mine.) Laws of 1979, ch. 155, § 83, p. 861. In the present case, Janet Michael is the natural aunt of all four of the children and, therefore, she and her then husband, Lee Michael, clearly fall within the statutory exclusion.

The reasoning behind such a legislative decision is obvious. Children adjudged dependent often suffer emotional damage from the traumatic experience of being removed from their homes and placed with strangers. Recognizing this potential harm, the Legislature seeks to place a dependent child in a familiar and comfortable environment as soon as possible after a court makes a dependency determination in order to minimize any adverse effects to the child. Relatives of the dependent child can often provide such an environment, and their relationship to the child gives a preliminary assurance that the child will be safeguarded from harm. The statutory scheme, which favors placement of dependent children with relatives, clearly reflects that legislative goal.

The statute did not specifically describe how the secretary was to proceed when placing a child in the foster home of an individual not falling under the statutory definition of agency. The Legislature left to the discretion of the secretary the method of determining the suitability of an individual selected to serve as a foster parent. Given that discretion, the secretary chose not to require an investigation of the criminal history of such foster parents.

B. The discretionary function exception applies to DSHS.

This State abolished sovereign immunity by RCW 4.96-.010. That statute provides that the State and its officers

shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their officers, agents or employees to the same extent as if they were a private person or corporation!.]

RCW 4.96.010. This court recognizes a narrow exception to that rule for discretionary acts performed at an executive level. Chambers-Castanes v. King Cy., 100 Wn.2d 275, 281-83, 669 P.2d 451, 39 A.L.R.4th 671 (1983). "A governmental entity's exercise of discretionary acts at a basic policy level is immune from suit, whereas the exercise of discretionary acts at an operational level is not." Chambers-Castanes, 100 Wn.2d at 282. To determine whether an act falls within this exception, the court engages in a 4-part inquiry:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Chambers-Castanes, 100 Wn.2d at 281 n.2 (quoting Evangelical United Brethren Church v. State, 67 Wn.2d 246, 255, 407 P.2d 440 (1965)). An affirmative answer to all of the questions is required to find the challenged act within the discretionary function exception. Chambers-Castanes, 100 Wn.2d at 281 n.2. A negative response to one or more of the questions indicates that further inquiry is necessary. Chambers-Castanes, 100 Wn.2d at 281 n.2.

The challenged decision at issue in this case was DSHS' method of investigating potential foster parents. The foster parent home study required at the time by DSHS did not include an inquiry into the potential foster parent's criminal history. Utilizing the discretionary function analysis, I would find that DSHS' decision not to require a criminal background check of potential foster parents constituted a discretionary act at a basic policy level which this court holds is immune from suit.

The Department's investigation of prospective foster parents necessarily involved a basic governmental program. The Legislature, seeking to provide a familiar environment for dependent children, enacted statutes governing the treatment of children found to be abused or neglected. Under those statutes, a dependent child could be placed with a foster parent following completion of a home study by DSHS. The Department's decision as to the contents of the home study was essential to the realization of the Legislature's statutory program to place dependent children in a safe and comfortable environment.

The Legislature granted the secretary of DSHS the authority to establish the standard for investigating potential foster parents, former RCW 74.15.030, and left to the discretion of the secretary the means by which DSHS would implement the Legislature's objectives. Furthermore, the Legislature left to the discretion of the secretary the promulgation of standards to utilize in the evaluation of prospective foster parents. Establishing those standards required the exercise of basic policy evaluation, judgment and expertise on the part of the secretary and DSHS. I would hold that the discretionary function exception bars plaintiffs' suit against DSHS.

Conclusion

I would hold quasi-judicial and quasi-prosecutorial immunity for caseworkers Tyler and Bronson and affirm the trial court summary judgment of dismissal. The caseworkers here had no prior knowledge of Michael's criminal background of sexual assault. If they did know and failed to act by notifying their superiors or putting it in their case study, they possibly would have owed plaintiffs a special duty and an exception to the public duty doctrine would apply to establish tort liability. Bailey v. Forks, 108 Wn.2d 262, 737 P.2d 1257, 753 P.2d 523 (1987).

Discretionary immunity applies to DSHS unless it acts capriciously or arbitrarily. The summary judgment in favor of DSHS should be affirmed, as there is a total absence of any negligence by such agency. The procedures set up by DSHS for investigative methods for its caseworkers on custody cases was in accordance with its discretion as provided in the statute.

Reconsideration denied July 16, 1991.

34 While addressing the court on behalf of the girls, Crotty stated Actually, the first time—the first runaway was Aryn. . . .

Well, after Aryn's first runaway, Your Honor, which occurred in October of 1981.....

Well, Aryn runs away again a second time. . . .

In December, 1981, Angela runs away the first time. . . .

Report of Proceedings, at 70, 71 (Oct. 1, 1986). Crotty's statements were not cast in terms of allegations that the girls ran away, rather he was simply restating the facts to the court.

35 The Legislature has amended that portion of RCW 74.15 several times-since this cause of action arose. The current statute requires a criminal background check of any relative selected as a foster parent. However, that investigation need not be completed prior to placing the child in the relative's home. The most recent version of RCW 74.15.030 states:

The secretary shall have the power and it shall be the secretary's duty:

(3) To investigate any person, including relatives by blood or marriage except for parents, for character, suitability, and competence in the care and treatment of children, expectant mothers, and developmentally disabled persons prior to authorizing that person to care for children, expectant mothers, and developmentally disabled persons. However, if a child is placed with a relative under RCW 13.34.060 or 13.34.130, and if such relative appears otherwise suitable and competent to provide care and treatment the criminal history background check required by this section need not be completed before placement, but shall be completed as soon as possible after placement[.]

(Italics mine.) RCW 74.15.030(3).