(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.5 The majority, by incorrectly focusing on the liability of the caseworkers as individuals rather than DSHS as an agency, needlessly deprives appellants, tragic *109victims 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 Placement, 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 misapplication 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 presented in the plaintiff's pleadings or in affidavits produced in opposition to the motion. CR 56. Celotex Corp. v. Catrett, 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 circumvents 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 procedures when conducting their background investigation of Mr. Michael. The relevant inquiry, then, concerns not the *110acts 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 hearings, 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 question on the form: "Have you ever been arrested or convicted 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 background. 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 recommended 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 *111matter. DSHS initially did this on its own initiative, without 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 underscores 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' witness-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 minimize 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 *112is 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 question 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 negligence with which DSHS is associated here. These courts have found that the agencies responsible for négligent foster 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 Servs., 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 particular the discretionary/nondiscretionary distinction applicable 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.6
*113Many 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 discretionary/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 potential 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 discourage DSHS from gathering accurate placement information. 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 *114is 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 dangerous 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 procedures and did not train and supervise its personnel adequately. 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 argued 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 Utter, J.Reconsideration granted September 6, 1989.
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 Babcock 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 placement and removal. To do so would result in the court deciding issues not presented before it.
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 adversarial proceedings is irrelevant because the caseworkers' individual negligence is not the issue here. The majority ignores this distinction and focuses on the individuals. See, e.g., majority at 104 ("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"). (Italics mine.) The negligence at issue is that of DSHS, a broader negligence concerning the manner in which it conducted *113home 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 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) is not the point. These latter cases are the irrelevant ones.