(concurring in part, dissenting in part)— The majority opinion has accorded a very narrow, if not totally illusory, immunity to Department of Social and Health Services (DSHS) caseworkers. It also abolishes witness immunity for such caseworkers (or declines to apply it) and refuses to define for future cases any possibility of quasi-prosecutorial immunity for them.
*623The relevant immunities necessary to be considered here are the following: (1) quasi-prosecutorial immunity and quasi-judicial immunity; (2) witness immunity; and (3) statutory immunities. The questions this case raises are whether any of these apply to DSHS caseworkers' testimony, investigations or placement recommendations and, if not, whether any other immunity should be afforded to protect caseworkers performing these functions for the State. A further question involves the extent of any immunity afforded to the Department of Social and Health Services (DSHS) itself.
Immunity is not accorded because of the status of an individual but because of the function being performed by that individual.13 A caseworker should not be afforded immunity based upon the status of that job, but rather should be accorded the immunity which applies to the particular function being performed. Therefore, if a caseworker is acting as a witness or performing the equivalent function of a witness, then witness immunity (which is absolute) is appropriate; if acting like a prosecutor, then quasi-prosecutorial immunity (which is also absolute) should be accorded; if acting pursuant to court order, then absolute quasi-judicial immunity is necessary; if performing acts described by a statute that provides immunity, then the statutory immunity certainly applies. Neither the majority, nor the dissent, has analyzed the various immunities available and applied them to the challenged actions of these caseworkers, or remanded to the trial court with those guidelines. Because of this, the majority opinion gives very little guidance for future cases. I will, therefore, proceed to describe these immunities in this separate opinion.
*624I
Prosecutorial Immunity
In this state, prosecutors are accorded absolute immunity when acting in their official capacity even if accused of acting maliciously or corruptly.14
To the extent caseworkers' actions are prosecutorial in nature, those actions should be accorded quasi-prosecutorial (absolute) immunity.15 The critical issue then becomes what actions of a child protective services caseworker are prosecutorial in nature. A number of cases have held that caseworkers are functioning in a prosecutorial manner when initiating or pursuing child dependency proceedings.16 This immunity is granted because those responsible for the initiation and pursuance of dependency proceedings, like prosecutors, must be able to perform their necessary tasks of protecting the health and well being of children without fear of intimidation and harassment.17 This immunity should continue during the conduct of the ongoing court *625proceedings for the same public policy reasons that necessitate the original immunity.18
The majority appears to concede that had the caseworkers initiated a petition to establish a Washington dependency, then they would have had some claim to prosecutorial immunity. Majority opinion, at 612, 614. Under our statutes, such a dependency must be reviewed by a court every 6 months to determine whether court supervision should continue. Former RCW 13.34.130(3). I fail to see why a caseworker's immunity for initiation of dependencies should not continue throughout the statutorily mandated review of these dependencies, otherwise, at what point during this process would the caseworkers' immunity evaporate?
Conduct in direct preparation for, participation in, and reports prepared for dependency and dependency review proceedings should all fall within this category. The caseworkers in the case before us did not initiate the first dependency proceedings (which occurred in Louisiana), but the Washington courts were monitoring that dependency and held 11 hearings in Benton County from November 5, 1981 through October 31, 1983. At those hearings an attorney for Rudolph Babcock, an attorney for the four girls, and an attorney for the State all argued regarding the continued dependency and the proper placement of these children. I would hold that the caseworkers' involvement in those contested court proceedings is immune under a prosecutorial type of immunity.
To support its refusal to recognize the possible application of quasi-prosecutorial immunity to caseworkers when they are performing a role similar to that of a prosecutor, the majority misleads as to the status of Washington law when it declares:
DSHS cites no case where this court has extended prosecutorial or judicial immunity to anyone but prosecutors and *626judges. Judges and prosecutors in this state are usually elected and highly visible officials.
Majority opinion, at 608.
! While DSHS may not have cited these cases, they most assuredly do exist! The fact is that Washington cases have repeatedly extended prosecutorial and judicial immunity to others who are not elected or highly visible individuals. In Tobis v. State, 52 Wn. App. 150, 154, 758 P.2d 534 (1988), the court correctly observed that " [t]he doctrine of judicial immunity has been extended to individuals associated with the judicial function." Some obvious examples of this are the following: Adkins v. Clark Cy., 105 Wn.2d 675, 678-79, 717 P.2d 275 (1986) (extending judicial immunity to bailiffs); Bader v. State, 43 Wn. App. 223, 226, 716 P.2d 925 (1986) (extending absolute judicial immunity to Eastern State Hospital because its psychiatrists and mental health providers were rendering advisory opinions to the court); Tobis, 52 Wn. App. at 158 (extending judicial immunity to the State and to mental health professionals directed by statute to assist the court); Collins v. King Cy., 49 Wn. App. 264, 271, 742 P.2d 185 (1987) (recognizing that the absolute immunity enjoyed by prosecuting attorneys also applies to the governmental entity for which they work and to the workers whom they employ); and Pleas v. Seattle, 112 Wn.2d 794, 809-10, 774 P.2d 1158 (1989) (extending judicial immunity for a city council's rezoning decision).
The majority recognizes that caseworkers who act according to a court order share in the judicial immunity of the judge who executed the order. Majority opinion, at 609. This is correct.19 However, the majority misconstrues the facts when it compares the present case with Bender v. Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983). In Bender, this court held that an arrest warrant issued by a magistrate does not immunize a police officer who executes the warrant from liability for false arrest if the same officer had *627provided all the information used as the basis for issuing the warrant. As pointed out above, almost a dozen contested hearings took place in the present case and many of the caseworker's actions were performed in furtherance of court orders. As the State correctly points out, the plaintiffs' argument that the entry of court orders here was analogous to the ex parte issuance of an arrest warrant based upon a deficient affidavit is not supported by the facts of this case. The proceedings involving continued dependency and temporary placement of the girls in this case were adversarial, the parties were represented, placement with the Michaels was contested and it was the court that ultimately made the decisions! To the extent the caseworkers acted under court order, I would afford their actions quasi-judicial immunity.
The majority indicates that because these were dependency review hearings and not dispositional hearings that the caseworkers' placement of the children cannot be protected by court order. However, this ignores the fact that children removed from their homes, even temporarily, must be placed somewhere! The majority opinion admits that the trial judge has authority to change a placement during a dependency review hearing. Majority opinion, at 602 n.5. If the court has that authority and does indeed order the placement of a child, then the caseworkers must be allowed to follow that judicial order and in doing so share in the judicial immunity.
The federal Ninth Circuit Court of Appeals recently discussed the question of immunity for caseworkers executing court orders in Coverdell v. Department of Social & Health Servs., 834 F.2d 758 (9th Cir. 1987). That court held that child protective service workers must be accorded absolute quasi-judicial immunity from liability for damages stemming from the worker's actions taken pursuant to valid court orders. The court explained:
The rationale for immunizing persons who execute court orders is apparent. Such persons are themselves "integral parts of the judicial process." Briscoe v. LaHue, 460 U.S. 325, 335, *628103 S.Ct. 1108, 1116, 75 L.Ed.2d 96 (1983). The fearless and unhesitating execution of court orders is essential if the court's authority and ability to function are to remain uncompromised. As the First Circuit has explained with respect to a receiver who acted pursuant to court directives:
To deny him this [absolute] immunity would seriously encroach on the judicial immunity already recognized by the Supreme Court. ... It would make the receiver a lightning rod for harassing litigation aimed at judicial orders. In addition to the unfairness of sparing the judge who gives an order while punishing the receiver who obeys it, a fear of bringing down litigation on the receiver might color a court's judgment in some cases. . . .
Kermit Constr. Corp. [v. Banco Credito y Ahorro PoncenoJ, 547 F.2d [1,] at 3 [(1st Cir. 1976)].
Coverdell, 834 F.2d at 765.
To my view, this logic is irrefutable. I would hold that caseworker actions taken pursuant to court order after adversarial proceedings constitute protected conduct. The exact nature of those judicial hearings is irrelevant if the fact of placement is decided by the judge after an adversarial proceeding.
I would join the courts that have afforded quasi-prosecutorial immunity to caseworkers for their participation in, and direct preparation for, dependency and dependency review proceedings. This immunity would protect reports prepared in anticipation of those proceedings. I would also extend quasi-judicial (absolute) immunity to caseworkers for actions taken pursuant to court order following adversarial proceedings. Some of the caseworkers' challenged conduct in this case falls in these categories.
II
Witness Immunity
The majority opinion states: *629Majority opinion, at 614. This statement totally ignores two important facts. First, if the majority is indicating that Mr. Bronson can be liable as a "complaining witness" in a civil action for malicious prosecution, it fails to note that a plaintiff in such a case would have to prove him guilty of malice to establish liability.20 Malice in this context is satisfied only if the prosecution complained of was undertaken from improper or wrongful motives or in reckless disregard of the rights of the plaintiff.21
*628Because Mr. Bronson did not file a petition initiating either civil or criminal proceedings, he acted like a complaining witness not immune at common law, not like a prosecutor. Had he initiated proceedings, he might have some claim to prosecutorial immunity under the case law upon which the dissent relies. His appearance as a witness at a hearing in which the State's counsel, Mr. Miller, acted as the prosecuting attorney, cannot justify bestowing prosecutorial immunity upon Bronson.
*629Second, and more importantly, the majority's analysis ignores the immunity this court and other courts customarily afford to witnesses,22 Because prosecutorial immunity might not apply when a person acts as a witness does not mean that witness immunity is inapplicable. The majority opinion's refusal to recognize witness immunity is completely at odds with our recent decision in Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989). As the plurality opinion in Bruce points out:
As a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.
Bruce, 113 Wn.2d at 125. Furthermore,
Guardians, therapists and attorneys who submit reports to family court are absolutely immune.
Bruce, 113 Wn.2d at 127 (citing Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.) (damage claims based on the function of testifying before the family court foreclosed by absolute witness immunity for both oral testimony and reports and recommendations to the family court), cert. denied, 484 U.S. 828 (1987)). I agree this correctly states the law. In a *630case such as the one before us, any other rule would largely destroy the ability of family and juvenile courts to function because such courts must necessarily rely heavily on the data and opinions of caseworkers, guardians and mental health providers.
The majority seems to have the notion that because it would normally apply only a qualified immunity to the actions of a caseworker, no absolute immunity can be afforded to the caseworker when acting as witness. The law is otherwise. The fact that an official enjoys a qualified statutory or common law immunity of one type does not foreclose the application of a different type of immunity (which may be absolute) when that person is acting in a particular capacity. For example, although police officers may normally enjoy qualified immunity, they enjoy absolute immunity when acting as a witness.23
The majority also seems to be saying that it is the investigation for the reports or for the testimony which provides the basis for civil liability for negligence. However, the act of reporting to a court involves more than committing information to paper; it necessarily involves the gathering of that information. In Bruce, the plaintiff argued that even if the witness was immune for his testimony, he could still be civilly liable for his alleged negligence in actions preceding the testimony which formed the basis of the testimony. We rejected that theory noting that " [wjitness immunity must extend to the basis of the witness' testimony, or the policies underlying such immunity would be undermined." (Italics mine.)241, therefore, would afford witness immunity to caseworkers for their participation in contested court proceedings, and for reports prepared in anticipation of such proceedings, whether such reports were formally admitted into evidence or not. It makes no sense to afford *631witness immunity to " [g]uardians, therapists and attorneys who submit reports to family court", as we provided in Bruce25 and then deny that immunity, as the majority does, to caseworkers who are performing the same function.
The court in Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) considered the findings of a psychologist and a psychiatrist who examined a child. Those findings were used by Michigan's equivalent to our state's DSHS and by the trial court to determine what environment would best serve the interests of the child. The Sixth Circuit determined that such information could not provide a basis for civil liability because the function of providing such information is analogous to that of a witness. The adversarial quality of the court proceedings provides the needed safeguards for such actions. In a court proceeding, while the court takes the evaluation of a mental health professional (or a caseworker) into consideration, it is the court which ultimately makes its own decision concerning the issue.26
I do agree with the majority that where the caseworker obtains only an ex parte order during which the caseworker controls the entire flow of information to the judge, then absolute immunity is not necessarily appropriate. But that is not the situation here. In the present case, caseworker Bronson testified at a lengthy (2-day) and very hotly contested hearing at which all of the following were present: the attorney for the State; the attorney for the Babcock girls' father (Rudolf Babcock); the attorney for the four dependent children; a mental health therapist; a nliniral therapist; a counselor; Lee Michael (the girls' maternal uncle and now, but not then, a convicted rapist); Janet Michael (the girls' maternal aunt); Rudolf Babcock (natural father of the Babcock girls, and stepfather of the Long girls); a classmate of the girls; and Daniel Long (father of *632the Long girls). There was strong disagreement among the various relatives as to the proper placement of the dependent children and it was the court which made the decision regarding placement. This is absolutely not a Bender-type factual scenario with caseworker Bronson controlling all of the information flowing to the court. According to our own case law, then, Mr. Bronson should be accorded witness immunity. I would hold that to the extent social workers are acting as witnesses in a judicial proceeding, they are entitled to witness immunity.27
In conclusion with respect to witness immunity, I would hold as follows: (1) the DSHS caseworkers are immune from liability for damages resulting from their testimony to the court; (2) recommendations by DSHS caseworkers (like recommendations by mental health providers) made to a court for purposes of deciding what environment best serves the interests of the child also enjoy absolute witness immunity; and (3) investigation, testing, and evaluation that directly form the basis of the testimony or recommendations of DSHS caseworkers are also immune as an integral part of witness immunity.
I would leave it to the trial court on remand to determine which of the caseworkers' actions fall within these criteria and are thus protected under witness immunity. Mr. Bronson's testimony to the court and his work directly related to that testimony should clearly be afforded witness immunity.
*633III
Statutory Immunity
The Legislature has now accorded broad immunity to a caseworker when responding to abuse or neglect allegations, so long as the caseworker is acting in good faith.28
The majority assumes that because the Legislature has extended a broad immunity to caseworkers in emergency removal situations, that it thereby meant to foreclose the possibility of other immunities in less exigent circumstances. The immunity granted in RCW 26.44.056(3) is a portion of a statute dealing with emergency 72-hour removal of endangered children and hence addresses only those situations. I do not read a broader negative legislative intent into this enactment. However, after the majority opinion herein, if the Legislature wishes caseworkers to have immunity any broader than the very narrow immunity accorded by the majority opinion, then it will have to act.
IV
Qualified Immunity
While the majority refuses to define or apply any quasiprosecutorial or quasi-judicial immunity, or any witness immunity, it does purport to accord protection from liability for caseworkers by a grant of what it terms "qualified immunity". I use the word "purport" advisedly, because this so-called grant is so qualified as to be virtually nonexistent and illusory. I fail to see that the majority affords any degree of genuine protection to caseworkers at all. The majority opinion states:
On remand, the caseworkers can only win immunity by establishing that the entire chain of events leading up to the placement at the Michael home was in accordance with statutory and regulatory procedures in every respect, that their actions were reasonable, and that their statutory duties required their actions.
(Italics mine.) Majority opinion, at 618.
*634If all of this were so, then the caseworkers have done nothing wrong and no liability would attach in any event and the "immunity" would be superfluous. If an official's duties are performed without error of any kind, then no immunity would ever be necessary.
Essentially, what the majority has done here is to take the qualified immunity afforded to police officers, then substantially reduce the degree of that immunity, while at the same time ignoring case law which holds that a police officer's immunity is not broad enough for caseworkers given their prosecutorial-type functions and judicial reporting duties.29
With the exception of witness immunity (which is absolute) and quasi-prosecutorial immunity (which is also absolute), I agree with the majority that caseworkers should not be accorded absolute immunity for the other functions they perform. However, I believe we must balance the needs of overburdened caseworkers, who are usually honestly (and often hastily) attempting to protect weak, vulnerable and endangered children in our society, with the need to protect family privacy and to make society's protecting arm (DSHS and its agents) accountable to a reasonable standard of care. While these competing goals are inherently difficult to reconcile, some balance must be struck so as to address both needs. It is because the majority opinion does not strike such a balance that I write this separate opinion.
I would accord a broader qualified immunity to DSHS caseworkers than does the majority. I would hold that to the extent caseworkers' conduct is not encompassed by witness or quasi-prosecutorial or quasi-judicial immunity and therefore absolutely immune (as discussed above), their conduct should be qualifiedly immune from liability so long as their actions were taken in substantial compliance with statutes and regulations governing their behavior and were *635taken in good faith. This qualified immunity would be similar in its effect to that afforded by a number of federal courts.30
The majority grants qualified immunity to caseworkers so long as they carry out a statutory duty, according to procedures dictated by statute and supervisors, and act reasonably. Majority opinion, at 618. What is not clear from the majority opinion is whether this qualified immunity will ever spare caseworkers from the rigors of a trial, that is, whether the question of qualified immunity can ever be resolved on summary judgment.
The majority states that it is extending an immunity which is similar to that granted in Spielman v. Hildebrand, 873 F.2d 1377 (10th Cir. 1989) and in Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988). Majority opinion, at 617. In Hodorowski, at 1217, the court concluded that the caseworkers' actions were not absolutely immune but were qualifiedly immune but nonetheless dismissed the action because their conduct was "objectively reasonable, and as a matter of law violated no clearly established right." (Italics mine.) In Spielman, the court concluded that the trial court properly granted summary judgment in favor of the defendant caseworkers based upon their qualified immunity. The majority also relies upon Austin v. Borel, 830 F.2d 1356 (5th Cir. 1987). Majority opinion, at 612. In Austin, the court refused to afford absolute immunity but granted qualified immunity and went on to explain:
*636Our conclusion does not, however, necessarily mean these workers must go through the expense of discovery and trial. "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendants are entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. In remanding this case to the district court for further proceedings, we express no opinion regarding defendants' right to dismissal on the ground of qualified immunity.
(Footnotes omitted.) Austin, 830 F.2d at 1363. The majority also relies extensively on Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154 (9th Cir.), cert. denied, 484 U.S. 829 (1987) (majority opinion, at 609, 613, 614, and 615) which in fact afforded absolute immunity for some acts and qualified immunity for other acts but upheld the trial court's summary dismissal based upon both absolute and qualified immunity. In discussing the practical usefulness of a qualified immunity, the United States Supreme Court has held that a denial of a claim of qualified immunity is an appealable final decision because qualified immunity, like absolute immunity, is an entitlement not to stand trial under certain conditions. Such "entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). See also Russell v. Hardin, 879 F.2d 417, 420 (8th Cir. 1989).
In light of the above authority, relied upon by the majority, I think it is incumbent upon the majority to explain to the trial court whether and under what circumstances a qualified immunity will support a summary judgment. I assume in the absence of such guidance that the trial court must analogize to the case law cited by the majority and *637conclude that this grant of qualified immunity allows caseworkers to seek and obtain summary judgment on liability.
Under the majority's definition of qualified immunity, I fail to see why some lawsuits against caseworkers could not be disposed of by summary judgment. According to the majority, a caseworker must (1) carry out a statutory duty, (2) according to procedures dictated by statute and superiors and (3) act reasonably. I would think that in most cases if caseworkers carried out a statutory duty according to procedures dictated by statutes and superiors they would thereby necessarily be acting "reasonably". The first two inquiries should normally be amenable to disposition by summary judgment.
V
DSHS Immunity
While the majority's purported "qualified immunity" to caseworkers is illusory, it affords no immunity whatsoever to DSHS. The majority opinion relies upon authority from other jurisdictions to conclude that any immunity afforded to a caseworker is not extended to his or her employer (DSHS in this case). Majority opinion, at 619-22. In this regard, the majority states:
Accordingly, the immunities of governmental officials do not shield the governments which employ them from tort liability, even when liability is predicated upon respondeat superior.
(Italics mine.) Majority opinion, at 620. That is simply not the law in Washington. The very immunity which the majority purports to extend to the caseworkers (that of police officers) does indeed extend to their employers. Guffey v. State, 103 Wn.2d 144, 153, 690 P.2d 1163 (1984) made this as clear as words can do when it held as follows: *638(Italics mine.) See also Spurrell v. Block, 40 Wn. App. 854, 869, 701 P.2d 529 (a finding of a police officer's qualified immunity precludes a finding that the employer is liable when liability is based on respondeat superior), review denied, 104 Wn.2d 1014 (1985); Frost v. Walla Walla, 106 Wn.2d 669, 673-75, 724 P.2d 1017 (1986) (the statutory immunity accorded to police officers runs also to the jurisdiction employing them, as otherwise the goal of unhampered police work would be unduly restricted).
*637In Nyman v. MacRae Bros. Constr. Co., 69 Wn.2d 285, 287, 418 P.2d 253 (1966), citing Restatement (Second) of Agency § 217B(2) (1958) and Restatement (Second) of Torts § 883, comment b, illustration 4 (1939), we held that there can be no liability as a master unless the servant is liable. Therefore, under the theory of respondeat superior, the only theory asserted in trial, the State and State Patrol cannot be held liable.
*638Furthermore, in this state, prosecutorial immunity not only protects the prosecutor individually but also immunizes the county or state for which that prosecutor works.31 In Creelman v. Svenning, 67 Wn.2d 882, 410 P.2d 606 (1966), this court addressed this issue, holding as follows:
The plaintiff-appellant urges that, though the individual official may be immune from civil action, the state and the county, in light of the abrogation of sovereign immunity, should not share his immunity.
This contention is bolstered by citing 4 Restatement, Torts § 880, which states that the immunity of one of two or more persons, who would otherwise be liable for a harm, does not bar recovery against the others. This rule, however, applies only in situations where policy reasons dictate that one of the parties be immune—policy reasons which do not operate as to the other.
The public policy which requires immunity for the prosecuting attorney, also requires immunity for both the state and the county for acts of judicial and quasi-judicial officers in *639 the performance of the duties which rest upon them; otherwise, the objectives sought by immunity to the individual officers would be seriously impaired or destroyed. If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state against his action in any criminal case, his freedom and independence in proceeding with criminal prosecutions will be at an end.
(Footnote omitted. Italics mine.) Creelman, 67 Wn.2d at 885. The same public policy rationale applies to child protective service caseworkers and DSHS.
I would thus hold that to the extent that liability of DSHS is predicated upon actions of its caseworkers who are afforded immunity (whether quasi-proseeutorial, witness, statutory or qualified), DSHS as the employer, under a respondeat superior theory, would also not be liable.
I do, however, agree with the majority that if there is a valid cognizable cause of action directly against DSHS for its own actions, then the individual caseworker's immunity would be irrelevant to DSHS' potential liability. DSHS has the responsibility to develop procedures which will gather information reasonably necessary to see to it that the children it places are placed in safe environments. It also has the responsibility to reasonably supervise and train its employees. To the extent that DSHS may have breached such duties, I would hold that it is not immune from civil liability to those injured as a result of such breaches.
VI
Regarding the Majority's Assumption That a "Prior" Court Order Was Needed for One of the Placements in Question
In reviewing DSHS's potential liability in this case, it is also necessary to comment on one important assumption made by the majority which, to my view, is not supported by either law or fact. The majority opinion implies that DSHS and its caseworkers acted in violation of statute or policy when it placed the Babcock girls with the Long girls in the Michael home and did not obtain a court order for *640this placement until 2 weeks later. Majority opinion, at 610. The record before us is not at all clear that this is so. The majority cites no authority, case law, statutes or regulations for the proposition that DSHS needed a prior court order to change foster care placement from one relative's home to another relative's home.
The Louisiana court, from whence this case originally came, had declared the four girls in need of care, assumed control over them and placed them temporarily in the senior Babcocks' home in this state. This appears to be simply a foster care placement in a relative's home. There was no termination of parental rights. Jurisdiction was then accepted by the State of Washington and our state's DSHS assumed control over the girls. No permanent placement decision was as yet called for.32
After Rudolph Babcock illegally took the Babcock girls from his parents' home and left the state, the Long girls were placed, pursuant to court order, with their maternal aunt and uncle (the Michaels). The senior Babcocks were not relatives of the Long girls and their biological father agreed with the court order to place them in the Michaels' home. When the Babcock girls were returned by DSHS to Washington, they were placed with their half sisters in their aunt and uncle's home. In a contested court proceeding approximately 2 weeks later, the court approved this foster care placement. This was simply a change in foster care from their paternal grandparents' home to their maternal aunt and uncle's home. If the majority is indicating that this change necessarily had to be preceded by a court order, I disagree and I would remand to the trial court to make this determination in light of statutes, DSHS regulations and policies existing at the time of that placement.
*641VII
Regarding Chief Justice Dore's Dissent
Although I fully concur in the concern of Chief Justice Dore in his separate dissent, as to the ability of caseworkers and child protective services to function if not afforded any immunity, I cannot agree with his reasoning.
First, the determination of negligence, which the dissent appears to make, is not an appellate decision here. Insofar as the dissent concludes that the parties are not negligent, it invades the province of the factfinder. In any event, to the extent that absolute immunity would be afforded under Chief Justice Dore's analysis, negligence would be irrelevant as immunity would protect the immune defendant from liability even if he or she may have been negligent to some degree. The factual determination of negligence, or the lack thereof, leaves the case once the court determines a defendant is afforded immunity for the conduct claimed to have been negligent.
Second, the dissent confuses the doctrine of immunity and the public duty doctrine. The latter asks whether a duty was owed by a public entity to a particular plaintiff. Assuming a duty was owed, the immunity issue then becomes whether the defendant should nonetheless be immune from liability. The public duty doctrine is irrelevant to this case since anytime the State assumes a parens patriae role over a minor child, then by definition, it owes a duty to that child.
As I analyze the case before us, it is about immunities and the scope of those immunities; the case is not about whether a duty was owed to these children. I thus feel that the dissent's discussion confuses the concept of duty (one of the elements of a negligence cause of action) with the concept of immunity. To bring the public duty doctrine into discussion serves no purpose but to impart another layer of confusion to an already confusing area of the law. Whether a duty does or does not exist is irrelevant if a defendant is immune from liability for reasons of public policy.
*642VIII
Conclusion
I am persuaded that if we afford no immunity to caseworkers, and if we hold child protective service caseworkers personally liable for mistakes of any kind they might make in placing a child, the system will cease to function in a way that serves the best interests of the children of this state. One of my very real concerns is that the Eli Creekmores33 of tomorrow will be left in unsafe homes to suffer untold miseries. It can reasonably be assumed that as a result of the majority's decision herein which grants, at best, a purely illusory immunity, DSHS caseworkers will henceforth be tempted to take the actions least likely to result in a lawsuit against them, regardless of what their best judgment call is under the facts known to them at the time action is needed. Under the doctrine enunciated by the majority opinion today, the future is fraught with the possibility of manifold tragedies.
■ To hold DSHS (the State) liable is one thing; it is equivalent to holding ourselves and all of our state taxpaying society liable. But to impose civil liability on a caseworker ;who has acted according to statute and in utmost good faith, in a way which that caseworker genuinely believed to be in the best interests of the child, is both unfair and counterproductive to the safety of dependent children.
In sum, I would hold as follows.
With regard to caseworkers, I would accord and apply the following: (1) quasi-prosecutorial absolute immunity for functions which are essentially prosecutorial in nature (actions connected with the initiation of, or pursuit of, dependency or dependency review proceedings) and quasi-judicial immunity when they act pursuant to court order following an adversarial proceeding; (2) absolute witness *643immunity for their testimony in contested court proceedings, reports prepared for such proceedings and investigatory work directly related to that court reporting function; and (3) qualified immunity when not functioning in the prosecutorial or witness roles or under court order, and which immunity would afford protection so long as they substantially complied with statutes and DSHS regulations and acted in good faith.
With regard to DSHS, I would accord and apply immunity for actions of its employees when its liability is premised on actions of those DSHS employees which are themselves immune, but I would not accord immunity for the direct actions of DSHS which are negligent and based upon failure to have reasonable guidelines for their employees or for failure to reasonably supervise or train those employees.
Accordingly, I would reverse the summary judgment entered by the trial court and remand the case for further proceedings in accordance with the principles of law enunciated herein, and for a determination of whether or not there is a triable issue as to the caseworkers' and/or the State's allegedly negligent conduct.
Dolliver and Durham, JJ., concur with Andersen, J.
Imbler v. Pachtman, 424 U.S. 409, 430-31, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Butz v. Economou, 438 U.S. 478, 508-13, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); Alicia T. v. County of Los Angeles,_Cal. App. 3d_, 271 Cal. Rptr. 513, 517 (1990); Spielman v. Hildebrand, 873 F.2d 1377, 1381 (10th Cir. 1989); Briscoe v. LaHue, 460 U.S. 325, 342, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983).
Loveridge v. Schillberg, 17 Wn. App. 96, 99, 561 P.2d 1107 (1977); Filan v. Martin, 38 Wn. App. 91, 96, 684 P.2d 769 (1984); Coffel v. Clallam Cy., 47 Wn. App. 397, 402, 735 P.2d 686 (1987); Mitchelle v. Steele, 39 Wn.2d 473, 474, 236 P.2d 349 (1951); Frost v. Walla Walla, 106 Wn.2d 669, 673, 724 P.2d 1017 (1986); Creelman v. Svenning, 67 Wn.2d 882, 884, 410 P.2d 606 (1966); Kuchenreuther v. Whatcom Cy., 24 Wn. App. 716, 718, 604 P.2d 499 (1979); Collins v. King Cy., 49 Wn. App. 264, 271, 742 P.2d 185 (1987); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986); Imbler, 424 U.S. at 425-27. See also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 132, at 1057-58 (5th ed. 1984).
Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir. 1989), cert. denied, _U.S. _, 107 L. Ed. 2d 1025, 110 S. Ct. 1118 (1990); Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 763-64 (9th Cir. 1987); Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829, 98 L. Ed. 2d 59, 108 S. Ct. 98 (1987); Mazor v. Shelton, 637 F. Supp. 330, 335 (N.D. Cal. 1986); Fogle v. Benton Cy. SCAN, 665 F. Supp. 729, 733-34 (W.D. Ark. 1987); Whelehan v. County of Monroe, 558 F. Supp. 1093, 1098 (W.D.N.Y. 1983).
See, e.g., Coverdell, 834 F.2d at 763-64 and cases cited therein; Meyers, 812 F.2d at 1157; Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984); Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir. 1989), cert. denied,_U.S_, 107 L. Ed. 2d 1025, 110 S. Ct. 1118 (1990); Alicia T., 271 Cal. Rptr. at 518.
Kurzawa, 732 F.2d at 1458.
Alicia T., 271 Cal. Rptr. at 519; Babcock, 884 F.2d at 503; Meyers, 812 F.2d at 1157.
Coverdell, 834 F.2d at 764-65. See also K.H. v. Morgan, 914 F.2d 846, 854 (7th Cir. 1990).
Bender v. Seattle, 99 Wn.2d 582, 593, 664 P.2d 492 (1983); Austin v. Borel, 830 F.2d 1356, 1361 (5th Cir. 1987).
Bender, 99 Wn.2d at 594; Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 502, 125 P.2d 681 (1942).
Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989); Butz v. Economou, 438 U.S., 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); Briscoe v. LaHue, 460 U.S. 325, 330-33, 75 L. Ed. 2d 96, 103 S. Ct. 1108, 1110 (1983).
Austin v. Borel, 830 F.2d 1356, 1359 (5th Cir. 1987); Briscoe, 460 U.S. at 335, 342-46.
Bruce, 113 Wn.2d at 135.
Bruce, 113 Wn.2d at 127.
Tobis v. State, 52 Wn. App. 150, 159, 758 P.2d 534 (1988).
Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wn.2d 123, 776 P.2d 666 (1989); Babcock v. Tyler, 884 F.2d 497, 501 (9th Cir. 1989) (citing Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894, 2913 (1978)), cert. denied, 110 S. Ct. 1118 (1990); Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1156 (9th Cir.) (holding it to be beyond doubt that the testimony a caseworker gave is afforded absolute immunity because witnesses, including government witnesses, are immune from liability for their testimony) (citing Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983)), cert. denied, 484 U.S. 829, 98 L. Ed. 2d 59, 108 S. Ct. 98 (1987).
RCW 26.44.056(3); RCW 26.44.060(1).
See, e.g., Coverdell v. Department of Social & Health Servs., 834 F.2d 758, 763-64 (9th Cir. 1987).
See Austin v. Borel, 830 F.2d 1356, 1363 (5th Cir. 1987) (holding a caseworker's qualified immunity provides protection to all but the plainly incompetent or those who knowingly violate the law); Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir. 1988) (holding caseworkers' actions objectively reasonable and not violative of clearly established right and therefore shielded from liability under their qualified immunity); Meyers v. Contra Costa Cy. Dep't of Social Servs., 812 F.2d 1154, 1158 (9th Cir.) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (holding qualified immunity shields from liability where conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known)), cert. denied, 484 U.S. 829, 98 L. Ed. 2d 59, 108 S. Ct. 98 (1987).
Creelman v. Svenning, 67 Wn.2d 882, 885, 410 P.2d 606 (1966) (the objectives for granting immunity would be destroyed if the prosecutor needed to be concerned with potential tort litigation against the county or state each time a prosecutorial decision was made); Collins v. King Cy., 49 Wn. App. 264, 271, 742 P.2d 185 (1987) (absolute immunity enjoyed by prosecuting attorneys applies to the government entity under which they work and to the workers they employ); Kuchenreuther v. Whatcom Cy., 24 Wn. App. 716, 718, 604 P.2d 499 (1979) (county is also immune from liability for acts of its prosecuting attorney in the performance of his duties); Frost v. Walla Walla, 106 Wn.2d 669, 673, 724 P.2d 1017 (1986) (the public policy objectives sought by immunity to an individual prosecutor would be seriously impaired or destroyed if immunity for the prosecutor's acts did not extend to the state and county); Coffel v. Clallam Cy., 47 Wn. App. 397, 402, 735 P.2d 686 (1987).
In re Coverdell, 30 Wn. App. 677, 679-80, 637 P.2d 991 (1981) (noting that in a dependency phase, initial attempts to reconstruct the family unit occur and only if those efforts fail is a hearing held to terminate parental rights and make disposition of the children), review denied, 97 Wn.2d 1007 (1982); RCW 13.34-.120, .180.
See State v. Creekmore, 55 Wn. App. 852, 783 P.2d 1068 (1989), review denied, 114 Wn.2d 1020 (1990).