Boone v. State

• Decision Date: 11 July 2017
• Docket Number: No. 48502-8-II.,48502-8-II.
• Citation: 200 Wash.App. 723,403 P.3d 873
• Parties: Tamika BOONE, individually, and on behalf of her minor children, D.B., individually, and D.B., individually, Appellants, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
• Court: Washington Court of Appeals

200 Wash.App. 723

403 P.3d 873

Tamika BOONE, individually, and on behalf of her minor children, D.B., individually, and D.B., individually, Appellants,

v.STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 48502-8-II.

Court of Appeals of Washington, Division 2.

July 11, 2017

Amended September 6, 2017

Publication Ordered October 10, 2017

Lincoln Charles Beauregard, Connelly Law Offices, 2301 N. 30th St., Tacoma, WA, 98403-3322, for Appellants.

Elizabeth A. Baker, Allyson Zipp, Office of the Attorney General, P.O. Box 40126, 7141 Cleanwater Ln. S.W., Olympia, WA, 98504-0126, Peter J. Helmberger, Office of the Attorney General—Tacoma, 1250 Pacific Ave., Ste. 105, P.O. Box 2317, Tacoma, WA, 98401-2317, for Respondents.

Sutton, J.¶1 Tamika Boone, individually and on behalf of her two children, sued the Department of Social and Health Services (Department) for damages based on sexual abuse of her children while attending a private in-home day care licensed by the Department.¹ The Boones allege that the Department owed them a duty to (1) investigate prior allegations of sexual abuse in 1992 and 1997, (2) perform background checks on the day care owner's husband, and (3) comply with mandatory reporting requirements. The Boones allege that the Department breached these alleged duties by failing to discover the day care owner's husband had a criminal history. Thus, the day care remained open and led to the abuse of the Boone children in 2006. The superior court granted the Department's motion for summary judgment and dismissed the Boones' claims. The Boones appeal. The Boones fail to establish that the Department owed them any duty under their three theories. And, even if they had established that the Department owed them a duty, they fail to establish causation. Accordingly, we affirm the superior court's order granting summary judgment and dismissal.

FACTS

I. INITIAL LICENSING OF PATRICIA SMITH'S DAY CARE

¶2 Between June 1986 and January 27, 2006, the Department licensed Patricia Smith to operate a private in-home day care, Star Child Day Care (Smith's day care), out of her Tacoma home.² The day care was not owned, operated by, or affiliated with the State. Smith renewed her license in 1995, 1998, 2001, and 2004. Smith listed Abdullah Ali as her husband and resident, only on the 1995 renewal application. Smith's son was born in May 1992, but she did not tell the Department that her son lived in the home until January 2006.

II. 1992 AND 1997 REFERRALS

¶3 In May 1992, the Department received a referral that two-and-a-half year old, RW, had disclosed that two unidentified people "stuck a stick up his butt" one day while he was attending Smith's day care in February 1992. Clerk's Papers (CP) 134. Both law enforcement and the Department investigated. The Department asked the Washington State Patrol to run a background check on Ali and found no criminal record. The Department also interviewed RW's mother, and learned that RW was examined by two doctors who found no evidence of sexual abuse. The Department interviewed Smith who confirmed that RW had attended the day care once in February 1992 and that Ali was not at her home that day. After investigating, the Department determined that the allegation was not supported by sufficient evidence. Law enforcement doubted that any abuse had occurred.

¶4 In 1997, the Department received another referral alleging sexual abuse at Smith's day care. The Department's licensing division investigated the 1997 referral and found it to be not valid.

III. 2006 REFERRALS AND LICENSE REVOCATION

¶5 In January 2006, the Department received a referral by MT's mother that Smith's son had sexual contact with MT at the day care. MT attended Smith's day care from 2002 until 2005. MT's mother informed the Department that she had reported the allegation to Smith, but Smith denied the allegation. MT's mother did not allege any abuse by Ali of MT. The referral regarding MT was sent to law enforcement for investigation. Law enforcement referred MT's case to the prosecutor, but the Department's Child Protective Services (CPS) division entered an inconclusive finding as to Smith because there was no evidence that Smith knew abuse was occurring.

¶6 The licensing division also began an investigation into Smith's day care. An investigator interviewed Smith regarding MT's allegations. Smith admitted that MT's mother had reported the allegations, but Smith did not believe the allegations were true. Law enforcement informed the investigator that Ali had a criminal history, and as a result, the investigator requested a background check on Ali. Law enforcement also disclosed that Ali had listed Smith's address as his address for a number of years. After receiving the background check, the Department determined that Ali had a criminal history that would disqualify him from being around day care children. The Department also learned that Smith had been untruthful about several things on her licensing applications, including failing to identify either her youngest son or Ali as residents of the home.

¶7 On January 27, the Department summarily suspended Smith's day care license. On January 28, the licensing division contacted all of the parents of children who were attending Smith's day care and informed them that the day care was closed. On March 10, the Department mailed a letter to all children who were identified as attending the day care at the time.

¶8 Smith requested a hearing to stay the summary suspension of her license. On March 14, an administrative hearing was held on Smith's request to stay the suspension of her license. The administrative law judge (ALJ) found that Smith had failed to disclose her youngest son on the licensing application even though she knew she was required to disclose minor children living in the home. The ALJ also found that Smith failed to report the allegations regarding MT to the Department. And the ALJ found that Ali had avoided becoming a permanent resident in Smith's home so that she could keep her day care license. The ALJ denied Smith's request to stay summary suspension of her license. On May 23, the Department revoked Smith's child care license. Smith's day care never reopened.

IV. ALLEGATIONS REGARDING THE BOONE CHILDREN

¶9 The Boone children attended Smith's day care irregularly between 2004 and 2006. No referrals were made to the Department during the time that the Boone children attended Smith's day care.

¶10 On September 7, 2006, Tamika reported that the Boone children had been abused by Smith's husband and son while attending Smith's daycare in 2004-05. After the Department and law enforcement investigated this referral, the Department determined that the sexual abuse allegation against Smith's husband was founded.

V. BOONE'S LAWSUIT

¶11 In 2015, the Boones filed a complaint against the Department alleging the Department "negligently failed to take proper and timely investigatory, licensing and/or other remedial actions against Ms. Smith in such a way that would have prevented the sexual abuse" of the Boone children. CP at 8.³

¶12 The Department filed a motion for summary judgment arguing that the Department did not owe any duty to the Boones. The Boones filed a response to the Department's motion for summary judgment alleging the following facts:

• In 1992, the Department completed an incomplete background check on Smith's husband, Abdullah Ali;

• In 1995, Smith listed Ali as a resident of the house on her licensing application;

• Ali had three criminal convictions: Attempted Assault in the Third Degree—2001; Violation of an Anti-Harassment Order—2000; Resisting Arrest—2000;

• During the January 2006 investigation, the Department determined Ali "has an extensive history with law enforcement and this includes charges that would disqualify him from being around child care children."

• In 1992, Child Protective Services (CPS) investigated an allegation of sexual abuse against a child who attended the daycare. CPS closed the investigation based on insufficient evidence; and

• In 1997, Licensing investigated an allegation of sexual misconduct and failed to take any action.

CP at 222.

¶13 Based on this information, the Boones argued that the Department negligently failed to perform background checks on Ali when relicensing Smith's day care between 1995 and 2006. The Boones also argued that the Department negligently investigated the 1992 and 1997 sexual abuse allegations because a complete investigation should have included a background check on Ali. According to the Boones, if the Department had performed the appropriate background checks either during relicensing or during the 1992 and 1997 investigations, Ali's disqualifying criminal history would have been discovered, and Smith's day care would have been closed before Boone's children were abused.

¶14 The superior court granted the Department's motion for summary judgment and dismissed all the Boones' claims against the Department.⁴ The Boones appeal.

ANALYSIS

¶15 On appeal, the Boones argue that (1) the Department negligently investigated the 1992 and 1997 allegations of abuse involving other children at Smith's day care under RCW 26.44.050, (2) the Department negligently failed to conduct a background check on Ali as required under RCW 43.43.832, and (3) the Department's employees failed to comply with mandatory reporting requirements under RCW 26.44.030(1) when the Department learned Ali may have had unsupervised access to day care children. The Boones' claims fail because they fail to establish that the Department owed them any duty under the three statutes they identified. Moreover, even if the Boones had established the Department owed them a duty, they fail to establish a genuine issue of material fact as to causation.

I. STANDARD OF REVIEW

¶16 We review a superior court's order granting summary judgment de novo. M.W. v. Dep't of Social & Health Servs. , 149 Wash.2d 589, 595, 70 P.3d 954 (2003). We view the...