Desmet v. State
| Decision Date | 27 April 2021 |
| Docket Number | No. 53962-4-II,53962-4-II |
| Citation | 485 P.3d 356,17 Wash.App.2d 300 |
| Parties | Michelle A. DESMET and Sandor Kacso, individually and as the General Guardians of their daughter, A.K., a minor, Respondents, v. STATE of Washington, BY AND THROUGH its agency the DEPARTMENT OF SOCIAL AND HEALTH SERVICES and the Child Protective Services Division thereof and Yolanda A. Duralde, M.D., Appellant. |
| Court | Washington Court of Appeals |
Cynthia Jan Gaddis, Office of the Attorney General, P.O. Box 40126, Olympia, WA, 98504-0126, for Appellant.
Daniel R. Kyler, Michael John Fisher, Rush Hannula Harkins & Kyler LLP, 4701 S 19th St. Ste. 300, Tacoma, WA, 98405-1199, Christopher Reid Mcleod, Attorney at Law, P.O. Box 65252, University Place, WA, 98464-1252, for Respondents.
PUBLISHED OPINION
Maxa, J. ¶ 1 The State of Washington, its agency the Department of Social and Health Services (DSHS), and the Child Protective Services (CPS) division (collectively the Department)1 appeal the trial court's denial of their summary judgment motion seeking the dismissal of a lawsuit filed against the Department by Michelle Desmet and Sandor Kacso. The Department asserted that it had immunity under RCW 4.24.595(2) and therefore the lawsuit must be dismissed.
¶ 2 The lawsuit arose from a series of events that occurred after Desmet and Kacso's three-month-old daughter, AK, was diagnosed with a fracture of her femur. Because there was a concern that the injury was caused by nonaccidental trauma, the King County Sheriff's Office (KCSO) placed AK into protective custody and CPS initiated a dependency proceeding. At the 72-hour shelter care hearing, the juvenile court ordered that AK be placed in the care of Kacso's sister. The Department opposed Desmet and Kacso's subsequent motion to return AK to their home, and AK remained in shelter care for approximately six months. Meanwhile, CPS had issued a "founded" letter to Desmet stating that it was more likely than not that Desmet had abused AK. CPS ultimately dismissed the dependency proceeding and later replaced the founded finding with an unfounded finding.
¶ 3 Desmet and Kacso's lawsuit alleged that the Department's negligent investigation resulted in AK being prevented from returning to their home. They also asserted claims for negligent infliction of emotional distress and invasion of privacy by false light. The trial court denied the Department's summary judgment motion regarding immunity under RCW 4.24.595(2), which states that the Department and its employees are not liable for acts performed to comply with court shelter care and dependency orders. The court then entered an order under CR 54(b) directing entry of a final judgment on the issue of the Department's claim of immunity under RCW 4.24.595(2).
¶ 4 We hold that RCW 4.24.595(2) does not apply to Desmet and Kacso's negligent investigation claim or to their negligent infliction of emotional distress and false light claims. We decline to address the Department's arguments that summary judgment is appropriate on the merits of the negligent investigation claim because that issue is beyond the scope of the trial court's CR 54(b) order. Accordingly, we affirm the trial court's order denying the Department's summary judgment motion on the issue of immunity under RCW 4.24.595(2) for Desmet and Kacso's claims and remand for further proceedings.
FACTS
Background
¶ 5 Desmet and Kacso were parents of a baby named AK who was born in October 2015. Desmet took maternity leave when AK was born. After Desmet went back to work on February 1, 2016, AK began to attend daycare.
¶ 6 After three days at daycare, AK became fussy and sick. Desmet and Kacso took AK to urgent care. The examining doctor diagnosed her with an upper respiratory infection
. The musculoskeletal exam was normal. The next day, Desmet stayed home with AK instead of sending her back to daycare.
¶ 7 On February 5, Desmet noticed that AK's left leg looked swollen and felt firm to the touch. Desmet took AK to the emergency department at Mary Bridge Children's Hospital that morning. X-rays revealed that AK had a broken femur
. Desmet and Kacso were unable to provide an explanation for AK's injury. Dr. Yolanda Duralde, the director of the Child Abuse Intervention Department at Mary Bridge, reviewed AK's chart and her assessment was "probable inflicted trauma." Clerk's Papers (CP) at 986. Dr. Duralde stated that AK needed to be in a safe environment until an investigation could be done.
¶ 8 A social worker at Mary Bridge reported the injury to CPS. CPS assigned Jennifer Schooler, a social worker, to the case. Schooler interviewed Desmet and Kacso that day. She also recorded Dr. Duralde's belief that the chance that the injury occurred at daycare was minimal.
¶ 9 The KCSO also was contacted. Officers arrived later that evening and interviewed Desmet and Kacso. The officers then decided to take AK into protective custody. Desmet and Kacso were very upset. Kacso's sister agreed to take AK into her custody.
Dependency Proceedings
¶ 10 On February 9, Schooler filed a dependency petition with the juvenile court and requested out-of-home placement. On February 10, Desmet and Kacso appeared in juvenile court for the 72-hour shelter care hearing and waived the presentation of evidence. The court entered an agreed shelter care order, which stated, "The child is in need of shelter care because there is reasonable cause to believe: [t]he release of the child would present a serious threat of substantial harm to the child ... as assessed by Petitioner." CP at 386-87. The shelter care order placed AK with Kacso's sister and authorized liberal supervised visitation rights to Desmet and Kacso.
¶ 11 Desmet and Kacso waived the 30-day shelter care hearing, scheduled for March 8. As a result, the February 10 shelter care order remained in effect. The fact-finding hearing for the dependency was scheduled for April 13.
¶ 12 Desmet and Kacso filed a motion to modify the shelter care order and to return AK to their home. Their supporting evidence included both parents passing polygraph tests, Dr. Duralde's notes stating that this type of injury could be caused by an accident, and an expert opinion from a pediatric orthopedic physician who concluded that AK's injury likely did not result from child abuse. DSHS opposed the motion. DSHS submitted the declaration of a DSHS supervisor on AK's case, and various exhibits.
¶ 13 On April 12, the juvenile court heard oral argument regarding Desmet and Kacso's motion to return AK home and denied the motion. The court's order noted the voluminous documents that both parties had submitted. The court stated that "based on the current evidence, the cause of [AK's] facture remains unclear (whether forcible or accidental) and without a plausible explanation for same the court finds the reasonable cause standard for continuing shelter care (out of home placement) continues to be met." CP at 419. The order stated that the shelter care order remained in full force and effect, and that Desmet and Kacso had agreed to participate in psychological evaluations as soon as possible.
¶ 14 Desmet and Kacso agreed to two continuances of the fact-finding hearing through August 8. They subsequently completed psychological evaluations. On August 8, all parties agreed that AK could return home based on the results of the evaluations.
¶ 15 The Department ultimately terminated the dependency action on October 24 based on Desmet and Kacso's completion of various court-ordered conditions.
CPS Founded Letter
¶ 16 Meanwhile in March, CPS officially had concluded that the allegations of negligent treatment or maltreatment were founded. On March 31, CPS sent a letter informing Desmet of the results of its investigation into AK's injury. The letter stated that CPS had found that Desmet's alleged abuse of AK had occurred. The letter explained that a "founded" determination meant that CPS determined that it was more likely than not that the abuse and/or neglect occurred and that Desmet was the person responsible for the abuse and/or neglect. The founded finding was "based on information collected during the CPS investigation including medical records, polygraph results, law enforcement reports, and expert testimony." CP at 443.
¶ 17 Desmet contested the founded determination in an administrative appeal. The Department eventually changed the founded letter to unfounded several months after the dependency action was dismissed.
Desmet and Kacso's Lawsuit
¶ 18 Desmet and Kacso filed a lawsuit against the State, the Department and CPS, asserting claims for negligent investigation, negligent infliction of emotional distress, and invasion of privacy by false light.
¶ 19 The Department filed a summary judgment motion to dismiss all claims, arguing among other things that it had complete immunity against all of Desmet and Kacso's claims under RCW 4.24.595(2). The trial court denied the Department's motion. In an order denying reconsideration, the court directed entry of a final judgment under CR 54(b) on the issue of the Department's claim of immunity under RCW 4.24.595(2). The Department appeals the trial court's denial of its summary judgment motion.
ANALYSIS
¶ 20 We review summary judgment orders de novo. Freedom Found. v. Bethel Sch. Dist. , 14 Wash. App. 2d 75, 80, 469 P.3d 364 (2020). Similarly, when a summary judgment order is based on an issue of statutory interpretation, we review the trial court's interpretation of the statute de novo. Guillen v. Pearson, 195 Wash. App. 464, 470, 381 P.3d 149 (2016). This appeal turns on interpretation of RCW 4.24.595(2), not on any factual issues. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Freedom Foundation , 14 Wash. App. 2d at 80, 469 P.3d 364 ; CR 56(c).
¶ 21 Chapter 26.44 RCW governs the duty to report child abuse or neglect. Chapter 13.34 RCW...
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Desmet v. State
...on the grounds that it had complete immunity against these claims under RCW 4.24.595(2). Id . at 316, 323-39; Desmet v. State , 17 Wash. App. 2d 300, 302, 310, 485 P.3d 356 (2021). The trial judge denied the motion but entered a CR 54(b) order of final judgment on the issue of immunity, whi......
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