Dunning v. Pacerelli (State Report Title: Dunning v. Paccerelli)

• Decision Date: 17 October 1991
• Docket Number: No. 11027-3-III,11027-3-III
• Citation: 63 Wn.App. 232,818 P.2d 34
• Court: Washington Court of Appeals
• Parties: Ken DUNNING, John Hader, Richard Becker, Appellants, v. Barbara PACERELLI, Janice Banning, Janet Thomas, and their respective husbands, if married, and the Department of Social and Health Services, State of Washington and Jane Doe 1, Jane Doe 2, etc., John Doe 1, John Doe 2, etc., Officials Thereof, Respondents.

Page 232

63 Wn.App. 232

818 P.2d 34

Ken DUNNING, John Hader, Richard Becker, Appellants, v. Barbara PACERELLI, Janice Banning, Janet Thomas, and their respective husbands, if married, and the Department of Social and Health Services, State of Washington and Jane Doe 1, Jane Doe 2, etc., John Doe 1, John Doe 2, etc., Officials Thereof, Respondents.

No. 11027-3-III.

Court of Appeals of Washington, Division 3 Panel Three.

Oct. 17, 1991.

As Amended on Denial of Reconsideration Dec. 10, 1991.

Charles R. Chatburn, Spokane, for appellants.

Kenneth O. Eikenberry, Atty. Gen., and Maureen E. McGuire, Asst. Atty. Gen., Spokane, for respondents.

THOMPSON, Judge.

In this action, Ken Dunning, John Hader, and Richard Becker allege the Department of Social and Health Services (DSHS) and three of its employees, negligently and in violation of their civil rights, caused their names to be placed on the State's "central registry" as reported child abusers. Former RCW 26.44.030 and 26.44.070. ¹ DSHS and the named social workers listed the plaintiffs' names on the registry after concluding the plaintiffs had failed to report child abuse at the J Bar D Boys Ranch, where they were employed. The Superior Court entered summary judgment for the defendants, holding the social workers and DSHS had absolute immunity from liability for this act. We reverse.

On July 19, 1984, DSHS received a complaint from the mother of a boy who resided at the J Bar D Boys Ranch, which is a group home for emotionally disturbed boys near Ione, Washington. She stated that living conditions at the ranch were "filthy" and that her son had told her the older boys were abusing the younger ones. Janice Banning, a Child Protective Services caseworker from the Department's Colville office, was assigned to investigate. She interviewed several of the residents who told her about specific instances of sexual abuse and also stated they had reported at least some of the instances to the staff.

On July 31, 1984, Ms. Banning and Barbara Pacerelli, the children's services supervisor, interviewed the plaintiffs. Ms. Banning attests [P]laintiff Becker revealed in his interview that he was aware of a practice at the ranch termed "open season." According to Mr. Becker, "open season" is the singling out of one resident to be physically attacked by all the others. According to information gathered from the residents, "open season" occurred on several occasions, "open season" was usually declared by staff, but may be declared by a child, and was used by staff as a deterrent to children who are inclined to run away from placement.

Plaintiffs told us they received verbal reports from residents of sexual activity between residents and did not believe the reports were true. None of the plaintiffs made a report to CPS or law enforcement as required by RCW 26.44.030. Based on the individual interviews I had with each plaintiff, I concluded that they were aware of incidents of sexual and/or physical abuse among children and failed to report as required by law.

Ms. Banning took handwritten notes of her interviews with the plaintiffs. The three plaintiffs told her that residents had come to them with a report of homosexual activity between two boys. However, the plaintiffs all maintained they had reason to believe the report was untrue. During the interview, Mr. Hader told Ms. Banning that he had written an internal report on the incident, but he did not identify to whom he submitted this report, nor did he produce a copy of the report at that time.

In their affidavits, the three plaintiffs state they investigated the allegation of homosexual activity by questioning the residents who had reported it to them; they determined these residents had not witnessed the activity. They also confronted the alleged participants and concluded the activity probably had not occurred, but was "a fabrication in an attempt by one of the boys to avoid a home leave he was scheduled for soon. [That boy] had tried this sort of thing before to 'get in trouble' so his home leave would be canceled." Attached to these affidavits are copies of reports which the three plaintiffs wrote and filed with the ranch's assistant director the day of the incident. In his affidavit, Mr. Becker also acknowledges he spoke of "open season" in his interview with Ms. Banning, but he specifically denies saying the practice was initiated or condoned by the ranch staff.

DSHS removed several of the residents immediately; the State later revoked the ranch's license as a group care facility. By letters dated August 6, 1984, Ms. Pacerelli notified the plaintiffs the Department had found that they were aware of at least one incident of homosexual activity between residents at the ranch and did not report it as required by former RCW 26.44.030(1). Ms. Pacerelli stated this information would be placed in the Department's central registry in Olympia. She concluded:

You have a right to supply information about your situation and a right to appeal this finding. The enclosed pamphlet will explain how to request a Fair Hearing.

The three plaintiffs' names were mailed to the central registry on August 16, 1984, along with the names of the ranch administrator and the owner.

The plaintiffs each sought administrative review of the decision, but a hearing was never held. On August 16, 1985, plaintiffs Hader's and Becker's administrative appeals were dismissed "with prejudice", pursuant to a stipulated motion and order. According to the stipulations, Mr. Hader and Mr. Becker complied with the spirit of the child abuse reporting requirements when they made an internal report of the incident. DSHS therefore agreed to remove their names from the registry. Mr. Dunning, who was proceeding pro se, appeared at the time scheduled for the hearing and was advised by the hearing examiner that DSHS had also withdrawn his name from the central registry, rendering the matter moot. According to the affidavit of Lawrence D. Briney, the assistant attorney general representing DSHS, the Department entered into the stipulations because it had already settled with the ranch owner and with the administrator, whom the Department regarded as the two main participants.

In July 1987, the plaintiffs filed in Superior Court the action from which this appeal is taken. They named as defendants DSHS and Ms. Banning, Ms. Pacerelli, and Janet Thomas, who was the Colville Community Services Office Administrator for DSHS in 1984. They alleged the defendants had no "substantial credible evidence" that plaintiffs "neglected or failed to prevent or protect residents from abuse". The plaintiffs further alleged the investigation was unprofessionally done, violated Department guidelines, and DSHS had not adequately supervised the social workers who conducted the investigation.

As causes of action, the plaintiffs asserted the defendants (1) acted negligently; (2) violated the plaintiffs' right to due process and their right to employment under both the federal and state constitutions; (3) denied their rights under 42 U.S.C. § 1983; ² (4) denied their constitutional right to privacy; and (5) committed the following torts: publication of an injurious falsehood, outrage, and wrongful interference with advantageous economic relations. ³ As damages, they averred emotional distress, injury to reputation, and loss of income due to closure of the ranch and their inability to find jobs in their chosen field while their names remained on the registry.

In their answer, the defendants claimed immunity from suit arising out of the conduct of their official duties. They also alleged res judicata as an affirmative defense, citing the earlier dismissals of the administrative appeals. The defendants subsequently moved for summary judgment.

In an oral opinion rendered on July 19, 1990, the Superior Court indicated it would grant the defendants' motion. It held that Mr. Becker and Mr. Hader, who had entered into the stipulated dismissals of their administrative fair hearing, were now barred from litigating the circumstances surrounding the investigation. Because the third plaintiff, Mr. Dunning, had not stipulated to dismissal, the court addressed the defendants' theory that DSHS and the individual defendants were immune from suit. The court considered Babcock v. State, 112 Wash.2d 83, 768 P.2d 481 (1989) (Babcock I), which held that DSHS and its caseworkers have absolute immunity from liability for negligent foster care investigation and placement. The court held that Babcock also applied to the facts presented by the plaintiffs. On July 24, 1990, the court entered an order granting DSHS's motion for summary judgment.

First, did the court err when it held the caseworkers and DSHS had absolute immunity from liability arising from their actions leading up to and including the placing of the plaintiffs' names on the central registry?

The trial court's holding was based upon Babcock I, which was reversed upon reconsideration. Babcock v. State, 116 Wash.2d 596, 809 P.2d 143 (1991). (Babcock II). The trial court did not have the benefit of Babcock II, which held that the caseworkers' actions in investigating and making foster care placements were neither quasi judicial nor quasi prosecutorial in character; thus, no absolute immunity attached. Babcock II, at 609, 610, 809 P.2d 143. Instead, the caseworkers were entitled only to a common law qualified immunity for foster care placement decisions. Babcock II, at 618, 809 P.2d 143. The court held that the caseworkers, in order to qualify for the immunity, had to "(1) carry out a statutory duty, (2) according to procedures dictated by statute and superiors, and (3) act reasonably". Babcock II, at 618, 809 P.2d 143 (citing Guffey v. State, 103 Wash.2d 144, 152, 690 P.2d 1163 (1984)).

The defendants attempt to distinguish Babcock II on its facts. They contend the reporting and investigating of possible child abuse, in contrast to foster...