H.B.H. v. State, NO. 94529-2

• Court: United States State Supreme Court of Washington
• Writing for the Court: STEPHENS, J.
• Citation: 429 P.3d 484
• Parties: H.B.H.; S.A.H.; and Trey Hamrick, Litigation Guardian Ad Litem on behalf of K.E.H., J.B.H. and K.M.H., Respondents, v. STATE of Washington, Petitioner, and Town of Eatonville, Defendant.
• Decision Date: 01 November 2018
• Docket Number: NO. 94529-2

429 P.3d 484

H.B.H.; S.A.H.; and Trey Hamrick, Litigation Guardian Ad Litem on behalf of K.E.H., J.B.H. and K.M.H., Respondents,
v.
STATE of Washington, Petitioner,
and
Town of Eatonville, Defendant.

NO. 94529-2

Supreme Court of Washington.

Argued February 22, 2018
Filed November 01, 2018

Peter J. Helmberger, Office of the Attorney General, P.O. Box 2317, Tacoma, WA 98401-2317, Gregory G. Silvey, Allyson Zipp, Office of the Attorney General, 7141 Cleanwater Drive SW, P.O. Box 40126, Tumwater, WA 98501-6503, for Petitioner.

Lincoln Charles Beauregard, Julie Anne Kays, Connelly Law Offices, 2301 N. 30th Street, Tacoma WA 98403-3322, Nelson C. Fraley, II, Alliance Law Group PS, 5316 Orchard Street West, University Place, WA 98467, Philip Albert Talmadge, Sidney Charlotte Tribe, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Avenue SW, Third Floor, Suite C, Seattle, WA 98126-2138, for Respondents.

Rebecca Jane Roe, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle WA 98104-1657, for Amicus curiae on behalf of King County Sexual Assault Resource Center.

Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, for Amicus curiae on behalf of Washington State Association for Justice Foundation.

STEPHENS, J.

429 P.3d 487

¶ 1 Former foster children KMH, HBH, SAH, KEH, and JBH brought this case against the Department of Social and Health Services (DSHS), alleging negligence in failing to protect them from the tortious or criminal acts of their foster, and later adoptive, parents. At the close of the evidence, the trial court granted DSHS’s CR 50 motion and dismissed the children’s claims of negligence concerning the preadoption, foster care period. Division Two of the Court of Appeals reversed, holding that DSHS owes a common law duty to protect dependent foster children from foreseeable harm based on the special relationship between DSHS and such children.

¶ 2 This holding is correct. Under well-established common law tort principles, DSHS owes a duty of reasonable care to protect foster children from abuse at the hands of their foster parents. The evidence at trial was sufficient to present a jury question as to whether DSHS breached this duty and caused the plaintiffs harm. We affirm the Court of Appeals and remand for trial on the preadoption claims.

FACTS AND PROCEDURAL HISTORY

¶ 3 DSHS placed KMH in foster care with Scott and Drew Ann Hamrick in February 1998. Social worker Amy Page was initially assigned to KMH’s case, before being replaced by Renee Harvey in 1999. KMH also had two guardians ad litem and a therapist during the preadoption period. The record suggests that there were no observations or reports of any problems with KMH’s placement during this time.

¶ 4 In October 1999, DSHS placed twins HBH and SAH with the Hamricks. HBH and SAH had been removed from their parents in 1994 and had been placed in several foster homes in the years preceding their placement with the Hamricks. They suffered abuse and neglect in those foster homes. DSHS social worker Mary Woolridge was assigned to the twins’ cases in February 1999. According to DSHS policies, Woolridge was required to conduct regular in-home health and safety checks every 90 days to determine whether the children felt safe or had concerns about their new foster home setting. Evidence presented at trial indicated that Woolridge failed to conduct these health and safety visits as required. DSHS records show no visits and no reports between October 1999 (the date HBH and SAH were placed in the Hamrick home) and October 2000 (the date the girls were adopted by the Hamricks).

¶ 5 In January 2000, DSHS also placed KEH and JBH in the Hamricks’ home. DSHS social worker Liza Gilman was initially assigned to the girls’ cases, followed by social workers Sally Bryan, Amy Page, and Anna Tran. The record indicates that each social worker conducted health and safety visits, and did not observe or receive any information about abuse occurring in the Hamrick home.

¶ 6 In June 2000, DSHS conducted a home study to determine whether the Hamricks would be suitable adoptive parents. The resulting report recommended that DSHS allow the Hamricks to adopt all of the children.

429 P.3d 488

In October 2000, the Hamricks adopted KMH, HBH, and SAH. A few years later, in January 2003, the Hamricks adopted KEH and JBH. DSHS involvement with the children ended upon their adoptions.

¶ 7 Evidence at trial showed that the Hamricks abused all five girls physically, sexually, and psychologically during the preadoption period from 1998 to 2003. DSHS did not obtain any information concerning abuse during this period, however, and the social workers in contact with the children reported that the children seemed happy in the Hamricks’ home.

¶ 8 In April 2008, following the children’s adoption by the Hamricks, Child Protective Services (CPS) received a written referral from a school counselor who suspected physical abuse of SAH. CPS screened the report and decided not to investigate. In November 2009, CPS received another referral related to Scott Hamrick’s alleged sexual contact with a juvenile neighbor girl; this referral noted that there were multiple adopted children within the Hamrick home. CPS referred the incident to law enforcement but did not conduct its own investigation or otherwise follow up on the report. In March 2010, a neighbor reported possible abuse and neglect of KEH to CPS. This time, CPS investigated the referral but determined the report was unfounded.

¶ 9 In 2011, the Pierce County Sheriff’s Department began investigating allegations that the Hamricks were abusing KMH, HBH, SAH, KEH, and JBH. The investigation resulted in DSHS removing the children from the Hamrick home. Scott Hamrick committed suicide during the criminal investigation. Drew Ann Hamrick was eventually charged and convicted of crimes related to the abuse.

¶ 10 In September 2011, HBH and SAH brought this civil suit against DSHS, alleging that its negligence in failing to investigate or take other protective action during the preadoption period allowed the Hamricks to abuse them as foster and, later, adopted children. A separate suit was filed through a guardian ad litem on behalf of KMH, KEH, and JBH, who were still minors at the time. The two cases were eventually consolidated and went to trial. The jury heard evidence over approximately six weeks of testimony.

¶ 11 Following the close of both parties’ cases, DSHS moved under CR 50 for judgment as a matter of law, arguing that it was not negligent during the preadoption period. The trial court granted DSHS’s motion as to the preadoption period.¹ The jury returned a defense verdict on the remaining claims.

¶ 12 On appeal, the foster children argued that the trial court erred in dismissing their claims of negligence by DSHS concerning the preadoption period. They did not seek to revive claims based on DSHS’s statutory duty to investigate² but, instead, argued that DSHS owed a common law duty of reasonable care to protect foster children based on the special protective relationship between the agency and such children. They further argued that DSHS breached that duty by failing to protect them from the tortious or criminal acts of their foster parents. DSHS contended that no special relationship should be recognized because DSHS did not have physical custody of the foster children, who at all relevant times were in the care of the Hamricks.

¶ 13 The Court of Appeals reversed the trial court’s CR 50 order relating to the preadoption period, holding that DSHS stands in a protective special relationship with foster children within the meaning of Restatement (Second) of Torts § 315(b) (Am. Law Inst. 1965). H.B.H. v. State , 197 Wash.App. 77, 92, 387 P.3d 1093 (2016). Relying on both the Restatement and Washington case law, the court concluded that "entrustment, not custody, is at the heart of a special

429 P.3d 489

protective relationship for purposes of imposing a common law tort duty." Id. at 91, 387 P.3d 1093. The court further held that the foster children produced sufficient evidence of breach and causation to avoid dismissal under CR 50 of their claims relating to DSHS’s negligence during the preadoption period. Id. at 92-95, 387 P.3d 1093. The court remanded for trial on the preadoption negligence claims. We granted DSHS’s petition for review. H.B.H. v. State, 189 Wash.2d 1002, 404 P.3d 1162 (2017).

ANALYSIS

¶ 14 Courts are appropriately hesitant to take cases away from juries. A CR 50 motion for directed verdict or judgment as a matter of law should be granted only when, after viewing the evidence in the light most favorable to the nonmoving party, there is no substantial evidence or reasonable inferences therefrom to support a verdict for the nonmoving party. Goodman v. Goodman, 128 Wash.2d 366, 371, 907 P.2d 290 (1995).

¶ 15 DSHS argues dismissal was appropriate in this case because it owes no common law duty to foster children to protect them from abuse by foster parents. DSHS contends that the Court of Appeals erred in holding that a Restatement § 315(b) protective special relationship exists between DSHS...