HBH v. State

Decision Date13 December 2016
Docket NumberNo. 47438-7-II,47438-7-II
Citation387 P.3d 1093,197 Wash.App. 77
CourtWashington Court of Appeals
Parties HBH; SAH; and Trey Hamrick, litigation guardian ad litem on behalf of KEH, JBH, and KMH, Appellants, v. State of Washington, Respondent, and Town of Eatonville, Defendant.

Lincoln Charles Beauregard, Julie Anne Kays, Connelly Law Offices, 2301 N. 30th St., Tacoma, WA, 98403-3322, Nelson C. FraleyII, Alliance Law Group PS, 5316 Orchard St., West University Place, WA, 98467, for Appellants.

Peter J. Helmberger, Office of the Attorney GeneralTacoma, 1250 Pacific Ave., Ste. 105, P.O. Box 2317, Tacoma, WA, 98401-2317, Gregory G. Silvey, Office of the Attorney General, 7141 Cleanwater Dr. S.W., P.O. Box 40126, Tumwater, WA, 98501-6503, for Respondent.


Bjorgen, C.J.¶1 KMH, HBH, SAH, KEH, and JBH1 (collectively, the children) appeal the trial court's partial dismissal of some of their claims through a CR 50 motion for judgment as a matter of law, as well as an evidentiary ruling and the final judgment in favor of the Department of Social and Health Services (DSHS). Their claims were related to incidents of child abuse by their foster, and later adoptive, parents, Scott and Drew Anne Hamrick (the Hamricks).

¶2 The children contend that the trial court erred by (1) dismissing under CR 50 their claims regarding DSHS's failure to investigate during the period before they were adopted, (2) adopting a special verdict form that improperly asked the jury to apportion fault for both intentional torts and negligence, (3) excluding the testimony of two late-disclosed witnesses, and (4) speaking candidly about personal political leanings in court. They also assert that (5) cumulative error violated their rights to a fair trial.

¶3 In the published portion of this opinion, we hold that (1) DSHS has a duty of reasonable care to protect children it places in foster homes based on a special relationship and that the plaintiffs produced sufficient evidence to avoid dismissal under CR 50 for claims regarding DSHS's negligence during the period before the children were adopted. In the unpublished portion we hold that (2) the trial court erred by submitting an incorrect special verdict form to the jury, but the error was harmless for those claims; (3) the trial court erred in excluding the two witnesses, but this error also was harmless; (4) the trial court did not create any appearance of unfairness by speaking about political matters; and (5) there was no cumulative error. Accordingly, we reverse the trial court's CR 50 ruling and remand for trial on the claim of negligent failure to investigate and to appropriately protect foster children. We affirm the trial court's judgment as to the remaining claims.


1. Pre-Adoption Period

¶4 In February 1998, DSHS placed KMH in foster care with the Hamricks. Social worker Amy Page was assigned to KMH's case and conducted health and safety checks. Page did not receive any information or make any observations suggesting that the Hamricks were abusing KMH or that the placement was otherwise harmful.

¶5 In October 1999, twins HBH and SAH were placed with the Hamricks as well. The twins had been in other foster homes for the preceding seven years, and had suffered abuse and neglect in those homes. DSHS social worker Mary Woolridge was assigned to the twins' cases. According to agency policies, Woolridge was supposed to conduct in-home health and safety checks every 90 days at which she was to talk with the girls about their experiences in the home. However, evidence presented at trial indicated that Woolridge may not have conducted these visits as required.

¶6 During this period, the Hamricks allegedly abused KMH, HBH, and SAH emotionally and physically, and abused SAH sexually. However, DSHS received no reports of any abuse, and individuals in contact with the children reported that they seemed happy.

¶7 In January 2000, DSHS placed KEH and JBH in the Hamricks' home. Social worker Lisa Gilman was assigned to their cases and conducted health and safety visits. Gilman did not receive any indication that abuse was occurring in the Hamrick home. Page later took over as their assigned social worker, and similarly believed KEH and JBH were happy and doing well in the home.

¶8 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 them to adopt all of the children.

2. Post-Adoption Period

¶9 In October 2000, the Hamricks adopted KMH, HBH, and SAH. In January 2003, they adopted KEH and JBH as well.

¶10 In April 2008, a school counselor reported suspected physical abuse of SAH. Child Protective Services (CPS) screened this report and decided not to investigate. In November 2009, CPS received a referral related to Scott Hamrick's alleged sexual contact with a juvenile neighbor girl. CPS apparently referred this incident to local law enforcement for criminal investigation but did not investigate the Hamrick household for abuse.

¶11 In March 2010, a neighbor reported possible abuse and neglect of KEH to CPS. CPS investigated this report, visiting the Hamrick household and interviewing the children and the Hamricks. Ultimately, CPS determined that the report was unfounded.

¶12 In 2011, the Pierce County Sheriff's Department began an investigation of allegations that the Hamricks had abused KMH, HBH, SAH, KEH, and JBH. This investigation led DSHS to remove the children from the Hamrick home. Scott Hamrick committed suicide during the investigation, and Drew Ann Hamrick was charged with crimes related to the abuse.

3. Claims and Trial

¶13 In October 2011, HBH and SAH sued DSHS, claiming that its negligence in failing to investigate or take other protective action allowed the Hamricks to abuse them during their period as foster, and later adoptive, children in the Hamrick home. A guardian ad litem sued DSHS on similar grounds on behalf of KMH, KEH, and JBH, who were still juveniles at the time, and the two cases were consolidated. Following an initial mistrial, the case was tried beginning in February 2015.

¶14 Several days before trial began, the children disclosed two additional witnesses who would testify concerning matters related to the 2009 CPS referral. The State objected to their testimony. The trial court excluded the witnesses as a sanction for the children's late disclosure, believing that the testimony would not add anything significant to the case.

4. CR 50 Motion

¶15 Following the close of both parties' cases, the State moved under CR 50 for judgment as a matter of law that, inter alia, DSHS was not negligent during the pre-adoption period or in relation to the 2009 CPS referral. The trial court agreed with the State and granted the motion. As to the pre-adoption period, it ruled:

there were so many people involved that were handling this prior to the adoption, all of these other voices that were coming in saying, no, there was nothing to show there was any abuse. I mean, absent—I mean, does it really matter whether Mary Woolridge was or was not doing her health and safety visits [?].... Seems to me most of this case comes down to what did they know and when did they know it.... I can't really see there are any claims based on anything Mary Woolridge did or did not do.

Report of Proceedings (RP) (Mar. 5, 2015) at 83. As to the 2009 CPS referral, the court ruled that "the fact they didn't investigate it is not evidence of any kind of negligence on their part because they didn't have any duty or obligation to investigate it." RP (Mar. 5, 2015) at 82.

5. Special Verdict Form

¶16 The trial court provided the jury a special verdict form on which it was to document its verdicts as to negligence and the assignment of any resulting damages. The verdict form first asked the jury to decide whether DSHS was negligent in its treatment of the 2008 and 2010 referrals and whether its negligence proximately caused harm to the children. It then asked whether certain other nonparties' negligence proximately caused harm to KMH, HBH, SAH, KEH, and JBH. In accordance with the trial court's CR 50 rulings, the verdict form included no questions concerning the pre-adoption period or the 2009 referral.

¶17 The verdict form included several questions regarding damages. It asked the jury to determine "each plaintiff's total amount of damages" as a dollar value. Clerk's Papers (CP) at 638. Next, it stated:

Assume that 100% represents the total combined negligence or fault that proximately caused each plaintiff's damages. What percentage of this 100% is attributable to each individual or entity, if any, for whom you answered "yes" in answer to [the questions concerning DSHS's and certain nonparties' negligence]? For each plaintiff, the percentage of fault must equal 100 %.

CP at 638.

¶18 The verdict form next asked, "Were the intentional acts of the following individuals a proximate cause of any of the plaintiff[s'] damages?" CP at 638. Finally, the form asked:

What percentage of each plaintiff's damages were caused by ... all of the intentional conduct of [Scott and Drew Ann Hamrick], and what percentage of plaintiff[s'] damages were caused by all of the negligent conduct you identified in your answers to [the questions concerning negligence]? Your answer for each plaintiff must total 100 %.

CP at 639.

6. Outcome of Trial

¶19 The jury found that DSHS was not negligent in its treatment of either the 2008 or 2010 CPS referrals. As a result, it did not calculate or assign any damages to the children on the special verdict form.

¶20 The plaintiffs moved for a new trial, arguing that the trial court had erred in its CR 50 ruling, its exclusion of the two witnesses' testimony, and in providing the special verdict form. The trial court denied the motion. The children now appeal.



¶21 The children argue that the trial court erred by dismissing their claims of negligence by DSHS...

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