Hicks v. Klickitat Cnty. Sheriff's Office

CourtCourt of Appeals of Washington
PartiesVAN B. HICKS, Appellant/Cross-Respondent, v. KLICKITAT COUNTY SHERIFF'S OFFICE, and SHIRLEY DeARMOND, Respondents, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent/Cross-Appellant. VAN B. HICKS, Appellant, v. KLICKITAT COUNTY SHERIFF'S OFFICE, Defendant, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and SHIRLEY DeARMOND, Respondents. VAN B. HICKS, Appellant, v. KLICKITAT COUNTY SHERIFF'S OFFICE, Respondent, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and SHIRLEY DeARMOND, Defendants.
Docket Number55014-8-II,55554-9-II,55654-5-II
Decision Date16 August 2022

VAN B. HICKS, Appellant/Cross-Respondent,
v.

KLICKITAT COUNTY SHERIFF'S OFFICE, and SHIRLEY DeARMOND, Respondents,

DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent/Cross-Appellant.

VAN B. HICKS, Appellant,
v.

KLICKITAT COUNTY SHERIFF'S OFFICE, Defendant,

DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and SHIRLEY DeARMOND, Respondents.

VAN B. HICKS, Appellant,
v.

KLICKITAT COUNTY SHERIFF'S OFFICE, Respondent,

DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and SHIRLEY DeARMOND, Defendants.

Nos. 55014-8-II, 55554-9-II, 55654-5-II

Court of Appeals of Washington, Division 2

August 16, 2022


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LEE, J.

Van B. Hicks sued the Klickitat County Sheriff's Office (KCSO), Department of Social and Health Services (DSHS), and social worker Shirley DeArmond for the negligent investigation of a child abuse report involving four-year-old F.H.[1] Hicks also sued DSHS for the negligent retention of DeArmond. On summary judgment, the superior court dismissed the negligent investigation claim but denied dismissal of the negligent retention claim. Hicks appeals the superior court's grant of summary judgment dismissal of his negligent investigation claim. DSHS cross-appeals the superior court's denial of summary judgment dismissal of Hicks' negligent retention claim.

We hold that the superior court properly granted summary judgment dismissal of the negligent investigation claim but erred in denying summary judgment dismissal of the negligent retention claim. Accordingly, we affirm the summary judgment dismissal of the negligent investigation claim, reverse the denial of summary judgment dismissal of the negligent retention claim, and remand to the superior court to enter summary judgment in favor of DSHS dismissing the negligent retention claim.

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FACTS

A. INVESTIGATION

Hicks and his former spouse, Chelsey Moss, have two children, P.H. and F.H. In 2012, Hicks and Moss were separated and informally shared custody of the children. At that time, P.H. was seven years old and F.H. was four years old. Moss told the family's therapist that she believed Hicks had sexually abused F.H. The therapist reported these suspicions to DSHS.

DSHS notified KCSO about the report they had received. DSHS social worker DeArmond and Sergeant Erik Anderson of KCSO met with Moss at her residence and spoke with her about her concerns. On a later date, DeArmond interviewed the children while Sergeant Anderson recorded the interview. In response to questions from DeArmond, F.H. said that Hicks wanted F.H. to see his stiff penis, that Hicks touched his penis to F.H.'s genitals, and that Hicks touched his stiff penis to F.H.'s chin. F.H. also said that Hicks touched both F.H. and P.H. P.H. denied any sexual abuse by Hicks.

After Hicks was arrested, Sergeant Anderson prepared a probable cause affidavit based on the interviews. When deposed, Sergeant Anderson testified that he created the probable cause affidavit independently, based on his own recollection of the interviews with the children. Sergeant Anderson also testified that it was solely his decision to forward the affidavit of probable cause to the prosecutor for review.

B. CRIMINAL CHARGE

The Klickitat County Prosecutor charged Hicks with first degree child molestation. Before filing the information, the prosecutor did not review any DSHS documents but did review Sergeant

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Anderson's summary of the interviews with the children. The superior court reviewed the information, motion for an order determining existence of probable cause, and probable cause declaration before determining that there was probable cause to believe that Hicks committed first degree child molestation. The superior court issued sexual assault protection orders prohibiting Hicks from contacting Moss and their children pursuant to former RCW 7.90.150(1)(a) (2006).

DeArmond continued meeting with Moss and entering notes in the DSHS file. DSHS issued a finding of "[f]ounded"[2] for the sexual abuse allegations against Hicks. Clerk's Papers (CP) at 559. Hicks appealed the finding.

DSHS assigned the appeal to a different social worker, Berta Norton. Norton reviewed the children's interviews and found that the interviews included leading questions. Norton concluded that the sexual abuse allegations were "unfounded."[3] CP at 567 (capitalization omitted).

The prosecutor received DSHS's updated "unfounded" finding and moved to dismiss the child molestation charge against Hicks. The superior court granted the motion and dismissed the criminal charges against Hicks. The superior court also lifted the no-contact orders prohibiting Hicks from contacting his children.

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C. CIVIL SUIT

Hicks sued DSHS, DeArmond, and KCSO for negligent investigation, negligence, tortious interference with a parent-child relationship, and negligent infliction of emotional distress. Hicks' amended complaint also included a negligent retention claim against DSHS. The amended complaint alleged that "[a]t all times material, Defendant's agents and employees were acting within the scope and course of his or her employment." CP at 66.

The litigation revealed that DeArmond had a history of misconduct in child abuse investigations and that DSHS had received several complaints about her. John C. Yuille, Ph.D., R. Psych. evaluated DeArmond's interview with F.H. and concluded that the interview was

one of the poorest quality interviews of a pre-school age child that I have seen in almost three decades of reviewing child interviews. This is an example of how NOT to conduct an investigative interview of a child. It is impossible to evaluate the allegations: the quality of the interview is so poor and the interviewing so leading that there is no information of reliable quality to evaluate.

CP at 707. Additionally, DeArmond's daughter was friends with Moss, and DeArmond's granddaughter and Moss's children often played together. DeArmond's granddaughter was present at Moss's home on the day that DeArmond and Sergeant Anderson first contacted Moss about the sexual abuse allegations. DeArmond advised her supervisor of the potential conflict of interest and was advised to remain on the case.

DSHS and KCSO moved for summary judgment. As relevant to this appeal, DSHS and KCSO argued that the negligent investigation claim should be dismissed because no "harmful placement decision" was made. DSHS also argued that the negligent retention claim should be dismissed because DeArmond acted within the scope of her employment at all times.

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The superior court granted summary judgment and dismissed all claims except the "negligent supervision/retention" claim against DSHS.[4] CP at 665. DSHS moved for reconsideration of the order denying summary judgment on the negligent retention claim, and the superior court denied its motion. Hicks moved for reconsideration of the order granting summary judgment on the negligent investigation claim, and the superior court denied his motion.

D. PROCEDURAL HISTORY ON APPEAL

DSHS and DeArmond sought discretionary review before this court regarding the remaining negligent retention claim. We granted discretionary review.

Hicks moved for review before our Supreme Court regarding the dismissal of the negligent investigation claim. Our Supreme Court transferred Hicks' motion for review to this court. We consolidated the appellate matters for review.

ANALYSIS

A. STANDARD OF REVIEW

We review summary judgment orders de novo. W.M. v. State, 19 Wn.App. 2d 608, 621, 498 P.3d 48 (2021). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 621; CR 56(c). A genuine issue of material fact exists if reasonable minds could disagree on the conclusion of a factual issue that controls the outcome of the litigation. Sartin v. Estate of McPike, 15 Wn.App. 2d 163, 172, 475 P.3d 522 (2020),

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review denied, 196 Wn.2d 1046 (2021). We review all facts and reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Id.

"The party moving for summary judgment bears the initial burden to show there is no genuine issue of material fact." Id. If a moving defendant shows that there is an absence of evidence to support the plaintiff's case, then the burden shifts to the plaintiff to present specific facts that reveal a genuine issue of material fact. Id. "Summary judgment is appropriate if a plaintiff fails to show sufficient evidence that creates a question of fact about an essential element on which he or she will have the burden of proof at trial." Id.

B. NEGLIGENT INVESTIGATION

Hicks argues that the superior court erred by granting summary judgment dismissal of his negligent investigation claim. Specifically, Hicks contends that "harmful placement" is not an essential element of the tort of negligent investigation; his arrest, incarceration, and sexual assault protection order constituted a "harmful placement;" and the sexual assault protection order was not a superseding intervening cause that breaks the chain of proximate cause. Hicks' argument fails because negligent investigation claims require a "harmful placement" and Hicks' arrest, incarceration, and sexual assault protection order did not constitute a "harmful...

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