McCarthy v. Cnty. of Clark

• Decision Date: 12 April 2016
• Docket Number: No. 46347–4–II.,46347–4–II.
• Court: Washington Court of Appeals
• Parties: Fearghal McCARTHY, Conor McCarthy, a minor, by and through Fearghal McCarthy, his father; and Cormac McCarthy, a minor, by and through Fearghal McCarthy, his father, Appellants, v. COUNTY OF CLARK, City of Vancouver, Department of Social and Health Services, Children's Protective Services, Respondents.

193 Wash.App. 314

376 P.3d 1127

Fearghal McCARTHY, Conor McCarthy, a minor, by and through Fearghal McCarthy, his father; and Cormac McCarthy, a minor, by and through Fearghal McCarthy, his father, Appellants,

v.COUNTY OF CLARK, City of Vancouver, Department of Social and Health Services, Children's Protective Services, Respondents.

No. 46347–4–II.

Court of Appeals of Washington, Division 2.

April 12, 2016.

Fearghal McCarthy (Appearing Pro Se), Vancouver, WA, Erin Cheyenne Sperger, Erin Sperger PLLC, Seattle, WA, for Appellants.

Taylor Ross Hallvik, Clark County Prosecuting Attorney's Office, Daniel G. Lloyd, Vancouver City Attorney's Office, Vancouver, WA, Allison Margaret Croft, Attorney General's Office, Seattle, WA, Suzanne Marie Liabraaten, Attorney General's Office, Olympia, WA, for Respondents.

PART PUBLISHED OPINION

MAXA

, J.

¶ 1 Fearghal McCarthy and his sons, CPM and CCM, appeal the trial court's dismissal on summary judgment of their multiple claims against Clark County, the Department of Social and Health Services (DSHS), and the City of Vancouver arising from a report by Fearghal's then wife Patricia McCarthy¹ that he had struck two-year-old CCM on the head. Based on the report, a Clark County deputy sheriff arrested Fearghal, DSHS investigated for possible child abuse, and Vancouver prosecuted criminal charges. Patricia later admitted that her report was false.

¶ 2 Fearghal, CPM, and CCM filed suit against Clark County, DSHS, and Vancouver. Their primary claim was that all three defendants negligently conducted investigations required under RCW 26.44.050

of Patricia's report that Fearghal had struck CCM, which resulted in Fearghal and the children being separated for an extended period. Fearghal and CPM/CCM also asserted several other causes of action against one or more of the defendants. The trial court granted summary judgment in favor of all three defendants on all claims.

¶ 3 In the published portion of this opinion, we hold that the trial court properly granted summary judgment on the negligent investigation claims under RCW 26.44.050

. In the unpublished portion of this opinion, we hold that the trial court properly granted summary judgment on the remainder of Fearghal's and CPM/CCM's claims. Accordingly, we affirm the trial court's grant of summary judgment in favor of Clark County, DSHS, and Vancouver on all claims.

FACTS

¶ 4 Fearghal and Patricia married in 1998 and had two sons: CPM, born in 1999, and CCM, born in 2003.

Patricia's Report of Abuse and Deputy Kingrey's Investigation

¶ 5 On the afternoon of June 3, 2005, Patricia called 911 from her church to report that Fearghal had struck CCM on the head twice the prior evening, knocking him to the floor. Deputy Ed Kingrey of the Clark County Sheriff's Office was the responding officer.

¶ 6 Kingrey did not meet Patricia in person, but he spoke with her about the incident over the phone. Patricia told Kingrey that over the past year Fearghal had been physically and emotionally abusive to her and her small boys, and a week earlier he had shoved her and grabbed her by the neck in a fit of rage. Patricia said that the previous evening CCM was crying “Mommy, mommy” during dinner time and Fearghal told her to “make him shut-up o[r] else I will.” Clerk's Papers (CP) at 241. According to Patricia, when CCM continued to cry Fearghal whacked him twice on the head, causing CCM to hit his head on the table and fall off of his chair onto the floor. Kingrey asked Patricia if CCM had any injuries, and she said that there were no visible marks.

¶ 7 Kingrey also talked with Patricia's mother, Regina Greer, over the phone. Greer said that CPM had told her that he had seen Fearghal physically abuse Patricia and had told her about the incident when Fearghal hit CCM. Kingrey did not ask to speak with CPM, who at that time was five years old. He also did not ask to examine CCM for injuries.

¶ 8 Kingrey went to the McCarthys' residence and spoke with Fearghal in person. Fearghal denied that the incident had happened and denied striking CCM. According to Fearghal, he told Kingrey that Patricia was abusing pain medications and had been high on prescription medications the night before, that she had been reporting delusions in the last year since her sister committed suicide, and that she was taking medication for anxiety and other mental health issues. He also showed Kingrey the various prescription medications that Patricia was taking. Fearghal submitted declarations stating that Kingrey was dismissive and refused to listen to his attempts to explain Patricia's history of anxiety, panic attacks, and drug use, and that Kingrey let him know that the information he provided about Patricia did not matter.

Fearghal's Arrest and First No–Contact Order

¶ 9 Kingrey arrested Fearghal for fourth degree assault-domestic violence against both CCM and Patricia and booked him into jail. Kingrey subsequently submitted a declaration of probable cause to support his arrest of Fearghal without a warrant. The declaration recited what Patricia had told him about Fearghal's assault of her and the incident where he struck CCM, and Greer's statement that CPM had told her that he had seen Fearghal strike Patricia and CCM. The declaration stated that Fearghal had denied abusing any member of his family, but it did not mention Fearghal's statements that Patricia had been high on prescription medications on the night of the incident or that she had been reporting delusions and was taking medication for mental health issues. The declaration also did not state that there was no physical evidence that Fearghal had hit CCM. Based on Kingrey's declaration, the district court found there was probable cause to arrest.

¶ 10 On June 6, the district court arraigned Fearghal on the fourth degree assault charges. At the arraignment, the district court issued a no-contact order because domestic violence was involved. The order prevented Fearghal from having any contact with CCM, including by telephone and writing, and prohibited him from coming within 500 feet of CCM's residence and daycare. This order remained in effect until March 20, 2006.

Investigation of Child Protective Services

¶ 11 The day after Fearghal's arrest, Greer took CCM to the emergency room. She told the doctor about Fearghal hitting CCM, and the doctor referred the incident to Child Protective Services (CPS). The case was assigned to social worker Patrick Dixson for investigation.

¶ 12 On June 13, Dixson met with Patricia, and she told him about Fearghal hitting CCM on June 2 and other incidents of abuse. Patricia agreed to a voluntary safety plan suggested by Dixson. The safety plan provided that Patricia would (1) not allow Fearghal to have contact with the children until the no-contact order was lifted, (2) seek domestic violence counseling, and (3) keep the children safe from domestic violence.

¶ 13 Dixson claimed that he also met with CPM and CCM when he met with Patricia. However, CPM said he did not remember meeting Dixson and CCM's daycare records indicate that CCM was at daycare at the time of the alleged meeting. Dixson did not speak to Fearghal during his investigation because he believed Fearghal was out of the country and also that interviewing him would interfere with the law enforcement investigation.

¶ 14 Dixson did not receive any further information about the incident after his meeting with Patricia on June 13. However, he did not issue a report concerning his investigation for another 10 months. Dixson finally closed his investigation on April 12, 2006, concluding that the initial referral was “founded,” and sent his report to his supervisor.

Initial Involvement of City Attorney Petty

¶ 15 After Fearghal's arrest for fourth degree assault, the case was assigned to Vancouver assistant city attorney Jill Petty, who was part of the Domestic Violence Prosecution Center (DVPC). Petty first contacted Patricia about the case on June 6, 2005. Petty had a few phone calls and one face-to-face meeting with Patricia. Patricia claims that in those conversations she told Petty that she “was reticent about the allegations within the police report and wanted to recant.” CP at 411. Patricia claims that Petty pressured her into cooperating by making various threats, including telling Patricia that if she recanted she likely would lose custody of the children in a dissolution action, Petty would notify CPS and they would take away her children, and Patricia would be prosecuted for making a false police report.

¶ 16 Patricia also claims that Petty told her to file a petition for a protection order that would eject Fearghal from the family home and prevent him from seeing the children, and that Petty encouraged her to file for a divorce.

¶ 17 On July 8, Petty filed an information in district court charging Fearghal with fourth degree assault-domestic violence against CCM.

Superior Court Protection Order

¶ 18 On July 28, Patricia petitioned the superior court for a temporary protection order requiring Fearghal to vacate the family home and prohibiting Fearghal from contacting her, CPM, and CCM. The superior court issued the temporary protection order. The original order was to be in effect until August 10, but was extended until August 31. DSHS was not involved in this proceeding.

Temporary Mutual Restraining Order

¶ 19 On August 9, Patricia filed a petition for dissolution of her marriage with Fearghal. On August 31, the family court entered a temporary mutual restraining order preventing Fearghal from contacting Patricia and preventing Patricia from contacting Fearghal.² The restraining order allowed Fearghal limited supervised contact with CPM.

¶ 20 The restraining order prohibited both Fearghal and Patricia from “assaulting, harassing, molesting or disturbing the peace of the other party or of any child” and from “going onto the grounds of or entering the home of the other party.” The restraining order also indicated that violation of the order was a...