MW v. DSHS

• Decision Date: 12 June 2003
• Docket Number: No. 72529-2.,72529-2.
• Citation: 70 P.3d 954,149 Wash.2d 589
• Court: Washington Supreme Court
• Parties: M.W. and A.W., husband and wife, and the marital community; and M.W. and A.W., as guardians and parents of the minor child, J.C.W. f/k/a S.K.H., Respondents, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, a division of the State of Washington; and State of Washington; and Dale Francis, an individual, Petitioners.

70 P.3d 954

149 Wash.2d 589

M.W. and A.W., husband and wife, and the marital community; and M.W. and A.W., as guardians and parents of the minor child, J.C.W. f/k/a S.K.H., Respondents, v.DEPARTMENT OF SOCIAL AND HEALTH SERVICES, a division of the State of Washington; and State of Washington; and Dale Francis, an individual, Petitioners.

No. 72529-2.

Supreme Court of Washington, En Banc.

Argued January 23, 2003.

Decided June 12, 2003.

Christine Gregoire, Attorney General, Narda Pierce, Solicitor General, Jeffrey Freimund, Senior Counsel, and Peter Helmberger and Talis Abolins, Assistant Attorneys General, for Petitioners.

Ross Taylor, University Pl., John Cain, Tacoma, for Respondents.

Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, Amicus Curiae on Behalf of Wash. State Trial Lawyers Ass'n.

Wash. Assn. of Sheriffs & Police Chiefs, Katherine Collins, Olympia, Amicus Curiae on Behalf of Wash. Assn. of Sheriffs & Police Chiefs.

JOHNSON, J.

This case requires us to define the scope of the duty of the Washington State Department of Social and Health Services(DSHS) while investigating child abuse allegations.We must determine whether the statute requiring DSHS to investigate reported child abuse allows a claim against DSHS for negligent investigation under the facts of this case.Here, a child allegedly suffered from posttraumatic stress disorder due to DSHS investigators physically examining her during the course of investigating reported child abuse.Although the statute supports a claim for negligent investigation in limited situations, such a claim is available only when DSHS conducts a biased or faulty investigation that leads to a harmful placement decision, such as placing the child in an abusive home, removing the child from a nonabusive home, or failing to remove a child from an abusive home.Because a harmful placement decision is not the type of harm alleged by J.C.W., we hold her claim for negligent investigation fails and reverse the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

During the period relevant to this case, M.W. and A.W. were foster parents to 16-month-old J.C.W.¹On March 18, 1996, J.C.W.'s natural father alleged to DSHS that M.W. and A.W. had sexually abused the child.The natural father told Dale Francis, a DSHS supervisor, that J.C.W. often had vaginal redness, exhibited antisocial behavior, and was clingy.He also claimed pictures M.W. and A.W. took of J.C.W. in the bathtub were pornographic.

That same day, Francis called M.W. and A.W. and told them to bring J.C.W. into the DSHS office.Francis asked two female DSHS employees to determine if J.C.W. had any vaginal redness.These employees were "home support specialists"Insu Baker and Lila Stinson.Home support specialists are not social workers, nor do they have any training in physically examining children for sexual abuse.

A.W. took J.C.W. into a DSHS conference room, and Baker and Stinson came into the room.Kenneth Panitz, a program manager, Mat Rietzug, a social worker, and Francis remained in the doorway.Baker and Stinson asked A.W. to remove J.C.W.'s diaper and examined the child's vaginal area.J.C.W. alleges Baker and Stinson "pulled apart [J.C.W.'s] vaginal area to see if there was vaginal redness."Both Baker and Stinson pointed at and touched the child's genitals.Clerk's Papers(CP)at 76.In her deposition, A.W. testified that Baker and Stinson pulled the vaginal opening apart and put their hands inside her like a tissue box.A.W. testified that "there was [sic] two types of touching.One was the actual poking of the outer area.Not her legs, but her private areas....The other was sticking their hands inside of her and pulling her apart...."CPat 227-29.Later, A.W. testified they did not penetrate the vagina.

The examination lasted for about four or five minutes, during which both J.C.W. and A.W. cried.Finally, another DSHS employee entered the conference room and told Baker and Stinson to "cover that baby up" after concluding there was no vaginal redness.CPat 76. A.W., Baker, and Stinson then took J.C.W. to Mary Bridge Hospital, where a doctor examined J.C.W. and found no signs of abuse.DSHS cleared M.W. and A.W. of all wrongdoing following this investigation.J.C.W., through her guardians, brought suit against DSHS and some of its individual employees for negligent investigation, claiming DSHS employees were negligent in examining J.C.W. for sexual abuse.Claims of assault, violation of civil rights, outrage, and invasion of privacy were also alleged in the initial complaint.A.W. brought separate claims for negligent infliction of emotional distress, outrage, and invasion of privacy on behalf of herself.M.W. brought a claim for invasion of privacy.²Later, a second amended complaint was filed, asserting only claims for assault, violation of civil rights, and negligent investigation on behalf of J.C.W.

DSHS moved for summary judgment.In opposition to summary judgment, J.C.W. filed a declaration in which a psychologist who had evaluated her stated the child suffered from posttraumatic stress disorder as a result of the physical examination by DSHS employees.DSHS countered that the agency was following its statutory duty to investigate reported child abuse when it examined J.C.W.The trial court granted DSHS's motion and dismissed all claims.

J.C.W., through her guardians, appealed only the dismissal of the negligent investigation claim, arguing DSHS had a duty to investigate reasonably, and that there remained an issue of material fact as to whether DSHS's investigation was reasonable in this case.

COURT OF APPEALS DECISION

In a split decision, Division Two of the Court of Appeals agreed with J.C.W., reversed the trial court's ruling, and remanded for trial.M.W. v. Dep't of Soc. & Health Servs.,110 Wash.App. 233, 235, 39 P.3d 993(2002).The Court of Appeals recognized that "[i]n most negligent investigation claims, the allegations are that DSHS failed to adequately investigate a living situation either before removing or placing a child in the situation."M.W.,110 Wash.App. at 237, 39 P.3d 993.The court noted that this case was different because J.C.W. alleged that DSHS's negligence was in the manner of the physical examination, rather than in failing to investigate at all.

The Court of Appeals determined, however, that "[i]mplicit in the duty to investigate under RCW 26.44.050[³] is the duty to investigate reasonably," which includes following proper DSHS procedures.M.W.,110 Wash. App. at 238, 39 P.3d 993.The Court of Appeals reasoned that the duty of DSHS to investigate reasonably is not limited to failure to investigate before making a harmful placement decision.M.W.,110 Wash.App. at 239, 39 P.3d 993.The court concluded DSHS may violate this duty not only by failing to investigate reported abuse but also by doing "too much," that is, by investigating in a manner that is overzealous and procedurally improper.M.W.,110 Wash.App. at 239, 39 P.3d 993.

In a lengthy dissent, Judge Morgan examined 12 Washington cases that analyze DSHS's liability under the statute and categorized them into three factual contexts: (1) negligently placing a child in a home in which the child is abused; (2) negligently failing to remove a child from a home in which a child is abused; and (3) negligently removing a child from the home of an innocent parent.M.W.,110 Wash.App. at 255,39 P.3d 993(Morgan, J., dissenting).Judge Morgan concluded that "[n]one of these categories even suggest that if DSHS engages in intentional or negligent misconduct in the course of assembling information, it will be liable to a greater degree than the ordinary citizen."M.W.,110 Wash.App. at 256,39 P.3d 993(Morgan, J., dissenting).Judge Morgan wrote that the tort of negligent investigation should require proof that a child placement decision has been based on incomplete or skewed information; negligent investigation should have nothing to do with DSHS's conduct while investigating per se.M.W.,110 Wash.App. at 256,39 P.3d 993(Morgan, J., dissenting).He reasoned that if DSHS commits a common law tort while investigating reported abuse, it may be liable for that tort, but not for negligent investigation.M.W.,110 Wash.App. at 256,39 P.3d 993(Morgan, J., dissenting).

DSHS petitioned for review of the Court of Appeals decision on the sole issue of whether a claim for negligent investigation under RCW 26.44.050 is available based on the facts of this case.

ANALYSIS

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court.SeeCR56(c).Because the trial court dismissed J.C.W.'s claims based on a question of law, our review is de novo.SeeHartley v. State,103 Wash.2d 768, 775-76, 698 P.2d 77(1985).

RCW 26.44.050 requires DSHS to investigate child abuse.We have previously recognized that this statutory duty implies a cause of action for children and parents for negligent investigation in certain circumstances.Tyner v. Dep't of Soc. & Health Servs.,141 Wash.2d 68, 79-81, 1 P.3d 1148(2000).As the Court of Appeals noted, and both parties agree, the cases that have recognized such a claim involve allegations that DSHS failed to adequately investigate a child's living situation before making a placement decision to remove a child from a nonabusive home, let a child remain in an abusive home, or place a child in an abusive home.M.W.,110 Wash. App. at 237, 39 P.3d 993.

Here, J.C.W. argues that DSHS's duty to investigate abuse is broader than in those factual contexts.J.C.W. and amicus curiae Washington State Trial Lawyers Foundation(WSTLA Foundation) argue that this duty encompasses a general duty of care not to harm children during the course of an investigation.J.C.W. maintains that whether DSHS breached this duty when the DSHS home support specialists examined her is a question of fact for the jury.DSHS, on the other hand, maintains that...