MW v. DSHS, 26377-7-II.

Citation110 Wash.App. 233,39 P.3d 993
Decision Date08 February 2002
Docket NumberNo. 26377-7-II.,26377-7-II.
CourtCourt of Appeals of Washington
PartiesM.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., Appellants, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, a division of the State of Washington; and State of Washington; and Dale Francis, an individual, Respondents.

John Cain, Tacoma, Ross Edwin Taylor, University Pl, for Appellants.

Peter John Helmberger, Attorney General Office, Olympia, for Respondents.

ARMSTRONG, C.J.

J.C.W., through her guardian, sued the Department of Social and Health Services (DSHS), alleging that several employees were negligent in examining her for sexual abuse. DSHS argued that it has a statutory duty to investigate allegations of child abuse and that its examination was reasonable. The trial court granted DSHS's motion for summary judgment. J.C.W. appeals, contending that there remains a genuine issue of material fact as to whether DSHS's investigation was reasonable. We agree and, therefore, reverse and remand for trial.

FACTS

In March 1996, J.C.W. lived with her foster parents, M.W. and A.W.1 On March 18, 1996, when J.C.W. was 16 months old, her biological father, S.H., reported to DSHS that J.C.W. was being sexually abused. S.H. complained to Dale Francis, a DSHS supervisor,2 that J.C.W. often had vaginal redness, exhibited antisocial behavior, and was clingy. S.H. also showed Francis pictures of J.C.W. taken by M.W. and A.W. S.H. claimed that the pictures, which showed J.C.W. in the bathtub, were pornographic.3 The same day, when A.W. was at the DSHS office with J.C.W., Francis asked two female DSHS workers to see if J.C.W. had vaginal redness.

A.W. took J.C.W. into the DSHS conference room. "Home support specialists" Insu Baker and Lila Stinson came into the conference room; program manager Kenneth Panitz, social worker Mat Reitzug, and Francis remained in the doorway. Baker and Stinson asked A.W. to remove J.C.W.'s diaper. They then examined J.C.W.'s genitals and "pulled apart [J.C.W.'s] vaginal area to see if there was vaginal redness." CP at 76. A.W. stated in her deposition:

The first thing is [Stinson and Baker] were kind of looking at [J.C.W.]. "Geez, do you see redness?" One would say yes; one would say no. And then they started pointing and touching the outside. And I would say it was probably—it was both of them. I think one did it first and then the other one, and they were kind of bantering back and forth.

. . . .

And then that's when they went in and stuck their hands in and pulled apart like this.

. . . .

... [T]here 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 like so.

CP at 227-29. A.W. compared the women's actions to pulling apart and inserting one's hands inside the opening of a Kleenex tissue box. A.W. estimated that the touching and poking lasted four to five minutes. J.C.W. began to cry during the examination. A.W. also cried.

Another DSHS employee entered the conference room, concluded there was no vaginal redness, and told Baker and Stinson to "cover that baby up." CP at 76. A.W., Baker, and Stinson then took J.C.W. to Mary Bridge Hospital where a doctor examined her for sexual abuse. The doctor found no signs of abuse. Following an investigation, DSHS concluded that the allegations were unfounded and cleared M.W. and A.W. of wrongdoing. J.C.W.'s counselor submitted a declaration stating that J.C.W. suffered from post-traumatic stress disorder because of the examination.

ANALYSIS
I. Standard of Review

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 66(c). We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437,656 P.2d 1030.

II. Negligent Investigation
A. Claim Against DSHS

Both parties describe this as a claim for negligent investigation of suspected child abuse, a recognized cause of action in Washington. Tyner v. DSHS, 141 Wash.2d 68, 79-81, 1 P.3d 1148 (2000). RCW 26.44.050 requires DSHS to investigate allegations of child abuse.4 Under this statute, DSHS owes a duty of care to both the child victim and the child's parents when investigating allegations of child abuse. Tyner, 141 Wash.2d at 81-82, 1 P.3d 1148. In 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.5 This claim is different. J.C.W does not contend that DSHS failed to investigate the alleged sexual abuse. Rather, she alleges that as part of the investigation, several DSHS employees negligently conducted a physical examination of her.

DSHS argues that because RCW 26.44.050 requires it to investigate child abuse allegations, it was simply fulfilling its statutory duties when it examined J.C.W.,6 Washington law requires DSHS to respond to abuse allegations immediately and permits DSHS to photograph children to document abuse; thus, says DSHS, the examination of J.C.W. was permissible. In fact, DSHS characterizes its investigation of J.C.W. as "overly cautious" and argues that DSHS's having done "too much" does not support a negligent investigation claim. Br. of Resp. at 14. According to this reasoning, DSHS can be liable for negligent investigation only when it fails to investigate, not when it investigates unreasonably. This argument is unpersuasive. Implicit in the duty to investigate under RCW 26.44.050 is the duty to investigate reasonably.

In Lesley v. DSHS, 83 Wash.App. 263, 921 P.2d 1066 (1996), parents sued DSHS and a caseworker for negligent investigation of child abuse. The Lesleys' daughter, Taylor, had Mongolian spots—a type of birthmark common in African-American children—on her lower back and buttocks. A daycare worker saw the marks and, believing they might be bruises, contacted Child Protective Services (CPS). Lesley, 83 Wash.App. at 266-67, 921 P.2d 1066. CPS immediately removed Taylor from her parents' custody without personal notification. Lesley, 83 Wash.App. at 267, 921 P.2d 1066. CPS caseworkers ignored or downplayed the parents' repeated assertions that the marks were Mongolian spots. Finally, six days after removing Taylor from her parents' custody, a doctor identified the marks as Mongolian spots and diagnosed Taylor's vaginal rash as a yeast infection. CPS returned Taylor to her parents. Lesley, 83 Wash.App. at 271, 921 P.2d 1066.

The Court of Appeals reversed summary judgment in favor of DSHS, holding that DSHS could be liable for negligently investigating the marks. Lesley, 83 Wash. App. at 273,921 P.2d 1066. For the caseworkers to have qualified immunity against such a claim, they must "(1) carry out a statutory duty, (2) according to procedures dictated by statute or superiors, and (3) act reasonably." Lesley, 83 Wash.App. at 274,921 P.2d 1066. The Lesleys had presented evidence that the caseworker failed to follow proper procedures and may not have acted reasonably under the circumstances. Lesley, 83 Wash.App. at 275,921 P.2d 1066.

DSHS argues that its liability in Lesley arose from a failure to act, that is, its failure to investigate whether the marks were Mongolian spots or bruises. But the Lesleys' complaint was not that DSHS failed to investigate child abuse; it was that DSHS's overzealous investigation was unreasonable and procedurally improper. In Lesley, the essence of the claim was that DSHS did "too much." J.C.W. makes the same claim. And Lesley held that the duty to investigate child abuse includes a duty to act reasonably.

Other negligent investigation cases have also recognized that DSHS's duty to investigate necessarily involves the duty to act reasonably. See Tyner, 141 Wash.2d at 79,

1 P.3d 1148 ("During its investigation the State has the duty to act reasonably in relation to all members of the family."); Yonker v. Dep't of Soc. & Health Servs., 85 Wash.App. 71, 77, 930 P.2d 958 (1997) (summarizing negligent investigation case law as requiring "the State [to] act responsibly once it decides to act"); Dunning v. Paccerelli, 63 Wash.App. 232, 240, 818 P.2d 34 (1991) ("[T]he [child abuse] reporting statute is framed in terms of reasonableness.").

Here, the trial court concluded that "[t]here is no genuine issue of material fact insofar as Plaintiff failed to establish that DSHS breached a duty owed to J.C.W." CP at 473. This was error. M.W. and A.W. submitted evidence that DSHS breached its duty to investigate reasonably: Francis, who received S.H.'s complaint, "had some female staff members ... respond to [the] allegation." CP at 98. Social worker Reitzug testified that he asked Panitz to have home support specialists take a "look-see" to determine if J.C.W. had vaginal redness. A.W. testified in her depositions that the two home support specialists "touched," "poked," and "pulled apart" J.C.W.'s genital area. Panitz stated in his deposition that home support specialists are not trained to give physical examinations and that giving physical exams is not part of their job.7 He also stated that, as their supervisor, he would not have authorized them to conduct a physical exam to determine child abuse. Home support specialist Baker denied performing the exam and denied being in the conference room with J.C.W. But she admitted that she had no training in performing physical examinations of children to determine physical or sexual abuse....

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