Smith v. State

• Decision Date: 18 September 2006
• Docket Number: No. 55388-7-I.,55388-7-I.
• Citation: 135 Wn. App. 259,144 P.3d 331
• Parties: Lynn A. SMITH, in her individual capacity, and as Guardian for M.S., a minor, Appellants, v. STATE of Washington, Shirley Gantzer, Lois Chowen, Marilyn Akiyama, Respondents.
• Court: Washington Court of Appeals

144 P.3d 331

135 Wn. App. 259

Lynn A. SMITH, in her individual capacity, and as Guardian for M.S., a minor, Appellants, v. STATE of Washington, Shirley Gantzer, Lois Chowen, Marilyn Akiyama, Respondents.

No. 55388-7-I.

Court of Appeals of Washington, Division 1.

September 18, 2006.

COPYRIGHT MATERIAL OMITTED

Steven Clifford Gish, Attorney at Law, Port Angeles, WA, for Appellants.

Peter John Helmberger, Attorney General Office, Torts Division, Olympia, WA, for Respondents.

GROSSE, J.

¶ 1 A duty of care may arise where a public official charged with the responsibility to provide accurate information fails to correctly answer a specific inquiry from a plaintiff intended to benefit from the dissemination of the information. Here, in response to a specific inquiry, officials from the Department of Social and Health Services allegedly conveyed to Lynn Smith inaccurate information about Lynn Smith's appeal rights regarding her application for adoption assistance benefits, information she allegedly relied on to her and her infant child's detriment. Because the Smiths have established a prima facie case for negligence under the special relationship exception to the public duty doctrine, we reverse the trial court's summary judgment order.

FACTS

¶ 2 Lynn Smith adopted 6-month-old M.S. in January 1998. Over the next year, M.S. began exhibiting symptoms of attachment disorder. When M.S. was 18 months old, a doctor concluded that M.S.'s behaviors of uncontrollable crying, lack of response to comforting, lack of apparent bonds to objects and people, poorly regulated affect, difficulty sleeping, and physical aggression were signs of early attachment disorder. The doctor also found 18-month-old M.S. had the communication skills of an 8-month-old and the socialization skills of a 7-month-old, that M.S. would continue to be a child with special needs, and her mother would need help and support from a professional for much of M.S.'s preschool years and periodic monitoring after that time. The doctor recommended that Smith apply for adoption assistance so that the adoptive placement was successful.

¶ 3 At the age of almost two, M.S. was again tested by an early childhood specialist who found M.S. had the socialization skills of an 11-month-old. The specialist concluded that M.S.'s delay in socialization skills put her at significant risk for educational failure and noted her unprovoked attacks on other children and caregivers.

¶ 4 On January 21, 1999, after learning of the seriousness of M.S.'s diagnosis, Smith applied to the Department of Social and Health Services (DSHS) for federal adoption assistance, including therapy and counseling for the child and parent, training for the family, therapeutic child care, and respite care. In spite of repeated requests for a decision both from the adoptive mother and from the early childhood specialist working with M.S., no decision was made on the application for seven months after the application. On July 21, 1999, on the advice of the federal Department of Health and Human Services (DHHS) Northwest Child Welfare Adoption Specialist, Smith filed a complaint with Constituent Relations regarding the lack of any decision on her application for adoption assistance.

¶ 5 On August 25, 1999, the regional program manager for the Adoption Support Services of DSHS sent a denial letter to Smith stating as reasons for the denial:

a. Federal Rule 45 CFR 1356.40(b)(1) which states that the adoption assistance agreement must "be signed and in effect at the time of or prior to the final decree of adoption";

b. Department of Health and Human Services, Administration for Children, Youth and Families' Policy Interpretation Questionnaires (PIQ's 88-06 and 92-02) which provide guidelines for a finding of extenuating circumstances. Based on the history of the case, I believe there is no basis for a finding of extenuating circumstances.

The letter then advised Smith of her right to a hearing on the denial. No further reasons were given for the denial of the application.

¶ 6 Smith asked Shirley Gantzer (the regional program manager), Lois Chowen (the Program Manager), and Marilyn Akiyama (a program supervisor) for any further reasons for the denial of the application for adoption assistance for M.S. No one gave any further reasons for denial. Smith requested a fair hearing on the denial.

¶ 7 On August 30, 1999, Smith wrote another letter to Constituent Relations, pointing out that federal hearing regulations require that reasons for denial be given. When Smith requested that she be told all the reasons for the denial pending her hearing, she was told, "That is not how the legal game is played." Smith requested in writing:

That I receive, well before the fair hearing and preferably before the pre-hearing telephone conference scheduled September 16th, 1999, a detailed written explanation of why Adoption Support was denied on the basis of not finding extenuating circumstances.

No response was received from DSHS.

¶ 8 On September 16, 1999, a prehearing conference with the assistant attorney general, the prehearing administrative law judge (ALJ), and Smith was held. Smith again asked to be told of all reasons for the denial of adoption assistance for M.S. No further reasons, beyond the reason that extenuating circumstances did not exist to allow a post-finalization application, were given by DSHS at the prehearing conference. The AAG stated she intended to make a motion to dismiss the request for a hearing. No such motion was ever filed.

¶ 9 In a letter to Smith from a different AAG dated October 29, 1999, three weeks before the scheduled hearing, the AAG stated: "[I]n this case, eligibility issues include: (1) whether the receipt of a TANF grant equates AFDC eligibility; (2) whether the adoption court orders contain necessary `contrary to the welfare' language; and (3) whether a reasonable effort was made to place the child with appropriate adoptive parents without providing adoption assistance."

¶ 10 At the hearing in November of 1999, DSHS raised a new eligibility issue that M.S. was not eligible for assistance because the adoption agency had not taken legal custody of her. Because the only reason for the denial of the application that had been given by DSHS in the denial letter and in the prehearing conference was that extenuating circumstances did not allow a post-adoption application, the ALJ bifurcated the hearing into two parts. The first part addressed only the reason given by DSHS in the denial and prehearing conference: the lack of extenuating circumstances.

¶ 11 Following the conclusion of that hearing, the ALJ requested that DSHS give Smith any of the eligibility reasons upon which the denial was based. DSHS then issued another denial letter listing three reasons for the denial of the application for assistance: (1) the relinquishment order lacks the required "contrary to the welfare" language; (2) DSHS policy sets forth the conditions under which a child placed for adoption through a private nonprofit child placing agency may be eligible for adoption assistance and the circumstances of this case did not meet those conditions; and (3) there is no showing that a reasonable, but unsuccessful, effort was made to place the child without providing adoption assistance. The hearing was continued to allow Smith to prepare and reconvened to address all of the eligibility issues raised by DSHS.

¶ 12 After the hearing, the ALJ issued a 44-page initial decision which was affirmed in a review decision and final order. In its decision, the ALJ concluded that "the pre-adoption existence of a physical, mental, or emotional handicap which is unknown at the time of the finalization of adoption constitutes an `extenuating circumstance' within the meaning of federal law." The ALJ also concluded that the other grounds DSHS cited for denying Smith's application were without merit and determined that she was eligible for adoption assistance retroactive to the date of the adoption.

¶ 13 In addition to the substantive legal issues, Smith also raised a procedural due process issue claiming that she had not received a timely decision on her application for adoption assistance and that she had not received all of the reasons for the denial in a timely manner. The ALJ found that DSHS had failed in its duty under 45 C.F.R. § 205.10 to give Smith all of the reasons for the denial. The ALJ stated:

While the only reason given in the denial letter and at the pre-hearing conference was the lack of extenuating circumstances to allow post-finalization application, the attorney representing [DSHS] then gave three eligibility reasons in a letter between the time of the prehearing conference and the hearing and raised a new eligibility issue on the first day of the hearing. This does not comport with the hearing rights mandated under federal law. While the unfairness of the lack of timely notice of reasons for denial was somewhat mitigated by the bifurcation of the hearing and allowing the Appellant time to prepare to address those reasons, it has unfortunately delayed the resolution of this case which is detrimental to [M.S.]. However, the Appellant has prevailed on the merits of the case and no further remedy is available in this forum. With regard to the delay by [DSHS] in making a decision on the application, this is somewhat rectified by the fact that federal law allows for retroactive adoption support back to the date of the child's adoption and that this has been ordered in this case.

The ALJ declined to rule on whether the State had failed to meet its duties under federal law to actively promote the adoption assistance program.

¶ 14 After obtaining benefits, Lynn and her daughter sued for damages in Island County Superior Court, naming the State of Washington and three individuals: Lois Chowen, Marilyn Akiyama, and Shirley Gantzer. The Smiths' claims were for breach of contract, negligence and civil...