Tyner v. DSHS, CHILD PROTECTIVE SERV.

• Decision Date: 15 June 2000
• Docket Number: No. 67602-0.,67602-0.
• Court: Washington Supreme Court
• Parties: L. David TYNER III, Petitioner, v. The STATE of Washington DEPARTMENT OF SOCIAL AND HEALTH SERVICES, CHILD PROTECTIVE SERVICES, a state government and its division and agency, Respondent, Indra Drake and John Doe Drake, husband and wife and the marital community composed thereof; Dennis Smith and Jane Doe Smith, husband and wife and the marital community composed thereof; and Susan Hyde and John Doe Hyde, husband and wife and the marital community composed thereof, Defendants.

1 P.3d 1148

141 Wash.2d 68

L. David TYNER III, Petitioner, v. The STATE of Washington DEPARTMENT OF SOCIAL AND HEALTH SERVICES, CHILD PROTECTIVE SERVICES, a state government and its division and agency, Respondent, Indra Drake and John Doe Drake, husband and wife and the marital community composed thereof; Dennis Smith and Jane Doe Smith, husband and wife and the marital community composed thereof; and Susan Hyde and John Doe Hyde, husband and wife and the marital community composed thereof, Defendants.

No. 67602-0.

Supreme Court of Washington, En Banc.

Argued September 16, 1999.

Decided June 15, 2000.

Poole & Assoc., Jeffrey Gene Poole, Seattle, for Petitioner.

Richard Lawrence Martens, Seattle, for Defendants.

Christine O. Gregoire, Attorney General, Rene David Tomisser, Deputy, Michael E. Tardif, Asst., Olympia, for Respondent.

Bryan P. Harnetiaux, Debra L. Stephens, Spokane, for Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

MADSEN, J.

This case arises from a Child Protective Services (CPS) investigation into allegations of parental child abuse leveled against Petitioner David Tyner, the father of two minor children. Tyner filed suit against the Department of Social and Health Services (DSHS and State) claiming that a negligent CPS investigation resulted in his four and one-half month separation from his children. The jury awarded Tyner $201,500 in damages. The Court of Appeals overturned the jury verdict, holding that while the State owed a duty to Tyner and was not shielded by immunity, the court's no-contact orders throughout the case cut off any legal causation between the State's negligence and Tyner's separation from his children. We agree with the Court of Appeals' conclusions as to duty and immunity; however, because we find error in the court's analysis of legal causation, we reverse.

FACTS

On January 11, 1993, Debra Tyner, then wife of Petitioner David Tyner, arrived home with the couple's two minor children: T., their four-year-old son, and W., their six-year-old daughter. As Mrs. Tyner pulled into the driveway, she noticed Mr. Tyner's car and commented, "Oh, good, Dad's home already." Def's. Ex. 33. At this point her son allegedly stated "Goody, goody" but then paused and said, "[b]ut sometimes he's mean to me." id. Upon further inquiry, T. complained that sometimes his dad "pulls [his] penis too hard," Id., and poked him in the bottom with his finger. Verbatim Report of Proceedings (RP) (Oct. 16 & 17, 1996) at 71-72.

Mrs. Tyner did not immediately relate this conversation to Mr. Tyner. It was not until later that evening, when Mr. Tyner received an unexpected telephone call from his brother that he became aware of what had transpired. Mrs. Tyner had called Mr. Tyner's mother to ask if there had been any sexual abuse perpetrated against Mr. Tyner during his childhood and his brother had learned of the call and notified Mr. Tyner. After Mr. Tyner received the call from his brother, he confronted his wife and they agreed to call the children upstairs and ask them about the alleged abuse. According to Mr. Tyner, he asked the children "very quietly" if "daddy has ever touched your private parts." RP (Oct. 10, 1996) at 7-8. Both children said "no." Id.

Later that evening, Mr. and Mrs. Tyner visited their former marriage counselor. The next morning, January 12, 1993, with the counselor's support, Mrs. Tyner reported her concerns to the Harborview Sexual Assault Center (SAC). The case was referred to CPS and caseworker Bill Mix was given the assignment. That same day Mix interviewed the children at school. Both children denied their father had sexually abused them, told Mix it was not something their mother should discuss, and placed their hands over their ears in protest to the questioning. Mix did not know what to make of the denial, but believed that the children were overly "scared" to talk. RP (Oct. 14, 1996) at 62. He came to the conclusion that at least some of the statements allegedly made to Mrs. Tyner by the children had occurred. Mr. Tyner was telephonically interviewed by Mix the same day and denied any allegations of wrongdoing.

The following day, January 13, 1993, Mrs. Tyner took the children to their family pediatrician, Dr. Hyde, for a physical examination. No physical signs of abuse were discovered, but the results did not rule out abuse either. During the examination, W. did confirm that her brother had made comments to her mother regarding his father "pulling on his penis too hard." RP (Oct. 16 & 17, 1996) at 71. Dr. Hyde then made a recommendation that "because the situation was not clear and there was strong evidence from statements that had been made that there could have been molestation ... the children [should] be with their father only under supervision." RP (Oct. 16 & 17, 1996) at 76.

On January 14, 1993, Mr. Tyner submitted to a polygraph examination. "He was asked whether he sexually touched his children and physiological responses indicated he was not attempting deception in his denial." Clerk's Papers (CP) at 312.

Within the next two days Mrs. Tyner hired an attorney and prepared a petition for protection. On January 15, 1993, Mix was asked by Mrs. Tyner's lawyer to write a declaration in support of the petition and Mix agreed. Mix submitted a declaration dated January 15, 1993, which stated:

The mother reports suspicious symptoms we see in sex abuse cases. Both children have a wetting problem night and day. [T.] sticks his finger in his rectum periodically. The mother said the children have told her that the father puts lotion all over their bodys [sic] and [W.] told her it stung her vagina. The children report that they have secret words and secret games they play with their father.

Pending the completion of my investigation and the police investigation my recommendation to the Court would be:

• That the mother reside in the family dwelling and the father move to another residence.

• That the children have no contact with their father of any kind until recommended by the childrens [sic] therapist. The children and the mother have an appointment to be seen at the sexual assault center.

• The Department will file a dependency petition.

Ex. 2.

The King County Superior Court granted an ex parte temporary order of protection on the same day. The order prohibited all contact between Mr. Tyner and his children.

Throughout the initial investigation, Mr. Tyner repeatedly requested, to the point of furnishing phone numbers, that Mix interview collateral witnesses that would testify they knew of no abuse by Mr. Tyner. Among those suggested were Tyner's former wife who lived locally, his four grown children from his prior marriage, the children's daycare provider, neighbors, a local registered nurse who drove the children to school on a regular basis, and the children's teachers. Neither Mix nor his successor, Toni Sebastian, contacted any of these collateral sources.

On January 26, 1993, Mix filed a dependency petition with the court. Mix testified that the filing of this petition was in part related to the fact that Tyner, acting on the advice of counsel, refused to cooperate in having the children evaluated by SAC. Three days later the court held a shelter care hearing, during which Tyner was represented by counsel. After the hearing, in an order dated January 29, 1993, the court: (1) placed the children in the care of their mother; (2) prohibited all contact between Mr. Tyner and his children; (3) ordered a sexual deviancy examination of Mr. Tyner; and (4) ordered a sexual assault evaluation of the children. Mix completed his investigation of the Tyner case on February 2, 1993, and transferred the case to Toni Sebastian, another CPS caseworker. In Mix's final report he checked off on a preprinted form that the allegations against Tyner were "unfounded," as opposed to the other two options, "founded" and "inconclusive." The CPS manual defines "unfounded" as situations in which

there is reasonable cause for the social worker to believe that the allegations on the CPS referral are untrue and that sufficient evidence exists to reasonably conclude that the child has not been abused or neglected.

Ex. 1, at 37; RP (Oct. 14, 1996) at 54.

Neither this report, nor its contents were provided to Mr. Tyner, Mrs. Tyner, their respective attorneys, or the court. On February 10, 1993, Mrs. Tyner filed a petition for dissolution of marriage.

On March 2, 1993, the court held another shelter care hearing. Mr. Tyner was present and represented by counsel. The court continued the placement of the children with Mrs. Tyner, but agreed to visitation when recommended by the father's therapist, the children's therapist, and the State. The court also set a dependency fact-finding hearing for May 3, 1993.

Mr. Tyner's sexual deviancy evaluation was completed one month later. Mr. Compte, the evaluator, reported that there was no reason to suspect Tyner of sexual abuse, to recommend against visitation, or to require supervised visitation.

On April 23, 1993, Harborview completed its evaluation of the children. The evaluator could not say with certainty whether Mr. Tyner had sexually abused his children, but was concerned about the family's poorly defined sexual boundaries and its history of conflicts surrounding sexuality. She recommended the children not be questioned further about the alleged abuse, that contact with Tyner continue to be supervised, and that further therapy focus on family conflicts rather than sexual abuse.

The court then continued the scheduled May 3, 1993 dependency fact-finding hearing until June 28, 1993. This was because the children's evaluator would be out of town and the parents had not completed all of their psychological evaluations. Meanwhile, Mr. Tyner began weekly one-hour supervised visits with the children starting on May 6, 1993. Also, Mr. and Mrs. Tyner agreed to allow Inda Drake to provide therapy for the...