Superior Court County: King. Superior Court Cause No: 92-2-30146-6. Date filed in Superior Court: February 17, 1996. Superior Court Judge Signing: Hon. Michael J. Fox.
Petition for Review Denied May 8, 1997,
Written by: Judge Coleman. Concurred by: Judge Grosse, Judge Webster
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- DSHS caseworker Sally Maurer, suspecting that Diedre and Terell Lesley abused their daughter, removed the child from the parents. Her suspicions proved incorrect, and the Lesleys now contend that Maurer negligently investigated the case and violated their civil rights. Because Maurer may not have followed procedures or acted reasonably, we reverse the summary judgment order for Maurer and the State. The Lesleys also argue that the court erred in holding that Dr. Douglas Lambrecht enjoyed qualified immunity because he was reporting child abuse in good faith. We agree with the trial court and affirm the summary judgment order for the doctor.
The appellate court engages in the same inquiry as the trial court in reviewing an order for summary judgment. Johnson v. DSHS, 80 Wash. App. 212, 226, 907 P.2d 1223 (1996). Thus, we construe the following facts adduced from the record most favorably to the nonmoving party. See Johnson, 80 Wash. App. at 226.
On April 7, 1992, Candyland Day-care workers noticed marks on the lower back and buttocks of Taylor Lesley, the Lesley's 11-month-old African American daughter, when cleaning her backside after severe diarrhea. The workers did not recall seeing the marks previously but noted that they may not be able to see them during normal diaper changes. Day-care manager Shellie Weitz had heard of but never seen Mongolian spots, a birthmark appearing in the vast majority of African American children. Believing that they would be able to determine whether the marks were bruises or birthmarks, she decided to call Child Protective Services.
At around 4 or 4:30 p.m., CPS worker Maurer looked at the marks. The day-care workers told Maurer that they had not seen these marks previously and that the child also had a rash in the vaginal area. Maurer called her supervisor, Sally Scott, who told Maurer to have the police examine the child. Maurer called the police and the child's regular pediatrician, Dr. Arredondo, to determine if the child had any birthmarks and to arrange for an examination. The doctor's office told Maurer that Dr. Arredondo was unavailable and advised her to take Taylor to the emergency room at Valley General Hospital. The police then arrived and examined Taylor. Maurer noted that when the officer pressed on the marks, the child cried "in pain." The officer decided that the child should be taken into protective custody. Maurer told Weitz that she did not have time to talk to the parents. When Weitz asked Maurer what she should tell the parents, Maurer said to tell them that bruises were found on the child's buttocks. The Lesleys arrived at the day care at 5:30 p.m. and were very upset to find their daughter absent.
Maurer took Taylor to Valley General Medical Center's Emergency Room, where two police officers soon arrived. The officers had been dispatched because of the mother's apparently hostile reaction to the news that her daughter had been taken into protective custody. The officers informed Maurer that the parents said the child had normal markings on her backside. Maurer did not then relay this information to Valley General's Dr. Lambrecht, nor did she inform the doctor about Taylor's vaginal rash.
Dr. Lambrecht examined the child, including the vaginal area. He asked Maurer whether Taylor had a history of Mongolian spots. Maurer repeated only what the day-care workers had told her. Dr. Lambrecht called Dr. Arredondo, who was not in her office. Dr. Burkebile, who was on call for Dr. Arredondo, checked Taylor's chart and found no reference to Mongolian spots. Dr. Lambrecht concluded that Taylor did not appear to be sexually assaulted and diagnosed the marks as "contusions to the buttocks and lower back, possible physical child abuse." Dr. Lambrecht advised Maurer to have Dr. Arredondo or an expert at Children's Hospital or Harborview see Taylor. Maurer did not follow these instructions.
At 7:30 p.m. that day, Maurer brought Taylor to the home of Joanne Maloy, a foster care provider. Maurer told Maloy about the marks and the diaper rash. Maurer called Maloy at least once each day except Sunday and asked her if the marks had changed. Maloy repeatedly told Maurer that the marks had not changed. Maloy stated that Maurer never told her the parents wanted visitation with Taylor over the weekend, which Maloy would have gladly accommodated. Maurer also told Maloy after an interview with the parents that Taylor's mother was "out of control" and "was the one who probably abused the baby[.]"
On or about April 7, Dr. John Neff of Children's Hospital received a call regarding Taylor from a caseworker who stated that she had seen bruises over the child's buttocks. The caseworker asked if the child needed to be seen at Children's Hospital for further confirmation. Dr. Neff asked if photographs had been taken, and the caseworker told him that they had been. Because the caseworker gave him the impression that there were no questions about the diagnosis, Dr. Neff told her that it was not necessary for the child to be seen at Children's Hospital.
On Wednesday, April 8, Maurer and another caseworker interviewed the Lesleys separately and with their attorney, Edna Verzani. Verzani testified that the interviewers were not listening carefully and that she had to correct them several times. Each parent described Taylor's birthmark as a greenish color covering an area of Taylor's lower back and upper buttocks. Diedre Lesley told Maurer that she had similar marks on herself and offered to show her. Maurer declined to look. Maurer asked the parents whether there were any marks on Taylor's lower back. The parents said that there were not. Maurer did not believe that the parent's description adequately described Taylor's marks.
On Thursday, April 9, Maurer supervised a visit between the parents and Taylor. Maurer claimed that neither parent mentioned noticing a yeast infection at this time, but the parents did state that Taylor needed A & D Ointment because baby powder gave her a diaper rash. The Lesleys observed Taylor's marks and told Maurer that the marks were exactly as they had described. Maurer told them that their description was different.
Also on Thursday, April 9, Maurer contacted Taylor's paternal grandmother, Ruth Lesley Dunlap, who told her that the baby had no marks or skin discolorations. Dunlap had cared for the baby once for three days.
At a shelter care hearing on Friday, April 10, both parents and Taylor's maternal grandmother, Emma Jane Newell, testified that Taylor had one main birthmark on her backside. Maurer testified that the marks that the parents described were substantially different from the ones she observed. Commissioner Maurice Epstein determined that the child should stay with the foster parent but recommended to return the child as soon as possible if there was strong "or even reasonable evidence that nothing did occur on the part of the parents and that there is no real injury at that time." The commissioner ordered liberal visitation.
After the hearing, Newell made a dermatologist appointment for Taylor for that afternoon. Verzani claimed that Newell called Commissioner Epstein and explained that the parents needed help facilitating the transportation. The commissioner authorized Newell to take Taylor to the doctor and told Verzani that he had conveyed this information to Scott. When Verzani contacted Scott, she denied that the commissioner had authorized Newell to take the child. Newell went to CPS and awaited information as to where to pick up Taylor. Finally, it became too late to keep the appointment. Scott then indicated that she had not been able to reach the foster care provider. Maloy, who had taken her son to the hospital on Friday afternoon, apologized to Maurer for not being available. Maloy stated that Maurer told her that CPS really did not want to keep the appointment in any case.
Dr. Neff claimed that on or about April 10, the caseworker again called him and asked what she could do to substantiate bruising. At this time, the caseworker told him that the family said the child had a birthmark. Dr. Neff explained that it was easy to differentiate the two because a bruise would change color or show other signs of resolution.
On Saturday morning, April 11, Maurer told Dr. Lambrecht that the parents claimed the marks were from birth but that they gave a different description in court. She then called Dr. Arredondo, who stated that, based on an emergency room transcription she had received, she could not state whether the marks had changed but that she would examine Taylor. Maurer then called Dr. Neff, who was not on duty, and instead spoke to Dr. Lehman. Dr. Lehman told Maurer to have Dr. Lambrecht recheck the mark to see whether it had changed. Dr. Lehman told her that if Dr. ...