Appeal from Superior Court of Whatcom County. Docket No: 94-2-01572-5. Date filed: 09/15/95. Judge signing: Hon. Steven J. Mura.
Rehearing and Motion to Consolidate Denied July 8, 1997,
Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Susan R. Agid.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- To protect abused children and their families, the Legislature requires the Department of Social and Health Services (DSHS) to investigate reports of possible child abuse. Maryann Snudden reported to DSHS that her two-and-a-half-year-old son was explicitly simulating intercourse and that her ex-husband, Alex Yonker, had a "bad pornography problem," which DSHS caseworkers acknowledged could indicate abuse. Believing they needed a more specific allegation of abuse, however, caseworkers did not investigate further. Almost a year later, Snudden reported to DSHS that her son had told her his father touched him sexually. Because the child would not repeat the statement to the caseworker, DSHS again declined to take action, and told Snudden that she was obligated to comply with court-ordered visitation. Soon afterward, Yonker pleaded guilty to molesting his son. Snudden's damages suit against DSHS was dismissed on summary judgment when the trial court concluded that DSHS was shielded from liability by the public duty doctrine. We hold that the legislative intent exception to the public duty doctrine applies because Snudden and her son were members of the particular and circumscribed class of individuals the Legislature intended to protect, and that DSHS is thus not shielded from liability. We therefore reverse and remand for trial.
Maryann Snudden and her ex-husband, Alex Yonker, shared custody of their young son, Joshua Yonker. Joshua spent Wednesdays, every other weekend, and six weeks in the summer with his father.
In June of 1992, Snudden noticed two-and-a-half-year-old Joshua explicitly acting out intercourse with a stuffed animal. When Snudden tried to explain to Joshua that his behavior was not appropriate and was something only mommies and daddies did, he pushed her and tried to put his erect penis in her belly button. Snudden immediately made an appointment with Child Protective Services (CPS).
The next day, Snudden told the CPS caseworker that she did not think anyone was molesting Joshua, but she thought he "was watching something, either it be pornography or someone having sex." She said Joshua's father had a "pornography problem" and that he lived in a studio apartment with his girlfriend where Joshua might witness them having intercourse.
Although the caseworker agreed that these facts could indicate abuse, the caseworker gave Joshua's case a risk factor of zero, meaning no risk, and told Snudden that without a more specific allegation of abuse, CPS would take no action.
Snudden took Joshua to the Brigit Collins House, a shelter for abused women and children, but Joshua was too young for them to treat him. They referred her to another counselor who also said it would be difficult to help him because he was so young. Discouraged, Snudden did not seek further assistance. She tried to make excuses to prevent Yonker from seeing Joshua, but Yonker occasionally became violent, so she let Yonker take Joshua to avoid having him involved in a tug-of-war.
After Snudden first talked to CPS, Joshua's behavior began to change. He withdrew from other children, became violent toward her, and began having nightmares. Snudden noticed that his behavior was worse following visits with Yonker. Then in April 1993, while getting ready for bed, Joshua told her, "Daddy sucks wee-wee me." He repeated the same thing in front of Snudden's mother and husband.
Snudden called 911 and an officer arrived. The next day she called CPS. She told the caseworker about her previous report and about Joshua's behavior changes as well. The caseworker attempted to get Joshua to recount what happened, but when Joshua would not repeat what he had told his mother and grandmother, the caseworker told Snudden there was not much CPS could do. Snudden told the caseworker that Yonker had visitation rights and asked how she was supposed to protect Joshua. She was told that if the visits were court-ordered, she had to comply.
This caseworker also assessed Joshua's case as low risk, which she later explained was because the child made no disclosures to her, and the child was not in imminent danger of harm because the alleged abuser "wasn't going to see the child that day."
Soon after that, Yonker confessed to the Bellingham Police Department that he had molested his son. He eventually pleaded guilty to first degree child molestation during the period between January 1, 1992 and June 1, 1993. Yonker had previous convictions for indecent liberties and for trespass related to a peeping incident. Three months after Yonker pleaded guilty, Snudden *fn2 sued the Department of ...