C.L, a sexual abuse victim, and Simeon J. Osborn as litigation guardian for S.L., a minor child and sexual abuse victim, Respondents,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Appellant, and JANE and JOHN DOES, Defendants.
Department of Social and Health Services placed two dependent
children for adoption without discovering that a member of
the adopting family was previously reported to the department
for molesting a child. On summary judgment, the trial court
established the department's liability for the years of
sexual abuse the children experienced in the placement and
dismissed the department's affirmative defenses as
lacking evidentiary support. A jury awarded damages of $4
million for each child. We affirm.
C.L. and S.L. were born in 1996 and 2000, respectively. As
young children, they lived with their mother in Everett.
Their father was incarcerated out of state. Child Protective
Services received reports that the girls' mother was
using drugs and was abusive and neglectful. The girls were
removed from her care in 2002 and were found dependent.
and S.L. lived in various foster homes, including one
placement with some friends of Benjamin and Carolyn Lange.
The Langes decided to apply for a foster license specifically
so that they could be a placement for the two girls. The
Langes had three biological sons, born in 1987, 1989, and
1992. The application asked, "Have you, or anyone in
your family, been sexually or physically abused? And, have
you or anyone in your family been a perpetrator or had a
restraining order or protective order filed?" The Langes
disclosed that their middle son, Dillon, had been
"sexually abused by an older girl (with a history of
abuse)" during school hours when he was in kindergarten
and first grade. They said Dillon had received counseling
"and is ok now."
Langes did not disclose that Dillon was also an alleged
perpetrator of sexual abuse. The department had in its files
a referral to Child Protective Services concerning an
incident in 2001, when Dillon was 12. According to the intake
report, Dillon's 12-year-old cousin walked into a room
and saw Dillon put his penis into the rectum of a 5-year-old
cousin. The incident was reported to law enforcement for
investigation. The officers who investigated the accusation
against Dillon reported they were unable to establish
probable cause because neither Dillon nor the younger boy
admitted to sexual conduct.
social worker responsible for reviewing the Langes'
foster application did not discover the 2001 referral
concerning Dillon. The State issued a license to the Langes
in December 2002 and placed the girls in the Lange home in
June 2003. Social workers who checked up on the girls
documented positive observations about their assimilation
into the Lange family. The girls reportedly appeared bonded
with Benjamin, Carolyn, and the three boys.
2003, the State terminated the rights of the girls'
biological parents. The Langes expressed interest in
department was required to complete a preplacement report
making a recommendation as to the fitness of the prospective
adopters based on their "home environment, family life,
health, facilities, and resources." Former RCW
26.33.190(2) (1991). Social worker Helen Anderson completed a
preplacement report on the Langes. The report mentions that
Dillon was molested. It does not mention that Dillon
allegedly molested his cousin because Anderson did not see
the 2001 intake report when gathering information on the
Langes, although she admitted in a deposition that she should
have. Her preplacement report states that background checks
on Carolyn, Benjamin, and their oldest son did not reveal any
disqualifying information. Anderson recommended that the
adoptions go forward.
department was also required to complete a postplacement
report before the adoption was finalized. RCW 26.33.200(1).
The postplacement reports referred to the preplacement
reports and concluded that the Lange home was adequate. A
court approved the adoptions on August 24, 2004.
this time, the two younger boys-Dillon and Colten Lange-began
to subject the girls to sexual abuse. C.L. testified that
Dillon began molesting her when she was 8 and he was around
14. She said Dillon would come into her room at night,
undress her, and touch her breasts and vagina with his hands,
penis, and mouth. She said that this occurred on a regular
basis until she was 12, that Colten regularly abused her
during the same timeframe, and that both boys at times put
their penises in her mouth. S.L. testified to similar
experiences with Dillon from when she was 6 or 7 until she
was 11, and at least once with Colten. She said if she told
Dillon to stop, he would cover her mouth or choke her, and
would threaten to kill her if she told anyone.
testified that she told Carolyn about the sexual abuse in
2011. Carolyn "didn't believe" C.L. and told
her that if anything had happened, she "just needed to
forgive" her brothers.
August 2013, C.L. told her friend and her friend's mother
about the sexual abuse. They contacted Child Protective
Services. C.L. did not go back to the Lange home. The State
removed S.L. from the Lange home in November 2013. During the
ensuing police investigation, Colten confessed to having
sexual contact with the girls. Dillon confessed to some of
lawsuit was filed on December 31, 2014, alleging the
department's negligence in screening the background of
the Lange family before facilitating the placement and
adoption of the girls by the Langes. The complaint
particularly alleged that the department facilitated the
adoption despite having information that Dillon had been
accused of having anal intercourse with his younger cousin.
The department's answer denied liability and stated
numerous affirmative defenses.
was set for January 2016 with a discovery cutoff in November
2015. The plaintiffs sent out initial interrogatories and
requests for production in January 2015. The department
serially produced thousands of pages of documents, many of
them duplicative. The parties engaged in numerous
communications about discovery issues.
hearing on November 13, 2015, the court granted the
plaintiffs' motion for partial summary judgment to
establish the department's liability and to dismiss the
department's affirmative defenses. A trial occurred in
which the jury was instructed that negligence and causation
had already been established. The jury returned a verdict
awarding $4 million in damages to each child. This appeal
negligence action requires a showing of duty, breach,
causation, and damages. Ranger Ins. Co. v. Pierce
County. 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary
judgment is proper only when there are no genuine issues of
material fact. CR 56(c). After the moving party has
established an absence of factual issues, the burden shifts
to the nonmoving party to set forth specific facts
sufficiently rebutting the moving party's contentions and
disclosing the existence of a material fact. Petcu v.
State. 121 Wn.App. 36, 54, 86 P.3d 1234, review
denied. 152 Wn.2d 1033 (2004); Seven Gables
Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 12-13, 721
P.2d 1 (1986).
existence of a legal duty is a question of law considered de
novo on appeal. N.K. v. Corp. of Presiding Bishop of
Church of Jesus Christ of Latter-Dav Saints. 175 Wn.App.
517, 524-26, 307 P.3d 730. review denied. 179 Wn.2d
department contends there are no common law duties that apply
to the department's functions related to the case
management of foster children. In the department's view,
the only actionable claim against the department by a child
who is abused in a foster or adoptive placement is a claim
for negligent investigation premised upon and limited to the
confines of RCW 26.44.050. This statute, which requires the
department to investigate child abuse, has been interpreted
to imply a cause of action for negligent investigation of
abuse. M.W. v. Dep't of Soc. & Health
Servs.. 149 Wn.2d 589, 595, 70 P.3d 954 (2003). The
department argues that C.L. and S.L cannot prevail under RCW
26.44.050 because they do not allege that the department
negligently investigated a child abuse referral pertaining to
department's attempt to confine the plaintiffs to a cause
of action for negligent investigation of child abuse is
unsupported. The M.W. court, while finding no duty
was owed in the particular circumstances of that case,
recognized an actionable duty that flows from the department
to children and parents who are harmed when the
department's negligence results in placing a child into
an abusive home. M.W.. 149 Wn.2d at 597. In the
Babcock case, our Supreme Court "implicitly
approved" a claim of negligence against the department
for failing to adequately investigate the backgrounds of
prospective foster parents. Tyner v. Dep't of Soc.
& Health Servs.. 141 Wn.2d 68, 79, 1 P.3d 1148
(2000), discussing Babcock v. State. 116 Wn.2d 596,
809 P.2d 143 (1991). A number of statutes and regulations
direct the department to protect children by doing a careful
evaluation of a foster or adoptive home before recommending
placement. See, e.g., RCW 26.33.010; RCW 74.15.010;
WAC 388-148-1320, -1370. Statutory imperatives as well as
strong public policy grounds support recognition of a cause
of action in tort for prospective adoptive parents against
adoption placement agencies that negligently fail to disclose
pertinent information about the child. McKinney v.
State. 134 Wn.2d 388, 397, 950 P.2d 461 (1998). The tort
duty arises from the special relationship between adoption
placement agencies and adopting parents McKinney.
134 Wn.2d at 397. Logically, a tort duty also arises from the
special relationship between the department as a placement
agency and dependent children, allowing such children to seek
a tort remedy when they are damaged by the department's
negligent failure to uncover pertinent information about
their prospective adoptive home.
the common law, a duty to protect another from sexual assault
by a third party may arise where the defendant has a special
relationship with the other which gives the other a right to
protection. N.K.. 175 Wn.App. at 525-26. The
existence of a duty predicated on a protective relationship
requires knowledge of the "general field of danger"
within which the harm occurred. McLeod v. GrantCounty Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255
P.2d 360 (1953). The evidence in this case establishes beyond
dispute the department's protective ...