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C.L. v. State, Department of Social and Health Services

Court of Appeals of Washington, Division 1

August 21, 2017

C.L, a sexual abuse victim, and Simeon J. Osborn as litigation guardian for S.L., a minor child and sexual abuse victim, Respondents,

          Becker, J.

         The 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.


         Sisters 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.

         C.L. 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."

         The 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.

         The 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.

         In late 2003, the State terminated the rights of the girls' biological parents. The Langes expressed interest in adoption.

         The 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.

         The 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.

         Around 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.

         C.L. 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.

         In 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 the allegations.

         This 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.

         Trial 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.

         After a 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 followed.

         A 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).


         The 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 1005(2013).

         The 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 them.

         The 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.

         Under 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 ...

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