M.M.S., a minor (DOB 03/07/2007) and CRYSTAL ARMSTRONG, individually and as GUARDIAN AD LITEM for M.M.S., Appellants,
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES and CHILD PROTECTIVE SERVICES, Respondents.
Armstrong, individually and on behalf of her minor daughter
M.M.S., appeals from the superior court's order granting
the Department of Social and Health Service's
(Department) motion for summary judgment and dismissal.
Crystal filed a lawsuit alleging that the
Department was negligent for failing to obtain and review
records from prior dependency proceedings involving her
stepson J.A. before placing J.A. in the home with his
biological father and Crystal. Crystal alleges that the
Department's negligence allowed J.A. the opportunity to
engage in inappropriate behavior with MM. S. Specifically,
Crystal argues that the Department had a common law duty to
warn Crystal and that the Department had a statutory duty to
investigate under RCW 26.44.050.
that under the specific facts presented here, the Department
did not have any actionable duty to either Crystal or M.M.S.
Therefore, we affirm the superior court's order granting
summary judgment in favor of the Department and dismissing
(born 2001) is the child of Seann Armstrong. Crystal is
Seann's wife and J.A.'s stepmother. Seann and Crystal
live together in Surrey, British Columbia with their mutual
child and Crystal's children, including M.M.S. (born
2007). From the time he was two years old, J.A. was raised by
his biological mother and Seann had little involvement in his
and again in 2010, the Department removed J.A. from his
biological mother's care and filed petitions for a
dependency as to J.A. During the 2005 dependency, J.A. was
placed with his paternal grandparent, then placed with a
maternal cousin, and ultimately placed in a foster home.
After both dependency actions, J.A. was returned to his
April 2013, the Department again removed J.A. from his
mother's care and placed him with his paternal aunt.
However, in this dependency, the Armstrongs actively pursued
custody of J.A. On July 31, 2013, Seann's attorney filed
a motion to have J.A. placed with the Armstrongs. The
dependency court granted the motion. On August 7, 2013, J.A.
moved to live with the Armstrongs in British Columbia. After
J.A. moved to British Columbia, Seann worked to establish a
parenting plan so that the dependency action could be
September 23, 2013, Crystal reported to J.A.'s social
worker, Michelle Christensen, that J.A. had grabbed
M.M.S.'s hair, pushed her down, wrapped his legs around
her, and kissed her on the lips. Crystal also informed
Christensen that M.M.S. was currently sleeping with Crystal
and Seann to prevent any further inappropriate incidents
between J.A. and M.M.S.
October 1, Crystal and Seann asked to have J.A. removed from
their home although they did not report any additional
incidents between J.A. and M.M.S. Christensen arranged for
J.A. to be returned to Washington and to be placed in a
licensed foster home. J.A. was then moved to a therapeutic
foster home where he has resided since.
J.A.'s inappropriate behavior with M.M.S., Crystal
learned that J.A. had a history of sexualized behavior.
During the 2005 dependency, J.A.'s paternal grandparents
reported that J.A. was sexually acting out by frequently
touching himself. In 2008, a parent educator filed a report
that documented sexually inappropriate behavior between J.A.
and his younger half-sister. After J.A. was placed with his
mother in 2008, there were concerns about his behavior
because he told his half-sister he wanted to lay on top of
2010, J.A.'s mother reported that she caught J.A. being
sexually inappropriate with his half-sister on two occasions.
While J.A. was placed in foster care, the foster mother
reported two incidents of J.A. laying on top of another
foster child. During the 2010 dependency, the Department
staffed J.A. for sexually aggressive youth (SAY) services.
The SAY committee within the Department determined that J.A.
was not a sexually aggressive youth and thus, he did not need
to be referred for SAY services. During the 2010 dependency,
J.A.'s paternal aunt's ex-husband had asked that J.A.
be removed from the home because of a rumor he had heard
about J.A. sexually acting out with another child.
did not retrieve the closed dependency files from the
archives and because she was not involved in any of the prior
dependencies, she was not aware of the incidents reported by
J.A.'s mother or paternal grandparents. However, she was
aware of why J.A. was removed from his paternal aunt's
house in 2010.
17, 2015, Crystal, on behalf of herself and as guardian for
M.M.S., filed a complaint for damages against the Department.
The Department filed a motion for summary judgment arguing
that the Department owed no duty to Crystal or M.M.S. In
response, Crystal argued two specific causes of action
applied to the Department: (1) a common law duty to disclose
the information about J.A.'s prior sexualized behavior
and (2) a statutory duty under RCW 26.44.050 to investigate
J.A.'s history and suitability for the Armstrong's
home. Crystal alleged that the Department breached both
duties because of Christensen's failure to discover and
disclose J.A.'s prior sexualized behavior. And Crystal
also moved for partial summary judgment on duty, breach, and
superior court granted the Department's motion for
summary judgment, denied Crystal's cross-motion for
partial summary judgment, and entered an order dismissing
Crystal's complaint with prejudice. Crystal appeals.
is very explicit in her claims against the Department.
Crystal argues that the Department's liability arises
only from Christensen's failure to discover and
disclose J.A.'s prior sexualized behavior that was
documented in the earlier dependencies. And Crystal is making
only two specific claims: (1) that the Department has a
common law duty to disclose a dependent child's prior
sexualized behavior before placing a child and (2) that the
Department is liable under RCW 26.44.050 for its negligent
that the Department has no common law duty to disclose
information prior to returning a child to the home of a
biological parent at the parent's request. We also hold
that a negligent investigation cause of action under RCW
26.44.050 does not apply here because there was no report
that M.M.S. was abused or neglected before J.A. was placed in
the Armstrong's home. Accordingly, we affirm the superior
court's order granting summary judgment to the Department
and dismissing Crystal's complaint.
Legal Principles: Summary Judgment and Negligence
review a superior court's order granting summary judgment
de novo. M.W. v. Dep't of Soc. & Health
Servs.,149 Wn.2d 589, 595, 70 P.3d 954 (2003). We view
the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in favor of the
nonmoving party. McCarthy v. Clark County, 193
Wn.App. 314, 328, 376 P.3d 1127, review denied, 186
Wn.2d 1018 (2016). Summary judgment is appropriate where
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. CR 56(c). A
material fact is one that affects the outcome of the
litigation. Eicon Constr., Inc. v. E. Wash. Univ.,174 Wn.2d 157, 164, 273 ...