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M.M.S. v. State, Department of Social and Health Services

Court of Appeals of Washington, Division 2

November 14, 2017

M.M.S., a minor (DOB 03/07/2007) and CRYSTAL ARMSTRONG, individually and as GUARDIAN AD LITEM for M.M.S., Appellants,
v.
STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES and CHILD PROTECTIVE SERVICES, Respondents.

          SUTTON, J.

         Crystal 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[1] 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.

         We hold 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 Crystal's claims.

         FACTS

         J.A. (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 life.

         In 2005 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 mother's care.

         In 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 dismissed.

         On 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.

         On 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.

         After 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 her.

         In 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.

         Christensen 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.

         On June 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 causation.

         The 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.

         ANALYSIS

         Crystal 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 investigation.

         We hold 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.

         I. Legal Principles: Summary Judgment and Negligence

         We 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 ...


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