Chen v. D'Amico

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

SUSAN CHEN, et al., CASE NO. C16-1877JLR Plaintiffs, ORDER v. NATALIE D’AMICO, et al., Defendants.

Before the court is Defendants the Washington State Department of Social and Health Services (“DSHS”1), Kimberly R. Danner, and Jill Kegel’s (collectively, “Defendants”) motion for summary judgment. (Defs. MSJ (Dkt. # 361); Defs. Reply (Dkt. # 389).) Plaintiff Susan Chen filed a cross motion for summary judgment, which

1 As of July 1, 2018, DSHS’s duties related to child welfare services have been renamed the Department of Children, Youth, and Families (“DCYF”). RCW 43.216.906(1). Because that transition post-dates the events relevant to this case, the court refers to Defendant Department of Social and Health Services as “DSHS.” her minor son, Plaintiff J.L. (together with Ms. Chen, “Plaintiffs”) joined. (Chen MSJ (Dkt. # 364); J.L. Joinder (Dkt. # 372); Chen Reply (Dkt. # 390)). Both motions are

opposed. (See Chen Resp. (Dkt. # 387-12); J.L. Resp. (Dkt. # 376); Defs. Resp. (Dkt. # 379).) The court has considered the motions, the parties’ submissions in support of and in opposition to their respective motions, the relevant portions of the record, and the applicable law. Being fully advised,3 the court GRANTS Defendants’ motion and DENIES Plaintiffs’ motion.

The court provides a brief factual summary below, followed by a summary of the procedural history of this case. A. Factual Background

This case arises out of the removal of J.L. from his parents’ care and placement into foster care. The court discussed the facts leading up to J.L.’s October 28-30, 2013 shelter care hearing in detail in its December 20, 2019 and January 22, 2020 orders granting summary judgment in favor of Defendants. (See 12/20/19 Order (Dkt. # 242); 1/22/20 Order (Dkt. # 275); see also 9th Cir. Mem. (Dkt. # 297) (affirming these judgment orders except as to Plaintiffs’ claims for negligent investigation and negligent //

//

2 The court cites Ms. Chen’s corrected response (Dkt. # 387-1), rather than her original response (Dkt. # 380). 3 Plaintiffs requested oral argument. (See J.L Resp. at 1; Chen Resp. at 1.) The court, however, concludes that oral argument is not necessary to its disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4). infliction of emotional distress (“NIED”) after the shelter care hearing); Mandate (Dkt. # 299).)

The events at issue in the parties’ motions took place when J.L. was three years old. (See J.L. Resp. at 2.) After J.L. was diagnosed with autism spectrum disorder (“ASD”) in August 2012, Ms. Chen began to take him to medical and therapy appointments to address his ASD symptoms. (Prop. Pretrial Order (Dkt. # 249) at 2-9 (“Admitted Facts”) ¶¶ 3-4.) In September 10, 2012, Ms. Chen began to seek treatment for J.L.’s gastrointestinal (“GI”) issues, such as discomfort, bloating, and gassiness. (Id.

¶ 10.) Between September 2012 and October 2013, Ms. Chen took J.L. to numerous doctors and therapists for treatment of his autism and GI symptoms. (See id. ¶¶ 6-27.) On October 23, 2013, one of J.L.’s doctors reported concerns about J.L. and Ms. Chen to Child Protective Services (“CPS”). (Id. ¶ 28.) That same night, a CPS social worker visited Plaintiffs’ home and took J.L. to the Seattle Children’s Hospital (“SCH”)

emergency room. (Id. ¶¶ 27- 30.) SCH admitted J.L and reported Ms. Chen to the Seattle Police Department (“SPD”). (Id. ¶ 31.) On October 25, 2013, Defendant Kimberly Danner, a different CPS social worker, filed a petition for dependency for J.L. with the King County Superior Court. (Id. ¶ 32; see Kumar Decl. (Dkt. ## 350 (redacted), 352 (sealed)) ¶ 2, Ex. 1 (Dkt. # 352-1 (sealed)) (dependency petition).)

A commissioner of the King County Superior Court conducted a 72-hour shelter care hearing between October 28 and October 30, 2013. (Admitted Facts ¶ 33.) Ms. Chen and J.L’s father, former Defendant Naixiang Lian, were represented by counsel. (Id.) Near the end of the hearing, the commissioner stated that J.L.’s low weight was a key concern justifying a finding of reasonable cause to believe that placing J.L. with his parents would create a serious risk of substantial harm. (Prince Decl. (Dkt. # 383) ¶ 23,

Ex. Z (Dkt. # 384-4 (sealed)) at 315:6-316:13; see also id. at 319:22-25 (“The one thing that shelter care will show us, frankly, is whether [J.L.] will continue to show improvement on his weight as well as improvement on the symptoms of his autism[.]”).) On October 31, 2013, the commissioner entered an order continuing J.L.’s out-of-home placement. (Admitted Facts ¶ 33.) After J.L. was discharged from SCH on November 7, 2013, CPS took him to a

foster home in accordance with the shelter care hearing order. (Id. ¶ 35.) J.L.’s weight was closely monitored during this time. (See id. ¶¶ 36-37.) On November 15, 2013, Ms. Danner completed a Children’s Administration Investigative Assessment in which she concluded that the “[i]nvestigation [was] Founded for Negligent Treatment or Malreatment” of J.L. by his parents. (Prince Decl. ¶ 17, Ex. R (“Investigative

Assessment”) at 2-3.4) J.L.’s case was then transferred to Child and Family Welfare Services (“CFWS”). (See Lo Decl. (Dkt. # 215) ¶ 6, Ex. 5 at 2.) On November 25, 2013, a CFWS social worker notified the Assistant Attorney General (“AAG”) handling J.L’s dependency case that J.L. had lost weight since his placement in shelter care and that J.L.’s occupational therapists who treated J.L. before

the dependency did not see anything wrong with Ms. Chen’s relationship with J.L. (Admitted Facts ¶ 39.) Defendant Jill Kegel, the CFWS social worker responsible for

4 The court refers to the page numbers in the CM/ECF header when citing exhibits to declarations. J.L.’s case beginning in December 2013, advised the AAG that Dr. Hal Quinn, a doctor who treated J.L. before and after the shelter care hearing, was not concerned about J.L.’s

weight fluctuations. (Id.) On December 10, 2013, Ms. Kegel informed the AAG that SCH apparently did not have J.L.’s autism diagnosis when its physicians were diagnosing J.L.’s condition in October 2013. (Id. ¶ 40.) On January 31, 2014, the King County Prosecuting Attorneys’ Office filed criminal child neglect charges against Ms. Chen. (Id. ¶ 41.) In June 2014, Ms. Chen and Mr. Lian moved to return J.L. to his father’s care.

(Kumar Decl. ¶ 17, Ex. 16 (Dkt. # 352-16 (sealed)) (“June 2014 motion”).) Although Ms. Kegel opposed the motion (see Lo Decl. ¶ 20, Ex. 19), the court returned J.L. to his father’s care in July 2014. (Admited Facts ¶ 37.) On September 12, 2014, the State dismissed J.L.’s dependency action and returned J.L. to his parents’ custody without restrictions. (Id. ¶ 42; see Chen Decl. (Dkt. # 366)

¶ 13, Ex. 10 (email from AAG).) DSHS then changed its initial finding of abuse or neglect from “founded” to “unfounded.” (Admitted Facts ¶ 43.) On September 19, 2014, the King County Prosecuting Attorney’s Office dismissed the criminal case against Ms. Chen. (Id. ¶ 41.) The prosecutor informed the court that his office dismissed the charges based on information presented by Ms. Chen’s attorney,

including the results of her interviews with several of J.L.’s physicians. (Id.) // // // B. Procedural Background

As relevant here, Plaintiffs5 raised state law claims of negligent investigation and negligent infliction of emotional distress (“NIED”), among other claims, against multiple agencies and defendants. (See 4th Am. Compl. (Dkt. # 96).) The court entered judgment against Plaintiffs on all of their claims on January 23, 2020. (1/23/20 Judgment (Dkt. # 276).) Plaintiffs appealed. (NOA (Dkt. # 280).) While Plaintiffs’ appeal was pending, the Washington Supreme Court decided Desmet v. State ex rel. State Department of Social & Health Services, 514 P.3d 1217, 1226 (Wash. 2022), which “held that

negligence by DSHS that prolongs dependency proceedings may be actionable under a negligent investigation theory.” (9th Cir. Mem. at 3-4 (citing Desmet, 514 P.3d at 1226).) The Ninth Circuit Court of Appeals vacated and remanded the case only with respect to Plaintiffs’ “claims of negligent investigation which postdate the shelter care hearing and their NIED claims during that same period.” (Id. at 5.) The Ninth Circuit

instructed the court to reconsider Plaintiffs’ negligent investigation claims under Desmet, 514 P.3d at 1226, and to reconsider Plaintiffs’ NIED claims under the theory of direct NIED. (Id. at 3-5.) The Ninth Circuit affirmed the judgment in all other respects. (See id. at 5.) Defendants and Ms. Chen filed timely motions for summary judgment on

November 20, 2024. (Defs. MSJ; Chen MSJ.) J.L joined Ms. Chen’s motion on

5 Mr. Liang and J.L.’s brother L.L. were also plaintiffs in this matter. (See 4th Am. Compl. (Dkt. # 96).) The Ninth Circuit Court of Appeals affirmed the dismissal of all claims brought by these plaintiffs. (9th Cir. Mem. at 5.) December 4, 2024. (J.L. Joinder.) The motions are now fully briefed and ripe for consideration.

Ms. Chen moves the court for an order granting summary judgment in her favor on her claim for negligent investigation following the October 2013 shelter care hearing, and J.L. joins in that request. (See generally Chen MSJ; J.L. Joinder.) Defendants, meanwhile, move for summary judgment in their favor on both of Plaintiffs’ remaining claims. (See generally Defs. MSJ.) Below, the court sets forth the legal standards governing the motions, then considers the parties’ motions. A. Summary Judgment Legal Standard Summary judgment is appropriate if the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact

is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for” the nonmoving party. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). The court must “view[] the evidence in the light most favorable to the nonmoving

party[.]” Kaelin v. Globe Comm’ns Corp., 162 F.3d 1036, 1039 (9th Cir. 1998). Where the parties have filed cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” ACLU v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at

323. The burden then shifts to the nonmoving party to identify specific facts from which a factfinder could reasonably find in the nonmoving party’s favor. Id. at 324; Anderson, 477 U.S. at 250. To defeat a summary judgment motion, the nonmoving party “must present significant probative evidence tending to support its claim or defense.” Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Thus, the nonmovant must show that there are “genuine factual issues that properly can be resolved

only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. A. Negligent Investigation Plaintiffs assert that they are entitled to summary judgment on their negligent investigation claims because there can be no genuine dispute of fact that Defendants’

negligence “caused and prolonged J.L.’s dependency.” (See Chen MSJ at 2.) Defendants counter that they are entitled to judgment as a matter of law because Plaintiffs cannot show that Defendants’ investigation was negligent or that any harmful placement decision resulted from the investigation. (See Defs. MSJ at 6.) The negligent investigation cause of action arises from the state’s statutory duty

under RCW 26.44.050 to investigate allegations of child abuse. M.W. v. Dep’t of Social & Health Servs., 70 P.3d 954, 960 (Wash. 2003). It is a “narrow exception” to the rule that there is no tort claim for general negligence during an investigation. Id. A parent or child may bring a negligent investigation claim against DSHS when, in the course of investigating suspected child abuse or neglect, the agency “gather[s] incomplete or biased information that results in a harmful placement decision.” Desmet, 514 P.3d at 1225

(quoting M.W., 70 P.3d at 960). A “harmful placement decision” includes “removing a child from a nonabusive home, placing a child in an abusive home, . . . letting a child remain in an abusive home[,]” or “caus[ing] an unnecessary and prolonged disruption of the family unit.” Desmet, 514 P.3d at 1225, 1226 (citations omitted). Washington courts “interpret the ‘harmful placement decision’ requirement narrowly” and have repeatedly refused to expand the scope of the negligent investigation

tort. McCarthy v. Cnty. of Clark, 376 P.3d 1127, 1136 (Wash. Ct. App. 2016) (concluding that a no-contact order issued in a criminal proceeding is not a “placement decision”); see Roberson v. Perez, 123 P.3d 844, 851 (Wash. 2005) (declining to expand the negligent investigation tort to “constructive placements”); M.W., 70 P.3d at 960 (declining to expand the tort to harms other than harmful placement decisions); Carter v.

MultiCare Health Sys., 553 P.3d 98, 110 (Wash. Ct. App. 2024) (declining to apply the continuing tort doctrine to the tort of negligent investigation). The plaintiff must show that DSHS’s conduct was a proximate cause of the harmful placement decision. Tyner v. State Dep’t of Soc. & Health Servs., 1 P.3d 1148, 1157 (Wash. 2000). The court is unaware of any Washington authority holding that a “harmful placement decision” can

exist absent a court order. See, e.g., Desmet, 514 P.3d at 1226 (“harmful placement decision” was a court order denying plaintiffs’ motion to modify a shelter care order and continuing the shelter care placement); Tyner v. State Dep’t of Soc. & Health Servs., 1 P.3d 1148, 1157 (Wash. 2000) (affirming jury finding against DSHS where the negligent investigation resulted in court orders limiting contact between a parent and his children); Petcu v. State, 86 P.3d 1234, 1246-47 (Wash. Ct. App. 2004) (affirming summary

judgment against plaintiff where he failed to identify material information that was not brought before the court in proceedings that resulted in an order of dependency). Here, Plaintiffs argue that Defendants’ negligent investigation after the shelter care hearing “caused and prolonged J.L.’s dependency.” (See, e.g., Chen MSJ at 20.) Ms. Chen asserts that Defendants failed to correct errors in the dependency petition, ignored their duty to investigate, “failed to investigate basic medical information or

outright hid that information,” falsely represented J.L.’s weight, and conducted a biased investigation. (See Chen MSJ at 17; Chen Resp. at 28-30.) J.L., meanwhile, faults Defendants for failing to recognize that he was losing weight in their care, withholding therapy, making material misrepresentations about his weight, conducting an incomplete investigation, failing to plan for his return home, and showing bias against his family.

(See J.L. Joinder at 2; J.L. Resp. at 14-16.) Plaintiffs point to evidence that J.L.’s prolonged removal caused Ms. Chen to suffer severe depression, anxiety, and stress and caused J.L. to regress mentally, undergo trauma, and suffer post-traumatic stress disorder. (See Chen Resp. at (citing evidence of harm); J.L. Resp. at 19-20 (same).) Critically, however, Plaintiffs do not identify any “harmful placement decision”

entered by a court that was proximately caused by Defendants’ allegedly negligent investigation. (See generally Chen MSJ; J.L. Joinder; Chen Resp.; J.L. Resp.; Chen Reply.); see Desmet, 514 P.3d at 1225 (DSHS may be liable for negligent investigation when it “gathers incomplete or biased information that results in a harmful placement decision” (emphasis added)). To the contrary, any court decisions entered after the shelter care hearing resulted in favorable outcomes for Plaintiffs. (See, e.g., Admitted

Facts ¶¶ 37 (J.L. returned to his father’s custody), 42 (returning J.L. to his parents’ custody without restrictions).) Because Plaintiffs have not directed the court to evidence of a “harmful placement decision,” they can neither show that they are entitled to judgment as a matter of law on their negligent investigation claims, nor establish a genuine dispute of material fact as to those claims. Therefore, the court grants Defendants’ motion for summary judgment on Plaintiffs’ negligent investigation claims

and denies Plaintiffs’ cross motion for summary judgment. 6 B. Negligent Infliction of Emotional Distress To prevail on their direct NIED claims, Plaintiffs must prove that Defendants’ negligence caused them to suffer medically diagnosable emotional distress. Desmet, 514 P.3d at 1227 n.16 (citing Kumar v. Gate Gourmet, Inc., 325 P.3d 193, 205 (Wash. 2014)).

Thus, Plaintiffs must establish the standard tort elements of duty, breach of the standard of care, proximate cause, and damage, plus objective symptomatology of the emotional harm. Kumar, 325 P.3d at 205 (citing Strong v. Terrell, 195 P.3d 977, 982 (Wash. Ct. App. 2008)). The emotional distress must be “within the scope of foreseeable harm of the negligent conduct” and “a reasonable reaction given the circumstances[.]” Bylsma v.

Burger King Corp., 293 P.3d 1168, 1170 (Wash. 2013) (citing Hunsley v. Giard, 553

6 Because the court grants Defendants’ motion for summary judgment on Plaintiffs’ negligent investigation claims, it need not decide whether claims brought against Ms. Kegel individually should be dismissed. (See Defs. MSJ at 5-6.) P.2d 1096, 1103 (Wash. 1976)). “The existence of a duty is a question of law and depends on mixed considerations of logic, common sense, justice, policy, and precedent.”

Snyder v. Med. Serv. Corp. of E. Wash., 35 P.3d 1158, 1164 (Wash. 2001) (cleaned up). Here, the parties disagree about what duty Defendants owed to Plaintiffs and whether Defendants breached that duty. Defendants assert, relying on Estate of Lee ex rel. Lee v. City of Spokane, that Plaintiffs must prove that Defendants engaged in “wrongful conduct” to prevail on their NIED claims. (Defs. MSJ at 7 (quoting Est. of Lee ex rel. Lee v. City of Spokane, 2 P.3d 979, 990 (Wash. Ct. App. 2000)).) The court

agrees with J.L. that proof of “wrongful conduct” is not an element of an NIED claim. (See J.L. Resp. at 17.) In Lee, survivors of a man who was fatally shot by police sued, in relevant part, for wrongful death and NIED. Lee, 2 P.3d at 989. The court held that the survivors could not bring either claim because they could not show that the decedent’s death was wrongful. Id. at 989 (dismissing wrongful death claim), 990 (dismissing NIED

claim arising from the wrongful death). Thus, the “wrongful conduct” requirement was specific to the underlying claims and the facts of that case. The Washington Supreme Court subsequently reaffirmed that the elements of a direct NIED claim are duty, breach, proximate cause, and damages (plus objective symptomatology). See, e.g., Kumar, 325 P.3d at 205; Strong, 195 P.3d at 982. Because Defendants’ motion is based solely on

their assertion that Plaintiffs must prove “wrongful conduct” (see Defs. MSJ at 7; see also Defs. Reply at 5-6 (“The Lee court’s insistence of misconduct on the part of the governmental actor becomes the dividing line.”)), the court denies Defendants’ motion for summary judgment on Plaintiffs’ NIED claim. The court notes, however, that Plaintiffs have not clearly stated what duty they would impose on Defendants. In his response to Defendants’ motion, J.L. asserts that

“[w]hen the State and its employees fail to properly investigate the circumstances for the removal of a child, the elements of duty and breach of duty are proven” and that “[m]isrepresenting facts to the dependency court judge and failing to properly investigate claims that lead to a child’s removal from a non-abusive home is evidence of a breach of duty owed to a child under DCYF’s care.” (J.L. Resp. at 17.) Both of these duties relate to the investigations that preceded J.L.’s removal from his parents’ home. Duties

purportedly owed to Plaintiffs before the shelter care hearing are no longer at issue in this case because the Ninth Circuit remanded Plaintiffs’ NIED claims only with respect to claims that postdated the shelter care hearing. (See 9th Cir. Mem. at 5.) Therefore, the court orders Plaintiffs to show cause why the court should not grant summary judgment in Defendants’ favor on their NIED claims. In their response, Plaintiffs shall clearly

define the duty (or duties) they assert Defendants owed them, with citations to case law, and direct the court to competent evidence that Defendants breached that duty and that the breach proximately caused damages. Plaintiffs shall also address whether their NIED claim survives the court’s dismissal of their negligent investigation claims. B. “Duplicative” Claims

Defendants also argue that Ms. Danner and Ms. Kegel should be “summarily dismissed” as defendants because a judgment against them for negligence committed // // within the scope of their employment7 would be satisfied by the State. (Defs. MSJ at 7-8 (citing RCW 4.92.075).) Defendants therefore assert that Plaintiffs’ claims against Ms.

Danner and Ms. Kegel are “duplicative of [their] claims” against DSHS. (Id.) J.L. responds that Plaintiffs may pursue claims against DSHS and its employees simultaneously, regardless of the source of a potential judgment. (See J.L. Resp. at 26.) The court agrees with J.L. “Although assertions of the negligent investigation claim are typically brought only against [DSHS], . . . there is nothing to prevent plaintiffs from also asserting the claim against the social worker[s] who performed the

investigation.” Medicraft v. Washington, No. C21-1263BJR, 2024 WL 917584, at *6. (W.D. Wash. Mar. 4, 2024). Defendants cite no authority to the contrary. (See generally Defs. MSJ; Defs. Reply.) Accordingly, the court denies Defendants’ motion for summary dismissal of Plaintiffs’ claims against Ms. Danner and Ms. Kegel.

For the foregoing reasons, the court DENIES Plaintiffs’ motion for summary judgment (Dkt. ## 364, 372); GRANTS Defendants’ motion for summary judgment on Plaintiffs’ negligent investigation claims (Dkt. # 361); and DENIES Defendants’ motion for summary judgment on Plaintiffs’ negligent infliction of emotional distress claims (id.). Plaintiffs are ORDERED to show cause, by no later than January 31, 2025, why

the court should not grant summary judgment in Defendants’ favor on their negligent infliction of emotional distress claims. In their response, Plaintiffs shall (1) clearly define

7 The parties do not dispute that Ms. Danner and Ms. Kegel were acting within the scope of their employment at all relevant times. (See generally Defs. MSJ; Chen MSJ; J.L. Joinder.) the duty (or duties) they assert Defendants owed them, with citations to case law, and (2) direct the court to competent evidence that Defendants breached that duty and that the

breach proximately caused damages. Plaintiffs shall also address whether their negligent infliction of emotional distress claim survives the court’s dismissal of their negligent investigation claims. The parties shall be prepared to discuss this matter at the pretrial conference on February 3, 2025. Dated this 27th day of January, 2025. A United States District Judge