FILED COURT OF APPEALS CO STATE OF WASHINGTON 2011 AUG 2 I All 8:57
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
C.L., a sexual abuse victim, and ) Simeon J. Osborn as litigation ) No. 74892-1-1 guardian for S.L., a minor child and ) sexual abuse victim, ) DIVISION ONE ) Respondents, ) ) v. ) ) PUBLISHED OPINION STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) FILED: August 21, 2017 HEALTH SERVICES, ) ) Appellant, ) ) and ) ) JANE and JOHN DOES 1-100, ) ) Defendants. ) )
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. No. 74892-1-1/2
FACTS
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
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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
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reports referred to the preplacernent 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 Co!ten 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
Co!ten. 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, Co!ten 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
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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
5 No. 74892-1-1/6
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).
DUTY
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-
Day 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
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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.p., 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. Grant
7 No. 74892-1-1/8
County 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
relationship with the two plaintiffs and the department's knowledge that a home in
which a sexual predator resides is dangerous to children.
After the department filed the appellant's brief in this matter, Division Two
of this court recognized that the department owes to dependent children a duty of
reasonable care to protect them against foreseeable tortious or criminal conduct
in a foster family home. HBH v. State, 197 Wn. App. 77, 92, 387 P.3d 1093
(2016), petition for review filed, No. 94529-2(Wash. May 22, 2017).
Absent proper monitoring by the State, a foster child is wholly exposed to the will of the foster parents, whether that will is a blessing or a horror. In this setting, the State is the last watchman of the foster child's well-being. A more compelling illustration of the bases of a special relationship. .. is hard to imagine.
HBH, 197 Wn. App. at 92. HBH is consistent with the earlier cases cited above
and other cases finding a duty of protection arising from a special relationship
under RESTATEMENT(SECOND)OF TORTS § 315(b). The special relationship duty
exists regardless of whether the department breached the duty imposed by
RCW 26.44.050. HBH 197 Wn. App. at 86 n.2.
HBH is cited in the brief of respondent. The department's reply brief does
not attack the reasoning of HBH. Instead, the department claims that the
plaintiffs sought to establish liability solely by pursuing their cause of action for
negligent investigation under RCW 26.44.050. This is incorrect. The complaint
pleaded common law and statutory duties. The plaintiffs' motion for summary
judgment argued common law and statutory duties. We may affirm a summary
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judgment order on any basis supported by the record. Redding v. Virginia Mason
Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483(1994). The record in this case
solidly supports the court's decision to find the element of duty established as a
matter of law.
BREACH
The department contends that issues of fact preclude summary judgment
on breach.
Helen Anderson, the department employee who completed the adoption
preplacement report, did not discover the 2001 referral on Dillon when reviewing
the Langes as potential adopters. She candidly admitted in her deposition that
she "should have seen it" because it was a Child Protective Services file that she
should have received when she did the background check on the Langes. As far
as Anderson knew, the referral was available in the department's computer
system and she was "certainly competent on the computer systems," but "why I
didn't get this, I don't know." She testified she "would not have placed" the girls
with the Langes if she had seen the referral. Anderson was "surprised" to see
that the Lange home had previously been approved for foster care in light of
Dillon's alleged sexual misconduct as reported to the department. She regretted
that she did not know about the referral when she met with the girls in the course
of her review because "if the girls were abused, I think that was something that
was foreseeable."
Expert witness Barbara Stone, who had worked for the department for
more than 30 years, submitted a declaration that the department breached the
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standard of care by recommending and facilitating the adoption of C.L. and S.L.,
notwithstanding the 2001 referral. "The standard of care for social workers
during the foster placement process always includes a referral search for prior
sexual abuse." Stone observed that "a simple computer search for any member
of the Lange family would have revealed the sexual abuse history of Dillon Lange
within less than ten minutes." In her opinion, the Langes should not have been
licensed for foster care "without further exploration."
The department presented the declaration of expert witness Joan Rycraft
that the actions of the department's social workers who licensed the Lange home
for foster care, placed the girls there, and recommended adoption by the Langes,
"were reasonable and met the social work standard of care."
In general, when experts offer competing, apparently competent evidence,
summary judgment is inappropriate. See Larson v. Nelson, 118 Wn. App. 797,
810, 77 P.3d 671 (2003). But conclusory statements of fact will not suffice to
defeat a motion for summary judgment. Grimwood v. Univ. of Puget Sound, Inc.,
110 Wn.2d 355, 359-60, 753 P.2d 517(1988). Rycraft's conclusory statement
that the standard of care was met does not rebut Stone's testimony that the
department breached the standard of care by failing to discover critical
information in its own files. Anderson herself acknowledged the breach.
The parties debate whether Rycraft's declaration should be disregarded
on the issue of breach to the extent that it contradicts her deposition testimony.
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We need not address this controversy.1 Stone and Anderson testified that to
meet the standard of care, the department's workers should have known of the
referral accusing Dillon of child molestation and in view of that information should
not have recommended the adoption. To rebut this evidence, the department
needed evidence that even if the department employees had known about the
referral, it would have been reasonable for them to recommend and facilitate the
placement of the girls into the Lange home. Rycraft's declaration does not make
this statement and thus does not raise an issue of material fact as to breach.
Summary judgment will be affirmed only if, from all the evidence,
reasonable persons could reach but one conclusion. Petcu, 121 Wn. App. at 55.
We conclude that no reasonable juror, properly instructed on the department's
duty, could hear the evidence in this record and find that the department met the
standard of care.
CAUSATION
The department contends the issue of proximate cause should have gone
to the jury. Cause in fact is established by showing that but for the defendant's
actions, the claimant would not have been injured. Petcu, 121 Wn. App. at 56. It
is ordinarily a question for the jury unless reasonable minds could reach but one
conclusion. Petcu, 121 Wn. App. at 56.
Prima facie proof of causation is provided by Anderson's testimony that if
she and her supervisor had seen the referral on Dillon, they "would not have
1 Consequently, we do not decide the department's motion to strike additional authorities submitted by respondents after oral argument in this court. 11 No. 74892-1-1/12
placed them in there," and by Stone's opinion that but for the department's
negligence, the two girls would not have experienced the years of sexual abuse
in the Lange home.
Citing Rycraft's declaration, the department argues that an issue of fact as
to causation is created by a licensing statute, which stated that an unfounded
report of child abuse or neglect may not be used to deny a foster home license.2
Rycraft opines that because the law enforcement investigation ended
inconclusively, the 2001 referral about Dillon did not rise to the level of "a
founded child abuse report." Accordingly, the department contends the referral
could not have been used as a basis for denying the Langes' application for a
foster care license.
The licensing statute is irrelevant. The allegation in the referral was that
Dillon engaged in criminal conduct; it was not a report of child abuse by Benjamin
or Carolyn. And the adoption was not an administrative proceeding in which the
Langes were contesting the department's refusal to issue them a foster home
license. The department social workers, if aware of the allegations against
Dillon, would have had every right and reason to recommend denial of the
Langes' application.
any adjudicative proceeding regarding the denial, modification, 2 In suspension, or revocation of a foster family home license, the department's decision shall be upheld if there is reasonable cause to believe that: (a)The applicant or licensee lacks the character, suitability, or competence to care for children placed in out-of-home care, however, no unfounded report of child abuse or neglect may be used to deny employment or a license. Former RCW 74.15.130(2)(a)(2004). 12 No. 74892-1-1/13
But for the department's evaluation of the Langes as capable of providing
a safe home, the girls would not have been injured. The evidence is unequivocal
that knowledge of the 2001 referral would have caused the department to
recommend against placement and adoption. A reasonable jury could not
speculate that the adoption petition would have been presented to and approved
by the court in the face of what the department knew or should have known
about Dillon.
Because the record shows no genuine issues of material fact as to duty,
breach, or causation, the court correctly granted partial summary judgment
establishing liability.
AFFIRMATIVE DEFENSES
The department's answer stated affirmative defenses including (1)failure
to state a claim;(2)for the purpose of RCW 4.22.070(1), any damages were
caused by the fault of nonparties including the girls' biological mother and
Carolyn, Benjamin, Co!ten, and Dillon Lange;(3) damages caused by the
intentional conduct of other persons or entities must be segregated from
damages allegedly caused by the department; (4)the plaintiffs may have failed
to mitigate their damages;(5)the department's actions manifested a reasonable
exercise of judgment and discretion and are not actionable;(6) claim preclusion;
(7) court decisions were an intervening, superseding cause;(8) immunity for
certain matters asserted; and (9)the State's potential entitlement to an offset
from any award to the plaintiffs.
13 No. 74892-1-1/14
The trial court dismissed the department's affirmative defenses for failure
to set forth specific facts showing a genuine issue of fact and alternatively as a
sanction for alleged discovery violations.
Striking all of the State's affirmative defenses was a severe sanction for a
discovery violation. In imposing a severe sanction, a trial court is obliged to
make findings that lesser sanctions would not have been adequate, that the
discovery violation was willful, and that the violation substantially prejudiced the
other party. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036
(1997). The trial court must "explain its reasons on the record" and cannot rely
on the record to speak for itself. Blair v. TA-Seattle E. No. 176, 171 Wn.2d 342,
349, 254 P.3d 797(2011). The order needs to be supportable at the time it takes
effect, not in hindsight. Blair, 171 Wn.2d at 350. Thus, the findings on the
Burnet factors must be made "in the order itself or in some contemporaneous
recorded finding." Teter v. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012).
We are not convinced the trial court complied with these requirements.
During the hearing on November 13, the court did not specifically address the
Burnet factors. Findings supporting the decision were not entered until January
8,2016, when the trial was about to begin.
We nonetheless affirm the order dismissing the affirmative defenses. The
record supports the alternative ground that the department's response to the
motion to strike the defenses on summary judgment did not show the existence
of a genuine issue of material fact as required by CR 56(e).
14 No. 74892-1-1/15
A party moving for summary judgment can meet its burden by pointing out
to the trial court that the nonmoving party lacks sufficient evidence to support its
case. Guile v. Ballard Cmtv. Hosp., 70 Wn. App. 18, 21-22, 851 P.2d 689 (citing
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989)),
review denied, 122 Wn.2d 1010 (1993). The moving party must identify those
portions of the record that demonstrate the absence of a genuine issue of
material fact. Guile 70 Wn. App. at 22. The burden then shifts to the party with
the burden of proof at trial. Young, 112 Wn.2d at 225. As the defendant, the
department bears the burden of proving affirmative defenses. E.g., Brougham v.
Swarva, 34 Wn. App. 68, 75, 661 P.2d 138(1983). As the nonmoving party, the
department could not rely on the allegations made in its pleadings but was
obligated to set forth specific facts showing that there was a genuine issue for
trial on the affirmative defense. See Young, 112 Wn.2d at 225-26.
Plaintiffs' motion argued that the department's lack of evidence was
shown by its evasive responses to interrogatories. One interrogatory requested
"the factual basis for each and every affirmative defense" alleged in the
department's answer. The department's initial and supplemental responses to
this interrogatory were prefaced by objections that it was "overly broad and
unduly burdensome," it called "for the mental impressions and legal theories of
defense counsel," it was "work product and not discoverable," and it was a "trap
for Defendant because it can easily produce claims that the Defendant did not
completely respond to the request." The objection was followed by:"ANSWER:
Without waiving the above objections, see generally, Answer." Related
15 No. 74892-1-1/16
interrogatories and requests for production were given similar treatment.
Throughout the discovery period, the department's position on its affirmative
defenses remained opaque, supported primarily by string cites to identification
numbers of"documents previously produced."
Plaintiffs' motion, filed on October 16, 2015, claimed they were entitled to
dismissal of the affirmative defenses "unless Defendant produces evidence
sufficient to establish a prima facie case for each affirmative defense alleged by
the Defendant in its answer."
On October 29, 2015, the department provided several pages of
supplemental discovery responses. These responses did no more than repeat
the department's answer to the complaint:
• the biological mother of the girls as well as their adopting parents were
at fault for failing to protect the girls and for concealing information;
• Dillon and Co!ten were negligent and had committed intentional torts;
• damages should be segregated to each intentional tortfeasor;
• the girls "may have failed to mitigate their damages by declining
therapy and services";
• prior court orders and the abusive acts of the Lange brothers operated
as superseding, intervening causes of harm, relieving the department
of liability;
• the department"may be entitled" to an offset for funds the girls
received from state programs such as foster care, adding "This
response may be supplemented";
16 No. 74892-1-1/17
• an interrogatory about the defense of contributory or comparative fault
"calls for attorney work product," but without waiving that objection,
"Defendant may either supplement this answer or waive this affirmative
defense at trial";
• an interrogatory asking whether the department believed nonparties
were at fault or liable was objectionable as calling for attorney work
product, but without waiving the objection, the Langes and the
biological mother of the girls "are wholly responsible for the injuries that
Plaintiffs claim. This answer may be supplemented as discovery
continues."
On November 2, 2015, the department filed a response to the plaintiffs'
motion for summary judgment, claiming that the facts stated in the supplemental
discovery responses on October 29, 2015, provided prima facie grounds for
denial of the motion to dismiss the affirmative defenses.
The department's response brief of November 2, 2015, did not address
the prima facie showing necessary to establish any particular affirmative defense.
Nor did it associate any particular document with any particular affirmative
defense. The brief rested on the mere allegations of the department's answer to
the complaint accompanied by numerical references to thousands of otherwise
undifferentiated documents. The department, as the nonmoving party, did not
meet its burden under CR 56(e)to show the court a genuine issue of material
fact that would justify sending the affirmative defenses to the jury for decision.
17 No. 74892-1-1/18
EVIDENTIARY RULINGS
The department assigns error to three evidentiary rulings made at trial.
We will not alter a trial court's decision to admit or exclude evidence unless "a
substantial right of the party is affected." ER 103(a).
The trial court excluded a statement that the older girl gave to police the
same day she initially reported the sexual abuse. The department claims there
are inconsistencies between the statement and her trial testimony. The
department was permitted to explore the alleged inconsistencies at trial through
cross-examination. The department fails to show how the exclusion of the
statement, if error, affected a substantial right.
The department contends the court should have excluded, as hearsay, a
detective's testimony about his report of a recent interview with Dillon, who at the
time of the interview had not been convicted. Some of Dillon's remarks during
the interview could be interpreted as admissions of guilt. The department initially
raised a hearsay objection. But after an extensive colloquy, counsel for the
department said, "I think the Court can allow the admissions to come in" without
those portions that were irrelevant and unduly prejudicial. In view of this
colloquy, we conclude the hearsay objection was not preserved.
The department claims the court conveyed a personal opinion to the jury
during closing argument by allowing plaintiffs' counsel to refer to testimony
offered by the younger girl's guardian ad litem, while prohibiting the department
from discussing the same testimony. The rulings do not convey a personal
opinion and in any event were not prejudicial.
18 No. 74892-1-1/19
Affirmed.
3eck4e-21 )1, . WE CONCUR: