Ducote v. DSHS

222 P.3d 785
CourtWashington Supreme Court
DecidedDecember 17, 2009
Docket81714-6
StatusPublished

This text of 222 P.3d 785 (Ducote v. DSHS) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ducote v. DSHS, 222 P.3d 785 (Wash. 2009).

Opinion

222 P.3d 785 (2009)

Kent DUCOTE, Petitioner,
v.
STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 81714-6.

Supreme Court of Washington, En Banc.

Argued May 28, 2009.
Decided December 17, 2009.

*786 Catherine Wright Smith, Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, Carla Jean Higginson, Attorney at Law, Friday Harbor, WA, for Petitioner.

Catherine Hendricks, Attorney General's Office, Seattle, WA, Michael Patrick Lynch, Attorney General's Office, Olympia, WA, for Respondent.

Stewart Andrew Estes, Keating Bucklin & McCormack, Seattle, WA, amicus counsel for Washington Association of Sheriffs and Police Chiefs.

FAIRHURST, J.

¶ 1 Kent Ducote was barred from his home and from contact with his stepchildren after his stepdaughter alleged he engaged in sexual misconduct toward her. Following a lengthy dependency hearing, the trial court ultimately determined the allegations were not supported by the evidence and Ducote was allowed to return home.

¶ 2 Ducote asks this court to hold that stepparents have standing to bring a claim of negligent investigation against the Department of Social and Health Services (DSHS) pursuant to RCW 26.44.050. We decline.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 3 Ducote married Dixie Ducote in 1994 and is the stepfather of her three children, Brittney, Cole, and Morgan. In spring 2000, Brittney, then 14 years old, told her middle school counselor that her stepfather struck her younger brother Cole, entered the bathroom while Brittney was on the toilet, and forced Brittney to sit on his lap and touched her buttocks. Approximately one week later, Brittney repeated these allegations to David Parks, a DSHS social worker. Brittney additionally alleged to Parks that she had seen Ducote watching her disrobe through her bedroom window.

¶ 4 Based on Brittney's allegations, DSHS placed her in emergency, temporary shelter care and filed dependency petitions for all three children. On April 13, 2000, the superior court ordered Brittney removed from the family home, barred Ducote from the family home and from having contact with his three stepchildren, and prohibited Dixie from leaving the county with the children.

¶ 5 At the dependency hearing, approximately six months later, the trial court determined that Brittney's allegations were not supported by the evidence, that Dixie was capable of adequately caring for her children, and that Brittney, Cole, and Morgan did not qualify as abused or neglected children. The trial court lifted its earlier orders restricting Ducote's contact with Cole and Morgan and prohibiting him from entering the family home.

¶ 6 Ducote subsequently filed a complaint for damages against the State of Washington, DSHS, alleging negligent investigation. In a motion for summary judgment, the State argued DSHS did not owe stepparents a duty of care under RCW 26.44.050 because they were not within the class of persons for whose especial benefit the statute was enacted. The State argued that a claim for negligent investigation is limited to children, parents, guardians, and custodians. The trial court agreed and granted summary judgment.

¶ 7 The Court of Appeals affirmed, holding the class of persons to whom DSHS owes a duty of care under RCW 26.44.050 is found in RCW 26.44.010 and does not include stepparents. Ducote v. Dep't of Soc. & Health Servs., 144 Wash.App. 531, 536, 186 P.3d 1081 (2008). Ducote asks this court to reverse the Court of Appeals and remand his negligent investigation claim to the superior court for trial. We granted review. Ducote *787 v. Dep't of Soc. & Health Servs., 164 Wash.2d 1014, 196 P.3d 130 (2008).

II. ISSUE

¶ 8 Whether a stepparent may bring a claim for negligent investigation under RCW 26.44.050.

III. ANALYSIS

¶ 9 When reviewing dismissal of a case on summary judgment, we employ the same inquiry as the trial court under CR 56(c). M.W. v. Dep't of Soc. & Health Servs., 149 Wash.2d 589, 595, 70 P.3d 954 (2003). We review only those issues raised by the parties and considered by the trial court. Babcock v. State, 116 Wash.2d 596, 606, 809 P.2d 143 (1991) (citing RAP 12.1(a); State v. Hubbard, 103 Wash.2d 570, 573-74, 693 P.2d 718 (1985)).[1]

¶ 10 RCW 26.44.050 requires DSHS to investigate allegations of child abuse:

Upon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department of social and health services must investigate and provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court.
A law enforcement officer may take, or cause to be taken, a child into custody without a court order if there is probable cause to believe that the child is abused or neglected and that the child would be injured or could not be taken into custody if it were necessary to first obtain a court order pursuant to RCW 13.34.050. The law enforcement agency or the department of social and health services investigating such a report is hereby authorized to photograph such a child for the purpose of providing documentary evidence of the physical condition of the child.

¶ 11 Neither the text of RCW 26.44.050 nor any other part of chapter 26.44 RCW explicitly includes a claim for negligent investigation. Such claims also do not exist under common law in Washington. Pettis v. State, 98 Wash.App. 553, 558, 990 P.2d 453 (1999) ("In general, a claim for negligent investigation does not exist under the common law of Washington. That rule recognizes the chilling effect such claims would have on investigations.") (citing Corbally v. Kennewick Sch. Dist., 94 Wash.App. 736, 740, 973 P.2d 1074 (1999)). Although neither the text of RCW 26.44.050 nor common law provides a cause of action for negligent investigation, this court implied such a cause of action for parents suspected of child abuse in Tyner v. Department of Social & Health Services,

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State v. Hubbard
693 P.2d 718 (Washington Supreme Court, 1985)
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Dugote v. State, Dep't of Soc. & Health Servs.
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McNeal v. Allen
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Schooley v. Pinch's Deli Market, Inc.
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Pettis v. State
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Adams v. King County
192 P.3d 891 (Washington Supreme Court, 2008)
Roberson v. Perez
123 P.3d 844 (Washington Supreme Court, 2005)
In Re Marriage of Garth and Brown
195 P.3d 88 (Washington Supreme Court, 2008)
Tyner v. Department of Social & Health Services
1 P.3d 1148 (Washington Supreme Court, 2000)
Schooley v. Pinch's Deli Market, Inc.
134 Wash. 2d 468 (Washington Supreme Court, 1998)
Ravenscroft v. Washington Water Power Co.
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In re the Detention of Williams
147 Wash. 2d 476 (Washington Supreme Court, 2002)
M.W. v. Department of Social & Health Services
70 P.3d 954 (Washington Supreme Court, 2003)
Roberson v. Perez
156 Wash. 2d 33 (Washington Supreme Court, 2005)

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Bluebook (online)
222 P.3d 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ducote-v-dshs-wash-2009.