IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RONALD RAE, ) No. 84143-2-I ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) STATE OF WASHINGTON, ) DEPARTMENT OF SOCIAL AND ) HEALTH SERVICES and DEFENDANT ) DOES (1-10) ) ) Respondents. ) )
ANDRUS, C.J. — Ronald Rae appeals the summary judgment dismissal of
the lawsuit against the State of Washington’s Department of Children, Youth, and
Families 1 after the Department filed a dependency petition that resulted in his
children being removed from his care. He contends the trial court erred in
concluding that he was collaterally estopped from bringing his negligent
investigation claim. Because the doctrine of collateral estoppel bars this lawsuit,
we affirm.
1 Rae filed suit against the Department of Social and Health Services (DSHS) and Child Protective
Services (CPS). However, in 2018, CPS was transferred to the newly-created Department of Children, Youth, and Families (DCYF). RCW 43.216.906. Citations and pin cites are based on the Westlaw online version of the cited material. No. 84143-2-I/2
FACTS
Rae and his former domestic partner, Aaron Taylor, have triplet sons, In,
Ic, and Ih. 2 Rae is the biological father of the boys, born through surrogacy in
August 2016. In the early months of their lives, the children lived with Rae and
Taylor in Stevens County with Rae traveling three days a week to Bellevue for
work. While Rae was working, Taylor and his parents cared for the infants.
When the infants were six weeks old, Ih was diagnosed with a femur
fracture, while Rae and Taylor were visiting Rae’s parents in Montana. St. Peter’s
Hospital in Helena, Montana, where Ih received treatment, reported what
appeared to be non-accidental trauma to social services authorities. The Montana
agency found the claim was unsubstantiated, meaning it was neither founded nor
unfounded. The parents left Montana with the children thereafter.
On December 1, 2016, Rae and Taylor took another boy, Ic, then three
months old, to the hospital where doctors determined that he had multiple bone
fractures and subdural hematomas, potentially resulting from physical abuse. An
examination of In and Ih revealed that both boys had sustained similar rib
fractures.
On December 7, 2016 the Department filed a dependency petition in
Stevens County, alleging that the children had been abused under RCW
13.34.030(6)(b) and that the children lacked any parent capable of adequately
caring for them under RCW 13.34.030(6)(c). That same day, the juvenile court
authorized the Department to take the children into custody and place them in
2 Because the children all have identical initials, we refer to them as the parties do in their briefing.
-2- No. 84143-2-I/3
shelter care. At a shelter care hearing, Rae, who was represented by counsel,
agreed to the entry of an order in which the court found that each child was in
need of shelter care because “there is reasonable cause to believe. . . [t]he child
has no parent, guardian, or legal custodian to provide supervision or care for such
child; and/or [t]he release of the child would present a serious threat of substantial
harm to the child.”
Following this hearing, the court temporarily placed the children with Rae’s
aunt and uncle, James and Mary Rae. Rae had supervised visitation with his sons
twice per week for two hours.
On December 21, 2016, the Department amended the dependency petition
to add information it had acquired in its investigation. The amended petition
included medical reports from Dr. Kenneth Feldman and Advanced Registered
Nurse Practitioner Teresa Forshag, both of whom recommended that the
Department undertake further investigation into the injuries. Forshag noted that
“[n]o history has been presented that would explain the fractures. Given the
information available at the time of this consult, I am concerned that [each child]
has been physically abused. This opinion is strengthened by the fact that his
triplet siblings also have what appear to be inflicted injuries.” The petition asserted
that Rae and Taylor blamed each other for the injuries and gave conflicting and
varying explanations for them.
On January 3, 2017, the Department again amended the dependency
petition. This second amended petition provided more detail regarding the
incident in which Ih had broken his femur. In a new report, Forshag stated that
Rae told her he was caring for the infant at the time Ih was injured. Rae claimed -3- No. 84143-2-I/4
that Ih slid off his chest while Rae was lying on the bed and when he reached out
to grab Ih, he “may have pinched [Ih]’s body against his chest.” He did not
remember grabbing the infant by his leg. Forshag opined that “[t]he history
provided by the father would be an unusual mechanism for this type of fracture.”
She further reported that Ih had rib fractures consistent with a “squeezing type
injury.” After Forshag submitted her report, the Department also alleged it had
received medical records from the Montana hospital revealing that Rae’s version
of events leading to Ih’s injury was inconsistent with the version he reported to
Forshag.
The second amended petition further noted the children did not suffer from
any identifiable medical condition which might increase their susceptibility to
broken bones and the consulting physicians continued to suspect child abuse.
The Department also highlighted the parents’ failure to cooperate with the hospital
and numerous instances of Rae’s lack of candor.
On January 30, 2017, Rae stipulated—with the advice of counsel—to an
agreed order of dependency. Rae did not dispute the Department’s allegations in
its amended dependency petition and the juvenile court adopted those allegations
as findings of fact. The court also found
C. The below signed parties agree to the establishment of dependency pursuant to RCW 13.34.030(6)(c) (no parent or guardian).
D. It is contrary to the child’s welfare to return home. The child should be placed or remain in the custody, control, and care of DSHS/DCFS because:
A manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home
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and an order under RCW 26.44.063 would not protect the child from danger. ....
G. DSHS/DCFS has made an effort to place the child with a relative known to the child and with whom the child has a relationship and a relative is not available or willing to care for the child and to meet any special needs of the child.
H. DCFS shall proceed immediately with [the Interstate Compact on Placement of Children 3 (ICPC)] re: the parents of Ron Rae in Montana when dependency is established as to both parents. This allows the placement process to start. . . . Pending clearance by law enforcement and approval via the ICPC process, DCFS sees these relatives as a potentially viable placement option.
Rae agreed to the entry of a dispositional order requiring him to participate in and
complete certain services, including a chemical dependency assessment, a
psychological evaluation, a mental health assessment, a parenting assessment,
hands-on parenting training, and an anger management or domestic violence
assessment. In addition, the court ordered Rae to refrain from threatening Taylor
and to demonstrate his ability to meet the children’s physical, emotional, and
psychological needs by progressing in services and following all
recommendations of his service providers.
Because Rae stipulated that there was no relative available or capable of
then caring for the infants, the juvenile court ordered temporary placement in
foster care until Rae’s parents could complete the ICPC process. On March 29,
2017, the court modified its placement order when Rae’s parents successfully
obtained ICPC approval. The Department promptly relocated the children to
Montana to live with Rae’s parents.
3 Ch. 26.34 RCW.
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Over the next eight months, the juvenile court held several dependency
review hearings. Each time, the court concluded that out-of-home placement was
still needed. In a June 2017 agreed order, the court found that Rae was not
compliant with court-ordered services. The Department reported the results of
Rae’s January 2017 psychological evaluation, including a diagnosis of a
personality disorder with histrionic, narcissistic, and paranoid personality features.
The psychologist did not recommend the return of the children to Rae. By October
2017, Rae had come into compliance with most of the court-ordered services and
was undergoing mental health treatment. But the court found that there had been
“no resolution of the problems that necessitated the child[ren’s] placement in out-
of-home care, with each parent continuing to blame the other for the intentional,
inflicted injuries suffered by the children. Neither parent is in a position to provide
safe care for the child[ren], nor does any provider so recommend.”
In November 2017, the court granted Rae’s request to move family therapy
services and visitation to the Seattle area and changed the children’s permanency
plan to a return home with Rae based, in part, on his engagement in domestic
violence prevention services. On December 11, 2017, the juvenile court ordered
a trial return home, reuniting Rae with his children. It found that “the child[ren] no
longer face[ ] a manifest danger that [they] will suffer serious abuse or neglect if
not removed from the home. The parent is able to care safely for the child[ren]
under an in-home dependency,” as long as Rae continued to engage in therapy
and domestic violence services.
After the court returned the children to his care, Rae successfully moved
for a change of venue to King County, where he then lived, and where his parents -6- No. 84143-2-I/7
had relocated with the infants. On June 11, 2018, the trial court approved Rae’s
proposed parenting plan and granted Rae sole custody of the triplets. This order
included findings that Taylor had abandoned, neglected, and abused the children
and it prohibited Taylor from having any contact with the children. The
Department took no position on the proposed parenting plan, and on June 30,
2018, it agreed to the dismissal of the dependency.
In February 2021, Rae filed this lawsuit against the Department, alleging
that the Department had conducted a negligent investigation into the abuse. The
Department moved to dismiss Rae’s complaint under CR 12(c), arguing Rae was
collaterally and judicially estopped from bringing this claim. In opposing the
motion, Rae submitted a declaration in which he testified that he stipulated to the
dependency order only to prevent his children from being placed in separate foster
homes.
Because Rae presented matters outside of the pleadings, the trial court
converted the Department’s CR 12(c) motion to a motion for summary judgment
under CR 56. Under that standard, the trial court dismissed the case. Rae now
appeals that dismissal.
ANALYSIS
Standard of Review
Under CR 12(c), a party may move for the court to enter judgment on the
pleadings. We review a motion for a judgment on the pleadings under CR 12(c)
de novo. Mohandessi v. Urban Venture LLC, 13 Wn. App. 2d 681, 698, 468 P.3d
622 (2020) review denied, 196 Wn.2d 1043, 481 P.3d 545 (2021). But when, as
here, the trial court considers materials outside the pleadings, we treat the CR -7- No. 84143-2-I/8
12(c) motion as a motion for summary judgment under the standards of CR 56.
CR 12(c); Didlake v. Washington State, 186 Wn. App. 417, 422, 345 P.3d 43
(2015). This court reviews a summary judgment order de novo. M.W. v. Dep't of
Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). A motion for
summary judgment will be granted if there are no genuine issues of material fact
and the moving party is entitled to a judgment as a matter of law. CR 56(c).
Collateral Estoppel
Rae argues the trial court erred in dismissing his negligent investigation
claim under the doctrine of collateral estoppel. We disagree.
Collateral estoppel bars a party from relitigating a previously litigated issue
against the same party in a subsequent proceeding. Christensen v. Grant County
Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004). Collateral estoppel
applies when
(1) the issue decided in the prior adjudication is identical with the one presented in the second action; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice.
Thompson v. Dep't of Licensing, 138 Wn.2d 783, 790, 982 P.2d 601 (1999)
(quoting Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956
P.2d 312 (1998)). “Because all four elements must be proved, the proponent’s
failure to establish any one element is fatal to the proponent’s claim.” LeMond v.
Dep’t of Licensing, 143 Wn. App. 797, 805, 180 P.3d 829 (2008). The party
asserting collateral estoppel bears the burden of proof. State Farm Mut. Auto.
Ins. Co. v. Avery, 114 Wn. App. 299, 304, 57 P.3d 300 (2002). We review a trial
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court's application of collateral estoppel de novo. Schibel v. Eymann, 189 Wn.2d
93, 98, 399 P.3d 1129 (2017).
1. Identical Issue of Fact
Rae first argues that the issues he raises in his negligent investigation
claim, including whether the Department was negligent in removing his children
from his home, are distinct from any issue raised in the dependency proceedings.
But a key factual issue underlying Rae’s negligent investigation claim is identical
to a determinative fact litigated in the dependency case—namely, whether Rae’s
inability to keep the children safe caused the court to remove them from his home.
“[O]nly questions of fact actually litigated and essential to the judgment in
the first adjudication become precluded by collateral estoppel.” Beagles v.
Seattle-First Nat. Bank, 25 Wn. App. 925, 930, 610 P.2d 962 (1980). Therefore,
the Department must show that a “fact determined in the first action is essential,
and not merely collateral or incidental, to the right asserted in the second.” Id.
In Rae’s dependency action, the Department had to prove that the children
met the statutory definition of a “dependent” under RCW 13.34.030(6), before the
court could order their removal. In re Dependency of E.L.F., 117 Wn. App. 241,
245, 70 P.3d 163 (2003). The Department alleged that the three infants were
dependent under RCW 13.34.030(6)(b) and/or RCW 13.34.030(6)(c).
RCW 13.34.060(b) provides that a child is dependent if the child has been
abused or neglected, as defined by RCW 26.44.020(1), by a person legally
responsible for that child’s care. Neglect includes a failure to act “that evidences
a serious disregard of consequences of such magnitude as to constitute a clear
and present danger to a child’s health, welfare, or safety.” RCW 26.44.020(19). -9- No. 84143-2-I/10
Failing to protect one’s child from danger can provide a basis for a finding of
dependency under the “neglect” prong of RCW 13.34.060(b). In Re Dependency
of M.S.D., 144 Wn. App. 468, 480, 182 P.3d 978 (2008); In re Dependency of
S.M.H., 128 Wn. App. 45, 52, 115 P.3d 990 (2005). To prove its case against
Rae under RCW 13.34.060(b), the Department did not have to establish that he
personally abused his children. It could prevail by establishing that Rae knew that
Taylor was abusing the boys and failed to intervene to protect them from his
abuse.
RCW 13.34.030(6)(c) provides that a child is dependent if they have “no
parent, guardian, or custodian capable of adequately caring for the child, such
that the child is in circumstances which constitute a danger of substantial damage
to the child’s psychological or physical development.” A dependency under RCW
13.34.030(5)(c) is not predicated on a finding of abuse or neglect. In re
Dependency of Schermer, 161 Wn.2d 927, 946, 169 P.3d 452 (2007). The
Department does not need to “stay its hand until actual damage to the endangered
child has resulted.” Id. at 951 (quoting In re Welfare of Frederiksen, 25 Wn. App.
726, 733, 610 P.2d 371 (1979)). To establish a dependency under this alternative
theory, the Department again did not have to prove Rae abused the boys himself,
just that he was incapable of protecting them from substantial damage.
In a dependency case, the Department bears the burden of proving its
allegations by a preponderance of evidence at a fact-finding hearing to be held no
later than 75 days from the date of the petition. RCW 13.34.110(1); RCW
13.34.070(1); JuCR 3.4(c). A parent may waive the right to this fact-finding
hearing by stipulating or agreeing to the entry of an order of dependency. RCW - 10 - No. 84143-2-I/11
13.34.110(3)(a). Any such stipulation must be signed by the parent and is subject
to approval by the court. RCW 13.34.110(3)(b). Before the court can enter a
stipulated order of dependency, it must consider the Department’s social study,
the contents of which are mandated by RCW 13.34.430, to ensure that the order
is consistent with the allegations in the dependency petition and the problems that
necessitated the child’s placement in out-of-home care. Id. The court may also
sign the agreed order of dependency only if the parent or his attorney appears
before the court to ensure it that the parent signed the order, understands his
responsibility to participate in remedial services, understands the consequences
of signing the order, including the legal effect of the admission that the child is
dependent, and has “knowingly and willingly stipulated and agreed to and signed
the order or orders, without duress, and without misrepresentation or fraud by any
other party.” RCW 13.34.110(3)(c)(i)-(iv). A parent may waive his presence at
the in-court hearing for entry of a stipulated order of dependency by submitting it
to the court through counsel. RCW 13.34.110(3)(c)(iv).
It is undisputed that the Department and Rae followed the procedure for
stipulating to a finding of dependency. Rae explicitly stipulated that the factual
allegations, as set out in the Department’s petitions, were true and correct. He
also stipulated that the children were dependent under RCW 13.34.030(6)(c). He
agreed that “[a] manifest danger exists that the child will suffer serious abuse or
neglect if the child is not removed from the home.” He signed the stipulated order,
waived his presence at its presentation, and submitted it to the court through
counsel. The court entered this order 54 days after the Department filed its
petition, well within the 75-day statutory deadline. - 11 - No. 84143-2-I/12
Rae’s lawsuit against the Department alleges he did not commit any child
abuse or neglect and that the Department conducted a negligent investigation,
proximately causing a harmful placement decision affecting his three children. A
negligent investigation claim is a narrow statutory cause of action that arises from
the Department’s duty under RCW 26.44.050 to investigate allegations of child
abuse or neglect. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 82, 1
P.3d 1148 (2000). To prevail, the plaintiff must demonstrate the Department
“gathered incomplete or biased information” that results in a harmful placement
decision. M.W., 149 Wn.2d at 602. A harmful placement decision includes
removing a child from a nonabusive home. Id. The plaintiff must prove that the
Department’s negligent investigation was a proximate cause of the harmful
placement decision. McCarthy v. County of Clark, 193 Wn. App. 314, 329, 376
P.3d 1127 (2016).
In his lawsuit, Rae alleges that the Department “ignor[ed] all evidence that
showed [Rae] could not be responsible for any alleged abuse to the triplets,” and
made “factual misrepresentations during the investigation and/or the dependency
proceedings that followed.” He claims the Department’s negligent and biased
investigation, and not his own parental deficiencies, proximately caused the
removal of his children from his home.
But Rae cannot dispute that the Department removed the children from an
abusive home. In Rae’s child custody case against Taylor, Rae obtained a judicial
finding that Taylor had physically abused the children. And it is undisputed that
the Department removed the children from Rae’s care because he stated he
lacked the capability of adequately caring for them under circumstances that - 12 - No. 84143-2-I/13
presented a substantial danger to their psychological or physical development.
Given these undisputed facts, Rae cannot now claim that the Department’s faulty
investigation proximately caused the court to remove his children, rather than the
abuse inflicted on the children by his former partner and his own inability to protect
them from this abuse.
Rae relies on Alishio v. Department of Social & Health Services., 122 Wn.
App. 1, 91 P.3d 893 (2004) to argue that collateral estoppel cannot bar his
negligent investigation claim. In that case, the Department issued administrative
findings that Alishio had neglected her son by allowing unsupervised contact with
his uncle, an admitted child molester. Id. at 3. When Alishio sought a hearing to
contest the findings, the Department claimed she was barred from challenging the
finding of neglect based on an agreed order Alishio had signed in a separate
dependency proceeding. Id. at 4. But the Department had not sought a
dependency on the basis of neglect under former RCW 13.34.030(4)(b) (1999)
and the mother had not stipulated to the fact of neglect. Id. The Department’s
dependency petition alleged that her son lacked a parent able to provide adequate
care to him under former RCW 13.34.030(4)(c) and it was on this basis alone that
Alishio stipulated to a dependency order. Id. at 4.
On appeal, Alishio argued that, in accepting the agreed dependency order,
the trial court must have found in her favor on the issue of neglect, collaterally
estopping the Department from reasserting neglect in a subsequent proceeding.
Id. at 4-5. This court disagreed, reasoning that the parties deliberately avoided
litigating the issue of neglect by agreeing to resolve the matter based on an
alternative finding under subsection (6)(c). Id. at 6. The court further noted that - 13 - No. 84143-2-I/14
“the dependency order’s silence on the issue of neglect makes it unclear whether
the trial court actually decided the issue.” Id. Thus, it held that collateral estoppel
did not preclude the Department from alleging the mother had committed neglect.
Rae contends that, because his stipulation was based on the same
statutory language as in Alishio, collateral estoppel should not apply here. App.
Reply at 7. Alishio, however, is distinguishable. In that case, the mother was not
alleging that the Department had improperly removed her son from her custody.
The mother was challenging a finding of neglect, a factual issue to which she had
not stipulated in the dependency proceeding.
Rae did not agree in the dependency proceeding that he had abused or
neglected his children and the dependency did not resolve that issue. Under
Alishio, he would not be estopped from litigating that issue. But Rae did stipulate
that his children were in danger of “serious abuse or neglect if . . . not removed
from the home.” The court entered findings of fact consistent with this stipulation
and the Department removed the children, not because Rae himself committed
abuse or neglect, but because Rae admitted he was incapable of adequately
protecting his children from harm.
Rae asks us to ignore the findings of fact to which he stipulated in the
dependency case because, he claims, the Department coerced him into agreeing
to the stipulated order of dependency. He argues he should be permitted to
litigate whether he signed the order under duress, a factual issue not litigated in
the dependency proceeding. We disagree.
The juvenile court cannot accept a stipulation of dependency unless the
parent has “knowingly and willingly stipulated and agreed to and signed the order - 14 - No. 84143-2-I/15
or orders, without duress, and without misrepresentation or fraud by any other
party.” RCW 13.34.110(3)(c)(iv) (emphasis added). When the court accepted
and signed the stipulated order of dependency, Rae in effect represented to the
court that he was not under duress when he agreed to the order and the
Department did not procure his signature through misrepresentation.
Moreover, we acknowledge that any parent in dependency proceedings
faces the difficult choice of whether to challenge the Department’s evidence at a
fact-finding hearing or to stipulate to a dependency. However difficult Rae’s
decision was, it simply does not rise to the level of legal duress. Generally, a
showing of duress requires proof of a wrongful act that compels or induces a
person to enter a transaction involuntarily. In re J.N., 123 Wn. App. 564, 577, 95
P.3d 414 (2004); Pleuss v. City of Seattle, 8 Wn. App. 133, 137, 504 P.2d 1191
(1972) (quoting RESTATEMENT (FIRST) OF CONTRACTS § 497 (Am. Law Inst. 1932)).
A “threat to exercise a legal right made in good faith is neither duress nor coercion
in law.” Pleuss, 8 Wn. App. at 137. Even if we accept Rae’s testimony as true,
he has not identified any action by the Department other than, at most, a threat to
exercise a legal right.
Rae suggests that, under RCW 13.34.130, the Department’s threat to place
his children in foster care was a wrongful act, given the agency’s requirement to
give priority to a relative placement with Rae’s parents. But RCW 13.34.130
actually requires the court, not the Department, to give preference to a relative
placement, and that particular statute applies only after a fact-finding hearing and
a finding of dependency.
- 15 - No. 84143-2-I/16
Rae acknowledges that the juvenile court initially placed his children with
his elderly aunt and uncle but alleged they were unable to meet the needs of the
children because the Department would not help them in obtaining medical
resources. He alleges that the Department’s failures led to the removal of the
children and to the threat to separate them instead of placing them together with
his parents.
But all shelter care placements are subject to court approval. See RCW
13.34.060(2) (court must place children at the shelter care stage with relatives
only if they are able to meet the needs of the children placed in their care); RCW
13.34.065(5)(b) (court must find relative is willing and available to care for the
children and able to meet their special needs); RCW 13.34.065(7)(a)(i) (court may
modify initial shelter care placement only by finding a “change in circumstances”).
See also Department Policy 4260.1.b.ii, Placement Moves (agency cannot make
a placement change for children placed with relatives unless it has a court order
allowing it to occur). 4 Any concerns Rae had regarding the Department’s
placements could have been addressed by the juvenile court authorized to make
placement decisions.
Rae contends the Department had no basis for refusing to place his
children with his parents. But the Department’s refusal to agree to such a
placement during shelter care is not unlawful. Rae’s parents lived out of state, in
Montana. The Department’s authority to place any children in out-of-state care is
limited by the ICPC and internal ICPC policies. Article III(d) of the ICPC, set out
4 Wash. Dep’t of Children, Youth, & Families Administrative Policy 4260 (Revised June 2022)
available at https://www.dcyf.wa.gov/4000-child-welfare-services/4260-placement-moves. - 16 - No. 84143-2-I/17
in RCW 26.34.010, prohibits the Department from sending children into another
state without the receiving state first agreeing to the placement and ensuring that
the placement would not be contrary to the interests of the child. Article IV of the
ICPC makes it illegal to send a child into another state in violation of the ICPC.
Under Department policy 5601, children not covered by the Indian Child Welfare
Act 5 can be placed out of state through the ICPC process only after a court finds
them dependent. 6
Facing these legal limitations and placement policies, the Department had
the legal obligation to consider any suitable non-relative in-state placement for the
children, including separate homes for the children if necessary, pending a fact-
finding hearing. Rae presented no evidence that the Department refused to
consider a suitable in-state relative placement that could meet the needs of all
three boys. Indeed, Rae stipulated to the exact opposite: he agreed that the
Department “made an effort to place the child with a relative known to the child
and with whom the child has a relationship and a relative is not available or willing
to care for the child and to meet any special needs of the child.”
Rae also maintains the Department threatened to separate his three boys,
and he felt compelled to agree to an order of dependency to ensure they stayed
together. But circumstances may necessitate separating siblings, such as the
lack of a suitable in-state placement capable of caring for three infants at the same
5 Ch. 13.38 RCW. 6 Wash. Dep’t of Children, Youth, & Families Administrative Policy 5601 (Revised October 2014)
available at https://www.dcyf.wa.gov/5600-interstate-compact-placement-children/5601- interstate-compact-placement-children-placed-out. - 17 - No. 84143-2-I/18
time. 7 Rae presented no evidence that the Department refused a suitable in-state
placement as a way to gain leverage in negotiations. Rae was represented by
counsel at the time he entered into the stipulated order of dependency, as was
his right under RCW 13.34.090(1) and had the opportunity to raise any concern
Rae had about overreach by the Department in the parties’ negotiations. There
is no evidence any such concerns were ever raised with the Department or the
court.
And by stipulating to an order of dependency under RCW 13.34.030(6)(c),
Rae avoided the risk that the juvenile court would find that he personally
committed child abuse, a finding that could have jeopardized his ability to regain
custody of the children. He also avoided the risk that the juvenile court would find
he knew of, and failed to protect his children from, the abuse committed by Taylor.
Rae had significant procedural safeguards throughout the dependency
process. First, Rae had the right to a fact-finding hearing, at which the rules of
evidence would have applied. RCW 13.34.110(1). Second, he had a right to a
speedy determination within 75 days of when the Department filed the petition.
RCW 13.34.070(1); JuCR 3.4(c). Third, Rae had the right to a hearing to contest
any placement recommendation the Department made to the court. Fourth, Rae
had no obligation to waive his presence at the hearing at which the court entered
the dependency order. Finally, he was entitled to a statutory finding by the court
that the agreed order was not the product of duress.
7 Under Department policy 4250.5.a.vii, a case worker must place siblings together unless “extraordinary circumstances” exist and a separate placement is approved by the case worker’s supervisor and an area administrator. Wash. Dep’t of Children, Youth, & Families Administrative Policy 4250 (Revised October 2019) available at https://www.dcyf.wa.gov/4000-child-welfare- services/4250-placement-out-home-and-conditions-return-home - 18 - No. 84143-2-I/19
Additionally, once the Department placed the boys in Montana with Rae’s
parents under the ICPC, Rae had a significant amount of time in which he could
have moved to vacate the dependency order on the basis of duress. Under CR
60(b), a party may request the court to vacate an order or judgment based on
numerous factors, including misrepresentation, misconduct of an adverse party,
or the judgment being void. See In re Marriage of Wilson, 117 Wn. App. 40, 49,
68 P.3d 1121 (2003) (party seeking to vacate order based on duress arises under
CR 60(b)(4)). Rae had ample opportunity to bring this issue before the court. See
Nielson, 135 Wn.2d at 264-65 (the party against whom the doctrine is asserted
must have had a full and fair opportunity to litigate the issue in the earlier
proceeding). Rae chose not to do so.
Because the dependency order determined that Rae was unable to keep
his children safe and this finding led the court to remove the children from his care,
he cannot now claim that the Department’s negligent investigation was the cause
of their removal.
2. Finality of Dependency Findings
Rae next argues that collateral estoppel does not apply because the
dependency order was not a final judgment entered on the merits. We disagree.
Finality is normally “conclusively established by a judgment on the merits .
. . by affirmation on appeal.” Chau v. City of Seattle, 60 Wn. App. 115, 120, 802
P.2d 822 (1991). But absolute finality is not required for collateral estoppel. Id.
Under this doctrine, a final judgment “‘includes any prior adjudication of an issue
in another action that is determined to be sufficiently firm to be accorded
conclusive effect.’” In re Dependency of H.S., 188 Wn. App. 654, 661, 356 P.3d - 19 - No. 84143-2-I/20
202 (2015) (quoting Cunningham v. State, 61 Wn. App. 562, 567, 811 P.2d 225
(1991)).
Washington courts have concluded that, for purposes of collateral
estoppel, a juvenile court’s dependency order is a final judgment on the merits.
H.S., 188 Wn. App. at 661; see also Miles v. State, Child Protective Servs. Dep't,
102 Wn. App. 142, 153, 6 P.3d 112 (2000) (an agreed order of dependency is
final under collateral estoppel doctrine). Despite this case law, Rae argues that
the agreed order of dependency was neither litigated nor final. He relies on
several inapposite cases.
First, he points to Lesley for Lesley v. Department of Social & Health
Services., 83 Wn. App. 263, 921 P.2d 1066 (1996). In that case, parents whose
child was removed after a caseworker mistook birthmarks for bruises, sued the
Department for negligent investigation. The Department argued the parents were
collaterally estopped from challenging the Department’s investigation because
they stipulated to a finding at a shelter care hearing that the child should stay in
foster care until the court could determine whether the marks on the child were
the result of an injury. This court rejected that argument because a shelter care
order is not a final adjudication on the merits of the Department’s allegations. Id.
at 276.
A shelter care order, however, is distinct from a dependency order. A
shelter care hearing is a “preliminary proceeding” during which a court merely
determines where a child should temporarily reside “pending a dependency
determination.” In re Dependency of R.H., 129 Wn. App. 83, 87, 117 P.3d 1179
(2005) (citing RCW 13.34.030(24)). Neither shelter care orders nor dependency - 20 - No. 84143-2-I/21
review orders are appealable as a matter of right. In re Dependency of Chubb,
112 Wn.2d 719, 724, 773 P.2d 851 (1989); In re Dependency of J.E.R.C., 1 Wn.
App. 2d 765, 771, n.2, 406 P.3d 1187 (2017).
Unlike a shelter care order, a disposition decision following a finding of
dependency is an appealable order under RAP 2.2(a)(5) (“a party may appeal
from only the following superior court decisions: (5) Juvenile Court Disposition.
The disposition decision following a finding of dependency by a juvenile court . . .
.”). Chubb, 112 Wn.2d at 722 (disposition decisions following a finding of
dependency are appealable as a matter of right). In Miles, this court recognized
the distinction between a shelter care order and a dependency order: “[t]he Lesley
court properly did not apply collateral estoppel to a shelter care order that was not
final or appealable. We properly apply collateral estoppel to a dependency
judgment that was final and appealable.” (citations omitted). 102 Wn. App. at 153
n. 18.
Rae relies on In re Marriage of Murphy, 90 Wn. App. 488, 952 P.2d 624
(1998) for the proposition that a stipulation, by its very nature, means that the legal
or factual issues have not been litigated by the parties. Murphy, however, arose
under a completely different statutory scheme. In that case, a father filed a
dissolution petition in Ohio, seeking custody of his children. Id. at 492. The
mother argued that the Ohio court lacked jurisdiction over the children because
Ohio was not the children’s home state. Id. The court denied the mother’s motion
to dismiss the petition for lack of jurisdiction. She then filed a petition in
Washington, seeking custody of the children here. Id. Shortly thereafter, the
mother entered into an agreement in the Ohio court resolving all issues relating to - 21 - No. 84143-2-I/22
the dissolution, including the custody of the children. Id. She stipulated that she
consented to jurisdiction in Ohio. Id.
The mother later sought to convince a Washington court to retain
jurisdiction, claiming she entered into the Ohio agreement under duress. Id. The
trial court dismissed the mother’s petition under the Uniform Child Custody
Jurisdiction Act (UCCJA), 26.27 RCW, the stipulation entered in the Ohio case,
and the fact the Ohio case had been filed first. Id. at 493. On appeal, this court
concluded that Ohio did not acquire jurisdiction through the mother’s stipulation to
jurisdiction because subject matter jurisdiction is determined by statute, not by
stipulation or agreement. Id. at 496.
The father separately argued that the mother was barred by collateral
estoppel from relitigating in Washington any custody issues resolved in the Ohio
proceeding. Id. at 497. The court held that under the UCCJA, a second state
court has the authority to evaluate the jurisdiction of the first state court. Id. at
497. When the second court’s inquiry “discloses [that] the jurisdictional questions
[were] fully and fairly litigated and finally decided in the court which rendered the
original judgment, the second court is precluded form reexamining the jurisdiction
of the court rendering the original judgment.” Id. at 497-98 (internal quotations
omitted). The court concluded that the record was inadequate for it to determine
if the jurisdictional issue was fully and fairly litigated and finally decided by the
Ohio court. Id. It remanded the matter to the trial court to make this determination.
Id. at 498-99.
Unlike stipulations to jurisdiction in matters relating to interstate child
custody disputes, parties are statutorily permitted to stipulate to an order of - 22 - No. 84143-2-I/23
dependency in RCW 13.34.110. Moreover, the record here is more than adequate
to conclude that the determinative fact of Rae’s children’s dependency status was
fully and fairly litigated and finally decided by the juvenile court. Murphy has no
applicability to this case.
Last, Rae relies on Marquardt v. Fed. Old Line Ins. Co. (Mut.), 33 Wn. App.
685, 658 P.2d 20 (1983) and Krikava v. Webber, 43 Wn. App. 217, 716 P.2d 916
(1986) for the proposition that courts “refuse to apply collateral estoppel to issues
resolved via agreement or agreed orders.” In Marquardt, this court concluded that
“collateral estoppel should not be applied to judgments of dismissal, even when
based on settlement agreements, since the parties could settle for myriad reasons
not related to the resolution of the issues they are litigating.” 33 Wn. App. at 689.
The court in Krikava similarly concluded collateral estoppel did not apply where
the prior litigation had been dismissed based on a settlement agreement,
indicating that the issue was not litigated. 43 Wn. App. at 222.
Neither of these cases involves a stipulation to facts—they deal only with
cases resolved through settlement agreements and dismissed as a part of that
settlement. Unlike a settlement, a stipulation admits the existence of a fact.
Stipulated facts are generally binding on the parties and the court. Ross v. State
Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 523, 940 P.2d 252 (1997). Under RCW
13.34.110(3)(c)(iii), the entry of an agreed order of dependency is an admission
and “shall have the same legal effect as a finding by the court that the child is
dependent by at least a preponderance of the evidence.” In choosing to admit
that their child is dependent, the parent has, by operation of law, litigated the
- 23 - No. 84143-2-I/24
issue. The juvenile court’s dependency order is a final judgment on the merits
and binding on Rae.
3. Injustice
Finally, Rae argues that application of the collateral estoppel doctrine here
would result in injustice. Because Rae has identified no procedural irregularities
in the dependency proceeding, we disagree.
While courts should not apply collateral estoppel when it would work an
injustice, this “component is generally concerned with procedural, not substantive
irregularity.” Christensen, 152 Wn.2d at 309. The “party against whom the
doctrine is asserted must have had a full and fair opportunity to litigate the issue
in the earlier proceeding.” Id. at 307. “There is nothing inherently unfair about
[precluding relitigation of an issue] provided the party has the full and fair
opportunity to litigate, there is no significant disparity of relief, and all the other
requirements of collateral estoppel are satisfied.” Id. at 313.
Rae presented no evidence that he lacked a full and fair opportunity to
litigate whether his children were properly removed from his care. With the
assistance of counsel, Rae repeatedly waived his right to contest this fact and
conceded that he was unable to care for the children and they faced a serious
threat of harm should they remain in the home.
While there are strong public policy reasons to prevent the Department
from threatening parents with the separation of their children, this policy
consideration is accounted for in the structure of the dependency proceedings in
this state. Under RCW 13.34.110(3)(c)(iv) the court is required to inquire and
establish on the record that the parent is stipulating without duress. It does not - 24 - No. 84143-2-I/25
work an injustice to preclude Rae’s claims of coercion here because the prior
dependency litigation provided an opportunity for him to address any threats from
the Department. Rae had the opportunity to contest the children’s removal or to
argue to the juvenile court that he was being coerced into stipulating by
Department threats. He never did. Because Rae had a full and fair opportunity
to litigate these issues, it does not result in injustice to apply collateral estoppel
here. 8
Affirmed.
WE CONCUR:
8 Because we affirm the dismissal of Rae’s complaint on the basis of collateral estoppel, we need
not reach the issues of judicial estoppel or superseding cause. - 25 -