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April 4, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II RUSSELL CARTER and MEGAN CARTER, No. 56686-9-II and the marital community composed thereof, and on behalf of their minor children, S.C. and E.C.
Appellants,
v.
The STATE of Washington, BY AND PUBLISHED OPINION THROUGH its various state agencies and subdivisions, including DEPARTMENT OF SOCIAL AND HEALTH SERVICES, and Division of Children and Family Services, and Children’s Protective Services, and Children’s Welfare Division,
Respondent.
GLASGOW, C.J.—Megan and Russell Carter1 have two minor children, SC and EC. Both
children were born premature, and both have needed extensive medical care.
Between February 2011 and March 2018, Child Protective Services (CPS) received child
abuse and neglect referrals from various medical professionals, and CPS investigated Megan
several times, but it closed all the investigations without taking action. In particular, the 2011
investigation of Megan involving her older child, SC, ultimately concluded with a finding that the
report of abuse and neglect was unfounded.
In May 2018, while EC was hospitalized, CPS investigated allegations that Megan was
withholding medication from EC. As a result, the Department of Children, Youth, and Families
1 To avoid confusion, we refer to Megan Carter and Russell Carter by their first names. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 56686-9-II
(the Department)2 filed a dependency petition. During the dependency trial, the Department
disclosed records of the 2011 investigation. The trial court dismissed the 2018 dependency petition
and concluded that the Department had violated RCW 26.44.031(2)(b), which requires it to destroy
records concerning unfounded CPS investigations within six years of completion of the
investigation.
The Carters then sued the Department for failure to destroy records of prior investigations,
and they sought damages and injunctive relief under RCW 26.44.031(5)(a). The Department
moved for summary judgment, conceding that the Carters were entitled to an order requiring
destruction of the 2011 investigation records but arguing that the statute did not allow the Carters
to seek monetary relief. The trial court granted the Department’s motion.
On appeal, the Carters argue that we should find an implied cause of action for monetary
damages under RCW 26.44.031(5)(a). Because the legislature identified available remedies in
RCW 26.44.031(5)(a), and those remedies do not include monetary compensation, we decline to
find that the legislature intended an implied cause of action for damages. We affirm.
FACTS
I. BACKGROUND
The Carters are a married couple. SC and EC are their minor children. SC was born in 2009
and EC was born in 2013. Both children were born premature and they have had “extensive
medical needs starting from birth.” Clerk’s Papers (CP) at 23.
2 When some of the events leading up to this dispute took place, the Department of Social and Health Services was responsible for administering Washington’s child welfare system, but the Department of Children, Youth, and Families became responsible for doing so starting in July 1, 2018.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In February 2011, CPS investigated allegations that Megan was subjecting SC to medical
child abuse. Near the end of the year, CPS ultimately closed the investigation with an unfounded
finding. An unfounded finding means “available information indicates that, more likely than not,
child abuse or neglect did not occur, or . . . there is insufficient evidence for the [Department] to
determine whether the alleged child abuse did or did not occur.” RCW 26.44.020(29).3
Between October 2013 and January 2018, CPS received several additional referrals
regarding Megan’s treatment of SC and EC. In each case, CPS either closed the investigation with
an unfounded finding or screened out the report. The Department screens out a report when it
determines that it “does not rise to the level of a credible report of abuse or neglect” and does not
require a follow-up investigation. RCW 26.44.020(25).4
In March 2018, CPS investigated Megan after receiving a referral from a hospital social
worker. The social worker reported that EC was hospitalized for a number of conditions and that
Megan did not have the capacity to care for her. CPS screened in the report as “Risk Only,” so it
took no further action at that time. CP at 225.
On May 9, 2018, CPS investigated allegations that while EC was hospitalized, Megan was
engaging in medical child abuse by withholding anticoagulant medication from EC. CPS later
determined that the allegations were founded. Police placed EC in protective custody at the
hospital, and the hospital ordered Megan to leave the premises.
3 We cite to the current version of the statute because the definition of an unfounded finding has not changed since the 2011 CPS investigation. 4 We cite to the current version of the statute because the definition of a screened-out report has not changed since the 2013 CPS investigation.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
II. DEPENDENCY PETITION AND TRIAL
Two days later, the Department filed a dependency petition for EC, who was then five
years old. It requested continued out-of-home placement for EC, as well as the removal of eight-
year-old SC from the Carters’ home “due to the risk associated with the alleged medical child
abuse and his history of exposure to medical child abuse as a toddler.” CP at 272. The petition
stated that while there were “no allegations of child abuse and neglect directly related to the father
at [that] time, the risk to the children [was] too great and the Department [could not] ensure the
safety, health[,] and welfare of the children in the care of either parent.” CP at 274.
The dependency petition referred to the 2011 CPS investigation involving Megan’s
treatment of SC. The petition stated that the Department had “reviewed the family’s history . . .
and learned that [SC] had been . . . involved in a dependency action . . . due to concerns of medical
child abuse by the mother.” CP at 273. The petition did not state that CPS had ultimately closed
the investigation with an unfounded finding about seven years earlier.
In April and May 2019, the trial court held a dependency trial. During the trial, Megan
alleged that the Department “had distributed medical and other case records to its witnesses in
violation of RCW 26.44.031.” CP at 129. The statute requires the Department to “destroy all . . .
records concerning” a “screened-out [CPS report] within three years from the receipt of the report.”
RCW 26.44.031(2)(a). It also requires the Department to destroy all records concerning an
“unfounded or inconclusive [CPS report] within six years of completion of the investigation” with
certain limited exceptions when a subsequent founded finding is entered about the same child or
immediate family member before destruction of the records. RCW 26.44.031(2)(b).
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
After a 15-day trial and extensive findings, the trial court dismissed the dependency
petition as to both Carters. It concluded that the Department did not prove by a preponderance of
the evidence that Megan had abused or neglected her children or that Megan was unable to provide
them with adequate care. The trial court also found that the Department violated RCW 26.44.031
by maintaining and distributing “the records pertaining to [SC’s] prior dependency case.” CP at
129.
III. LAWSUIT
The Carters then sued the Department. They put forth a cause of action for damages based
on the Department’s violation of its “duty, as set forth in RCW 26.44.031, to destroy/purge”
records of screened-out reports within three years of receipt and records of unfounded or
inconclusive reports within six years of an investigation’s completion. CP at 5 (“First Cause of
Action: Failure to Destroy Records” and listing no second cause of action). The Carters also sought
injunctive relief, requesting that the trial court order the Department to destroy all records of
screened-out reports about them created three or more years before the March 2018 intake; all
records of unfounded or inconclusive reports about them created six or more years before the
March 2018 intake; and all records from March 2018 or later that refer to records it had failed to
destroy in violation of RCW 26.44.031.
The Department moved for summary judgment. Its exhibits included a number of CPS
referrals with Megan as the subject. The Department conceded that RCW 26.44.031 required it to
destroy records pertaining to the 2011 unfounded finding in 2017, and it requested an order
authorizing it to destroy those records. The Department sought court approval because the records
were the subject of the pending litigation. However, the Department argued that the trial court
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
should dismiss the claims for damages because they exceeded “the statutory relief provided by
RCW 26.44.031.” CP at 297.
In their response to the Department’s motion, the Carters argued that “all but one of the
records [of alleged abuse or neglect by Megan] submitted with the State’s motion should already
have been destroyed.” CP at 307.
At the hearing on summary judgment, the Department submitted a proposed order covering
“all but two” of the records the Carters asked to have destroyed in their response brief. Verbatim
Rep. of Proc. (VRP) at 11. The Department requested that the trial court dismiss the claims for
damages and order the destruction of records “as specified in the proposed order.” Id.
At oral argument, the Carters confirmed that they were asking the court to find an implied
cause of action for damages under RCW 26.44.031, and they were not relying on any other avenue
for relief. The trial court then applied the test for implied causes of action from Bennett v. Hardy,
113 Wn.2d 912, 784 P.2d 1258 (1990). It concluded that “there is not an explicit or implicit
[legislative] intent to create a remedy or imply a tort cause of action” for damages for a violation
of RCW 26.44.031. VRP at 27.
The trial court granted the Department’s motion for summary judgment regarding the
Carters’ claims for damages. It also granted the Department’s motion for an order to destroy
records, ruling that under RCW 26.44.031(2), the Department needed to destroy its records of the
investigations from 2011 through 2018 that were either screened out more than three years ago or
closed with unfounded findings more than six years ago.5
5 Later that month, the Department moved to amend the order. It explained that the Carters had filed new tort claims and that it had “a legal obligation not to destroy records when such destruction can be considered spoliation of evidence.” CP at 367. The trial court amended the order to extend
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The Carters appeal.
ANALYSIS
The Carters contend that the trial court erred by granting the Department’s motion for
summary judgment regarding their claims for damages. Based on the Bennett test, they argue that
we should find that the legislature implied a cause of action for monetary damages under RCW
26.44.031(5)(a). The Carters also raised in their reply additional arguments for finding an implied
cause of action for monetary damages.
This court reviews a trial court’s grant of summary judgment de novo, performing “the
same inquiry as the trial court.” McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d
469 (2013). Summary judgment is proper where the record shows “that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR
56(c).
The parties agree that the facts are undisputed, and the Department has conceded that it
violated the statute by failing to timely destroy records of the 2011 investigation of Megan that
resulted in an unfounded finding of child abuse or neglect. The Department also conceded that
other records of screened-out and unfounded reports should be destroyed. The only issue here—
whether RCW 26.44.031(5)(a) gives rise to an implied cause of action for monetary damages—is
a question of law.
the deadline for the Department to destroy records, adding that the Department “may not disclose these records except as necessary for any matters related to Plaintiffs’ tort claims.” CP at 373.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
A. 1997 Adoption
RCW 26.44.031 was first adopted in 1997. At that time, the legislature explained the
purpose of the statute and imposed a requirement that information about unfounded referrals be
purged after six years unless another report of child abuse or neglect was received:
To protect the privacy in reporting and the maintenance of reports of nonaccidental injury, neglect, death, sexual abuse, and cruelty to children by their parents, and to safeguard against arbitrary, malicious, or erroneous information or actions, the [Department] shall not maintain information related to unfounded referrals in files or reports of child abuse or neglect for longer than six years except as provided in this section. At the end of six years from receipt of the unfounded report, the information shall be purged unless an additional report has been received in the intervening period.
LAWS OF 1997, ch. 282, § 1. At the same time, the legislature defined “unfounded” to mean that
“available evidence [indicated] that, more likely than not, child abuse or neglect did not occur.”
LAWS OF 1997, ch. 282, § 4(21). The 1997 legislation also created a right to prompt notice for the
subjects of child abuse or neglect investigations. LAWS OF 1997, ch. 282, § 2(2).
B. 2007 Amendment
The legislature amended RCW 26.44.031 in 2007. It revised the first sentence to state that
the Department “shall not disclose or maintain information related to reports of child abuse or
neglect except as provided in this section or as otherwise required by state and federal law.” LAWS
OF 2007, ch. 220, § 3(1) (emphasis added). The legislature also added language requiring the
Department to destroy all records concerning screened-out reports of child abuse or neglect within
three years of receiving the report. Id. § 3(2)(a). And it required destruction of all records
concerning unfounded or inconclusive reports of child abuse or neglect within six years of
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
completion of the investigation, absent a later relevant founded report. Id. § 3(2)(b). To enforce
these requirements, the legislature added subsection (5)(a), which provides that if the Department
fails to comply with the statute’s requirements, “an individual who is the subject of a report may
institute proceedings for injunctive or other appropriate relief for enforcement of the requirement
to purge information.” Id. § 3(5)(a).
Also, in 2007, the legislature added subsection (4) prohibiting disclosure of screened-out
and unfounded reports of child abuse or neglect, regardless of their age, to child placement
agencies, adoption agencies, and certain licensed providers. Id. § 4. Before the legislature added
this subsection, its relevant committee heard testimony that keeping “information regarding
inconclusive reports of child abuse or neglect is extremely concerning to foster parents,” because
when “an unfortunate event occurs and is placed on a foster parent’s record as inconclusive, the
person is black-balled from being a foster parent when he or she [has] not had a chance to defend
themselves.” S.B. REP. ON S.B. 5321, at 3, 60th Leg., Reg. Sess. (Wash. 2007).
The legislature also added a separate enforcement provision that applies when the
Department has violated this specific nondisclosure requirement. In subsection (5)(b), the
legislature provided that if the Department “fails to comply with subsection (4) of this section and
an individual who is the subject of the report is harmed by the disclosure of information,” the court
may award injunctive relief, reasonable attorney fees, and a penalty of up to $1,000. LAWS OF
2007, ch. 220, § 3. At the same time, the legislature provided that a “proceeding under this
subsection does not preclude other methods of enforcement provided for by law.” Id. § 3(5)(c).
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
C. 2012 Amendment
Finally, in 2012, the legislature amended RCW 26.44.031 for the last time when it passed
broader legislation adopting a new alternative to a formal child abuse or neglect investigation
called a family assessment response. The legislature added records concerning a person’s
participation in a family assessment response to the list of records that could not be disclosed in
certain circumstances. LAWS OF 2012, ch. 259, § 4. The legislature also amended subsection (4),
the nondisclosure provision, creating an exception allowing disclosure of a screened-out report, an
unfounded report, or information about a family’s participation in a family assessment response to
a child placement agency, adoption agency, or licensed provider if the person who is the subject
of the report seeks to become a licensed foster parent or adoptive parent or if they are a parent or
legal custodian of a child being served by one of those agencies. Id. § 4(4)(a)-(b). The only change
to subsection (5) regarding enforcement and remedies was to add disclosing information about a
family assessment response to (5)(b), the subsection providing for a monetary penalty and attorney
fees where the Department violates subsection (4) by improperly disclosing protected information
to a child placement agency, adoption agency, or licensed provider. Id. § 4(5)(b).
Thus, when the legislature first adopted RCW 26.44.031, the statute expressed a purpose
to maintain privacy about child abuse reports and investigations that were screened out or led to
unfounded findings, but it contained no express remedy for violation of the statute. In 2007, the
legislature added two specific remedies. A person whose child abuse report or investigation was
improperly disclosed to a child placement agency, adoption agency, or licensed provider in
violation of subsection (4) could obtain a $1,000 fine and attorney fees. RCW 26.44.031(5)(b).
And if the Department otherwise failed “to comply with this section,” meaning RCW 26.44.031,
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
a person “who is the subject of a report” could “institute proceedings for injunctive or other
appropriate relief for enforcement of the requirement to purge information.” RCW
26.44.031(5)(a). Finally, a proceeding under subsection (5) “does not preclude other methods of
enforcement provided for by law.” RCW 26.44.031(5)(c).
II. THE BENNETT TEST
We use the three-part Bennett test to determine whether to find an implied cause of action
based on statutory provisions. Turner v. Dep’t of Soc. & Health Servs., 198 Wn.2d 273, 298, 493
P.3d 117 (2021). To find an implied cause of action, we consider (1) whether the plaintiff is within
the class for whose benefit the legislature enacted the statute, (2) whether legislative intent
implicitly or explicitly supports creating a remedy, and (3) whether finding an implied remedy is
consistent with the legislation’s underlying purpose. Id. “If the statute, read in the context of all
the legislature has said on the subject, is plain on its face, we will give it that plain meaning.”
Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 347, 449 P.3d 1040 (2019). “But if after reading the
statute in context, it remains susceptible to more than one reasonable meaning, the statute is
ambiguous and it is appropriate to resort to aids to construction, including legislative history.” Id.
A. Part One of the Bennett Test
Here, part one of the Bennett test supports implying a cause of action. The Carters are in
the class for whose benefit RCW 26.44.031 was enacted. RCW 26.44.010, the declaration of
purpose for Washington’s chapter on child abuse, states that reports “of child abuse and neglect
shall be maintained and disseminated with strictest regard for the privacy of the subjects of such
reports and so as to safeguard against arbitrary, malicious or erroneous information or actions.”
RCW 26.44.031 itself states that its requirements exist to protect privacy and “to safeguard against
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
arbitrary, malicious, or erroneous information or actions.” Read together, these provisions show
that the legislature intended RCW 26.44.031 to benefit the subjects of CPS reports of abuse or
neglect.
B. Part Two of the Bennett Test
Part two of the Bennett test does not support implying a cause of action, however.
Legislative intent, as discerned from the statute’s plain language and overall context, as well as
the legislative history, does not weigh in favor of creating a remedy.
When applying the second part of the Bennett test—whether legislative intent supports
creating a remedy—we “‘assume that the legislature is aware of the doctrine of implied statutory
causes of action.’” Swank v. Valley Christian Sch., 188 Wn.2d 663, 677, 398 P.3d 1108 (2017)
(quoting Bennett, 113 Wn.2d at 919-20). In prior cases, legislative intent has generally supported
creating a remedy where the legislature displayed concern about a distinct harm but provided no
mechanism for enforcing the law addressing the issue. See id.; Bennett, 113 Wn.2d at 921.
For example, in Bennett, the Washington Supreme Court held that where a statute made it
an unfair employment practice to subject an employee between the ages of 40 and 70 to age-based
discrimination but provided “no express method of redress against an employer who has engaged
in such an unfair practice, there is an implied right of action for plaintiffs alleging violations of
that statute.” 113 Wn.2d at 921. And more recently in Swank, the Washington Supreme Court held
that a statute regulating the way school sports programs address youth athletes’ concussions “gives
rise to an implied cause of action.” 188 Wn.2d at 668. Applying the second part of the Bennett
test, the court explained that despite the legislature displaying “clear concern” about concussion-
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
related injuries and deaths, there was “no mechanism in the [statute] to enforce the requirements
intended to address the risks of youth athlete concussions.” Id. at 677.
In contrast, in Keodalah, the court declined to find an implied cause of action for insurance
bad faith claims in a statute providing that insurers had a duty to preserve “‘the integrity of
insurance.’” 194 Wn.2d at 345 (quoting RCW 48.01.030). The court found “it significant that the
insurance code [contained] several specific enforcement mechanisms,” such as provisions giving
the insurance commissioner “broad authority to make rules and conduct investigations to give
effect to the insurance code.” Id. at 347. Additionally, in Cazzanigi v. General Electric Credit
Corp., the court held that where a statute provided an express cause of action for excess service
charges under the Retail Installment Sales of Goods and Services Act, chapter 63.14 RCW, there
was no implied cause of action for other violations of the Act. 132 Wn.2d 433, 444-45, 450, 938
P.2d 819 (1997). The court reasoned that the statute allowed a buyer to assert such a violation “as
a defense to the creditor’s claims,” so the legislature “provided an adequate remedy” and no cause
of action needed to be implied. Id. at 445.
Unlike the statutes at issue in Bennett and Swank, the statute here has express enforcement
mechanisms. Subsection (5) explicitly states that if the Department “fails to comply with this
section, an individual who is the subject of a report may institute proceedings for injunctive or
other appropriate relief for enforcement of the requirement to purge information.” RCW
26.44.031(5)(a).
Moreover, the legislature added RCW 26.44.031(5)(a), the provision allowing injunctive
relief or other appropriate relief, at the same time as it added RCW 26.44.031(5)(b), the provision
allowing both injunctive relief and a monetary penalty for improper disclosure to child placement
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
agencies, adoption agencies, and certain licensed providers. LAWS OF 2007, ch. 220, § 3. The fact
that the legislature added these subsections together demonstrates that it intentionally reserved the
monetary remedy for prospective foster parents, adoptive parents, and employees of licensed
providers where the Department improperly disclosed records pertaining to screened-out and
unfounded reports of child abuse or neglect. Where the legislature includes particular language in
one section of a statute and omits the same language in another section, we can presume that the
legislature intended the omission. Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669,
680, 389 P.3d 476 (2017).
Subsection (5)(a) provides for “injunctive or other appropriate relief.” RCW
26.44.031(5)(a) (emphasis added). Wherever “a law lists specific things and then refers to them in
general, the general statements apply only to the same kind of things that were specifically listed.”
Bowie v. Dep’t of Revenue, 171 Wn.2d 1, 12, 248 P.3d 504 (2011). Thus, in this case, the phrase
“other appropriate relief” refers to other forms of similar relief, such as writs of mandamus and
declaratory judgment actions. If the legislature wanted to make monetary relief more broadly
available under subsection (5)(a), it would have done so explicitly, as it did in subsection (5)(b)
where it expressly provided a $1,000 penalty. See Perez-Crisantos, 187 Wn.2d at 680 (inclusion
of language in one section of a statute and omission in another is presumed intentional); Cazzanigi,
132 Wn.2d at 445 (“No cause of action should be implied when the [l]egislature has provided an
adequate remedy in the statute.”).
The Carters argue that a “remedy in one subset of a statute does not preclude implying a
remedy for another subset,” citing Kim v. Lakeside Adult Fam. Home, 185 Wn.2d 532, 374 P.3d
121 (2016). Reply Br. at 16. But Kim is similar to Swank. In Kim, the court held that although the
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Abuse of Vulnerable Adults Act, chapter 74.34 RCW, “explicitly includes a cause of action for
vulnerable adults who have suffered abuse or neglect” under certain circumstances, finding an
implied “cause of action for a mandated reporter’s failure to report suspected abuse or neglect is .
. . appropriate” because the Act “creates a right to have suspected abuse reported without providing
a remedy for a violation of that right.” 185 Wn.2d at 546. In other words, the court found an implied
cause of action where there was no enforcement mechanism for a particular right. Here, the
legislature has specifically provided an enforcement mechanism in the form of injunctive relief,
leaving out a fine like the one specified in (5)(b).
Even assuming some ambiguity exists as to whether the legislature intended a cause of
action for damages, the legislative history also supports the conclusion that the legislature did not
intend to create a remedy in RCW 26.44.031(5)(a) beyond injunctive relief. In 2007, the legislature
heard testimony emphasizing a particular problem: situations where the Department’s failure to
abide by the requirements of the nondisclosure provision prevented people from fostering children.
S.B. REP. ON S.B. 5321, 60th Leg., Reg. Sess. (Wash. 2007). It is true that the legislature later
amended the statute to allow disclosure to child placement agencies, adoption agencies, and
licensed providers when the individual who is the subject of the report seeks to become a licensed
foster parent or adoptive parent. But the way the nondisclosure provision came about supports the
conclusion that the legislature in 2007 intentionally provided limited monetary compensation of a
$1,000 fine for a certain subset of people particularly harmed by violation of the nondisclosure
provision.
Finally, although the Carters argue that RCW 26.44.031(5)(c) shows that legislative intent
supports implying a cause of action for money damages in RCW 26.44.031(5)(a), subsection (c)
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
simply ensures that readers do not interpret the statute to limit preexisting remedies. See Bennett
v. Hardy, 113 Wn.2d at 927 (quoting Seattle Newspaper-Web Pressmen’s Union Loc. 26 v. Seattle,
24 Wn. App. 462, 467, 604 P.2d 170 (1979)) (examining similar statutory language and finding
that it showed “legislative recognition that other means of redress than those in the state Statute
should be available”). Here, the Carters expressly relied only on an implied cause of action, not a
preexisting standalone common law negligence claim. During the hearing on summary judgment,
the Carters stated that they were asking the trial court to find an implied cause of action under
RCW 26.44.031, and the trial court confirmed both parties’ understanding that the Carters pleaded
“only causes of action under [RCW] 26.44.031.” VRP at 24.
In sum, neither the text of the remedial provisions in RCW 26.44.031 nor the legislative
history supports an implied cause of action for monetary damages.
C. Part Three of the Bennett Test
Part three of the Bennett test supports finding an implied cause of action in RCW 26.44.031.
Chapter 26.44 RCW has two interrelated purposes: protecting children and protecting the family
unit. The declaration of purpose section states that the “bond between a child and his or her parent,
custodian, or guardian is of paramount importance.” RCW 26.44.010 (emphasis added). It also
states that the Department must maintain and disseminate reports of child abuse and neglect “with
strictest regard for the privacy of the subjects of such reports.” Id. Here, an implied tort remedy
would encourage the Department to uphold its duty to parents, custodians, and guardians by
treating screened-out and unfounded reports with greater care.
Nevertheless, part three of the Bennett test is not dispositive. While tort liability will always
encourage government entities to act more carefully, our “paramount duty in statutory
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
interpretation is to give effect to the [l]egislature’s intent.” State v. Elgin, 118 Wn.2d 551, 555,
825 P.2d 314 (1992). Therefore, we cannot imply a cause of action where the legislature did not
intend one. As our discussion of part two of the Bennett test shows, the legislature made a cause
of action for injunctive relief the main enforcement mechanism for RCW 26.44.031, reserving the
monetary remedy for prospective foster parents, adoptive parents, and certain licensed providers.
In sum, under Bennett, the Washington Supreme Court has tended to find an implied cause
of action where the legislature created a right without creating any remedy. Bennett, 113 Wn.2d at
921; Swank, 188 Wn.2d at 677; Kim, 185 Wn.2d at 546. But it has not found an implied cause of
action for damages where the legislature expressly provided for a different remedy. In such cases,
the Supreme Court has recognized that the legislature consciously chose to include some remedies
and not others. Keodalah, 194 Wn.2d at 347; Cazzanigi, 132 Wn.2d at 445. We do not find an
implied cause of action for monetary damages under RCW 26.44.031(5)(a) because the legislature
consciously chose to omit monetary damages from that section.
III. OTHER ARGUMENTS SUPPORTING AN IMPLIED CAUSE OF ACTION
In their reply, the Carters develop additional arguments contending that RCW
26.44.031(5)(a) implicitly allows them to seek money damages from the Department.
First, the Carters argue that when the legislature amended RCW 26.44.031(5)(a) in 2007
to allow for injunctive relief, the language “did not create a remedy.” Reply Br. at 14. Rather, “it
only acknowledged what remedies had already been available for many years,” namely a writ of
mandamus and a mandatory injunction. Id. However, the Carters provide no support for this
argument. A writ of mandamus is an extraordinary remedy, and even when a petitioner meets the
requirements for obtaining one, they are not automatically entitled to it because a court’s
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
“jurisdiction to issue such a writ is nonexclusive and discretionary.” King County v. Sorensen, 200
Wn.2d 252, 258, 516 P.3d 388 (2022). And the Carters cite no authority showing that a mandatory
injunction requiring the destruction of records was available in this context before the legislature
amended the statute in 2007. Where a party cites no authorities supporting its argument, we may
assume that counsel searched diligently and found none. DeHeer v. Seattle Post-Intelligencer, 60
Wn.2d 122, 126, 372 P.2d 193 (1962).
Next, the Carters raise arguments related to an alleged ambiguity in RCW 26.44.031(1).
They point out that in 2007, the legislature added the word “disclose” to RCW 26.44.031(1). Reply
Br. at 4. Specifically, the legislature changed RCW 26.44.031(1) to say that the Department “shall
not disclose or maintain information related to reports of child abuse or neglect.” LAWS OF 2007,
ch. 220, § 3(1) (emphasis added). The Carters contend that the 2007 amendment gave no guidance
on addressing the Department’s “violation of its general duty not to disclose” or “indicate whether
the disclosure that was proscribed was disclosure at any time or only after the Department had
wrongly retained records beyond the six-year limit.” Reply Br. at 6. They argue that under Kim,
the absence of any remedy for improper disclosure suggests the legislature intended an implied
cause of action. But we need not address a remedy for improper disclosure because the Carters’
complaint only put forth a cause of action for damages based on the Department’s failure to destroy
records. CP at 5 (including “First Cause of Action: Failure to Destroy Records” but no other cause
of action). The complaint did not plead a cause of action for improper disclosure, so we leave this
issue for another day.
Additionally, the Carters argue that the legislature’s 2012 amendments drastically limited
the number of people who could seek monetary relief for the disclosure of unfounded, screened-
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
out, or inconclusive reports to child placement agencies, private adoption agencies, or licensed
providers. They claim that this monetary remedy is now “illusory” and “meaningless.” Reply Br.
at 12. But the Carters are not seeking relief under RCW 26.44.031(5)(b), so the adequacy of that
remedy does not impact this case. More importantly, the legislature’s decision to provide broad
access to injunctive relief while precisely limiting access to monetary remedies weighs against
finding an implied cause of action for money damages because doing so would undermine the
legislature’s intent to precisely limit monetary relief.
Finally, the Carters argue that the remedy of injunctive relief is insufficient because while
an injunction “would at least prevent further dissemination, the harm has already been done.”
Reply Br. at 15. We do not diminish the harm the Carters have experienced. Still, we cannot graft
a new remedy onto the statute where legislative intent does not support it. And as the trial court
implied, the Carters are free to pursue forms of relief not tied to the statute, such as a lawsuit for
negligent investigation.
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
CONCLUSION
We affirm the trial court’s grant of summary judgment.
Glasgow, C.J. We concur:
Lee, J.
Veljacic, J.