Opinion
No. 18665-2-III.
Filed: December 5, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County, No. 97-2-00572-2, Hon. Evan E. Sperline, July 29, 1999, Judgment or order under review.
Counsel for Appellant(s), Steven C. Lacy, Lacy Kane PS, P.O. Box 7132, East Wenatche, WA 98802.
Stewart R. Smith, 222 Eastmont Ave, P.O. Box 7132, East Wenatche, WA 98802-0132.
Counsel for Defendant(s), Lee V. Corkrum, Odgen Murphy Wallace Pllc, 2100 Westlake Ctr Tower, 1601 Fifth Ave., Seattle, WA 98101.
Counsel for Respondent(s), Jefffrey A. Freimund, Ofc of Atty Gen Torts Div, P.O. Box 40126, Olympia, WA 98504-0126.
Robert Devereaux, a foster parent, was charged with five counts of rape of a child in the first degree, two counts of child molestation in the first degree, two counts of child molestation in the second degree, and one count of tampering with a witness. Pursuant to a plea agreement, he eventually pleaded guilty to one misdemeanor count of rendering criminal assistance and one count of fourth degree assault. Mr. Devereaux filed this action alleging that the State defendants discriminated against him because of his gender or marital status and then retaliated against him because he opposed the alleged discrimination. He also claims the State defendants negligently investigated the sexual abuse claims. The court granted the State defendants' motion for summary judgment dismissing Mr. Devereaux's claims. Mr. Devereaux appeals.
We affirm the superior court's dismissal of the discrimination cause of action because it is barred by the statute of limitations. We affirm the superior court's dismissal of the retaliation cause of action because Mr. Devereaux cannot establish a causal relationship between his criminal prosecution and the State workers' alleged intent to retaliate against him.
We reverse the superior court's dismissal of the negligence cause of action for two reasons. First, we conclude that the State defendants were not entitled to qualified immunity. Second, we conclude that the no-contact orders entered in the criminal case did not, as a matter of law, break the chain of legal causation between the alleged negligent contact and Mr. Devereaux's damages.
FACTS
Robert Devereaux and his former wife were licensed foster parents. In 1990, Mr. Devereaux and his wife divorced. Unlike his former wife, Mr. Devereaux wanted to continue his work as a licensed foster parent and he wanted to act as a foster parent for the young girls previously placed in his care. His interest was both personal and financial. He had a relationship with the young girls and the money that he received for caring for them was his sole source of income.
Mr. Devereaux's supervisors at the Department of Social and Health Services (DSHS) regarded him as a good foster parent, but questioned the wisdom of placing young girls with a single man. The girls' histories included sexual abuse. The conflict between DSHS and Mr. Devereaux over this issue was exacerbated by Mr. Devereaux's preference that he provide foster care for girls, whom he regarded as less trouble. Eventually, DSHS and Mr. Devereaux settled this problem with a written agreement that required Mr. Devereaux to have an adult, female 'housekeeper' in his foster home.
Mr. Devereaux initially complied with the agreement, but after several months, he unilaterally discontinued having an adult female in his foster home. He had experienced difficulty in finding and keeping housekeepers. He claimed that requiring a single, male foster parent of girls to have an adult female in the house was gender discrimination. Eventually, DSHS relented. Mr. Devereaux's supervisors reasoned that if Mr. Devereaux was an appropriate foster parent for girls, a female housekeeper was unnecessary. And, if he was not an appropriate foster parent for girls, he should not be a foster parent, even with the female housekeeper requirement. This reasoning and the threat of a gender discrimination claim persuaded DSHS to allow Mr. Devereaux to continue his role as a foster parent without the support of an adult, female housekeeper.
In August 1991, DSHS began receiving reports of alleged sexual improprieties at Mr. Devereaux's home. Because of Mr. Devereaux's status as a single, male foster parent of girls, DSHS took these reports seriously and investigated. After investigation, DSHS determined that the reports were unsubstantiated. In part, Mr. Devereaux's supervisors attributed the reports to the fact that he was a single male living with young girls whose histories included sexual abuse. Given that situation, there was some probability that Mr. Devereaux would become the target of inappropriate behavior and sexual accusations. Mr. Devereaux's supervisors counseled him that he needed to be very careful about his conduct and that he should report any incidents.
Some DSHS employees harbored suspicions that Mr. Devereaux was abusing the girls in his care. These suspicions were shared with Detective Robert Perez. Detective Perez was a foster parent. He knew a number of DSHS caseworkers, both professionally and socially. DSHS caseworker Kate Carrow testified that on one occasion, she and other caseworkers shared their concerns about Mr. Devereaux with Detective Perez.
Around August 1, 1994, A.R., one of Mr. Devereaux's foster children, was placed in juvenile detention for attempting to poison Mr. Devereaux and A.S., another foster girl in Mr. Devereaux's home. Mr. Devereaux had disciplined A.R. for allowing a boy to visit her at the foster home without permission. A.R. believed that A.S. had told Mr. Devereaux about the unauthorized visit. A.R. retaliated by putting iodine in soft drinks that she served to Mr. Devereaux and A.S.
Two days later, Detective Perez interviewed A.R. Although the ostensible purpose of the interview was to obtain information regarding the assault against Mr. Devereaux and A.S., Detective Perez actually interrogated A.R. regarding whether she had been sexually abused by Mr. Devereaux. When Detective Perez interviewed A.R., she was not accompanied by any caseworker or any DSHS worker involved in this action. Initially, A.R. denied that she had been abused in Mr. Devereaux's home, but after a lengthy questioning, A.R. stated that Mr. Devereaux had raped her and other foster children, including A.S.
Later that day, Detective Perez interviewed Mr. Devereaux. Mr. Devereaux denied that he had sexually abused any of the children in his care, but described sexual conduct by A.R. such as flashing him, humping him, and running out of the shower naked and jumping on his lap. Mr. Devereaux said he always stopped A.R., but could not prevent these things from happening. At one point in the interview, Mr. Devereaux said, 'Okay, I did it, but I can't give you any f{ }ing details, because nothing happened.' Mr. Devereaux maintains that this statement was sarcasm, but Detective Perez treated it as a confession. Detective Perez arrested Mr. Devereaux for third degree rape of a child.
During Detective Perez's interview with Mr. Devereaux, Linda Wood, a DSHS worker, brought A.S., another one of Mr. Devereaux's foster children, to the police station. Detective Perez knew A.S., having met her in the later part of 1990. A.S. initially told Detective Perez there was no sexual abuse in Mr. Devereaux's home. But after spending some time at the police station in the company of Ms. Wood, A.S. accused Mr. Devereaux of sexually molesting her.
The day Mr. Devereaux was arrested, Detective Perez interviewed the other children who lived in Mr. Devereaux's home. A.K. said that Mr. Devereaux frequently spent several hours in A.R.'s room at night with the door closed. She also stated that she had seen Mr. Devereaux masturbate on two occasions. T.H. said that Mr. Devereaux would sometimes tickle her, including a couple of occasions when he ran his fingers up her thigh until she told him to stop. Approximately one week later, Ms. Carrow and Sergeant Terry Pippin interviewed two of Mr. Devereaux's former foster children. Both children denied witnessing any inappropriate behavior or abuse by Mr. Devereaux while they stayed at his home. Significantly, one of those children, D.E., previously had been removed from Mr. Devereaux's foster home and placed as a foster child in the home of Detective Perez.
Caseworker Paul Glassen interviewed A.R. at the juvenile facility for placement purposes upon the termination of her detention. During that interview, A.R. spontaneously confided in Mr. Glassen that she had told 'a whole bunch of lies' concerning Mr. Devereaux. A.R. stated that she was pressured by Detective Perez to make the allegations. She stated: 'This police officer was, like, trying to set Dad up or something.' After the interview, Mr. Glassen completed a child abuse referral concerning Detective Perez's actions against A.R. Later, Mr. Devereaux's attorneys would learn that A.R. suffered from fetal alcohol syndrome and experienced difficulty in remembering events. Despite this vulnerability, she was repeatedly questioned by Detective Perez and, according to her, pressured to make accusations against Mr. Devereaux.
Likewise, serious questions developed regarding Mr. Devereaux's other accuser. Mr. Devereaux's attorneys learned from A.S.'s social file that she was a victim of sexual abuse and that she had a history of making false accusations that males had sexually abused her. She had been detained by Ms. Wood and Detective Perez at the police station. For most of that time, she had denied that she had been sexually abused by Mr. Devereaux. Eventually, she relented and accused Mr. Devereaux of molesting her. Later, she would tell Mr. Devereaux's attorneys that she was simply tired of sitting there and in response to Ms. Wood's urging to tell the truth, she fabricated the allegations against Mr. Devereaux.
Approximately six months after Mr. Devereaux was arrested, his case took a new and startling turn. In January 1995, D.E., Detective Perez's foster child, who previously had resided in Mr. Devereaux's home, told Detective Perez and his wife that she had been sexually abused by Mr. Devereaux. She further stated that she had witnessed Mr. Devereaux's abuse of A.S. The next morning, Detective Perez informed Ms. Carrow of these disclosures. A short time later, D.E. was again interviewed and she made claims of sexual abuse against Mr. Devereaux and other people in the Wenatchee area.
At about this time, A.S. was interviewed by Detective Perez and DSHS worker Laurie Alexander. Although A.S. had previously told an attorney representing Mr. Devereaux that she had made up the allegations of sexual abuse, she again changed her story. In this statement, she revealed that she had been informed by the prosecutor that other children had been victimized by Mr. Devereaux. She stated that she had been sexually abused by Mr. Devereaux and she offered the names of two sisters, A.M. and C.M., as other victims of Mr. Devereaux.
Police Sergeant Mike Magnotti and Ms. Carrow interviewed A.M. A.M. told them that when she went to Mr. Devereaux's house, Mr. Devereaux raped her. Several weeks later, Detective Perez, Chelan County Deputy Prosecutor Roy Fore and Ms. Alexander interviewed A.M. A.M. told them that Mr. Devereaux had raped her when she went to a slumber party at his house. Detective Perez was familiar with the sisters because he had interviewed them in connection with another investigation. On one occasion, he had investigated an allegation made by the sisters against an adult that proved to be fabricated.
C.M. was interviewed by Jeanne L. Dierickx a victim/witness coordinator for Douglas County. C.M. disclosed that when she visited Mr. Devereaux's house, he would invite his friends over and they would molest her and other girls. During this interview, C.M. also disclosed that she had been interviewed earlier by Detective Perez and Ms. Alexander and that they told her that her mother, L.M., had confessed to everything. C.M. also said that A.S. and her sister had told her to lie.
On May 11, 1995, an amended information was filed which included charges for Mr. Devereaux's sexual contact with A.S., D.E., A.M. and C.M. Charges were dropped regarding A.R. because she recanted. Specifically, the amended information charged Mr. Devereaux with five counts of rape of a child in the first degree, two counts of child molestation in the first degree, two counts of child molestation in the second degree, and one count of tampering with a witness. That same day, a third order finding probable cause was entered.
On September 8, 1995, Mr. Devereaux pleaded guilty to one misdemeanor count of rendering criminal assistance and one misdemeanor count of fourth degree assault. The child rape and molestation charges were dismissed in accordance with a plea bargain. The charges to which Mr. Devereaux pleaded guilty did not involve sexual misconduct. The State indicated that the reason for dropping the charges was due to problems with the consistency of the children's statements. Mr. Devereaux maintains that the charges were dropped for lack of evidence.
Mr. Devereaux filed state law claims and a civil rights action in federal district court under 42 U.S.C. § 1983 against individual employees of DSHS, the police chief, and a public safety commissioner, along with other city departments and agencies. The federal district court granted summary judgment for all defendants, declined to exercise supplemental jurisdiction over the state law claims, and dismissed the state law claims without prejudice. Mr. Devereaux reasserts those claims in this action.
The City of Wenatchee, including Detective Perez, settled with Mr. Devereaux in May 1999. The remaining State defendants, DSHS and the DSHS workers, moved for summary judgment. They asked the court to dismiss Mr. Devereaux's discrimination claim because it was barred by the statute of limitations. They asked the court to dismiss Mr. Devereaux's retaliation claims because (1) he could not establish a prima facie case, or, alternatively, (2) even if he could, the State could show a legitimate non-retaliatory reason for its conduct; and (3) he could not prove causation — that retaliation was a substantial factor in the decision to arrest and prosecute him. Finally, the State defendants asked the court to dismiss Mr. Devereaux's negligence claim because the claim was precluded by judicial findings of probable cause in the criminal case and, if not precluded, the DSHS workers were entitled to immunity from such a claim.
The court granted summary judgment.
This appeal follows.
ANALYSIS Standard Of Review
Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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 motion will be granted, after considering the evidence in the light most favorable to the nonmoving party, only if reasonable persons could reach but one conclusion.' Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998). 'When reviewing a summary judgment order, an appellate court engages in the same inquiry as the trial court.' Id.
Collateral Estoppel
The DSHS workers contend that Mr. Devereaux's retaliation and negligence claims are barred under the doctrine of collateral estoppel because Mr. Devereaux is attempting to relitigate facts and issues previously litigated in his federal cause of action. Specifically, they focus upon Mr. Devereaux's contention that DSHS workers failed to report exculpatory evidence to the prosecutor. This contention is employed by Mr. Devereaux to support his retaliation claim and his negligence claim.
Mr. Devereaux's federal claim against the DSHS workers was that the workers violated his due process right to a fair trial protected by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady holds that a criminal defendant has a due process right to the State's disclosure of evidence that is favorable to the defendant and material to guilt or punishment irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87; State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517 (1994); State v. Blackwell, 120 Wn.2d 822, 828, 845 P.2d 1017 (1993); see also CrR 4.7. In the words of the federal judge: 'The gravamen of the claims against the State Defendants {DSHS workers} is that they participated in Perez's investigation of Plaintiff and in that capacity, failed to ensure that Perez complied with State law and policy, failed to bring to light all exculpatory evidence, and coerced or witnessed the coercion of children to make false allegations about Plaintiff.'
The federal judge dismissed Mr. Devereaux's 42 U.S.C. § 1983 claims against the DSHS workers because they were protected from his lawsuit by 'qualified immunity.' The judge stated, 'Qualified immunity shields government officials performing discretionary functions '{f}rom liability for civil damages insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818 {102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)}.' The court further reasoned that Mr. Devereaux's right to 'family integrity' was not an established constitutional right. Accordingly, the DSHS workers participating in the investigation of child abuse were entitled to qualified immunity from his 42 U.S.C. § 1983 claims.
In an order affecting Detective Perez, entered after the DSHS workers were granted summary judgment and an order dismissing Mr. Devereaux's claims against them, the federal judge again addressed Mr. Devereaux's claims against the DSHS workers. As a preliminary matter, he noted that he had ruled that the DSHS workers were entitled to judgment as a matter of law and he was not changing that ruling. Thereafter, he provided additional analysis regarding Mr. Devereaux's 42 U.S.C. § 1983 claim against the DSHS workers. He stated:
Carrow and Alexander {DSHS workers} were under statutory duties to investigate and report child abuse in connection with civil proceedings related to child custody. See generally Wash. Rev. Code §§ 26.44.030 26.44.050. They were not under a duty to investigate alleged incidents of sexual abuse as criminal investigators. Police officials are charged with such a duty. Because neither Carrow nor Alexander was charged with administration of the criminal aspects of the child abuse statutes, neither was bound by the dictates of Brady to present exculpatory evidence to the prosecutor.
How this analysis relates to the judge's earlier decision is not clear. It appears that after deciding that the DSHS workers were immune from 42 U.S.C. § 1983 liability, the court was opining that they would not be liable even without immunity. It is this analysis to which the DSHS workers point in order to make their case that Mr. Devereaux is resurrecting the same factual and legal issues decided in the federal lawsuit.
Issue preclusion bars relitigation of a particular issue or determinative facts. Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987); 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4420, at 182 (1981). The theory behind issue preclusion is that, even where claim preclusion is not proper, issue preclusion should be invoked if the two lawsuits involve common issues of fact and law. Under those circumstances, issue preclusion prevents the relitigation of issues necessarily and actually decided in the first lawsuit. Shoemaker, 109 Wn.2d at 507-08; State v. Sherwood, 71 Wn. App. 481, 488, 860 P.2d 407 (1993).
The issue actually decided in Mr. Devereaux's federal cause of action was that the DSHS workers were protected from 42 U.S.C. § 1983 liability by qualified immunity because their alleged conduct did not implicate a clearly established constitutional right. The issue arguably decided in the same federal cause of action was that because DSHS workers did not have the same duty to Mr. Devereaux under Brady as police officers, their alleged conduct would not support a 42 U.S.C. § 1983 lawsuit. Although there are factual similarities between what Mr. Devereaux alleged in his 42 U.S.C. § 1983 action and what he alleges in his retaliation and negligence causes of action, the issues are different.
In the retaliation lawsuit, Mr. Devereaux contends that the DSHS workers, in retaliation for opposing the discriminatory requirement that he employ an adult, female housekeeper, participated in the criminal investigation and failed to present to the prosecutor exculpatory evidence known to them. In the negligence lawsuit, Mr. Devereaux contends that the State breached its duty to use care in investigating allegations that led to the termination of his guardian relationship with the children placed in his care. A federal judge's determinations that the DSHS workers were not under a duty to investigate alleged incidents of child abuse as criminal investigators, and that they did not have the same duty to Mr. Devereaux under Brady as police officers, are not the same issues of fact and law involved in Mr. Devereaux's retaliation and negligence claims. The requirement that the issues decided in the prior adjudication be identical with the ones presented in the second action is not met.
Statute Of Limitations — Discrimination Cause Of Action
Mr. Devereaux contends that DSHS discriminated against him on the basis of his gender. He claims DSHS treated him differently as a single, male foster parent by requiring him to employ an adult, female housekeeper. DSHS argues that the requirement to have a housekeeper ended four years before Mr. Devereaux filed this action and the statute of limitations had run.
An action alleging a violation of personal rights established by Chapter 49.60 RCW, the Washington law against discrimination, must be brought within the three-year limitation established by RCW 4.16.080(2). See Lewis v. Lockheed Shipbuilding Constr. Co., 36 Wn. App. 607, 613, 676 P.2d 545 (1984). The requirement that Mr. Devereaux have an adult female in his foster home was first imposed in September 1990. Mr. Devereaux ceased complying with this requirement in April 1991. Mr. Devereaux filed his lawsuit asserting this claim on July 22, 1997; this date falls outside the three-year limitation period.
Mr. Devereaux contends that his allegations are within the three-year statute of limitations because the statute did not begin to run until his arrest on August 3, 1994. The time period for filing a complaint for discrimination begins to run when the facts that would support a charge of discrimination have become apparent to a reasonably prudent person. Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985). The statute commenced running on the last possible date on which the unlawful practice occurred. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 816, 818 P.2d 1362 (1991). Mr. Devereaux believed that the requirement of having a housekeeper was discriminatory and made this claim to DSHS in 1993. The last possible date on which the alleged discrimination could have occurred was when the contract was terminated in 1993. The contract and the requirement of having a housekeeper were not in effect when Mr. Devereaux was arrested in August 1994. Mr. Devereaux's discrimination claim is barred by the three-year limitations period.
Mr. Devereaux argues that because this was a continuing violation, the three-year limitation period does not apply. There are two kinds of continuing violations — serial and systemic. Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998); Milligan v. Thompson, 90 Wn. App. 586, 595, 953 P.2d 112 (1998). A serial violation occurs where a 'chain of similar discriminatory acts emanating from the same discriminatory animus exists and where there has been some violation within the statute of limitations period that anchors the earlier claims.' Provencher, 145 F.3d at 14. A systemic violation arises where a plaintiff claims the existence of a discriminatory policy or practice that extends into the limitations period.
The plaintiff need not show any identifiable act of discrimination within the limitations period. Instead, the focus is on 'general practices or policies' in areas such as hiring, training and promotion. Id.
A serial violation claim fails if the person knew or should have known that the earlier acts, which are untimely at the time of asserting the claim, were discriminatory at the time that they were taking place. Id. Mr. Devereaux was aware of the alleged discrimination at the time he was required to have a housekeeper. He complained to DSHS that the requirement was discriminatory in 1993. This knowledge triggered his duty to assert his rights and precludes his serial continuing violation claim.
While there is some evidence that a number of the DSHS employees were suspicious of Mr. Devereaux and his role as foster parent of young girls, there is no showing of a systemic policy of discrimination by DSHS. Consequently, Mr. Devereaux's claim of a continuing violation fails.
Mr. Devereaux's discrimination claim is barred by RCW 4.16.080(2).
Proximate Cause — Retaliation Cause Of Action
Mr. Devereaux contends that DSHS retaliated against him for opposing the discriminatory requirement that he employ an adult, female housekeeper. Specifically, Mr. Devereaux's retaliation theory is that his arrest and prosecution were the result of retaliation by DSHS and its employees for opposing the female housekeeper requirement.
RCW 49.60.210 prohibits retaliation against persons who oppose discriminatory practices. This section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by Chapter 49.60 RCW. Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App. 927, 930-31, 965 P.2d 1124 (1998), review denied, 137 Wn.2d 1029 (1999). Mr. Devereaux, as a foster parent, is treated as an independent contractor for the State. DeWater v. State, 130 Wn.2d 128, 140, 921 P.2d 1059 (1996). As an independent contractor, he is entitled to bring this retaliation claim despite the absence of a true employment relationship. Galbraith v. TAPCO Credit Union, 88 Wn. App. 939, 949-50, 946 P.2d 1242 (1997), review denied, 135 Wn.2d 1006 (1998).
To establish a prima facie case for retaliation, a plaintiff must show that (1) he or she engaged in statutorily-protected activity, (2) an adverse employment action was taken, and (3) there is a causal link between the employee's activity and the employer's adverse action. Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992). The plaintiff need not show that retaliation was the only or 'but for' cause of the adverse employment action, but he or she must establish that it was at least a substantial factor. Allison v. Housing Auth., 118 Wn.2d 79, 85-96, 821 P.2d 34 (1991).
Even if we assume that Mr. Devereaux has made a sufficient showing that he was engaged in a statutorily-protected activity and that he was the subject of an adverse employment action, he does not establish a causal relationship exists between his prosecution and the DSHS workers' intent to retaliate against him. Detective Perez initiated an investigation of Mr. Devereaux before there was any involvement by DSHS workers in his case. Decisions to arrest and prosecute Mr. Devereaux were made independently of the DSHS workers. Even if the DSHS workers were motivated by an attempt to retaliate against Mr. Devereaux, there is no evidence that the others who had the power to arrest and prosecute him were similarly motivated. We conclude reasonable minds cannot differ that Mr. Devereaux would have been arrested and prosecuted regardless of the involvement of the State defendants in certain parts of the subsequent criminal investigation. Mr. Devereaux has not established that retaliation was a substantial factor in the decision to arrest and prosecute him. The dismissal of Mr. Devereaux's retaliation cause of action is affirmed.
Negligence Cause Of Action
The State and its officers have a duty to use care in investigating allegations that could lead to a dependency or termination of parental rights. Rodriguez v. Perez, 99 Wn. App. 439, 443-49, 994 P.2d 874, review denied, 141 Wn.2d 1020 (2000); Yonker v. Dep't of Social Health Servs., 85 Wn. App. 71, 77, 930 P.2d 958 (1997); Lesley v. Dep't of Social Health Servs., 83 Wn. App. 263, 273, 921 P.2d 1066 (1996). This duty of care extends to the child, his or her parent(s), custodian or guardian when investigating an allegation of child abuse. RCW 26.44.010; Pettis v. State, 98 Wn. App. 553, 559-60, 990 P.2d 453 (1999). This duty extends even to parents suspected of abusing their own children. Tyner v. Dep't of Social Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). But, this duty does not extend to the provider of child care services. Pettis, 98 Wn. App. at 560.
Although Mr. Devereaux is not a parent of an allegedly abused child, he was a foster parent and the guardian of two of the foster children placed in his care. See RCW 26.44.010. The duty to use care in investigating child abuse allegations extends to him. He contends that DSHS and the DSHS workers breached this duty of care when they investigated the allegations that he sexually abused children placed in his care.
In its motion for summary judgment, the State defendants successfully argued that Mr. Devereaux's negligence claim should be dismissed for two reasons. First, they asserted that they were entitled to qualified immunity from investigating the child abuse allegations regarding Mr. Devereaux. Second, they argued that even if they were not immune, the court's no-contact orders, as a matter of law, broke the chain of legal causation between their alleged conduct and Mr. Devereaux's separation from his children.
Qualified Immunity
State employees enjoy qualified common law immunity for investigating child abuse. Babcock v. State, 116 Wn.2d 596, 618, 809 P.2d 143 (1991).
In order to qualify for this limited immunity, the DSHS employee must (1) carry out his or her statutory duty, (2) follow procedures dictated by statute and superiors, and (3) act reasonably. Id. There is no issue that the DSHS workers were carrying out their statutory duties.
RCW 13.34.020; RCW 26.44.010; RCW 74.13.031(3). Mr. Devereaux claims that the DSHS workers failed to meet the qualified immunity requirements because they did not follow established procedures and did not act reasonably. Lesley, 83 Wn. App. at 274-75.
After considering the evidence in the light most favorable to Mr. Devereaux, we conclude that there are material issues of fact regarding whether the caseworkers acted reasonably. The standard is explained in Lesley: 'The caseworker must act with a reasonable good faith intent, judged in light of all the circumstances then present in conducting an investigation into child abuse.' Id. at 275.
The DSHS workers were aware of the medical and social histories of the two girls who initially accused Mr. Devereaux of sexual abuse. Despite this history, the girls were interrogated under circumstances that made their allegations suspect. After Mr. Devereaux was arrested, both girls recanted. Even though DSHS workers were not the initial interrogators, they were aware of the facts and circumstances that would have led any reasonable investigator to at least question the allegations against Mr. Devereaux. In part, this is evidenced by Mr. Glassen's child abuse referral after he interviewed one of the girls.
The second set of allegations against Mr. Devereaux arose in even more unusual circumstances. The accusations were initiated by a young woman who had resided with Mr. Devereaux and who had previously given a statement to DSHS that exonerated him of charges of sexual abuse. At the time that she made the accusations, she had been placed as a foster child in the home of Mr. Devereaux's chief criminal investigator. Approximately six months after Mr. Devereaux was arrested, she accused Mr. Devereaux and other people in the Wenatchee area of participating in a pattern of sexual abuse involving her and other children.
Mr. Devereaux's case is not that DSHS workers should not have investigated these allegations. It is that they did not 'act with a reasonable good faith intent, judged in light of all the circumstances then present in conducting an investigation into child abuse.' Lesley, 83 Wn. App. at 275. Mr. Devereaux's argument is that if the DSHS workers had complied with this reasonableness requirement, they would have proceeded with caution and even some skepticism. They would have been sensitive to the unusual fact that the source of the allegations was a child who initially gave a statement that exonerated Mr. Devereaux and who subsequently accused him only after spending time in the home of his chief investigator. They would have been concerned that Detective Perez's foster child was making these allegations in order to support and please him.
They would have been troubled that the unusual and wide-ranging allegations of sexual abuse, involving a large cast of people and multiple incidents, could not be corroborated by evidence other than the statements of accusers who were associated with the chief criminal investigator and his foster child. If they had made such an investigation, he maintains, they would have come to the conclusion that motivated Mr. Devereaux's prosecutor to dismiss the criminal charges involving sexual abuse — that the allegations could not be factually supported.
We find that Mr. Devereaux has presented evidence to create issues of fact concerning reasonableness sufficient to withstand summary judgment on the issue of qualified immunity.
Legal Causation
To establish a tort claim for negligence, Mr. Devereaux must demonstrate (1) the existence of a duty owed to him; (2) a breach of that duty; and (3) an injury proximately caused by that breach. Ruff v. King County, 125 Wn.2d 697, 704, 887 P.2d 886 (1995). 'A cause is 'proximate' only if it is both a cause in fact and a legal cause.' Gall v. McDonald Indus., 84 Wn. App. 194, 207, 926 P.2d 934 (1996). Factual causation is based on 'a physical connection between an act and an injury{.}' Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). And, legal causation 'requires a determination of whether liability should attach as a matter of law, given the existence of cause in fact.' Braegelmann v. Snohomish County, 53 Wn. App. 381, 384, 766 P.2d 1137 (1989).
In granting summary judgment, the superior court accepted the State defendants' argument that the no-contact orders entered in Mr. Devereaux's criminal case, separating Mr. Devereaux from the children placed in his care, broke the chain of legal causation between the duty to Mr. Devereaux and the damages resulting from the breach of that duty. In part, the State defendants' motion was based upon the Court of Appeals's decision in Tyner v. Department of Social Health Services, 92 Wn. App. 504, 963 P.2d 215 (1998), rev'd, 141 Wn.2d 68 (2000). In Tyner, a caseworker investigated allegations of sexual abuse and, in his final report, determined that the allegations were unfounded. This report was not given to Mr. Tyner, his attorney, or provided to the juvenile court. Six months later, the court dismissed the dependency petition on the State's motion. During that period, Mr. Tyner was separated from his children by court order and required to participate in a sexual deviancy evaluation. Mr. Tyner sued the State for negligent investigation and received a substantial jury verdict.
The Court of Appeals overturned the jury verdict. The court reasoned that there was sufficient evidence to support the jury's finding that the negligence of the caseworker was a legal cause of Mr. Tyner's separation from his family. Despite this conclusion, the court reversed the verdict because it held that, as a matter of law, the no-contact orders entered by the juvenile court broke the legal causation between the State's negligence and Mr. Tyner's damages. Although the court stated that concealment of information or negligent failure to discover material information could subject the State to liability, the court decided that legal causation was lacking as a matter of law because all material information had been presented to the court. Tyner, 92 Wn. App. at 520.
The Court of Appeals's decision was reversed by the Supreme Court. Although the court agreed with the Court of Appeals that concealment of information or negligent failure to discover material information could subject the State to liability, it reversed because:
. . . Tyner's complaint centers on conduct outside of the judicial arena. CPS was not enforcing a court order or acting as an arm of the court in its interactions with Tyner. Rather, it was gathering information and conducting an investigation, the results of which ended up in the hands of a judge. . . . Thus, the State's liability arises not from its use of the Court to further its investigation but from its failure to adequately investigate the allegations lodged against Tyner.
Tyner, 141 Wn.2d at 83. Likewise, Mr. Devereaux's complaint centers on the conduct of the DSHS workers outside the judicial arena. He maintains that they were not enforcing the criminal court's no-contact orders. Rather, they were gathering information and conducting an investigation for the twin purposes of participating in the criminal investigation and fulfilling their obligation to investigate allegations of child abuse.
In granting summary judgment, the superior court accepted the State defendants' argument based on the Court of Appeals's decision in Tyner that court-entered, no-contact orders cut off legal causation between the alleged negligence of the DSHS workers and Mr. Devereaux's separation from the children placed in his care. The rule is stated in the Supreme Court's decision in Tyner:
We hold that a judge's no-contact order will act as superseding intervening cause, precluding liability of the State for negligent investigation, only if all material information has been presented to the court and reasonable minds could not differ as to this question.
Tyner, 141 Wn.2d at 88. In Mr. Devereaux's criminal case, no-contact orders were entered at the beginning and at the end of his case. The initial order was entered by the court as a matter of routine, without objection or hearing. At Mr. Devereaux's sentencing, the no-contact order was entered by the court after the court expressed its concern about the plea bargain arrangement whereby a man accused of multiple criminal acts against children was allowed to plead guilty to unrelated misdemeanor charges, with credit for time served and no fine, in exchange for the dismissal of all the charges related to sexual abuse. Troubled by the absence of material information, the court entered a no-contact order as a condition of Mr. Devereaux's sentence.
The Tyner court stated that the conduct of a caseworker may, in some circumstances, be the legal cause of a parent's separation from a child, even when separation is imposed by court order. Id. at 83-84. Likewise, we cannot conclude that the no-contact orders entered in Mr. Devereaux's criminal case break the chain of legal causation, thereby defeating Mr. Devereaux's negligence case. It would do so only if all material information had been presented to the court entering the no-contact order.
The issue of materiality is a question of cause and effect, not legal causation. Therefore, it is ordinarily a question for the jury unless reasonable minds could reach but one conclusion. Id. at 86-87. We conclude Mr. Devereaux has presented sufficient evidence to withstand summary judgment. The issue of whether Mr. Devereaux's damages were proximately caused by the alleged negligent investigation of DSHS and its workers should be left to the trier of fact.
We reverse the superior court's dismissal of the negligence cause of action.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
We concur:
SCHULTHEIS, J.
I agree with the majority's discussion of collateral estoppel, statute of limitations, and retaliation. I part company in its discussion of qualified immunity and legal causation related to the negligent investigation claim. I would affirm. This case differs markedly from Tyner v. Department of Social Health Services, 141 Wn.2d 68, 1 P.3d 1148 (2000). We are not dealing with Mr. Devereaux's claim of negligent investigation against DSHS and its caseworkers in the context of state dependency laws, as was the case in Tyner. Instead, we are dealing with an independent criminal investigation by law enforcement prior to DSHS's allegedly negligent investigation. Mr. Devereaux merely claims emotional distress damages from arrest and prosecution, not deprivation of a child.
The law enforcement investigation, not any DSHS investigation, was presented and accepted as the facts supporting probable cause and the later no-contact order. In my view, Mr. Devereaux cannot establish either the factual or legal prong of causation. First, because DSHS did not initiate, participate in, or control the investigation that led to Mr. Devereaux's arrest and prosecution, a reasonable person could not say 'but for' DSHS's actions the damage occurred. Second, because Mr. Devereaux fails to establish any policy connecting the ultimate result and DSHS's later alleged negligence, he shows no legal cause. Any connection between the no-contact order and DSHS's later investigation is beyond remote and inconsequential. Tyner, 141 Wn.2d at 82-83.
Thus, Mr. Devereaux cannot properly lay blame for his alleged damage at the feet of DSHS. Mr. Devereaux was a foster parent, not a parent. A foster parent's status in a criminal proceeding as an independent contractor with DSHS to provide contractual foster care in dependency cases is significantly different than a parent's status (as in Tyner) in a dependency proceeding with recognized family liberty interests at stake. See Halsted v. Sallee, 31 Wn. App. 193, 195, 639 P.2d 877 (1982) (discussing parent custody as a fundamental liberty right); In re Dependency of J.H., 117 Wn.2d 460, 473-74, 815 P.2d 1380 (1991) (foster parent does not have liberty interest of parent). The nature of the foster parent relationship is temporary and contractual; it lasts until efforts to reunite the family are completed. Therefore, the core of the Tyner holding does not apply here.
In sum, Detective Robert Perez independently launched his investigation into Mr. Devereaux's alleged sexual abuse of foster children. The Perez investigation alone led to the probable cause finding, Mr. Devereaux's arrest, and prosecution. The prosecution controlled the flow of information to the court, not DSHS. DSHS has no right or duty to inject conflicting evidence in the State's probable cause statement or intervene on behalf of Mr. Devereaux. Mr. Devereaux, without authority, incorrectly argues a duty of care on DSHS's part to conduct an independent and offsetting investigation after the law enforcement investigation. This amounts merely to an argumentative assertion. Accordingly, I respectfully dissent.