M.W. v. Department of Social & Health Services

Armstrong, C. J.

— J.C.W., through her guardian, sued the Department of Social and Health Services (DSHS), alleging that several employees were negligent in examining her for sexual abuse. DSHS argued that it has a statutory duty to investigate allegations of child abuse and that its examination was reasonable. The trial court granted DSHS’s motion for summary judgment. J.C.W. appeals, contending that there remains a genuine issue of material fact as to whether DSHS’s investigation was reasonable. We agree and, therefore, reverse and remand for trial.

FACTS

In March 1996, J.C.W. lived with her foster parents, M.W. and A.W.¹ On March 18, 1996, when J.C.W. was 16 months old, her biological father, S.H., reported to DSHS that J.C.W. was being sexually abused. S.H. complained to Dale Francis, a DSHS supervisor,² that J.C.W. often had vaginal redness, exhibited antisocial behavior, and was clingy. S.H. also showed Francis pictures of J.C.W. taken by M.W. and A.W. S.H. claimed that the pictures, which showed J.C.W. in the bathtub, were pornographic.³ The same day, when A.W. was at the DSHS office with J.C.W., Francis asked two female DSHS workers to see if J.C.W. had vaginal redness.

A.W. took J.C.W. into the DSHS conference room. “Home support specialists” Insu Baker and Lila Stinson came into the conference room; program manager Kenneth Panitz, social worker Mat Reitzug, and Francis remained in the doorway. Baker and Stinson asked A.W. to remove J.C.W.’s diaper. They then examined J.C.W.’s genitals and “pulled apart [J.C.W.’s] vaginal area to see if there was vaginal redness.” CP at 76. A.W. stated in her deposition:

The first thing is [Stinson and Baker] were kind of looking at [J.C.W.]. “Geez, do you see redness?” One would say yes; one would say no. And then they started pointing and touching the outside. And I would say it was probably — it was both of them. I think one did it first and then the other one, and they were kind of bantering back and forth.

And then that’s when they went in and stuck their hands in and pulled apart like this.

. . . [T]here was [sic] two types of touching. One was the actual poking of the outer area. Not her legs, but her private areas.

The other was sticking their hands inside of her and pulling her apart like so.

CP at 227-29. A.W. compared the women’s actions to pulling apart and inserting one’s hands inside the opening of a Kleenex tissue box. A.W. estimated that the touching and poking lasted four to five minutes. J.C.W. began to cry during the examination. A.W. also cried.

Another DSHS employee entered the conference room, concluded there was no vaginal redness, and told Baker and Stinson to “cover that baby up.” CP at 76. A.W., Baker, and Stinson then took J.C.W. to Mary Bridge Hospital where a doctor examined her for sexual abuse. The doctor found no signs of abuse. Following an investigation, DSHS concluded that the allegations were unfounded and cleared M.W. and A.W. of wrongdoing. J.C.W.’s counselor submitted a declaration stating that J.C.W. suffered from posttraumatic stress disorder because of the examination.

ANALYSIS

I. Standard of Review

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.

II. Negligent Investigation

A. Claim Against DSHS

Both parties describe this as a claim for negligent investigation of suspected child abuse, a recognized cause of action in Washington. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 79-81, 1 P.3d 1148 (2000). RCW 26.44.050 requires DSHS to investigate allegations of child abuse.⁴ Under this statute, DSHS owes a duty of care to both the child victim and the child’s parents when investigating allegations of child abuse. Tyner, 141 Wn.2d at 81-82. In most negligent investigation claims, the allegations are that DSHS failed to adequately investigate a living situation either before removing or placing a child in the situation.⁵ This claim is different. J.C.W does not contend that DSHS failed to investigate the alleged sexual abuse. Rather, she alleges that as part of the investigation, several DSHS employees negligently conducted a physical examination of her.

DSHS argues that because RCW 26.44.050 requires it to investigate child abuse allegations, it was simply fulfilling its statutory duties when it examined J.C.W.⁶ Washington law requires DSHS to respond to abuse allegations immediately and permits DSHS to photograph children to document abuse; thus, says DSHS, the examination of J.C.W. was permissible. In fact, DSHS characterizes its investigation of J.C.W. as “overly cautious” and argues that DSHS’s having done “too much” does not support a negligent investigation claim. Br. of Resp’t. at 14. According to this reasoning, DSHS can be liable for negligent investigation only when it fails to investigate, not when it investigates unreasonably. This argument is unpersuasive. Implicit in the duty to investigate under RCW 26.44.050 is the duty to investigate reasonably.

In Lesley v. Department of Social & Health Services, 83 Wn. App. 263, 921 P.2d 1066 (1996), parents sued DSHS and a caseworker for negligent investigation of child abuse. The Lesleys’ daughter, Taylor, had Mongolian spots — a type of birthmark common in African-American children — on her lower back and buttocks. A day-care worker saw the marks and, believing they might be bruises, contacted Child Protective Services (CPS). Lesley, 83 Wn. App. at 266-67. CPS immediately removed Taylor from her parents’ custody without personal notification. Lesley, 83 Wn. App. at 267. CPS caseworkers ignored or downplayed the parents’ repeated assertions that the marks were Mongolian spots. Finally, six days after removing Taylor from her parents’ custody, a doctor identified the marks as Mongolian spots and diagnosed Taylor’s vaginal rash as a yeast infection. CPS returned Taylor to her parents. Lesley, 83 Wn. App. at 271.

The Court of Appeals reversed summary judgment in favor of DSHS, holding that DSHS could be liable for negligently investigating the marks. Lesley, 83 Wn. App. at 273. For the caseworkers to have qualified immunity against such a claim, they must “(1) carry out a statutory duty, (2) according to procedures dictated by statute or superiors, and (3) act reasonably.” Lesley, 83 Wn. App. at 274. The Lesleys had presented evidence that the caseworker failed to follow proper procedures and may not have acted reasonably under the circumstances. Lesley, 83 Wn. App. at 275.

DSHS argues that its liability in Lesley arose from a failure to act, that is, its failure to investigate whether the marks were Mongolian spots or bruises. But the Lesleys’ complaint was not that DSHS failed to investigate child abuse; it was that DSHS’s overzealous investigation was unreasonable and procedurally improper. In Lesley, the essence of the claim was that DSHS did “too much.” J.C.W. makes the same claim. And Lesley held that the duty to investigate child abuse includes a duty to act reasonably.

Other negligent investigation cases have also recognized that DSHS’s duty to investigate necessarily involves the duty to act reasonably. See Tyner, 141 Wn.2d at 79 (“During its investigation the State has the duty to act reasonably in relation to all members of the family.”); Yonker v. Dep’t of Soc. & Health Servs., 85 Wn. App. 71, 77, 930 P.2d 958 (1997) (summarizing negligent investigation case law as requiring “the State [to] act responsibly once it decides to act”); Dunning v. Paccerelli, 63 Wn. App. 232, 240, 818 P.2d 34 (1991) (“[T]he [child abuse] reporting statute is framed in terms of reasonableness.”).

Here, the trial court concluded that “[t]here is no genuine issue of material fact insofar as Plaintiff failed to establish that DSHS breached a duty owed to J.C.W.” Clerk’s Papers (CP) at 473. This was error. M.W. and A.W. submitted evidence that DSHS breached its duty to investigate reasonably: Francis, who received S.H.’s complaint, “had some female staff members . . . respond to [the] allegation.” CP at 98. Social worker Reitzug testified that he asked Panitz to have home support specialists take a “look-see” to determine if J.C.W. had vaginal redness. A.W. testified in her depositions that the two home support specialists “touched,” “poked,” and “pulled apart” J.C.W.’s genital area. Panitz stated in his deposition that home support specialists are not trained to give physical examinations and that giving physical exams is not part of their job.⁷ He also stated that, as their supervisor, he would not have authorized them to conduct a physical exam to determine child abuse. Home support specialist Baker denied performing the exam and denied being in the conference room with J.C.W. But she admitted that she had no training in performing physical examinations of children to determine physical or sexual abuse. Stinson, the other home support specialist, similarly denied performing the exam and admitted that she was not qualified to perform such an exam in any event.

J.C.W. also submitted affidavits from several experts. Certified counselor Leslie Chertok stated that the inspection was intrusive and that J.C.W. was not properly prepared for the inspection in a way that would minimize trauma. Teri Hastings, a clinical psychologist specializing in child psychology, stated that the DSHS investigation was problematic for several reasons: (1) failing to adequately prepare J.C.W for such an intrusive examination, (2) allowing unskilled, untrained DSHS workers to conduct the examination, and (3) performing the examination in the presence of the alleged abuser (A.W.). Laura OdegardDavis, a former caseworker for the Children’s Home Society, stated that a physical examination at the DSHS office, conducted by untrained workers, was unethical, unprofessional, and traumatic for J.C.W. Finally, Linda Thomas-Jones, a DSHS caseworker who knew J.C.W, A.W., and M.W., testified in her deposition that the DSHS policy was to “refer potential victims to the sexual assault clinic to have an examination and interview and evaluation,” not to have a caseworker do the exam and investigation. CP at 363.

DSHS countered with evidence that the examination was proper and reasonable.⁸ But at most this raises a question of fact. Generally, whether a party acts reasonably is a question of fact and summary judgment is inappropriate if reasonableness is a material issue in litigation. See Morris v. McNicol, 83 Wn.2d 491, 495, 519 P.2d 7 (1974). Taking the evidence in the light most favorable to J.C.W., a jury could find that the decision to examine J.C.W. was unreasonable or unauthorized, that Baker and Stinson were unqualified to perform a child sexual abuse exam, that they exceeded the scope of what they were asked to do, and that the manner of examining J.C.W. was unreasonable. Summary judgment was inappropriate.

B. Claim Against Dale Francis

The trial court found as a matter of law that “[t]here is no genuine issue of material fact insofar as Dale Francis did not act in an unreasonable manner or fail to follow the direction of supervisors and therefore is immune from the cause of action of negligent investigation.” CP at 473. But Dale Francis is immune from negligent investigation charges only if he was carrying out a statutory duty, according to procedure dictated by statute or superiors, and acting reasonably.⁹ Lesley, 83 Wn. App. at 274. J.C.W. submitted evidence that Francis decided to have workers examine J.C.W.,¹⁰ that this decision was unreasonable, and that the examination was conducted in an unreasonable manner. Thus, the fact finder must decide whether Francis acted reasonably; summary judgment on the issue of his liability was inappropriate.

We address the argument of the dissent. The dissent reasons that because J.C.W. does not claim that DSHS either negligently placed or removed her from a living situation, her claim is not the typical negligent investigation claim. We agree. The dissent then renames the claim a “tortious assault” and states the issue as “whether the touching was tortious or privileged.” Whatever labels are applied, we agree that the critical question centers on the DSHS employees’ physical examination of J.C.W.

The dissent finds the examination privileged because DSHS stands in the role of parent to J.C.W. and a reasonable parent would surely remove the child’s diaper and look for redness if he or she thought the child had been sexually abused. Dissent at 257-58. In reaching this conclusion, the dissent misstates the facts. J.C.W. does not claim that the DSHS employees only removed a diaper and looked for redness. Rather, she presented evidence that the employees poked, prodded, and pulled her apart while physically examining her, an examination they were not qualified to perform.

Moreover, DSHS does not claim that its conduct was privileged. Rather, it concedes that it owed J.C.W. a duty to investigate the possible abuse in a reasonable manner. DSHS argues only that it did not breach this duty. As we have discussed, J.C.W. presented evidence sufficient to create an issue of material fact on the reasonableness of the examination. Nevertheless, we consider whether DSHS was privileged to harm J.C.W. during the physical examination.

Washington recognizes a limited parental immunity doctrine. Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 104, 713 P.2d 79 (1986). This includes immunity for negligent supervision. Jenkins, 105 Wn.2d at 104. The doctrine is based upon the public policy of “maintaining family tranquility, fear of undermining parental control and authority, an interest in assuring that family property be shared by all rather than appropriated by one family member, fear of collusion and fraud.” Jenkins, 105 Wn.2d at 104. These public policy considerations do not exist for employees of DSHS. Understandably, no case has held that DSHS enjoys a parent’s immunity.

But the dissent cites the Restatement (Second) of Torts § 147(2) (1965). This section appears under the heading, “Privilege to Discipline Children,” and grants a parent the privilege to use reasonable force for “its [the child’s] proper control, training, or education.” The section also affords the privilege to one other than a parent who has the function of controlling, training, or educating the child. But again the force must be reasonable and must be necessary to the “proper control, training, or education” of the child. Restatement (Second) of Torts § 147(2) (1965). No Washington case has adopted section 147(2). According to comment (f), the section protects a guardian of the child’s person, officers of a state orphanage or reformatory, and others. Restatement, supra, § 147(2) cmt. f. The categories are linked in protecting only those who have physical custody or control of the child victim, as a parent does. The DSHS employees who examined J.S.W. do not fit within any of the categories. Moreover, they were not using force to control, train, or educate J.C.W.; they were attempting to perform a physical examination. And even if the section applies, the force must be reasonable. Comment (d) explains that “the parent’s privilege of discipline is necessarily more extensive than that of other persons stated in Subsection (2)” and that this “must be taken into account in determining what is reasonable.” Restatement, supra, § 147(2) cmt. d. That is the very question the parties dispute. Section 147 does not apply to the DSHS employees’ examination of J.C.W. and, even if it did, the question would still be whether the employees acted reasonably in physically examining J.C.W.

We conclude that J.C.W. presented sufficient evidence to withstand summary judgment; a jury must resolve the issues of material fact to determine whether DSHS negligently examined her.

Reversed.

Seinfeld, J., concurs.

1 M.W. and A.W. have now adopted J.C.W.

2 The record does not reflect Francis’s exact title or position at DSHS.

3 M.W. and A.W. contend that S.H. accused them of child abuse in retaliation for A.W.’s having given evidence the previous week that further limited the biological parents’ visitation time with J.C.W.

4 The statute states in relevant part: “Upon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department of social and health services must investigate and provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court.” RCW 26.44.050.

5 Babcock v. State, 116 Wn.2d 596, 622, 809 P.2d 143 (1991); Waller v. State, 64 Wn. App. 318, 824 P.2d 1225 (1992); Lesley v. Dep’t of Soc. & Health Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996); Gilliam v. Dep’t of Soc. & Health Servs., 89 Wn. App. 569, 950 P.2d 20 (1998); Beltran v. Dep’t of Soc. & Health Servs., 98 Wn. App. 245, 989 P.2d 604 (1999), review granted, 140 Wn.2d 1021 (2000); Tyner, 141 Wn.2d 68.

6 DSHS concedes that it owed a duty to J.C.W. to “conduct a reasonable investigation.” Br. of Resp’t at 9 n.3.

7 According to Panitz, the home support specialists’ duties are to “work with families providing remediation and parenting skills and home improvement services, one-on-one working with families in the home.” CP at 28. They are not social workers; they are “paraprofessionals.” CP at 33. There is no formal educational requirement for becoming a home support specialist. Home support specialist Stinson described her job as follows:

We work with the social workers with families to help them to reestablish their life sometimes. We go into the home, we teach them household management, and we teach them how to get out and get community resources. We also help families ... with finding homes . .. try to help them find an affordable house for living because sometime the kids are going to be coming home. And we go into the home and we help them find housing and community resources, furniture and different things that they might need for the home. And we also teach them some aspects of safety in the home, too, with the children.

CP at 42-43.

8 Three DSHS officials testified that home support specialists are qualified and authorized to inspect for diaper rash or other injuries to a child. Even so, one official conceded, “We clearly do not have the expertise, the qualifications to do a sexual abuse examination!.] ... If by spreading the [vaginal] lips and looking internally you’re implying that the worker is doing a forensic examination, that clearly would not have been appropriate.” CP at 101-02.

9 Even if Francis has qualified immunity, the State can still be liable for negligent investigation. Waller v. State, 64 Wn. App. 318, 334, 824 P.2d 1225 (1992).

10 Francis stated in his deposition: “I had some female staff members, in fact, respond to [the biological parent’s] allegation by having the child visually seen and examined and that subsequently to confirm, the child was taken to Mary Bridge Hospital to be seen by a specialist to determine whether or not the condition would indicate that the child had been sexually abused.” CP at 98. But despite Francis’s admission, there is some dispute over whether it was he or Reitzug who ordered the home support specialists to examine J.C.W. If Francis can prove at trial that he was not involved in the incidents that gave rise to this suit, he can avoid liability.