Asphy v. State

552 P.3d 325

Anita ASPHY and Tony Asphy, Respondents,

v.STATE of Washington, Petitioner.

No. 85200-1-I

Court of Appeals of Washington, Division 1.

Filed July 15, 2024

Honorable Karen Matson Donohue, Judge.

Licensing and Administrative Law Division A.g. Office, Attorney General Office, 800 Fifth Ave, Suite 2000, Ms-tb-14, Seattle, WA, 98104, Connor Matthew Callahan, Attorney at Law, 71,41 Cleanwater Dr Sw, Olympia, WA, 98501-6503, Julie Ann Turley, Washington State Attorney General’s Office, 1250 Pacific Ave. Ste 105, Tacoma, WA, 98402-4318, for Petitioner.

Lincoln Charles Beauregard, Connelly Law Offices, 2301 N 30th St., Tacoma, WA, 98403-3322, Lawand Sha Anderson, Attorney at Law, 22030 7th Ave. S Ste 103, Des Moines, WA, 98198-6219, for Respondents.

PUBLISHED OPINION

Birk, J.

¶1 Relying on H.B.H. v. State, 192 Wash.2d 154, 429 P.3d 484 (2018), siblings Anita and Tony Asphy¹ filed negligence claims against the State for abuse they suffered during an out of home placement in the 1960s when they were children. The State moved for summary judgment, arguing much of the Asphys’ evidence was inadmissible, it owed no duty to the Asphys, and the Asphys could not satisfy the foreseeability element of their claims. The superior court denied the State’s motion, but granted its alternative motion for certification under RAP 2.3(b)(4). A commissioner of this court granted the State’s motion for discretionary review. We hold the Asphys’ evidence is admissible, supports the existence of a duty under and meets the foreseeability element. We affirm the denial of summary judgment and remand for further proceedings.

I

¶2 Anita filed a complaint against the State for damages arising out of physical, sexual, and mental abuse that occurred during a foster care placement by the State in the mid to late 1960s. Tony filed a complaint against the State, advancing similar claims and relying on similar allegations of abuse. The superior court consolidated the siblings’ cases.

¶3 At her deposition, Anita testified that she lived in a foster home with Tony when she was five or six years old. Anita estimated she had been in the foster home for up to a year, Anita never learned from her mother why she was in foster care and could remember only a few details about her foster parents. She recalled a white woman visiting her while she was in the foster home who she believed was a social worker. Anita recalled crying for her mom, telling the woman who visited that she did not want to be there, and feeling intimidated by her foster parents not to say anything about the abuse. Several other children resided in the foster home. Anita could not recall the names of anyone present in the foster home or the woman she believed was a social worker. Her foster father groped and molested her. The foster father took other children out of the shared bedroom at night and when he brought them back, they would be crying. Anita reported this abuse to her mother after they reunited. This led to a hearing at the "welfare office" where Anita’s mother, the foster parents, the woman she believed was a social worker, and an attorney for the State were present. The allegations of abuse were not believed at the hearing.

¶4 At his deposition, Tony testified that while he did not directly see Anita’s abuse and never spoke about it with her, he remembered rarely seeing Anita during the day and she would come back crying. Tony could not remember at what age he was placed in foster care, except that it was before he started any school. Tony could remember only that his foster parents were white. Tony described sexual abuse he suffered from his foster father. Before this deposition, Tony never disclosed this abuse to anyone.

¶5 The State moved for summary judgment. The State filed a declaration by Carrie Allen, a litigation management program manager, who stated she searched the State’s records and did not find any records related to Anita or Tony as minors. The State argued there was no evidence the Asphys were in the care, custody, or control of the State, and no evidence their abuse was "foreseeable." Accordingly, the State argued it owed no duty to the Asphys.

¶6 The Asphys opposed the motion, arguing their claims are actionable under H.B.H. Anita and Tony filed declarations in support of their opposition. In her declaration, Anita stated that several other children in the foster home were not the naturally born children of her foster parents and none identified themselves as such. "The other children] would often cry, express feelings and emotions of abandonment, and longings to be returned to their naturally born homes." After Anita and Tony were returned to their mother and Anita disclosed the abuse, their mother "always used the phrase ‘foster care’ when the subject came up," as did Anita herself. During the child welfare office hearing, "[t]here were discussions among the people involved referencing the foster parents as being just that – foster parents." The government attorney who allegedly asked questions at the hearing "used the phrase ‘foster care’ with the obvious knowledge and presumption that the abuse happened while I was in ‘foster care.’ " In his declaration, Tony stated that to the best of his knowledge, none of the other children in the foster home were naturally born to the foster parents. He stated, "A professionally dressed white woman that I understood was our social worker would routinely conduct visits at the foster home." After being returned to his mother’s care and whenever the subject of that separation came up, "we al- ways referred to our experiences in that timeframe as having occurred in foster care."

¶7 The Asphys also filed a declaration from their expert witness, Maryanne Ruiz, a former State social worker. Ruiz stated foster children are typically reluctant to express discomfort and abuse in the presence of the actual abusers because of fear of retaliation. According to Ruiz, a properly trained social worker should always privately engage a child to inquire about their health and safety under the circumstances described by the Asphys. Ruiz noted the Department of Children, Youth & Families’ current policy mandates such actions from a social worker, but "[r]egardless of if the same policy was in writing at the time" when the Asphys were children, Ruiz opined, "the expectation of a private meeting has always been the same."

¶8 The superior court denied the State’s motion, ruling "plaintiffs have established a genuine issue of material fact as to whether they were in a State sanctioned foster home when they were children." The State moved for reconsideration. In support of reconsideration, the State filed a declaration from Maureen Walum, who began working as a social worker for the State in 1969. Walum stated the placement of a child in foster care could then be done in two ways: (1) a court order during dependency proceedings, or (2) a voluntary placement agreement. In the 1960s, "children could be placed into foster homes by the State, by religious organizations like Catholic Community Services, and by other nonprofit organizations." The State argued for the first time that statutory changes between the Asphys’ placement and later law distinguished H.B.H. The State alternately sought RAP 2.3(b)(4) certification.

¶9 Anita and Tony submitted additional evidence in response. In a new declaration, Anita testified she recalled being taken to a State child welfare office on the way to the foster placement. Tyrone Asphy, Anita’s and Tony’s brother, signed a declaration stating that around 1969, he was removed by the State and placed in foster care because their mother was incarcerated and the Asphys needed someone to care for them. Tyrone stated he was involuntarily separated from his siblings, not given a choice about where he was placed, and "[t]he agency was not Catholic Community Service[s]." The Asphys submitted a declaration by Ossie Asphy, their aunt, who attested that she was caring for the children in or around 1969 when her sister was taken, and the children were removed from her care against her will "by White people I did not know even though I would have preferred to care for them while my sister was gone." The Asphys’ expert testified in a new declaration based on the above evidence that it is her opinion that the Asphys were placed in a state regulated foster home.

¶10 In its reply in support of reconsideration, the State submitted nearly a hundred pages of photocopies of past Washington statutory law and other materials dating from 1951 to 1971. The State submitted the declaration of Nancy Zahn from another case, in which Zahn described aspects of Washington’s child welfare system in the 1960s and 1970s from her experience as a State social worker at that time. Quoting former RCW 13.04.040 (1951), the State argued a statutory monitoring requirement was not enacted until 1979, and, further "[a]s of 1951, the Department had a duty to ‘inspect and supervise’ foster homes and to enforce all licensing rules."

¶11 The court denied the State’s motion for reconsideration. But it granted the State’s alternative motion for RAP 2.3(b)(4) certification. The State filed a motion for discretionary review in this court, and a commissioner of this court granted the State’s motion.

II

[1, 2] ¶12 The State argues that much of the Asphys’ evidence is inadmissible. When evidence is submitted in opposition to summary judgment it must be admissible. SentinelC3, Inc. v. Hunt, 181 Wash.2d 127, 141, 331 P.3d 40 (2014). We review de novo all trial court rulings in summary judgment proceedings, including regarding the admissibility of evidence. See Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998). We reject the State’s objections to the Asphys’ evidence.

A

[3, 4] ¶13 The State challenges as inadmissible hearsay Anita’s declaration testimony that their mother referred to the placement as the siblings being in a "foster home" and Tony’s...