Desmet v. State

514 P.3d 1217

Michelle A. DESMET and Sandor Kacso, individually and as the General Guardians of their daughter, A.K., a minor, Respondents,

v.STATE of Washington, BY AND THROUGH its agency the DEPARTMENT OF SOCIAL AND HEALTH SERVICES and the Child Protective Services Division thereof, and Yolanda A. Duralde, M.D., Petitioners.

No. 99893-1

Supreme Court of Washington.

Argued February 22, 2022

Filed: August 11, 2022

Cynthia Jan Gaddis, Office of the Attorney General, P.O. Box 40126, Olympia, WA, 98504-0126, Kaylynn What, Office of the Attorney General, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104-3188, for Petitioner.

Daniel R. Kyler, Michael John Fisher, Rush Hannula Harkins & Kyler LLP, 4701 S. 19th St. Ste. 300, Tacoma, WA, 98405-1199, Christopher Reid McLeod, Attorney at Law, P.O. Box 65252, University Place, WA, 98464-1252, for Respondent.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

WHITENER, J.

¶ 1 In February 2016, at approximately three months of age, A.K., the daughter of respondents Michelle Desmet and Sandor Kacso (the parents), was taken into protective custody after she suffered a spiral fracture to her left femur. The parents could not explain how the fracture occurred, and A.K. was placed with her paternal aunt for six months while the Department of Social and Health Services (DSHS)¹ investigated the cause of A.K.’s injury. In August 2016, A.K. was returned to her parents and the dependency action was dismissed.

¶ 2 In August 2018, the parents sued the State and its subdivisions, Child Protective Services (CPS) and DSHS (collectively Department) for negligent investigation, negligent infliction of emotional distress (NIED), and invasion of privacy by false light (false light) based on the Department's allegedly harmful investigation and issuance of a letter indicating that allegations of child abuse/neglect against Desmet were founded (the founded letter). The Department moved for summary judgment, arguing it was immune from suit under RCW 4.24.595(2) because its actions in A.K.’s dependency proceedings were taken pursuant to the juvenile court's order to place A.K. with her aunt. The trial court denied summary judgment and entered a final order finding that no immunity applied. The Department appealed on the immunity issue, and the Court of Appeals affirmed the trial court. The Department claims that the Court of Appeals’ decision renders RCW 4.24.595(2) meaningless and that the court erroneously refused to consider the legislative history of RCW 4.24.595(2), which, in the Department's view, was enacted to bar claims like those brought by the parents.

¶ 3 The unambiguous text of RCW 4.24.595(2) does not grant the Department immunity for all actions in an investigation of child abuse/neglect that may coincide with a court order in related dependency proceedings. The statute's grant of immunity is restrictive and only actions taken to comply with a court order are under the statute's limited grant of immunity. Because the Department's investigation and issuance of the founded letter were mandated by statute, not a court order, these actions, which form the basis of the parents’ claims for negligent investigation, NIED, and false light, do not fall under the limited liability immunity created by RCW 4.24.595(2). We affirm the Court of Appeals and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

A. Initial removal of A.K. from her parents’ custody

¶ 4 On February 5, 2016, the parents brought their then three-month-old daughter, A.K., to Mary Bridge Children's Hospital because her left leg was swollen and she was unusually fussy. Clerk's Papers (CP) at 237, 242, 350-51. She was diagnosed with a spiral fracture to her left femur. Id . at 235-50, 256-80. Dr. Yolanda Duralde, the director of the Mary Bridge Child Abuse Intervention Department, reviewed A.K.’s medical chart and concluded there was "[p]robable inflicted trauma." Id . at 283. Dr. Duralde recommended that A.K. "be in a safe environment until investigation can be done." Id . The Department and the King County Sheriff's Office interviewed the parents. Id . at 350-52, 368-69. The parents denied knowing how the spiral fracture had occurred but mentioned that A.K. had just started attending day care and was there each day from February 1 through 3, 2016. Id . at 350-51, 368. Desmet said she stayed home with A.K. on February 4, 2016 because A.K. had started to act abnormally agitated. Id . The police took A.K. into protective custody because the parents could not explain how A.K. had been injured. Id . at 351. A.K. was placed in the care of her paternal aunt and remained with her for the next six months. Id . at 426, 1418.

B. Dependency proceedings and investigation

¶ 5 On February 9, 2016, the Department filed a dependency petition. Id . at 1911-13. At the 72-hour shelter care hearing, the parents did not contest A.K.’s placement with her aunt pending the Department's investigation. Id . at 384-92. The court entered a shelter care order continuing A.K.’s placement with her aunt and permitting the parents supervised visitation. Id . at 387, 389. The parents visited A.K. every day throughout the six-month placement with her aunt; Kacso visited before and after work, and Desmet quit her job to stay with A.K. from the time A.K. woke up until she went to sleep. Id . at 322, 462-64, 1104-05, 1571.

¶ 6 Each parent took a polygraph test as part of the Department's investigation. Id . at 354, 1034-35. Kacso passed his first test, showing that he was not attempting deception when he denied causing A.K.’s injury. Id . at 114, 1035, 1042. Desmet's first test was inconclusive, indicating that the examiner could neither identify nor rule out truthfulness or deception. Id . at 115, 1035. However, Desmet passed her second test, as verified by the polygraph examiner and several independent polygraph experts. Id . at 119, 125-26, 137-38, 140.² Despite evidence of Desmet's successful test result, case notes from a department social worker showed that a police detective advised the Department that both of Desmet's polygraph tests were inconclusive, which the detective believed showed Desmet was lying. Id . at 1288.³

¶ 7 On March 31, 2016, the Department issued a founded letter against Desmet, which concluded "it was more likely than not that the abuse and/or neglect occurred and [Desmet was] the person responsible for the abuse and/or neglect." Id . at 879-80. The Department maintained that A.K. must have been injured in Desmet's care based on A.K.’s hospital intake, interviews with the parents, A.K.’s medical and day care records, polygraph test results, and Dr. Duralde's opinion⁴ that there was minimal likelihood A.K. was injured at day care. Id . at 880. The Department also cited the police detective's assertion that Desmet had two inconclusive polygraph tests and this "[was] indicative of deception and a failed polygraph." Id . Desmet did not receive the founded letter until June 14, 2016, after the deadline to appeal had passed.⁵ Id . at 163, 442-44 (providing 30-day period to request review).

¶ 8 On March 8, 2016, the parents waived the 30-day shelter care hearing and later filed a motion to modify A.K.’s shelter care order based on changed circumstances. Id . at 394-96, 398-403. At the motion hearing on April 12, 2016, the parents presented the results of their polygraph tests, several medical professionals’ opinions stating A.K.’s injury was consistent with an accident and not physical abuse,⁶ psychological evaluations showing that neither parent exhibited a propensity for child abuse/neglect, and declarations from the parents and their family members attesting that A.K. had started to act differently after she returned from day care on February 3, 2016. Id . at 3-32, 53-60, 109-26, 137-40, 152-57, 163. The parents also challenged the adequacy of the police investigation, noting only two employees at A.K.’s day care had taken polygraph tests even though there were several other employees who could have handled A.K. during the time frame in which she was injured. Id . at 400, 1688. In opposition, the Department presented a declaration from a department social worker who stated the parents were uncooperative when asked to take a polygraph test⁷ and "[t]here was deception on the part of the mother." Id . at 1880; see id . at 1872-76. Several exhibits accompanied the declaration, including Dr. Duralde's report and department case notes documenting its investigation. Id . at 1884-87, 1891-1910. The court denied the parents’ motion, finding reasonable cause to continue A.K.’s out-of-home shelter care placement because the cause of her injury remained unclear. Id . at 1924-25. The initial shelter care order remained in effect, and the parents agreed to undergo further psychological evaluation. Id . at 1925.

¶ 9 On August 8, 2016, all parties agreed A.K. should be returned to her parents’ care. Id . at 425-26. On October 24, 2016, the Department's dependency action was dismissed with prejudice. Id . at 198, 432-36. Despite the dismissal, the Department retained the founded letter against Desmet in its files. Id . at 166, 1329-39. On February 16, 2017, after several requests from Desmet that the founded letter be replaced with an "unfounded" finding, the Department issued a letter stating that the allegations of child abuse/neglect against Desmet were unfounded. Id . at 1304-05, 1331-39, 1341.

C. Parents’ lawsuit against the Department

¶ 10 The parents sued the Department for negligent investigation, NIED, and false light. Id . at 158-69. The Department moved for summary judgment, in part, on the grounds that it had complete immunity against these claims under RCW 4.24.595(2). Id . at 316, 323-39; Desmet v. State , 17...