Gausvik v. Abbey

107 P.3d 98

126 Wash. App. 868

Ralph GAUSVIK, Appellant, v. Timothy ABBEY, individually, and in his official capacity; Laurie Alexander, individually, and in her official capacity; Kate Carrow, individually, and in her official capacity; State of Washington, by and through its subdivision, Department of Social and Health Services, Respondents.

No. 31054-6-II.

Court of Appeals of Washington, Division 2.

January 25, 2005.

Publication Ordered February 23, 2005.

Tyler K. Firkins, John Stocks, Van Siclen Stocks & Finkins, Auburn, WA, for Appellant.

Jeffrey A.O. Freimund, Ofc of Atty Gen Torts Div, Olympia, WA, for Respondent.

Patrick G. Mcmahon, Attorney at Law, Wenatchee, WA, for Other Party.

BRIDGEWATER, J.

¶ 1 Ralph Gausvik appeals from a summary judgment in favor of the Department of Social and Health Services and three social workers for their part in a child abuse investigation. Although Gausvik was convicted of criminal charges, the State dismissed all charges after Division Three of this court ordered a reference hearing based on his personal restraint petition.

¶ 2 We hold that the statute of limitation bars Gausvik's action for negligent investigation. In applying the statute of limitations, we hold that Gausvik's claim began in December 1995, when the court sentenced him for child rape and child molestation, not when his conviction was invalidated in June 2000. Even though he was incarcerated, RCW 4.16.190 only tolls the statute of limitations when he was imprisoned before sentencing, not while he is serving a sentence; it satisfies the rational basis test and is constitutional. Collateral estoppel also bars his claim because the federal court decided the statute of limitations claim and the constitutionality of RCW 4.16.190.

¶ 3 We also hold that Gausvik's cause of action for damages under 42 U.S.C. § 1983 fails because the decisions to arrest and prosecute him were not made by the DSHS workers but by the police and prosecutor and thus he failed to show proximate cause. Additionally, the DSHS social workers had qualified immunity. We affirm.

FACTS

A. Sexual Abuse Charges

¶ 4 On March 13, 1995, Donna Everett, a 10-year-old girl, told Wenatchee Police Detective Robert Perez and Child Protective Services (CPS) social workers Kate Carrow and Laurie Alexander that Gausvik and his girlfriend, Barbara Garaas, had sexually abused Donna and the couple's children, Travis, Troy, Delilah, and Christa Garaas.¹

¶ 5 Carrow consulted with her supervisor, Tim Abbey, and decided that because of the number of disclosures Donna made and the limited resources available to investigate, Carrow would not begin the investigation of the disclosures pertaining to Gausvik and Garaas until May. ¶ 6 Carrow began her investigation on May 30, 1995, by interviewing Delilah Garaas at her school. Detective Perez accompanied Carrow to the interview. At the time of the investigation, Delilah was seven years old.

¶ 7 The interviewers asked Delilah if any abuse happened at her home and Delilah stated, "It never happened at our home. My mom touched no one." 11 Clerk's Papers (CP) at 2060.

¶ 8 That same day, Detective Perez and Carrow went to the home of Garaas and Gausvik. Travis, then 14; Christa, then 4; and Barbara Garaas were home.

¶ 9 Carrow noted that the house was unclean and smelly and that the bathroom was particularly dirty. In her notes, Carrow detailed the filthy kitchen and unkempt nature of the house. Detective Perez and Carrow told Garaas about the interview with Delilah. Garaas denied any involvement in sexual abuse. Detective Perez then spoke with Travis and he denied any abuse.

¶ 10 Carrow offered Garaas and Gausvik the option of entering into a voluntary placement agreement (VPA) pending further investigation instead of having a dependency petition filed and having a shelter care hearing. Carrow noted in her notes the need for further investigation of the abuse allegations. She then completed a temporary custody notification form notifying Garaas and Gausvik that the Wenatchee Police Department took their children into custody and advising the parents of their due process rights.

¶ 11 The next day, Carrow met with Gausvik and Garaas to further discuss if they would agree to a voluntary placement of their children to allow for further investigation, including interviews with their other children. Garaas and Gausvik signed a VPA, allowing for a two-week, out-of-home placement of their children.

¶ 12 On May 31, 1995, Carrow spoke to the children's foster mother, Mickie Reyes. Reyes had picked the children up the day before at the Gausvik home. She told Carrow that Christa's teeth were "completely rotten" and that she still used a baby bottle. 12 CP at 2264. She described a six- to eight-inch mat in Delilah's hair, consisting of cobwebs and a spider that took hours to remove. Reyes also stated that Troy, who suffered from cerebral palsy, had improper shoes and required surgery.

¶ 13 Detective Perez and Carrow interviewed Troy on June 5. Troy was 11 years old at the time of the interview. He disclosed that his mother, father, and other adults sexually abused him.

¶ 14 On that same day, Detective Perez and Carrow received notice that Gausvik and Garaas had revoked the VPA. Detective Perez ordered that the children's removal continue. Carrow prepared another temporary custody notification form notifying the parents of the second removal decision by the Wenatchee Police Department and that a shelter care hearing would occur on June 7.

¶ 15 Carrow filed dependency petitions on June 6. The petitions alleged both neglect and child abuse as reasons for removing the children.

¶ 16 On June 7, the court continued the shelter care hearing to June 15. The court ordered that Gausvik and Garaas have no contact with their children before the June 15 hearing.

¶ 17 Tim Abbey and Carrow interviewed Travis on June 12. Travis described instances of sexual abuse by others, including a man named "Philipe," but he did not mention any abuse by his mother or Gausvik. 11 CP at 2099. He stated that he told his parents about the abuse but that "they did not believe [him]." 11 CP at 2099.

¶ 18 A contested shelter care hearing occurred on June 15. Reyes testified about her observations of the children when removed from the Gausvik home and their improvements since removal. She also related that Troy said, "I french kiss my mom" while watching someone kiss on television. 11 CP at 2039.

¶ 19 Gausvik testified about being unemployed since the end of 1993. He also stated that when Delilah had a bad dream, she would sleep with him and Troy. Gausvik further explained that Philipe occasionally stayed overnight at the Gausvik house until sometime in May 1995. He denied that any of the children had told him that Philipe had abused them, and he testified that he did not believe the children's disclosures of abuse.

¶ 20 The court found neglect "by cumulative effect," listing several reasons for its finding. 11 CP at 2044. The court further ordered the parents to have no contact with the children until the next scheduled court hearing.

¶ 21 Dr. James Jantzen, the Gausvik family doctor, examined Travis and Troy on June 29. The doctor concluded that both boys had decreased sphincter tone, which was "suggestive of but not specific for sexual abuse, specifically rectal penetration." 11 CP at 2117-18. The doctor also examined Delilah and Christa on July 5. Dr. Jantzen concluded that Delilah's examination was "consistent with vaginal and rectal penetration, with marked dilatation of the rectum in particular." 11 CP at 2119. Christa's examination was "consistent with rectal penetration." 11 CP at 2122. The doctor concluded that Christa's vaginal examination was "probably normal," but he could not rule out past vaginal penetration. 11 CP at 2122.

¶ 22 After receiving Dr. Jantzen's conclusions, Detective Perez discussed the case with the prosecutor and they decided that probable cause now existed to arrest Gausvik and Garaas "on suspicion of child rape." 11 CP at 2067. On July 7, the police arrested Gausvik and Garaas.

¶ 23 On September 15, the State filed an amended information charging Gausvik with six counts of child rape or molestation involving Travis, Troy, and Delilah as victims. On October 19, the State filed a second amended information charging Gausvik with eight counts of raping or molesting Travis, Troy, and Delilah.

¶ 24 On November 1, the State filed a third amended information again charging Gausvik with eight counts of raping or molesting his children. The State subsequently filed a fourth amended information later that day, reducing the child rape and child molestation counts to six. A jury found Gausvik guilty on all six counts set forth in the fourth amended information. A sentencing court sentenced Gausvik to 280 months in prison on December 21.

¶ 25 The court held a fact-finding hearing on December 1, to determine the dependency of the Gausvik children. The parties entered agreed disposition orders on December 7. After a hearing, the juvenile court terminated Gausvik's rights over Troy, Delilah, and Christa on April 21, 1997.

¶ 26 Division Three of this court granted Gausvik a fact-finding reference hearing on his personal restraint petition (PRP) related to his criminal conviction on June 5, 2000. Gausvik's PRP challenged the reliability of his children's abuse disclosures.

¶ 27 The State stipulated to dismissal of the charges against Gausvik because it felt it could not prevail in the matter based on the court's prior rulings involving other defendants charged with sexually abusing children in the Wenatchee area. In those cases, the parties questioned the interview techniques Detective Perez used during the investigation. Gausvik was released from prison on June 28, 2000.

B. Procedural History

¶ 28 In March 2001, Gausvik sued police officials, prosecutors, and his criminal defense lawyers in federal court. The ...