Keely v. State

KYLE P. KEELY, individually and as the natural father and guardian of M.K., a minor. Respondent, v. STATE OF WASHINGTON, Appellant.

No. 51639-0-II

Court of Appeals of Washington, Division 2

August 11, 2020

UNPUBLISHED OPINION

ORDER DENYING MOTION FOR RECONSIDERATION AND WITHDRAWING OPINION

The Respondent, Kyle P. Keely, filed a motion for reconsideration of the unpublished opinion filed on November 13, 2019. The Appellant, State of Washington, filed a response. The court has considered this motion and the response and determined that the motion for reconsideration should be denied, but that the opinion should be withdrawn and a new opinion filed in due course.

Now therefore, it is hereby

ORDERED that the Respondent's motion for reconsideration is hereby denied, and the opinion previously filed on November 13, 2019 is withdrawn. A new opinion will be filed in due course.

IT IS SO ORDERED.

Cruser, J.

Kyle P Keely, individually and on behalf of his child, M.K., sued the State of Washington for allegedly failing to investigate the home of M.K.'s mother, Robin Ross. M.K. lived with Ross until Ross's older son assaulted and severely injured M.K. when he was 10 months old.

The State moved for summary judgment on the basis that Keely could not establish that the Department of Social and Health Services (DSHS)^[1] owed M.K. a legal duty and that Keely could not establish causation. The trial court denied the State's motion.

We reverse the trial court's denial of summary judgment on the basis that Keely cannot establish factual causation on his claims.

FACTS

I. Referrals A. April 30.2010 Referral

DSHS received a referral on April 30, 2010 concerning possible negligent treatment or maltreatment of C.J. and Ra.R. The referent was concerned because C.J. was falling asleep in class on a regular basis and his teacher struggled to wake him. C.J. told his teacher that his mother, Ross, wakes up him and his little brother, Ra.R., before she goes to work in the morning at 5:00 AM. At the time, C.J. was 11 years old and Ra.R. was 7 years old. DSHS "Screen[ed] Out"^[2] the referral on the grounds that the referent did not make a specific allegation of child abuse or neglect. Clerk's Papers (CP) at 45.

B. May 28.2010 Referral

One month later, on May 28, 2010, DSHS received a second referral concerning possible negligent treatment or maltreatment of C.J. and Ra.R. The day before, Ross left C.J. and Ra.R. home alone while she and her boyfriend drove to Seattle to "[get] drunk." Id. at 63. That evening Ross's boyfriend beat Ross by hitting her over 30 times choking her, and dragging her by her hair down a city block. At the time, Ross was pregnant with her boyfriend's child and her boyfriend was living in Ross's home.

Ross was taken to the emergency room and treated for her injuries. The referent reported to DSHS that Ross was at the hospital and Ross stated that she was worried about her children. The referent called C.J. and Ra.R., who told the referent they were "fearful" and home alone. Id. at 48. The referent was "very concerned about the children who were left alone and exposed and placed at risk of harm." Id. at 49. The referent was of the "opinion that the family desperately needs services and help." Id. The referent contacted Ross's estranged husband and Ra.R.'s biological father, and he picked up C.J. and Ra.R. from the home.

DSHS "Screen[ed] In" the referral for investigation on the basis that Ross left C.J. and Ra.R. alone for an extensive period of time and Ross allowed her "violent boyfriend" to stay in the home. Id. at 48-49. The report also listed additional "Risk Factors" Ross was six months pregnant, lost her house to foreclosure, and was in the middle of a divorce. Id. at 49. DSHS completed a "Safety Assessment" and determined that Ross's home indicated a "pattern of neglect/incidents/injuries" involving Ross's children, "which [was] escalating in severity." Id. at 222.

Interviews throughout DSHS's investigation revealed that Ross had been romantically involved with her boyfriend, an actively using drug dealer, since the fall of 2009 and moved him into her home. Ross admitted to using cocaine with her boyfriend in May 2010. Ross had a "history of severe drug use," including numerous criminal convictions related to drug use beginning in 1994. Id. at 64. Ross also suffered from mental illness and severe childhood trauma. Ross stated her only support was her mother, and "she [had] no one to count on." Id. at 66.

The investigation also revealed that Ross left her children home alone on a regular basis. Ross often left her children home alone in the evenings and through the night. C.J. did not "feel safe often because of Ross's boyfriend. Id. at 64. C.J. had been diagnosed with attention deficit hyperactivity disorder. Ra.R had severe asthma and was "Autistic/Asbergers." Mat 63. Ra.R. had "breathing treatments daily and [had] to be monitored well because of his Autism." Id.

The record does not indicate when C.J. and Ra.R. returned to Ross's care. A case note indicates that C.J. returned to Ross's care on or before July 9, 2010, but Ra.R. was still living with his biological father. On August 4, 2010, Ross gave birth to S.H.^[3] DSHS received a separate referral and a social worker noted S.H.'s birth in Ross's case file. By August 20, 2010, all three of Ross's children were living in Ross's home.

As a result of the investigation, DSHS recommended Ross complete a drug and alcohol program, a mental health assessment, and participate in domestic violence services. On August 20, Ross met with a social worker to discuss DSHS's recommendation that Ross complete an "Intensive outpatient" drug and alcohol program. Id. at 200. The program included six months of "[c]ontinuing [c]are" counseling sessions, individual counseling, and participation in support groups. Id. Ross told the social worker that she was "not too happy" about the recommendations. Id. The case note from August 20 indicates that Ross was not engaged in any domestic violence services and had not completed a mental health assessment.

On September 22, a social worker noted that Ross was "linked" to domestic violence and mental health services. Id. at 201. On October 15, a social worker noted that Ross's case was "getting close to closing." Id. at 202. The social worker reported that Ross was involved with drug and alcohol services, but Ross still needed "to get involved with [domestic violence] services and support groups." Id. Ten days later, a social worker reported that Ross was "following through with [drug and alcohol] outpatient treatment, [domestic violence] support group, and her one on one mental health counseling." Id.

There is no further reporting by DSHS regarding Ross's compliance with DSHS recommended services. On November 23, a social worker reported that Ross's case was "staffed for closure back in Oct., however [Ross] called for some assistance due to her leaving her job to become a stay at home mom." Id. at 204.

DSHS "completed" its investigation and closed Ross's case on or around December 10. Id. at 59. DSHS determined that the allegations were "founded for negligent treatment/maltreatment" and the risk of child abuse and neglect of Ross's children was "high." Id. The case was closed because Ross "followed through [with] all services, namely [domestic violence] services as well as [drug and alcohol] treatment." Id. at 67.

C. June 10.2011 Referral

DSHS received a referral on June 10, 2011 concerning possible negligent treatment or maltreatment of C.J., Ra.R., and S.H. At the time, C.J. was 12 years old, Ra.R. was 8 years old, and S.H. was 10 months old.^[4] Ross's sister called Child Protective Services^[5] (CPS) to report that she had spoken to Ross on the phone and Ross was slurring her words. Ross also told her sister that she was going on drug "binges" and that she was not a good mother. Id. at 283. Ross's sister contacted CPS out of concern for Ross's children. The intake report states,

Mother has a history of heroin addiction. Today . . . mother was slurring her words during a phone conversation. Mother said she is not a good mother. She also reported being on a binge. No information about how mother's drug use is affecting the children.

Id. at 72. Ross's sister gave CPS her name and phone number.

The intake worker "Screened In" the allegation for investigation and assigned a response time of 10 days. Id. at 73. The intake supervisor changed the response time to 72 hours "due to baby being in home; [Ross] has FOUNDED intake ... for older sons; [Ross] may have substance abuse issues." Id. Three days later, an area administrator at DSHS's regional headquarters overrode the intake supervisor's decision. The area administrator "Screen[ed]-Out" the referral because "there is no allegation of how this is affecting the children, caller doesn't know mother is using again." Id. at 76. The investigation assessment states, "Unable to complete invest[igation] -No Finding." Id. at 75.

In a subsequent statement, Ross explained,

Sometime between May 2011 and June 10, 20111 conversed with my sister, A. S. I informed her that I had relapsed and was again binging on drugs. I informed her I was not a good mother. This was a cry for help as I was very deep into drug abuse and desperately wanted treatment but felt it was impossible given my status as a single, working mother.

Id. at 284.

DSHS did not contact Ross or her sister in response to the June referral. Ross stated that had she been contacted, she would have accepted services as she did following the May 2010 referral. When Ross's sister made the referral, Ross was pregnant with M.K. Ross was unaware of her pregnancy.

II. Events Relating to M.K.

M.K was born on ...