Mathieu v. State

520 P.3d 1033

Richard L. MATHIEU, as Litigation Guardian ad Litem for M.J. and A.J., minors, Appellant,

v.State of Washington, DEPARTMENT OF CHILDREN, YOUTH, AND FAMILIES, and Yakima Valley Council on Alcoholism, PBC, aka Triumph Treatment Services, and Kai Martinez and Roberto Valladares, Respondents.

No. 38190-1-III

Court of Appeals of Washington, Division 3.

Filed September 15, 2022

Ordered Published Date November 22, 2022

Sidney Charlotte Tribe, Carney Badley Spellman, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Bryan Gregory Smith, Tamaki Law Offices, 1340 N 16th Ave. Ste. C, Yakima, WA, 98902-7106, Vito R. De La Cruz, Attorney at Law, 14727 Se 132nd Ave., Clackamas, OR, 97015-8298, for Appellant.

Daniel John Judge, Office of the Attorney General of Washington, P.O. Box 40124, Olympia, WA, 98504-0126, William McGinty, Office of the Attorney General of Washington, 7141 Cleanwater Dr Sw, P.O. Box 40124, Olympia, WA, 98504-0124, Gerald Kobluk, KSB Litigation, P.S., 510 W Riverside Ave. Ste. 300, Spokane, WA, 99201-0515, for Respondents.

Staab, J.

¶1 In December 2013, the Yakama Tribal Court returned twin seven-year-old children, A.J. and M.J., to their mother's care after a lifetime in foster care through a tribal court dependency serviced by the Washington State Department of Children, Youth & Families (Department). The mother had recently enrolled in the Parent-Child Assistance Program (PCAP) through Yakima Valley Council on Alcoholism, PBC (d/b/a Triumph Treatment Services) (Triumph), and obtained suitable housing through Triumph. The tribal court dismissed the dependency in May 2014, and the Department closed its file shortly thereafter.

¶2 In February 2015, a relative discovered that the mother had severely abused and neglected the twins. Through their guardian ad litem, Richard Mathieu, the twins sued the Department for negligence for placing them in their mother's custody and care. They also sued Triumph, which housed the mother and the twins, for negligently monitoring and supervising that placement. The Department and Triumph each successfully moved for summary judgment dismissing all claims against them.

¶3 We affirm the trial court's dismissal of Mathieu's claims against the Department and Triumph. Recognizing that the dependency in this case was under the exclusive jurisdiction of the Yakama Tribal Court, Mathieu fails to identify a statutory duty under Yakama law that required the Department to investigate the mother absent a report of neglect or abuse. Nor did the Department have a common law duty to monitor the mother after the tribal dependency was dismissed. Similarly, we hold that Mathieu has failed to demonstrate that Triumph, as either the landlord or the provider of social services to the mother, had a common law duty to protect the twins from the criminal acts of their mother.

BACKGROUND

¶4 In June 2006, Kai Martinez gave birth to drug-affected twins, A.J. and M.J. The children were immediately removed from Martinez's care due to her ongoing use of methamphetamine and the twins’ positive toxicology screen at the time of birth. A dependency was opened in Yakama Nation Tribal Court. The tribal court entered a fact-finding hearing order that found A.J. and M.J. to be neglected and dependent Indian children pursuant to tribal and federal law. It awarded custody and supervision of the twins to the Department and authorized the Department to place the children in foster or relative care. A.J. and M.J. were ultimately placed in foster care with a non-Native family from June 2006 to December 2013. Martinez had little involvement in the dependency from June 2006 to May 2013.

¶5 In September 2012, Martinez enrolled in a program offered by Yakima Valley Council on Alcoholism, PBC (d/b/a Triumph Treatment Services) called the PCAP after discovering she was pregnant with A.J.’s and M.J.’s younger sibling. According to PCAP literature:

The primary goals of PCAP are to help mothers with substance abuse disorders

• Achieve and maintain recovery

• Build healthy family lives

• Prevent the births of subsequent alcohol/drug exposed infants

We do this by building trusting relationships with mothers, connecting clients with comprehensive, relevant community services, and teaching them to believe in themselves.

Clerk's Papers (CP) at 978. The PCAP client service agreement signed by Martinez states in part:

While you are in PCAP, your case manager will be in touch with you many times a month, including home visits. She will ask about what kinds of goals and needs you have, and develop a plan of care and services that will meet your needs and help you reach your goals. She will review this plan with you every few months. During the program, your case manager will help link you with the community services that are just right for you. She will offer transportation and childcare for some of your important appointments. Based on your needs, she will help you with supplies, activities, and incentives while you are in the program. If you sign release forms to coordinate services with other providers, your case manager will talk with those other service providers (such as DSHS, probation, medical) when she needs to.

CP at 1072. Martinez had also enrolled in a methadone program.

¶6 At a May 2013 review hearing, the tribal court reinstated visitation for Martinez, but rejected Martinez's request to relinquish her parental rights. To further reunification efforts, the Department recommended that Martinez be ordered to engage in mental health counseling and family preservation services; however, the tribal court did not order Martinez to engage in these services.

¶7 Martinez began attending Department-supervised visits with A.J. and M.J. in July 2013. Between July 2013 and December 2013, Martinez canceled eight of 22 visits for various reasons. After a visit in early September 2013, A.J. told her foster mother that Martinez had squeezed her hand hard. The foster mother saw no injury but reported A.J.’s statement to the assigned social worker, Michelle Betts. Betts asked Martinez what happened at the visit, and Martinez said A.J.’s hand had been "scrunched up" while working with beads during the visit. CP at 1338. The foster mother's report was "screened out" for no specific child abuse, neglect allegation, or risk.

¶8 Throughout 2013 and part of 2014, Martinez was in a methadone program through Central Washington Comprehensive Mental Health. As part of this program, Martinez was tested for drug use. In July 2013, when Martinez began visitations with A.J and M.J., she began struggling with her sobriety. On June 3, Martinez failed to show up for a psychological evaluation as part of her treatment. On June 4, she tested positive for amphetamines. On June 10, she failed to show up for therapy, and her counselor was unable to reach Martinez to set up another therapy appointment. Although Martinez had signed releases to allow the Department to access her methadone program records, Betts did not request these records.

¶9 In October 2013, the tribal court ordered that A.J. and M.J. start transitioning back to Martinez's care and custody, first through a relative care placement and then with Martinez for an in-home dependency. While still enrolled in Triumph's PCAP, Martinez signed a clean and sober housing agreement (Agreement) with Triumph Treatment Services in November 2013 to become a resident at one of its Transitional Housing Program units. The Agreement does not require Martinez to pay rent. Instead, by signing the Agreement, Martinez stipulated to several policies and rules in order to live in one of Triumph's Transitional Housing Program units. One of the rules or policies was Triumph's inspection procedures, i.e., weekly, mandatory inspections performed "in order to provide a safe and healthy environment" and "with the intention of assuring that premises are in good conditions and to report any damage or repairs to the Maintenance Department." CP at 1076. Martinez's presence in the home was not necessary during inspections.

¶10 Martinez moved into her Triumph apartment unit in mid-November 2013. A.J. and M.J. transitioned to an in-home dependency with Martinez on December 20. The Department conducted monthly health and safety checks on the twins for the next five months and noted no concerns.

¶11 Unbeknownst to the Department and the tribal court, in December, Martinez told her methadone treatment counsel that she had relapsed on methamphetamine after moving to her new apartment and was unable or unwilling to re-engage with the clinic. However, by April 4, 2014, Martinez's methadone counsel told Betts that Martinez was compliant with the program and doing "amazing," and the counselor had no concerns.

¶12 On April 30, 2014, Betts received a call from the children's school stating that the school had early release and Martinez had not picked up the twins from school. The school could not reach Martinez or her boyfriend. Betts picked up the twins from school and eventually took them home. Martinez explained that she did not realize it was an early release day.

¶13 Yakama Nation Children's Court dismissed A.J.’s and M.J.’s dependency proceeding in May 2014, and the Department closed its file on the matters in June 2014. Unknown to the court and the Department, Martinez was in active relapse on methamphetamine when the dependency was dismissed. For the next several months, Martinez continued to abuse methamphetamine and heroin.

¶14 Martinez's PCAP case manager, Andrea Ross, never visited Martinez inside her apartment and never observed Martinez interact with A.J. and M.J. during her visits with Martinez. Martinez expressed to Ross that she was struggling and depressed, but Ross never suspected Martinez had relapsed or was abusing her children. She did not see A.J. or M.J. between September 2014 and February 2015.

¶15 Triumph's housing manager, Sophia Sanabria, inspected Martinez's apartments at various times. She observed the apartment to be...