W.M. v. State

498 P.3d 48

W.M., a minor, BY Erin OLSON, his Litigation Guardian ad Litem and James Maney, Appellants,

v.STATE of Washington, Respondent.

No. 55007-5-II

Court of Appeals of Washington, Division 2.

Filed November 2, 2021

Sidney Charlotte Tribe, Carney Badley Spellman, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Rebecca Jane Roe, Schroeter Goldmark Bender, 401 Union St. Ste. 3400, Seattle, WA, 98101-2678, Scott F. Kocher, Forum Law Group LLC, 811 Sw Naito Pkwy. Ste. 420, Portland, OR, 97204-3334, for Appellants.

Richard Steven Puz, Office of the Attorney General, 7141 Cleanwater Dr. Sw, P.O. Box 40126, Olympia, WA, 98504-0126, for Respondent.

PUBLISHED OPINION

Lee, C.J. ¶ 1 W.M.,¹ through his litigation guardian ad litem (GAL) Erin Olson, and his father James² sued the State for the negligent investigation of a child abuse report involving two-year-old W.M. Olson appeals the trial court's grant of summary judgment in favor of the State. We hold that the superior court properly granted summary judgment in favor of the State and affirm.

FACTS

A. INCIDENT BACKGROUND

¶ 2 James and Katelyn, W.M.’s mother, were married from 2015 to 2017. W.M. was born in July 2015 in Longview. James and Katelyn moved to Tennessee in 2016. In 2017, Katelyn left James and returned to Washington with W.M. Katelyn then filed a dissolution action in Washington. The Cowlitz County superior court entered a temporary parenting plan giving Katelyn primary residential custody of W.M. The temporary parenting plan allowed James visitation with W.M. when James was in the local area.

¶ 3 On December 9, 2017, Katelyn brought W.M. to the emergency room at Legacy Mount Hood Medical Center (LMHMC) in Gresham, Oregon because he had ingested Suboxone.³ Antoinette Teixeira, a hospital social worker, contacted Oregon Child Protective Services to report the Suboxone ingestion. Because Katelyn claimed that the ingestion occurred at her parents’ home in Washington, Teixeira also called Washington Child Protective Services (CPS)⁴ to report the Suboxone ingestion.

¶ 4 W.M. was transferred to Legacy Randall Children's Hospital in Portland, Oregon. On December 9, Kimberly Hartnagel, a CPS after-hours investigator, met with Katelyn and W.M. at Randall Children's Hospital. Hartnagel did not document any concerns about Katelyn's appropriateness with or attentiveness towards W.M. W.M. was scheduled to be discharged from the hospital on December 10.

¶ 5 Eight days later, on December 18, Katelyn and her boyfriend, Samuel Rich, brought W.M. to the emergency department at LMHMC again. W.M. was unresponsive, was not breathing, had no pulse, and was cold to the touch. W.M. had multiple abrasions, contusions and bruises; doctors also determined that W.M. had bleeding and swelling in his brain. Katelyn gave different explanations for how W.M.’s injuries occurred.

¶ 6 W.M. was transferred from LMHMC to Emanuel Hospital in Portland, Oregon. A law enforcement officer from Gresham Police Department met with Katelyn at Emanuel Hospital.

¶ 7 Katelyn initially told law enforcement officer that she was walking with W.M. at the time of the incident, but Katelyn's mother, Sally, interrupted Katelyn and told her to tell the truth. Katelyn then told the officer that she was at work when Rich called her to tell her that W.M. had fallen out of his high chair. When the officer asked Katelyn why she did not call 911, she explained that the hospital was right around the corner. When the officer asked Katelyn why Rich did not call 911, she stated that he did not know to do that because he did not have kids.

¶ 8 The officer then interviewed Rich. Rich told the officer that WM was playing with the dog on the stairs, fell four to five steps, and landed on tile. Multnomah County Sheriff's Office detectives then took over the investigation because of where the injury occurred.

¶ 9 On December 19, Detective Kate Lazzini of the Multnomah County Sheriff's Office conducted a recorded interview with Katelyn regarding W.M.’s injuries. Katelyn stated that she got off work around 5:00 PM and was driving to Rich's when he called her to tell her that she needed to get home right away because W.M. had fallen and was unconscious. Katelyn said that she asked Rich how severe W.M.’s injuries were and whether they needed to call 911. Rich told Katelyn that he was not sure about the extent of W.M.’s injuries and that he was trying to wake WM up by splashing water on him. When Katelyn arrived at Rich's house, she explained that she took a couple of minutes to assess the situation to decide if they needed to take W.M. to the hospital.⁵

¶ 10 As a result of the assault, W.M. suffered severe, permanent brain damage. W.M. requires constant care for all daily activities.

B. WA CPS INVESTIGATION

1. Initial CPS Investigation into Suboxone Ingestion

¶ 11 The initial report of W.M.’s Suboxone ingestion came into CPS intake on a Saturday, which was after normal business hours. An intake report was created based on Teixeira's report to CPS on December 9, 2017. The intake report included Katelyn's original report that the Suboxone ingestion occurred at her home in Washington and she did not know how W.M. ingested the Suboxone. The intake also noted that there was no prior history in the CPS "Famlink" system.

¶ 12 Intake contacted the after-hours supervisor to staff the intake because W.M. had ingested Suboxone, which placed him in present or impending danger. The after-hours supervisor assigned the intake to Hartnagel.

¶ 13 Suboxone ingestion raises concerns for lack of supervision as well as concerns about potential drug abuse. Therefore, under CPS policy, Hartnagel was required to make an attempt to see the child within 24 hours.

¶ 14 When Hartnagel received the intake for W.M., she went to the hospital and spoke with the registered nurse who was caring for W.M. Hartnagel also interviewed Katelyn at the hospital.

¶ 15 Katelyn told Hartnagel that W.M. ingested the Suboxone while they were at her boyfriend's house. Hartnagel could not recall if she specifically asked Katelyn for her boyfriend's name. In her deposition, Hartnagel explained that the information would be important if CPS determined a background check was necessary. She said the agency might request a background check if the boyfriend lived in the home, was present during the reported incident, or had a lot of access to the child.

¶ 16 Hartnagel stated that it would be her normal response to try to contact the biological father and tell him the child was in the hospital. Hartnagel did not follow up on contacting James because she believed it was appropriate for the assigned social worker to do that as part of the follow-up investigation.

¶ 17 Hartnagel's report states medical staff did not report any concerns regarding Katelyn and she has been appropriate with the child. Medical staff also reported that the child was doing well and would likely be discharged the next day, December 10. Hartnagel observed Katelyn interact with W.M., and Katelyn was appropriately concerned and attentive.

¶ 18 Katelyn explained to Hartnagel that W.M. ingested the Suboxone while they were at her boyfriend's house, where Katelyn had been intending to surprise her boyfriend by putting up Christmas decorations while her boyfriend was at work. Katelyn said her boyfriend was not at the home when the Suboxone ingestion occurred. Katelyn reported that there were baby gates at her house and at her boyfriend's house. Katelyn also told Hartnagel that she did not have contact information for James, but she would have her attorney inform his attorney about the Suboxone ingestion on Monday. Hartnagel informed Katelyn that another social worker would be assigned to conduct a follow-up investigation, and Katelyn provided her contact information. After Hartnagel's interview with Katelyn, the hospital discharged W.M. to Katelyn's care.

¶ 19 Katie Palmquist was assigned to continue the CPS investigation. On December 11, Palmquist contacted Katelyn to arrange to visit W.M. in the home. Katelyn told Palmquist that Sally watched W.M. during the day while she was at work and provided Sally's contact information for Palmquist to arrange the home visit. Palmquist arranged to visit Sally at her home on December 13.

¶ 20 During the home visit, Palmquist observed that W.M. acted as a typical two year old. The home was clean and had several baby gates and safety locks. Sally told Palmquist that she did not have any concerns regarding Katelyn's care of W.M. Sally identified Rich as Katelyn's boyfriend and stated she had been to his house and did not think that it was unsafe. Sally believed the Suboxone ingestion was a one-time incident, and she did not believe anything like it would happen again. Sally agreed to call CPS if she had any concerns about Katelyn caring for W.M.

¶ 21 In her deposition, Palmquist explained that initial face-to-face contact with the child was required to occur within 24 or 72 hours, depending on the type of referral. CPS had 60 days to complete remaining aspects of the investigation.

2. Investigation Following December 18 Hospitalization

¶ 22 When CPS was informed of W.M.’s December 18 hospitalization, and the possibility that he was seriously harmed by Rich, Jennifer Gorder of CPS contacted Oregon Child Welfare. Oregon Child Welfare confirmed that they had an open intake regarding W.M. Oregon Child Welfare also informed Gorder that Rich had a founded investigation for harming his ex-girlfriend's toddler about six years ago. Gorder recorded the contact with Oregon CPS:

Samuel Rich has a prior FOUNDED for physical abuse against his former girlfriend's child. Girlfriend is [redacted]. Child was too young to disclose but presented with injuries to the child's face and legs that were consistent with physical abuse. An older child, sibling, disclosed seeing the abuse.

Clerk's Papers (CP) at 343. Gorder stated that if CPS had known of the Oregon founded determination, they would have been concerned and addressed...