JESSICA WRIGLEY, individually, and as Personal Representative for the Estate of A.C.A., Deceased, and O.K.P., a minor child, and I.T.W., a minor child, by and through their biological mother, JESSICA WRIGLEY, Appellants/Cross-Respondents, v. STATE OF WASHINGTON; DEPARTMENT OF SOCIAL & HEALTH SERVICES; DONALD WATSON & “JANE DOE” WATSON, husband and wife, individually and the marital community thereof; ALESSANDRO LAROSA & “JOHN DOE” LAROSA, husband and wife, individually and the marital community thereof; RACHEL WHITNBEY & “JOHN DOE” WHITNEY, husband and wife, individually and the marital community thereof; JENNIFER GORDER & “JOHN DOE” GORDER, husband and wife, individually and the marital community thereof; “JOHN DOE” Social Worker & “JANE DOE” Social Worker, husband and wife individually and the marital community thereof, 1 through 5, Respondents/Cross Appellants.
No. 49612-7-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
October 30, 2018
PART PUBLISHED OPINION; Filed Washington State Court of Appeals Division Two October 30, 2018
The Wrigleys argue that DSHS owed A.A. a duty of care under (1) former
On сross-appeal, DSHS argues that (1) the Wrigleys’ claims fail as a matter of law based on a lack of proximate cause and (2) the trial court abused its discretion when it refused to strike opinions offered by the Wrigleys’ expert.
In the published portion of this opinion, we hold that DSHS owed the Wrigleys a duty of care under former
On the cross-appeal, we do not reach the issue of proximate cause because we hold that the trial court abused its discretion when it denied the Wrigleys’ motion to amend. Finally, we 3 hold the trial court did not abuse its discretion when it refused to strike the opinions offered by the Wrigleys’ expert.
We reverse and remand.
FACTS
A. Substantive Facts
Jessica Wrigley2 and Viles met in December 2004, and Jessica became pregnant with A.A. in February 2005. After she became pregnant, Jessica claims Viles’ behavior toward her changed; for example, he became more controlling and verbally abusive. She asserts his behavior began to escalate and he began threatening and abusing her physically, even threatening to kill her several times. According to Jessica, Viles used methamphetamine, cocaine, ketamine, and heroin and abused alcohol throughout their brief relationship.
Viles’ violent behavior and abuse of drugs and alcohol predated his relationship with Jessica and continued after their relationship ended. From 1998-2001, Viles was held in juvenile detention at various times for assaultive behavior and suicidal threats. In February 2000, Viles was taken into mental protective custody after making suicidal threats. Viles’ mother, Rose Viles, informed law enforcement that Viles “ha[d] problems with his violent tendencies.” Clerk‘s Papers (CP) at 530. Viles was again taken into mental protective custody in July 2000 4 after he attempted suicide. In August 2000, Viles was incarcerated at the Psycho Social Rehab Center in Pocatello, Idaho, where he had to be physically restrained after assaulting an inmate. Viles “became combative and begаn throwing the chair around and yelling and screaming” when law enforcement confronted him. CP at 536. Then, in September 2000, Viles’ mother called law enforcement due to a domestic disturbance between Viles and her.
In 2001, Viles pled guilty to battery. In 2002, he pled guilty to minor in possession and was accused of rape. The alleged victim completed a computer voice stress analysis that concluded she was being truthful; Viles would not participate in the stress test due to advice from his counsel. In June 2002, law enforcement was called to a physical altercation between Viles and his girlfriend, Jami Carranza. In October 2002, Viles’ grandfather, Roy Viles,3 reported a domestic disturbance between him and Viles.
In September 2003, law enforcement was called because of a domestic disturbance between Viles and Carranza. During the investigation, Viles admitted to pushing Carranza. After a physical altercation with law enforcement, Viles pled guilty to disturbing the peace. In May 2004, Carranza reported to law enforcement that Viles had arrived at her home intoxicated, gotten into an argument, and drove away drunk.
In October 2005, Roy reported another domestic disturbance between Viles and him. Roy reported that Viles had physically threatened him and was using drugs. In January 2006, Viles was stabbed with a screwdriver during a fight. 5 In January 2007, Viles pled guilty to contributing to the delinquency of a minor when he provided alcohol to and harbored a 15 year old runaway female. Viles admitted to law enforcement he had marijuana in his home.
In January 2009, Ramon Garcia, Carranza‘s fiance, reported Viles breaking into a shed in his back yard. Viles was charged with unlawful entry.
In December 2011, William Viles4 and Ashley Eskelson called law enforcement to report Viles had come to their home and threatened to “break [William‘s] neck.”5 CP at 586-88. This incident occurred one month before DSHS placed A.A. with Viles, described below.
Jessica married Jared Wrigley on November 30, 2007. In 2010, the Wrigleys, including A.A., moved from Idaho to Washington.
A.A.‘s first contact with DSHS occurred at age five in the summer of 2011, when his Catholic Community Services individual mentor made four reports to DSHS concerning the possible abuse and neglect of A.A. by the Wrigleys. Child Protective Services (CPS) assigned the case to Kim Karu for investigation. After Karu‘s investigation, CPS transferred their case to Family Voluntary Services (FVS) at the end of August 2011.
On September 29, FVS employee, Rachel Whitney, made a routine health and safety visit, traveling to Jessica‘s home after
Whitney noted that Jessica appeared aggravated. Jessica stated to Whitney that she wanted to put A.A. up for adoption. Whitney recommended putting A.A. into a voluntary out-of-home placement for two weeks and Jessica agreed.
CPS assigned the case to Jennifer Gorder, and Gorder interviewed A.A. the next day at his school. A.A. stated that he was spanked by his father with a belt for wetting his pants. Gorder noted and photographed bruises on A.A.‘s spine, side, face, and above his buttocks. Gorder noted that the bruises on A.A.‘s back and forearm were linear, which indicated they may have been made with a belt.
At an October 4 family team decision meeting, Jessica informed CPS that she had a restraining order against Viles because of threats he made against her. Jessica told the social workers that Viles had threatened to cut her head off, had tried to run over her, had dragged her upstairs by her hair, and had a reputation for violence in Pocatello.
On October 5, DSHS filed a dependency petition regarding A.A., based on Gorder‘s investigation. The dependency petition informed the court of the restraining order between Jessica and Viles. Both A.A and his younger brother, I.W., were removed from Jessica‘s home.
Gorder, meanwhilе, located Viles, who showed interest in having custody of A.A.6 Viles communicated the same desire to Whitney. Gorder ran a “Purpose Code C” background check 7 on Viles through National Crime Information Center (NCIC), which requests criminal history information from the Federal Bureau of Investigation. According to Gorder, Viles’ background check did not raise concern. DSHS Centralized Services Administrator, Christopher Parvin, reviewed Viles’ Idaho Repository Case History. Parvin was responsible for overseeing all DSHS background check programs. Parvin asserted that none of the information, crimes, or infractions contained in Viles’ case history were disqualifying under the federal Adoption and Safe Families Act of 1997, Public Law 105-89.
On October 11, Viles agreed to shelter care for A.A, and the hearing regarding Jessica was set for October 25. The shelter care hearing was continued over the next three months. During that time, Viles continued to make it known, both personally and through his attorney, that he wanted A.A. placed with him.
A.A.‘s case was reassigned to CPS social worker Don Watson. Watson conducted an initial investigation regarding the placement of A.A. with Viles, calling several references Viles provided, and speaking with Viles directly.
On October 24, Watson called Jessica to obtain additional information about Viles and she told him that Viles had an extensive criminal history, had been arrested for providing alcohol to minors, had a restrаining order against him, and that A.A. had never met him.
The AAG and CPS social worker Watson did not provide to the court all of the background information Watson had gathered. Neither the AAG nor Watson informed the court about Viles’ prior arrests or Jessica‘s allegations of violence and concerns regarding placement of A.A. with Viles. Jessica did not appear at the hearing. The Wrigleys’ attorneys did not fully relay the concerns she had expressed to Watson to the court. They advised the court that Jessica‘s “separation from Mr. Viles and apparently at least some of their relationship was pretty rocky.” CP at 306. They also stated that they had heard from Jessica that Viles was violent, and that she had “grave concern regarding [A.A.‘s] well-being.” CP at 304. In addition, the court heard testimony from A.A.‘s therapist.
At the conclusion of testimony, the court ordered A.A. released from shelter care and placed with Viles “for a [30 day] visit,” and allowed Viles to take A.A. home that day. CP at 203-04. The court set another hearing date for late February, directing that both Watson and A.A.‘s therapist should check in on A.A. during the intervening weeks. Watson and A.A.‘s 9 therapist checked in with A.A. several times, but there was no indication Viles had abused or neglected A.A.
When Jessica learned A.A. had been placed with Viles, she “called Mr. Watson hysterical” and reminded him again of the incidents in which Viles had been violent with her or threatened her. CP at 880. She told him that because of A.A.‘s behavioral problems, if A.A. was with Viles, “he would be dead within six months.” CP at 880. She stated she did not want A.A. “to be placed with Mr. Viles.” CP at 238. Watson told Jessica about the upcoming February hearing date at which she could voice her concerns.
On February 21, the court held a hearing on whether A.A. should continue placement with Viles. Watson and A.A.‘s therapist reported their contacts with A.A. and Viles. Jessica did not attend the hearing. Jessica‘s attorney suggested they were in agreement with dismissing the dependency petition, which would leave A.A. in Viles’ custody. The сourt specifically made a finding that placement with Viles was in A.A.‘s best interest and dismissed the dependency petition.
Viles beat A.A. to death eight weeks later—he was only six and half years old.
B. Procedural Facts
The Wrigleys filed their amended complaint for damages against DSHS and others on December 16, 2014. The complaint pled wrongful death, negligent investigation, outrage, loss of consortium, negligent misrepresentation, survival action, negligent training/supervision, and publication of private facts. The complaint did not plead general common law negligence.
DSHS moved for partial summary judgment on all negligence claims. The Wrigleys responded in part by submitting a declaration by Sonja Ulrich with expert testimony on DSHS‘s compliance with its standard of care. 10 On August 5, the court provided an oral ruling on the motion. The trial court order granting in part and denying in part defendants’ motion for partial summary judgment made findings of fact and conclusions of law, in part, as follows:
Based on these records, the Court finds that the following facts are not disputed:
- Defendants removed [A.A] from the home of Jessica and Jared Wrigley based on allegations of abuse and neglect made against the Wrigleys;
- The only allegations of abuse and neglect made under
RCW 26.44 regarding [A.A.] were related to the Wrigley home;- There is no evidence that the investigation of the allegations related to the Wrigley home was faulty;
- DSHS never received any report of abuse or neglect made pursuant to
RCW 26.44 regarding Anthony Viles; and- Plaintiffs do not allege any negligence-based clаims other than those that arise under
RCW 26.44.050 .Based on the above undisputed facts, the Court found the following facts were disputed, but construed them in favor of the Plaintiffs for purposes of summary judgment.
- At the January 30, 2012 placement hearing (“Placement Hearing“), DSHS offered testimony of social worker Donald Watson that only highlighted positive aspects of the potential placement of [A.A.] with Anthony Viles. Argument by DSHS‘s representative, Assistant Attorney General, Meghan Collins, also only highlighted positive aspects of the potential placement of [A.A.] with Anthony Viles;
- At the Placement Hearing, DSHS took the lead in offering testimony related to [A.A.]‘s potential placement with Anthony Viles;
- DSHS had more information than it provided to the court at the Placement Hearing; and
- Social worker Donald Watson‘s understanding of his authority to conduct an investigation related to [A.A.]‘s placement in Anthony Viles’ home evolved over time. Social worker Watson believed he did not have authority to utilize tools available via the ICPC process to conduct a more thorough investigation. Information that would have been available to Mr. Watson through a more thorough investigation include: Mr. Viles’ juvenile conviction for battery, the restraining order between Jessica Wrigley and Anthony Viles, allegations regarding Anthony Viles’ anger issues, and parenting assessment completed as part of custody litigation in which Anthony Viles was a party.
- In addition, Mr. Watson did not conduct a follow-up investigation regarding the parenting assessment or the restraining order between Mr. Viles and Mrs. Wrigley—information that Mr. Watson was aware of in November 2011, prior to [A.A.]‘s placement with Anthony Viles.
11
Based on the foregoing undisputed facts and construing disputed facts in the light most favorable to the Plaintiff, the Court makes the following Conclusions of Law:
- Assuming the existence of a duty owed to Plaintiffs by Defendants under
RCW 26.44 , there is a genuine issue of material fact as to whether Defendants breached that duty; and- Assuming the existence of a duty owed to Plaintiffs by Defendants under
RCW 26.44 , there is a genuine issue of material fact as to whether Defendants’ breach was the proximate cause of Plaintiffs’ injuries.Based on the above . . . undisputed facts and disputed facts and Conclusions of Law, NOW THEREFORE, it is HEREBY Ordered that State Defendants’ Motion for Partial Summary Judgment is GRANTED as to all of Plaintiffs’ negligence-based claims including Plaintiffs’ claims for Wrongful Death, all Survival Actions, Negligent Investigation, Negligent Training and Supervision, and Loss of Consortium, as Defendants did not owe a duty to Plaintiffs.
CP at 1597-98.
Of import, the trial court found, “Plaintiffs do not allege any negligence-based claims other than those that arise under
At the hearing on the motion to amend, the following exchange occurred:
THE COURT: So, Mr. Preble, you‘ve been part of this case, even though Mr. Moffitt has been the lead. You signed off on the amended complaint almost two years ago. And the State filed their motion originally in the spring, the one that I heard in July. Why did you not seek leave to amend to add the separate theory for negligence sooner? I remember asking Mr. Moffitt on summary judgment, “So your whole negligence theory is based upon this statute?” and he said, “Yes.”9 So why not do it sooner?
MR. PREBLE: That was, I guess, an error on our part. That was something that had not been obvious to me, and I was not aware of his statement to you. However, I would note that inexcusable neglect is not a basis for denying a motion to amend, according to case law. I don‘t know that I would call it an excusable neglect, but --
THE COURT: I didn‘t ask him why he hadn‘t had another theory; I just asked him to confirm his complaint, your complaint, was solely – the negligence theory was based solely on the specific statute that the State was addressing in their motion, and he confirmed that that was the case. And then I was surprised to see a motion to add a different theory, because I thought, “Why didn‘t that come up when the court was hearing about the negligence topic on summary judgment this summer?”
MR. PREBLE: It should have. It should have. That‘s all I can say, and I‘m regretful. . . . [W]e did not concede there was not negligence. The facts were all out there. We said these things were negligent. We just did not include the general negligence claim, which we should have.
Verbatim Report of Proceedings (VRP) (Sept. 16, 2016) at 19-22. The court orally held as follows:
13
Of course Civil Rule 15 says leave is given freely if justice so requires, and the case law indicates that the court considers whether there‘s unfair prejudice in thinking about whether justice requires allowing the amendment of the complaint.
In specifically considering the context I understand of the specifics of the case, whether there‘s been undue delay in presenting the new claim. And, in this case, having looked at several of the cases that have reviewed trial courts deciding on motions to amend, I think the facts are very important. This is a case that was filed in 2014. The complaint was amended in late 2014. The parties have been engaged in discovery and motion practice for quite some time, and the court heard comprehensive motion for summary judgment this summer on the negligence claim under the statute that had been pled. And but for the court‘s schedule and another case that was
older, this case would be going to trial in a few weeks. And all of that is part of the context, and, ultimately, I am going to deny the motiоn to amend and find that justice does not require the adding of this. I don‘t find that there is a justification for why this claim could not have been brought sooner. And, over the summer, it was clear that the negligence focus, the legal theory of the plaintiffs, had been throughout the entire case the statutory theory, and the plaintiffs confirmed that in July. And I‘m finding that there is prejudice to the defendant if the court allows at this late stage in the case an amendment of this sort. So I‘ll deny the motion to amend.
VRP (Sept. 16, 2016) at 36-37.
In addition to denying the Wrigleys’ motion to amend, the court also granted DSHS‘s motion for summary judgment on all remaining claims and dismissed the Wrigleys’ amended complaint for damages. The court subsequently denied their motion for reconsideration.
The Wrigleys appeal, and DSHS cross-appeals.
ANALYSIS
I. SUMMARY JUDGMENT
The Wrigleys argue that DSHS owed them a duty of care under (1) former
A. Standard of Review
14 We review the trial court‘s grant of summary judgment de novo. M.W. v. Dep‘t of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). We engage in the same inquiry as the trial court, id., and consider all facts and make all reasonable, factual inferences in the light most favorable to the nonmoving party. Rekhter v. Dep‘t of Soc. & Health Servs., 180 Wn.2d 102, 145, 323 P.3d 1036 (2014). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any mаterial fact and that the moving party is entitled to a judgment as a matter of law.
B. Duty to Investigate Under Former RCW 26.44.050
The Wrigleys argue that DSHS owed them a duty to investigate under former
The resolution of this issue requires us to interpret former
Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory 15 scheme as a whole. Gorre v. City of Tacoma, 184 Wn.2d 30, 37, 357 P.3d 625 (2015); Campbell & Gwinn, 146 Wn.2d at 9-12. Dictionaries are an appropriate source of plain meaning when the ordinary definition furthers the statute‘s purpose. Gorre, 184 Wn.2d at 37. If, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history. Campbell & Gwinn, 146 Wn.2d at 9-12.
Except as provided in
RCW 26.44.030(11) , upon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department of social and health services must investigate and provide the protective services section with a report in accordance with chapter74.13 RCW , and where necessary to refer such report to the court.
(Emphasis added.)
The record is clear that Jessica informed DSHS that she previously had a restraining order against Viles because of threats he made against her and that he had an extensive criminal history and a reputation for violence. The record also shows that Jessica informed DSHS that Viles had threatened to cut her head off, had tried to run over her, and had dragged her upstairs in their home by her hair. The record shows further that when A.A. had been placed with Viles, Jessica told Watson that because of A.A.‘s behavioral problems, if A.A. was with Viles, “he would be dead within six months.” CP at 880. The question before us is whether those communications constitute “report[s] concerning the possible occurrence of abuse or neglect” by Viles. Former
Turning first to the definitions of ordinary English, the basic definition of “occurrence” is “something that takes place“; “the action or process of happening.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1561 (2002). “Possible,” in the present context, is defined as “that 16 [which] may or might be the case.” Id. at 1771. Title
The requirement to investigate under former
“Abuse or neglect” is defined by former
sexual abuse, sexual exploitation, or injury of a child by any person under circumstances which cause harm to the child‘s health, welfare, or safety, excluding conduct permitted under
RCW 9A.16.100 ; or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. An abused child is a child who has been subjected to child abuse or neglect as defined in this section.
“Negligent treatment or maltreatment,” in turn, is defined by former
an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child‘s health, welfare, or safety, including but not limited to conduct prohibited under
RCW 9A.42.100 . . . . [E]xposure to domestic violence as defined inRCW 26.50.010 that is perpetrated against someone оther than the child does not constitute negligent treatment or maltreatment in and of itself.
These definitions simply define “abuse” and “neglect.” They work equally well whether the phrase, “concerning the possible occurrence of abuse or neglect,” is restricted to incidents 17 that have already occurred or whether that phrase also looks to the possibility of abuse or neglect in the future. Former
Former
To this point, the examination of the terms in the provisions to be interpreted fairly leads to one conclusion: the phrase in former
The primary purpose of former
If the phrase, “the possible occurrence of abuse or neglect,” is read to refer only to past abuse, then DSHS would have no duty to investigate when reports showed that a proposed placement would be dangerous for a child, although no abuse had yet occurred. Waiting until tragedy has already descended does nothing to protect the child. Thus, legislative intent is ill served by confining former
This conclusion is buttressed by the scope of the duty to investigate. In M.W., 149 Wn.2d at 595, our Supreme Court reiterated that former
that DSHS failed to adequately investigate a child‘s living situation before making a placement decision to remove a child from a nonabusive home, let a child remain in an abusive home, or place a child in an abusive home.
19 Id. It held that the State was not liable for a harmful examination, which it performed on a sexual abuse victim, because it did not result in a harmful placement decision. M.W., 149 Wn.2d at 601-02.
The present appeal, in contrast, involves exactly that: a harmful placement decision. DSHS was in possession of reports showing acute danger to A.A. through placement with Viles. DSHS failed to investigate those reports, and it placed A.A. with Viles. To read the phrase at issue in former
Our opinion in M.M.S. v. Department of Social and Health Services and Child Protective Services, 1 Wn. App. 2d 320, 404 P.3d 1163 (2017), review denied, 190 Wn.2d 1009 (2018), does not suggest the contrary. M.M.S. was subjected to unwanted sexual advances by her stepbrother, whom the State had placed with her family. Id. at 323. The closed files from prior dependencies concerning the stepbrother contained reports of inappropriate sexual behavior by the stepbrother against others. Id. at 324. M.M.S. and her mother filed a lawsuit against the State alleging, among other matters, that the State breached its duty to investigate under former
We held that the State had no duty to search out, discover and disclose the information in the closed files of prior dependencies. Id. at 326-28. In the absence of that duty, we concluded there were no reports of possible abuse or neglect that triggered a duty to investigate under former
The present appeal presents a markedly different situation. As part оf the very proceeding to place A.A. with Viles, Jessica informed CPS about Viles’ extensive criminal history, his arrest for providing alcohol to minors, his threat to cut Jessica‘s head off, his attempt to run over her, his dragging her up the stairs by her hair, the restraining order against him, and her concerns about A.A. being placed with Viles due to his history of domestic violence. Most strikingly, after the initial 30 day placement with Viles was ordered, Jessica called the CPS social worker and reminded him again of the incidents in which Viles had been violent with her or threatened her and told him flatly that if A.A. was with Viles, “he would be dead within six months.” CP at 880. Wrigley‘s claim does not, as in M.M.S., place a duty on DSHS to research its archives of past dependencies. Instead, it simply requires DSHS to properly take into account information that was presented directly to it as part of the placement proceeding at issue. M.M.S. does not restrict that duty to investigating reports of past abuse or neglect.10
Further, the fact that the reports triggering the dependency proceeding were of abuse by Jessica does not erode the responsibility of DSHS to protect the child in making the placement decision. As shown, DSHS received information showing not only the “possible occurrence” of abuse or neglect, but a direct threat of harm to A.A. if placed with Viles. DSHS failed to investigate that threat. That failure violated the duty to investigate imposеd by former
To conclude, the phrase “reports concerning the possible occurrence of abuse or neglect” in former
Therefore, we hold the superior court erred in granting partial summary judgment to DSHS on the Wrigleys’ negligence claim under former
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with
C. Duty Under the Shelter Care Order
The Wrigleys argue DSHS had a duty under the shelter care order to prevent placement of A.A. with his biological father. We decline to address this claim under
On review of аn order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.
(Emphasis added.) In Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 462, 909 P.2d 291 (1996), our Supreme Court clarified:
The Court of Appeals was apparently of the view that
RAP 9.12 and the case law on summary judgments limit appellate review to evidence “considered” by the trial court. This is not whatRAP 9.12 actually says. Rather, it says that the trial court in its order “shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered.” (Emphasis added.) On review, the appellate court “will consider only evidence and issues called to the attention of the trial court.” (Emphasis added.) “The purpose of this limitation is to effectuate the rule that the appellate court engages in the same inquiry as the trial court.”
In this case, the Wrigleys did not raise the issue of duty under the court shelter care order before the court entered the summary judgment order. Because we engage in the same inquiry as the trial court, we decline to reach the merits of the Wrigleys’ new contention on appeal.
D. Duty Under the Special Relationship Doctrine
The Wriglеys argue that DSHS and its employees had a duty of care under the special relationship doctrine. We decline to address this claim under
The Wrigleys rely on HBH v. State, 197 Wn. App. 77, 85-95, 387 P.3d 1093 (2016), review granted, 189 Wn.2d 1002 (2017), to argue DSHS had a duty under the special relationship doctrine. In HBH, we addressed whether DSHS owes a duty of reasonable care to investigate the health and safety of children it places in foster homes based on a special protective relationship between the agency and those children. Id. at 85-86. We held DSHS had a duty to exercise ordinary care to protect foster children from abuse on the basis of its special relationship with such children. Id. at 92.
Although DSHS may have had a special relationship and duty of care, under a general negligence theory, the Wrigleys did not make these arguments in the trial court. On review of summary judgment, we consider only evidence and issues called to the attention of the trial court.
II. MOTION TO AMEND
The Wrigleys argue the trial court erred when it denied their motion for leave to amend its complaint to add a general negligence theory. We agree.
A. Standard of Review
We review the trial court‘s ruling on a request to amend for a manifest abuse of discretion. Herron v. Tribune Publ‘g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). A trial court‘s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. Id. at 47.
B. Legal Principles
[where] the amendment would have done no more than state an alternative theory for recovery, . . . [and where] the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [the plaintiff] ought to be afforded an opportunity to test his claim on the merits.
Foman v. Davis, 371 U.S. 178, 181-82, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) (discussing
In any such case, “[t]he touchstone for the denial of a motion to amend is the prejudice such an amendment would cause to the nonmoving party.” Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999). Factors which may be considered in determining whether permitting amendment would cause prejudice include undue delay, unfair surprise, and jury confusion. Id. at 505-06. Although not dispositive, the timing of a motion may result in prejudice. Herron, 108 Wn.2d at 166.
C. DSHS Not Prejudiced
The Wrigleys argue that the trial court erred in denying their motion to amend because DSHS has not demonstrated that it would be prejudiced by the amendment. DSHS argues that the trial court did not err when it concluded that the Wrigleys’ proposed amendment would result in prejudice.
At the hearing on the motion, the trial court opined on the matter of undue delay:
This is a case that was filed in 2014. The complaint was amended in late 2014. The parties have been engaged in discovery and motion practice for quite some time, and the court heard [a] comprehensive motion for summary judgment this summer on the negligence claim under the statute that had been pled. And but for the court‘s schedule and another case that was older, this case would be going to trial in a few weeks.
. . . I don‘t find that there is a justification for why this claim could not have been brought sooner.
VRP (Sept. 16, 2016) at 36-37. Initially, it appeared the trial court denied the Wrigleys’ motion on the sole basis that it was untimely: it concluded that “there is prejudice to the defendant if the court allows at this late stage in the case an amendment of this sort.” VRP (Sept. 16, 2016) at 37. However, after the Wrigleys moved for reconsideration, the court clarified:
I know the primary argument that the plaintiff made in the motion for reconsideration is that the court‘s decision a few weeks ago was based only on the concept of further delay. And I did look back at the arguments and my analysis, and I don‘t believe that my consideration was only based upon delay, but based upon the timeliness of the issue being raised, the fact that, in July, counsel for the plaintiff indicated the only theory was the statutory-based theory, the opportunity for the plaintiff to have raised it earlier and, from this court‘s perspective, ultimately the question of prejudice as well.
VRP (Oct. 6, 2016) at 11.
The first factor we examine under Wilson in determining prejudice is undue delay. 137 Wn.2d at 505. The Wrigleys argue undue delay alone is not enough for the trial court to deny their motion because undue delay must be accompanied by prejudice to the nonmoving party. The Wrigleys claim that because the trial was continued, DSHS would have had the opportunity to bring a dispositive motion related to their general negligence claim; they also argue additional discovery would likely have been unnecessary because the facts involving statutory negligence mirror the facts applicable to their general negligence claim. DSHS argues the trial court applied the correct law, exercised sound discretion, and we should not disturb its ruling. DSHS claims the trial court considered all the factors, including undue delay, and concluded prejudice would result.
Although the court concluded that “there is prejudice to the defendant if the court allows at this late stage in the case an amendment of this sort,” VRP (Sept. 16, 2016) at 37, DSHS did not describe or provide argument as to how the timing or undue delay of the Wrigleys’ mоtion would result in prejudice; notwithstanding the obvious task of having to defend against a claim of general negligence, which would result in additional work.11 Still, the amendment would have done no more than provide an alternative theory for recovery, and the underlying facts or circumstances relied on by the Wrigleys are the same. Moreover, a pretrial amendment to the complaint would have provided DSHS with sufficient notice regarding the basis of the general negligence claim the Wrigleys wished to assert at trial. Further, DSHS would have had the opportunity to bring another dispositive motion prior to trial. We hold DSHS has not shown that any undue delay would result in prejudice.
Another factor we consider is unfair surprise. Wilson, 137 Wn.2d at 507. The Wrigleys argue,
DSHS has been on notice of Plaintiffs’ negligence claims from the outset and this issue has been the primary focus of litigation. DSHS simply cannot contend that the addition of a general claim for negligence presents an unfair surprise.
Br. of Appellant at 18. DSHS claims that because the Wrigleys confirmed in court that they would not be pursuing a general negligence theory, it was unfairly surprised by the Wrigleys’ change in position. Again, the amendment would have done no more than state an alternative theory of negligence, and the underlying facts or circumstances relied on by the Wrigleys are the proper subject of relief. DSHS should not have been shocked or astonished—that is, surprised—when the Wrigleys sought leave to amend after the Wrigleys’ statutory negligence claims were dismissed on summary judgment and the case was continued by the trial court. We agree with Wrigley: “negligence is at the heart of this case, it has been alleged from the beginning, and it has been the parties’ primary focus in discovery and litigation.” Br. of Appellant at 18. Thus, we hold DSHS has not shown it was unfairly surprised by the proposed amendment.
The last factor to be considered under Wilson is jury confusion. The Wrigleys argue,
with the other negligence claims dismissed on summary judgment because of the narrow scope of DSHS’ duty with respect to non-subject parents under RCW 26.44.050, this would be the only negligence-related claim presented.
Br. of Appellant at 18. DSHS argues that the Wrigleys’ former
In Herron, our Supreme Court recognized that “[a]ppellate decisions permitting amendments have emphasized that the moving parties in those cases were merely seeking to assert a new legal theory based upon the same circumstances set forth in the original pleading.” 108 Wn.2d at 166. Accordingly, when the amendment seeks only to assert a new legal theory based on the same circumstances set forth in the original pleading, it should be allowed. See id. Such is the case here. Under Herron, the presence of the negligence claims in this matter is not reason to deny the amendment.
For these reasons, we hold the trial court abused its discretion when it denied the Wrigleys’ motion for leave to amend. On remand, the Wrigleys may raise their requested claim of general negligence, including claims based on the shelter care order, special relationship and/or entrustment.
III. DSHS CROSS-APPEAL
A. Proximate Cause
DSHS argues it is entitled to summary judgment as a matter of law because the Wrigleys failed to create an issue of material fact on proximate cause. Because we hold that the trial court abused its discretion when it denied the Wrigleys’ motion to amend, we do not reach this issue on cross-appeal.
B. Expert Testimony
DSHS argues the trial court abused its discretion when it refused to strike opinions offered by the Wrigleys’ standard of care expert, Ulrich, that were based on inadmissible evidence and legally inapplicable procedures. We disagree.
An expert‘s opinion is admissible if the witness is properly qualified, relies on generally accepted theories, and the expert‘s testimony is helpful to the trier of fact. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004). Trial courts are afforded wide discretion on issues of evidence and trial court expert opinion decisions will not be disturbed on appeal absent an abuse of discretion. Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014).
In Washington, there are four key evidence rules that govern the use of expert witnesses. ER 702 largely establishes when expert testimony may be utilized at trial:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
ER 703 permits an expert to base his or her opinion on evidence not admissible and to base his or her opinion on facts or data perceived by or made known to the expert at or before the hearing. ER 704 permits an expert to testify on an ultimate issue the trier of fact must resolve. Finally, ER 705 indicates that an expert need not disclose the facts on which his or her opinion is based, although the court may require their disclosure and the expert may be subject to cross-examination on them.
With these standards in mind, we turn to the admissibility of the expert testimony Ulrich provided.
DSHS first argues the trial court erred in failing to strike Ulrich‘s declaration that related to DSHS‘s noncompliance with procedures set forth in the ICPC. DSHS claims the ICPC12 did not apply to Viles as the biological parent because A.A. had not been found dependent and cites In re Dependency of D.F.-M., 157 Wn. App. 179, 236 P.3d 961 (2010). In D.F.-M., Division One of our court held that the ICPC, which applies to placements in foster care, does not apply to parental placements. 157 Wn. App. at 183. Still, Ulrich expressly acknowledged in her declaration that the ICPC would not apply to the issues involved in this case. Ulrich instead used the ICPC to providе a comparative analysis and discuss “why an adequate assessment was not completed in this case.” CP at 1574. Ulrich stated in her declaration:
ICPC is a systematic process intended for use in out-of-state placements for children and families involved in the dependency process. ICPC, as it is intended, does not technically apply in this case, as [A.A] was not yet a dependent of the State of Washington. However, it is important to note that ICPC also does not prevent the Department from using their available safety and risk assessment tools and fulfilling their legal obligation to assess and plan for the safety of the child in their care and custody. The file review of the case involving [A.A] revealed that CA [(Children‘s Administration)] staff did not properly use the safety or risk assessment tools as intended.
CP at 967.
Ulrich had 23 years of experience in the area of safety and risk assessment in child welfare and child protection, training and experience as a forensic child interviewing specialist, and was the regional lead for the State of Washington on child safety and child welfare. She also performed independent work interviewing children involved in custodial disputes and had myriad other training and experience in the field. This knowledge, skill, experience, and training qualified Ulrich as an expert on the area of safety and risk assessment in child welfare and child protection.
Her opinion that the ICPC provided a useful template for DSHS to fulfill their legal obligation to assess and plan for the safety of A.A., who was in their care and custody, would be helpful to the trier of fact insofar as it relates to proper evaluation of risk to child safety and child welfare. We hold that the trial court did not abuse its discretion when it refused to strike Ulrich‘s opinion because the protocols generally used in the ICPC are at least minimally relevant to the issue of standard of care in this matter.
Next, DSHS argues the trial court erred in failing to strike Ulrich‘s opinions regarding DSHS‘s failure to contact Idaho to obtain any records regarding Viles. DSHS claims there is no statute, regulation, policy, or standard that would have required DSHS to do so. Although this much may be true, DSHS had responsibility for the safety and wellbeing of A.A., since he was in their care and custody.
The information Jessica provided to DSHS regarding Viles’ history of domestic violence, history of drug abuse, reputation for violence in his community, and her sincere apprehension that Viles would abuse or neglect A.A. if placed in Viles’ home provided a sufficient basis on which Ulrich could form an opinion regarding DSHS‘s failure to assess the risks of placement with Viles. Ulrich stated,
For example, the Department could have asked for a domestic violence assessment, anger management assessment, or a chemical dependency assessment of Mr. Viles. All of these formal assessments, completed by a professional in Idaho, would have led the Department to be able to identify any potential areas of risk and/or safety that they needed to plan for prior to deciding about the appropriateness of transitioning [A.A.] to the home of Mr. Viles.
CP at 971. Ulrich‘s testimony would have been helpful to the trier of fact insofar as DSHS may have failed to adequately assess the risk and safety of placing A.A. with Viles.
We hold that the trial court did not abuse its discretion when it refused to strike Ulrich‘s opinion.
CONCLUSION
We hold that DSHS owed the Wrigleys a duty of care under former
We reverse and remand.
Bjorgen, P.J.
I concur:
Penoyar, J.P.T.
SUTTON, J. (dissent in part) — This case presents an issue of the scope of DSHS‘s duty to investigate a report of abuse or neglect of a minor child under
The majority holds that DSHS has a duty to investigate a father under
The majority‘s holding expands the scope of DSHS‘s duty to investigate any report of abuse or neglect of anyone, not just a duty to investigate a report of abuse or neglect of the minor child at issue. I respectfully disagree with the majority‘s holding that DSHS has a duty of care to the mother to investigate the father under
FACTS
I agree with the majority‘s presentation of the facts, but for clarity the following material facts are outlined.
Following reports of abuse of A.A. by his mother, Jessica Wrigley, and his stepfather, Jared Wrigley,13 DSHS filed a dependency petition. Anthony Viles, A.A.‘s father, filed a motion with the juvenile court to have A.A. placed with him in Idaho. In relevant part, Jared‘s attorney stated that Jared was aware of Viles’ violent past, he had concerns, and he wanted a “better investigation done before [A.A.] is moved.” Clerk‘s Papers (CP) at 304-05. Jessica‘s attorney stated that Jessica had “no strong position either way.” CP at 305. After hearing arguments and considering the record, the court granted Viles’ motion, ordered A.A. to be released from shelter care, and placed A.A. with Viles “for a visit” for 30 days. CP at 312.
In mid-February, Jessica contacted social worker Don Watson and expressed her concerns regarding A.A.‘s placement with
Jessica informed DSHS that she previously had a restraining order against Viles because of threats he had made against her, and that he had an extensive criminal history and a reputаtion for violence. The record also shows that Jessica informed DSHS that Viles had threatened to cut her head off, tried to run over her, and dragged her upstairs by her hair. Further, DSHS knew that Viles had been arrested for harboring a minor runaway and had been convicted of providing alcohol to a minor.
Ultimately, the court did not enter a dependency order, and instead found that placement with Viles was in A.A.‘s best interest. The court ordered A.A. be placed with Viles in Idaho and dismissed the dependency petition.
ANALYSIS
I. SUMMARY JUDGMENT
Jessica argues that based on her allegations against Viles, DSHS owes her a duty to investigate under
A. Standard of Review
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
We review the superior court‘s grant of summary judgment de novo. M.W. v. Dep‘t of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). We engage in the same inquiry as the superior court. M.W., 149 Wn.2d at 595. We consider all facts and make all reasonable, factual inferences in the light most favorable to the nonmoving party. Rekhter v. Dep‘t of Soc. & Health Servs., 180 Wn.2d 102, 145, 323 P.3d 1036 (2014).
A negligence claim requires that the plaintiff demonstrate that the defendant owed a duty to plaintiff; that defеndant breached that duty; that the breach of duty caused some injury to plaintiff; and the plaintiff suffered damages. Kim v. Lakeside Adult Family Home, 186 Wn. App. 398, 408, 345 P.3d 850 (2015), aff‘d in part, rev‘d in part, 185 Wn.2d 532 (2016). Generally, whether the duty element exists in the negligence context is a question of law that we review de novo. Sheikh v. Choe, 156 Wn.2d 441, 448, 128 P.3d 574 (2006). But, where the existence of a legal duty is dependent on disputed material facts, summary judgment is inappropriate. Mita v. Guardsmark, LLC, 182 Wn. App. 76, 83, 328 P.3d 962 (2014); see Kim, 186 Wn. App. at 408.
B. DSHS‘S DUTY PURSUANT TO RCW 26.44.050
Jessica argues, and the majority agrees, that DSHS owed her a duty of care to investigate Viles under
We look to
To evaluate the plain language, we consider the text of the provision in question, the context of the statute in which the provision is found, and related statutes. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014); Campbell & Gwinn, 146 Wn.2d at 10. “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by reference to a standard dictionary.” Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002). If, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history. Campbell & Gwinn, 146 Wn.2d at 12.
We avoid a literal reading of a statute that would result in unlikely, absurd, or strained consequences. Fraternal Order of Eagles, 148 Wn.2d at 239. “‘The spirit or purpose of an enactment should prevail over . . . express but inept wording.‘” Fraternal Order of Eagles, 148 Wn.2d at 239 (alteration in original) (quoting State v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981)). We do not add language to an unambiguous statute under the guise of interpretation. In re Estate of Mower, 193 Wn. App. 706, 713, 374 P.3d 180 (2016).
1. Negligent investigation claim
Law enforcement and DSHS must investigate reports of abuse or neglect of a minor child pursuant to
[U]pon the receipt of a report concerning the possible occurrence of abuse or neglect, the law enforcement agency or the department must investigate and provide the protective services section with a report in accordance with chapter 74.13 RCW, and where necessary to refer such report to the court.
The primary purpose of
Because the legislature enacted
A negligent investigation claim is available only when DSHS conducts an incomplete or biased investigation that “resulted in a harmful placement decision.” M.W., 149 Wn.2d at 601. “A harmful placement decision includes ‘removing a child from a nonabusive home, placing a child in an abusive home, or letting a child remain in an abusive home.‘” McCarthy, 193 Wn. App. at 329 (quoting M.W., 149 Wn.2d at 602). DSHS‘s duty to investigate is triggered by a report of possible abuse or neglect of a minor child. M.M.S. v. Dep‘t of Soc. & Health Servs., 1 Wn. App. 2d 320, 330, 404 P.3d 1163 (2017), review denied, 190 Wn.2d 1009 (2018).
The majority holds that DSHS‘s duty to investigate here is triggered by Jessica‘s allegations of prior violence by Viles against her, his prior criminal history, and claims of possible abuse or neglect of A.A. by Viles after Jessica consented to the placement of A.A. with Viles. As discussed below, I disagree that Jessica‘s allegations constitute a
2. DSHS did not receive a report concerning the possible occurrence of child abuse or neglect by Viles under RCW 26.44.050
The issue is whether the information that DSHS received from Jessica constituted a “report concerning the possible ocсurrence of abuse or neglect” of a minor child, A.A., by Viles, thus triggering a duty to investigate under
I agree with the majority that it is undisputed that
[t]he record is clear that Jessica informed DSHS that she previously had a restraining order against Viles because of threats he made against her, and that he had an extensive criminal history and a reputation for violence. The record also shows that Jessica informed DSHS that Viles had threatened to cut her head off, had tried to run over her, and had dragged her upstairs in their home by her hair. The record shows further that when A.A. had been placed with Viles, Jessica told Watson that because of A.A.‘s behavioral problems, if A.A. was with Viles, “he would be dead within six months.” CP at 880.
Majority at 15.
I disagree, however, with the majority‘s conclusion that the above-quoted undisputed facts constitute a “report concerning the possible occurrence of abuse or neglect” of a minor child, A.A., by Viles. Majority at 21.
“Abuse or neglect” is defined as
sexual abuse, sexual exploitation, or injury of a child by any person under circumstances which cause harm to the child‘s health, welfare, or safety, excluding conduct permitted under
RCW 9A.16.100 ; or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. An abused child is a child who has been subjected to child abuse or neglect as defined in this section.
an act or a failure to act, or the cumulative effеcts of a pattern of conduct, behavior, or inaction, that evidences a serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child‘s health, welfare, or safety, including but not limited to conduct prohibited under
RCW 9A.42.100 . When considering whether a clear and present danger exists, evidence of a parent‘s substance abuse as a contributing factor to negligent treatment or maltreatment shall be given great weight. The fact that siblings share a bedroom is not, in and of itself, negligent treatment or maltreatment. Poverty, homelessness, or exposure to domestic violence as defined inRCW 26.50.010 that is perpetrated against someone other than the child does not constitute negligent treatment or maltreatment in and of itself.
Further, to the extent that the information is known, the report must contain:
- The name, address, and age of the child;
- The name and address of the child‘s parents, stepparents, guardians, or other persons having custody of the child;
- The nature and extent of the alleged injury or injuries;
- The nature and extent of the alleged neglect;
- The nature and extent of the alleged sexual abuse;
- Any evidence of previous injuries, including their nature and extent; and
- Any other information that may be helpful in establishing the cause of the child‘s death, injury, or injuries and the
identity of the alleged perpetrator or perpetrators.
The above-quoted undisputed facts relate to reports made by Jessica and received by DSHS that Viles committed acts of domestic violence against Jessica, an adult, not against A.A. or any other minor child. None of the reports or allegations involve a report of a possible act of sexual abuse, sexual exploitation, or injury of a minor child by Viles under circumstances that would cause harm to a child‘s health, welfare, or safety. Further, the reports by Jessica do not include allegations of an act or failure to act, or a pattern of behavior that evidences a “serious disregard of consequences of such magnitude as to constitute a clear and present danger to a child‘s health, welfare, or safety.”
Because the allegations do not constitute a “possible occurrence of abuse or neglect” of a minor child by Viles, I would hold that Jessica‘s allegations do not trigger a duty to investigate under
In sum, Jessica argues that DSHS had a duty of care to investigate Viles based on the information she provided to DSHS. Yet,
SUTTON, J.
Notes
Delay, per se, i[s] no reason for denial. If it were, no leave to amend would ever be allowed as amendments are by their nature delayed beyond the original pleading. Delay, excusable or not, i[s] not sufficient reason to deny a motion to amend unless it works some undue hardship or prejudice upon the opposing party. Horsley filed his motion to amend seven months after he filed his original pro se answer. How “undue” was this delay is a matter of opinion: however, we have held that a delay of over five years is acceptable absent a showing of prejudice by the party opposing amendment.
137 Wn.2d at 514 (internal citations omitted).