                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                     November 14, 2017


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    M.M.S., a minor (DOB 03/07/2007) and                           No. 49287-3-II
    CRYSTAL ARMSTRONG, individually and
    as GUARDIAN AD LITEM for M.M.S.,

                       Appellants,

          v.

    STATE OF WASHINGTON, DEPARTMENT                           PUBLISHED OPINION
    OF SOCIAL AND HEALTH SERVICES and
    CHILD PROTECTIVE SERVICES,

                       Respondents.


         SUTTON, J. — Crystal Armstrong, individually and on behalf of her minor daughter

M.M.S., appeals from the superior court’s order granting the Department of Social and Health

Service’s (Department) motion for summary judgment and dismissal. Crystal1 filed a lawsuit

alleging that the Department was negligent for failing to obtain and review records from prior

dependency proceedings involving her stepson J.A. before placing J.A. in the home with his

biological father and Crystal. Crystal alleges that the Department’s negligence allowed J.A. the

opportunity to engage in inappropriate behavior with M.M.S. Specifically, Crystal argues that the

Department had a common law duty to warn Crystal and that the Department had a statutory duty

to investigate under RCW 26.44.050.



1
 For clarity, the Armstrongs are individually referred to by their first names. We intend no
disrespect.
No. 49287-3-II


       We hold that under the specific facts presented here, the Department did not have any

actionable duty to either Crystal or M.M.S. Therefore, we affirm the superior court’s order

granting summary judgment in favor of the Department and dismissing Crystal’s claims.

                                             FACTS

       J.A. (born 2001) is the child of Seann Armstrong. Crystal is Seann’s wife and J.A.’s

stepmother. Seann and Crystal live together in Surrey, British Columbia with their mutual child

and Crystal’s children, including M.M.S. (born 2007). From the time he was two years old, J.A.

was raised by his biological mother and Seann had little involvement in his life.

       In 2005 and again in 2010, the Department removed J.A. from his biological mother’s care

and filed petitions for a dependency as to J.A. During the 2005 dependency, J.A. was placed with

his paternal grandparent, then placed with a maternal cousin, and ultimately placed in a foster

home. After both dependency actions, J.A. was returned to his mother’s care.

       In April 2013, the Department again removed J.A. from his mother’s care and placed him

with his paternal aunt. However, in this dependency, the Armstrongs actively pursued custody of

J.A. On July 31, 2013, Seann’s attorney filed a motion to have J.A. placed with the Armstrongs.

The dependency court granted the motion. On August 7, 2013, J.A. moved to live with the

Armstrongs in British Columbia. After J.A. moved to British Columbia, Seann worked to establish

a parenting plan so that the dependency action could be dismissed.

       On September 23, 2013, Crystal reported to J.A.’s social worker, Michelle Christensen,

that J.A. had grabbed M.M.S.’s hair, pushed her down, wrapped his legs around her, and kissed

her on the lips. Crystal also informed Christensen that M.M.S. was currently sleeping with Crystal

and Seann to prevent any further inappropriate incidents between J.A. and M.M.S.



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No. 49287-3-II


       On October 1, Crystal and Seann asked to have J.A. removed from their home although

they did not report any additional incidents between J.A. and M.M.S. Christensen arranged for

J.A. to be returned to Washington and to be placed in a licensed foster home. J.A. was then moved

to a therapeutic foster home where he has resided since.

       After J.A.’s inappropriate behavior with M.M.S., Crystal learned that J.A. had a history of

sexualized behavior. During the 2005 dependency, J.A.’s paternal grandparents reported that J.A.

was sexually acting out by frequently touching himself. In 2008, a parent educator filed a report

that documented sexually inappropriate behavior between J.A. and his younger half-sister. After

J.A. was placed with his mother in 2008, there were concerns about his behavior because he told

his half-sister he wanted to lay on top of her.

       In 2010, J.A.’s mother reported that she caught J.A. being sexually inappropriate with his

half-sister on two occasions. While J.A. was placed in foster care, the foster mother reported two

incidents of J.A. laying on top of another foster child.      During the 2010 dependency, the

Department staffed J.A. for sexually aggressive youth (SAY) services. The SAY committee within

the Department determined that J.A. was not a sexually aggressive youth and thus, he did not need

to be referred for SAY services. During the 2010 dependency, J.A.’s paternal aunt’s ex-husband

had asked that J.A. be removed from the home because of a rumor he had heard about J.A. sexually

acting out with another child.

       Christensen did not retrieve the closed dependency files from the archives and because she

was not involved in any of the prior dependencies, she was not aware of the incidents reported by

J.A.’s mother or paternal grandparents. However, she was aware of why J.A. was removed from

his paternal aunt’s house in 2010.



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No. 49287-3-II


       On June 17, 2015, Crystal, on behalf of herself and as guardian for M.M.S., filed a

complaint for damages against the Department. The Department filed a motion for summary

judgment arguing that the Department owed no duty to Crystal or M.M.S. In response, Crystal

argued two specific causes of action applied to the Department: (1) a common law duty to disclose

the information about J.A.’s prior sexualized behavior and (2) a statutory duty under RCW

26.44.050 to investigate J.A.’s history and suitability for the Armstrong’s home. Crystal alleged

that the Department breached both duties because of Christensen’s failure to discover and disclose

J.A.’s prior sexualized behavior. And Crystal also moved for partial summary judgment on duty,

breach, and causation.

       The superior court granted the Department’s motion for summary judgment, denied

Crystal’s cross-motion for partial summary judgment, and entered an order dismissing Crystal’s

complaint with prejudice. Crystal appeals.

                                             ANALYSIS

       Crystal is very explicit in her claims against the Department. Crystal argues that the

Department’s liability arises only from Christensen’s failure to discover and disclose J.A.’s prior

sexualized behavior that was documented in the earlier dependencies. And Crystal is making only

two specific claims: (1) that the Department has a common law duty to disclose a dependent child’s

prior sexualized behavior before placing a child and (2) that the Department is liable under RCW

26.44.050 for its negligent investigation.

       We hold that the Department has no common law duty to disclose information prior to

returning a child to the home of a biological parent at the parent’s request. We also hold that a

negligent investigation cause of action under RCW 26.44.050 does not apply here because there



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No. 49287-3-II


was no report that M.M.S. was abused or neglected before J.A. was placed in the Armstrong’s

home. Accordingly, we affirm the superior court’s order granting summary judgment to the

Department and dismissing Crystal’s complaint.

                 I. LEGAL PRINCIPLES: SUMMARY JUDGMENT AND NEGLIGENCE

       We review a superior court’s order granting summary judgment de novo. M.W. v. Dep’t

of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). We view the evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in favor of the

nonmoving party. McCarthy v. Clark County, 193 Wn. App. 314, 328, 376 P.3d 1127, review

denied, 186 Wn.2d 1018 (2016). Summary judgment is appropriate where there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

A material fact is one that affects the outcome of the litigation. Elcon Constr., Inc. v. E. Wash.

Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012). If reasonable minds can reach only one

conclusion on an issue of fact, that issue may be determined on summary judgment. McCarthy,

193 Wn. App. at 328.

       To prove a negligence claim, the plaintiff must show (1) the defendant owed a duty to him

or her, (2) the defendant breached that duty, (3) the injury resulting from the breach, and (4)

proximate cause between the defendant’s breach of duty and the plaintiff’s injury. Hartley v. State,

103 Wn.2d 768, 777, 698 P.2d 77 (1985). Whether the defendant owes a duty to the plaintiff is a

question of law that we review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d

400 (1999). A duty of care may exist by virtue of the common law or a statute. Mathis v. Ammons,

84 Wn. App. 411, 416-17, 928 P.2d 431 (1996). Here, Crystal alleges that the Department had

both a common law duty to disclose or warn and a statutory duty to investigate.



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No. 49287-3-II


                              II. COMMON LAW DUTY TO DISCLOSE

       Crystal argues that the Department had a common law duty to herself and M.M.S. to review

J.A.’s prior dependency records and disclose information regarding J.A.’s prior sexualized

behavior. First, Crystal argues that the Department had a duty under Restatement (Second) of Torts

§ 314 A and § 315 (Am. Law Inst. 1965). Second, Crystal argues that the Department performed

an affirmative act that created a high risk of harm and, as a result, had a duty under Restatement

(Second) of Torts § 302 B. Both of these arguments fail.

A. RESTATEMENT (SECOND) OF TORTS § 314 A AND § 315

       Restatement (Second) of Torts § 314 A is titled “Special Relations Giving Rise to Duty to

Aid or Protect” and states,

       (1) A common carrier is under duty to its passengers to take reasonable action
            (a) to protect them against unreasonable risk of physical harm, and
            (b) to give them first aid after it knows or has reason to know that they are ill
            or injured, and to care for them until they can be cared for by others.
       (2) An innkeeper is under a similar duty to his guests.
       (3) A possessor of land who holds it open to the public is under a similar duty to
       members of the public who enter in response to his invitation.
       (4) One who is required by law to take or who voluntarily takes the custody of
       another under circumstances such as to deprive the other of his normal
       opportunities for protection is under a similar duty to the other.

RESTATEMENT (SECOND) OF TORTS § 314 A at 118.

       Restatement (Second) of Torts § 315 states the general principle of when there is a duty to

control the conduct of third persons,

              There is no duty so to control the conduct of a third person as to prevent
       him from causing physical harm to another unless
              (a) a special relation exists between the actor and the third person which
              imposes a duty upon the actor to control the third person’s conduct, or



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No. 49287-3-II


               (b) a special relation exists between the actor and the other which gives to
              the other a right to protection.

RESTATEMENT (SECOND OF TORTS) § 315 at 122.

       Crystal does not explain how the Department has a special relationship with her or M.M.S.

under the principles of § 314 A. The Department is clearly not a common carrier, innkeeper, or

land owner. And the Department did not take custody of M.M.S. Further, because M.M.S. was

always in the custody and care of her mother, the Department did not do anything to deprive

M.M.S. of normal opportunities for protection. Therefore, there is no special relationship under

§ 314 A.

       As to Crystal’s claim under § 315, in general, the Department has no duty to control the

behavior of a dependent child under the Restatement. Aba Sheikh v. Choe, 156 Wn.2d 441, 453,

128 P.3d 574 (2006); Terrell C. v. Dep’t of Soc. & Health Servs., 120 Wn. App. 20, 26-29, 84 P.3d

899 (2004). However, Crystal argues, “Liability is premised not on failing to control the child’s

behaviors, but on failing to discover what was in the records after being told about past behaviors

and then failing to alert the dependency court or the new caretakers about the dependent child’s

history of inappropriate conduct dangerous to younger children.” Br. of Appellant at 18-19.

       Crystal does not explain how a duty to aid, a duty to protect, or a duty to control a third

person imposes a duty to discover or disclose information. Because Crystal explicitly admits that

the Department’s alleged liability is not premised on the failure to control J.A.’s behavior, there is

no reasonable connection between the Department’s alleged liability and the principles in

Restatement (Second) of Torts § 315.




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No. 49287-3-II


       Thus, Crystal has failed to demonstrate that the principles in either § 314 A or § 315 create

a duty to either her or M.M.S.

B. RESTATEMENT (SECOND) OF TORTS § 302 B

       Crystal also argues that the Department performed affirmative actions which created a duty

to discover and disclose information under Restatement (Second) of Torts § 302 B. Restatement

(Second) of Torts § 302 B—Risk of Intentional or Criminal Conduct—states,

                An act or omission may be negligent if the actor realizes or should realize
       that it involves an unreasonable risk of harm to another through the conduct of the
       other or a third person which is intended to cause harm, even though such conduct
       is criminal.

RESTATEMENT (SECOND) OF TORTS § 302 B at 88. A person may have a duty to protect another

from criminal acts of third parties when the person’s “own affirmative act has created or exposed

the other to a recognizable high degree of risk of harm through such misconduct.” RESTATEMENT

(SECOND) OF TORTS § 302 B cmt. e at 90; Washburn v. City of Federal Way, 178 Wn.2d 732, 757-

58, 310 P.3d 1275 (2013).

       Crystal argues that “the [Department]’s failure to warn [Crystal] or to inform the [c]ourt of

[J.A.]’s known history of sexual inappropriateness with younger children, was an affirmative act,”

and therefore, the Department had a duty under § 302 B. Br. of Appellant at 23. Although Crystal

purports to rely on § 302 B, her argument is actually based on policy considerations and the general

negligence principles of compensating victims and deterring future negligence. Crystal has offered

no authority to support concluding that a legal duty exists based solely on general principles and

policies underlying general negligence. RAP 10.3(a)(6); DeHeer v. Seattle Post-Intelligencer, 60

Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition,




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No. 49287-3-II


the court is not required to search out authorities, but may assume that counsel, after diligent

search, has found none.”).

         Moreover, in this specific case, the facts do not support concluding that the Department

had an affirmative duty to warn of J.A.’s prior sexualized behavior.          Here, there was no

unreasonable risk of harm because J.A.’s biological father was affirmatively requesting the

placement and J.A. had previously been placed in the care of his father’s immediate family for

most of his time in out-of-home care. We cannot agree that returning a child, even a child with

behavioral problems known to his family members, creates an unreasonable risk of harm giving

rise to affirmative duties under Restatement (Second) of Torts § 302 B. Accordingly, Crystal’s

claim fails.

                        III. NEGLIGENT INVESTIGATION—RCW 26.44.050

         Crystal argues that she has a negligent investigation cause of action under RCW 26.44.050

because the Department performed an incomplete investigation into J.A.’s background which

resulted in a placement that harmed a child, here M.M.S. However, Crystal’s argument takes a

very narrow reading of the language in our Supreme Court’s opinion in M.W. And she completely

disregards the statutory language from which the negligent investigation cause of action is derived.

The duty to investigate is triggered by a report concerning possible child abuse or neglect. Here,

there was no report that M.M.S was abused or neglected before J.A. was placed in the home.

Because the Department did not owe either Crystal or M.M.S. a duty under RCW 26.44.050, the

superior court properly granted summary judgment and dismissed the negligent investigation

claim.




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No. 49287-3-II


       RCW 26.44.050 requires the Department or law enforcement to investigate reports of child

abuse or neglect

       upon 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 . . . and where necessary to refer such report
       to the court.

The explicit statutory duty to investigate reports of child abuse or neglect creates a cause of action

against the Department and law enforcement for a negligent investigation resulting in a harmful

placement decision. M.W., 149 Wn.2d at 595. However, the negligent investigation cause of

action is a “narrow exception” to the rule that there is no general tort claim for negligent

investigation. M.W., 149 Wn.2d at 601.

       In M.W., our Supreme Court provided the analytical framework for determining whether

to expand the negligent investigation cause of action. To determine whether there is a cause of

action for negligent investigation under RCW 26.44.050, our courts apply the test from Bennett v.

Hardy which requires courts to determine:

       (1) whether the plaintiff is within the class of persons for whose benefit the statute
       was enacted, (2) whether the legislative intent supports creating a remedy, and (3)
       whether the underlying purpose of the legislation is consistent with inferring a
       remedy.

M.W., 149 Wn.2d at 596 (citing Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990)).

The second prong of the Bennett test is no longer at issue. M.W., 149 Wn.2d at 596-97.




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No. 49287-3-II


       Under the plain language of RCW 26.44.050, neither Crystal nor M.M.S. are within the

class of persons for whose benefit RCW 26.44.050 was enacted. RCW 26.44.050 imposes a duty

to investigate “upon the receipt of a report concerning the possible occurrence of abuse or neglect

. . . .” Based on this language, RCW 26.44.050 was enacted to benefit children who are subjects

of reports concerning possible abuse or neglect.

       Crystal alleges that the Department had a duty to investigate J.A.’s background to

determine whether placement in their home was appropriate. But, RCW 26.44.050 imposes no

such duty.   RCW 26.44.050 imposes a duty to investigate reports concerning the possible

occurrence of child abuse or neglect. Here, not only were there no reports of abuse or neglect

concerning M.M.S. or Crystal, there were no reports of abuse or neglect made during J.A.’s

placement throughout the 2013 dependency proceeding.

       Because RCW 26.44.050 imposes a specific duty to investigate reports concerning the

possible occurrence of child abuse or neglect, it was enacted to benefit parents and their children

who are the subject of reports concerning possible abuse or neglect. Crystal and M.M.S. are not

within this class of persons because there were no reports of possible abuse or neglect which

triggered a duty to investigate on behalf of the Department. Because Crystal and M.M.S. are not

within the class of persons that RCW 26.44.050 was enacted to benefit, we decline to expand the

negligent investigation cause of action under RCW 26.44.050 to include a requirement that the

Department investigate a child’s background prior to returning him or her to a biological parent at

the parent’s request.




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No. 49287-3-II


       Crystal has failed to demonstrate that the Department owed a common law or statutory

duty to either her or M.M.S. Accordingly, the trial court did not err by granting the Department’s

motion for summary judgment. We affirm.



                                                    SUTTON, J.
 We concur:



MAXA, A.C.J.




LEE, J.




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