                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                     October 8, 2019




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION II
    K.C. and L.M.,                                               No. 51400-1-II

                              Appellants,

          v.

    STATE OF WASHINGTON and                                UNPUBLISHED OPINION
    DEPARTMENT OF SOCIAL AND HEALTH
    SERVICES, and DONNA JOHNSON,

                              Respondents,

    GOOD SAMARITAN HOSPITAL, PATRICK
    SHEEHY, Ph.D. and LINDA WILLIAMS,
    M.S.W.,

                              Defendants.

         CRUSER, J. — In 2013, KC and LM sued the Department of Social and Health Services

(DSHS)1 for allegedly failing to investigate and remove them from the home of their stepfather,

Walter Johnson. Johnson lived with KC and LM from the mid-1980s to the early 1990s, during

which time he sexually abused them.




1
  Starting July 1, 2018, the Department of Social and Health Services and the Children’s
Administration and Department of Early Learning ceased to exist, and the Department of Children,
Youth, and Families took over all functions of both agencies. Because the lawsuit in this case
commenced before the name change, we refer to the agency as DSHS.
No. 51400-1-II


         DSHS moved for summary judgment on the basis that no evidence established breach or

causation. DSHS also argued that KC’s claim was barred by the statute of limitations and that

both KC’s and LM’s claims were barred by laches. The trial court granted DSHS’ motion.

         We reverse and remand for further proceedings.

                                             FACTS

                                      I. 1980-1985 EVENTS

         In March 1980, the State charged Johnson with one count of second degree statutory rape

and one count of indecent liberties as to his biological daughters. One daughter was 15 years old

at the time, and the other daughter, JJ, was 11 years old. Johnson pleaded guilty to one count of

indecent liberties. The court sentenced Johnson to 5 years of probation. JJ was then removed from

Johnson’s home.

         Sometime before 1985 and while he was still on probation, Johnson began a relationship

with Donna Melby.2 The court allowed Johnson to begin living with Donna and her minor

children, including KC and LM.3 KC was born in October 1978, and LM was born in February

1977.




2
    Donna Melby later became Donna Johnson. For purposes of clarity, we use her first name.
3
  Johnson’s parole officer sought the court’s opinion as to whether such a living arrangement was
advisable. The parole officer had received conflicting recommendations from Johnson’s initial
court-appointed counselor and his counselor at the time, and sent a letter to the court seeking its
guidance. Johnson’s counselor at the time recommended that Johnson and Donna live together.
Johnson’s first counselor, however, advocated against the living arrangement. The counselor
stated that Johnson had not taken accountability for his sexual abuse of his daughters and was
“greatly concerned . . . that Mr. Johnson may molest [KC and LM].” Clerk’s Papers (CP) at 527.
The record does not contain the court’s response to the parole officer’s letter, but presumably it
authorized the living arrangement.

                                                2
No. 51400-1-II


       In August 1985, Johnson completed his probation, withdrew his guilty plea, and the court

dismissed the charge. The court order indicates that at one point while Johnson lived with Donna

on probation, Donna’s former husband accused Johnson of molesting KC and LM. The order

stated that “[t]he family underwent a vigorous investigation by Children’s Protective Services as

well as the juvenile courts and probation officer, and it was determined that the allegations were

untrue.” Clerk’s Papers (CP) at 73. The court was not aware of any other complaints of deviant

sexual behavior.

                                II. 1986 JJ ABUSE ALLEGATION

       At some point before 1985, JJ began living with Johnson and Donna despite Johnson’s

prior abuse of her. In February 1986, JJ alleged that Johnson was again sexually abusing her. JJ

wrote a statement detailing incidents of Johnson touching her inappropriately and making her

model revealing clothing for him.

       As a result, DSHS filed a dependency petition, and the court entered a shelter care order.

The court found “that [JJ’s] health, safety and welfare [would] be seriously endangered if [she

was] not taken into custody.” Id. at 714. The dependency petition noted that Johnson had

previously been convicted of indecent liberties as to JJ. DSHS was also aware that Johnson lived

in a home with Donna, JJ, KC, and LM.

       DSHS also referred JJ’s allegations to the police. Approximately one month later, the

prosecutor’s office made the decision not to charge Johnson.4



4
  According to Donna, JJ later “recanted and told her [biological] mother that she had [accused
Johnson] just to get out of the house.” CP at 285. However, it is unclear when JJ’s alleged
recantation occurred. Additionally, no evidence exists as to whether JJ also recanted to state
authorities. The record does not reveal why the prosecutor’s office decided not to charge Johnson.

                                                3
No. 51400-1-II


        In June 1986, the court entered agreed orders of dependency regarding JJ for both Johnson

and JJ’s mother. As to Johnson, the court found that JJ was dependent because (1) she was

unwilling to reside in Johnson’s custody and (2) Johnson was unwilling to take custody of her. As

to JJ’s mother, the court found that (1) there was no parent or guardian available to care for JJ, (2)

JJ was unwilling to reside in her mother’s custody, (3) JJ’s mother was unwilling to take custody

of JJ, and (4) “[a] manifest danger exists that the child will suffer serious abuse or neglect if the

child is not removed from the home.” Id. at 685. The court nevertheless placed JJ in her mother’s

care.

        At this time, LM was nine years old, and KC was seven years old. The evidence suggests

that Johnson had already begun sexually abusing them by February 1986. However, there is no

evidence that DSHS investigated whether Johnson was abusing KC and LM as well as JJ. KC

does not remember speaking with therapists, social workers, or government officials about her

household before she was eight or nine years old. And DSHS took no steps to separate Johnson

from KC and LM.

                               III. 1990-1992 ABUSE ALLEGATIONS

        A few years later, DSHS started receiving referrals about potential abuse of KC and LM.

On November 16, 1990, DSHS received a referral from one of LM’s schoolteachers, Elaine Miller.

LM told Miller that her brother, Ken, had been molesting her for the past year. LM told Miller

that Johnson was also abusing her. LM said that Johnson would enter her bedroom at night and

would pull down her underwear.




                                                  4
No. 51400-1-II


       On November 28, 1990, DSHS records indicate that Donna told the agency that she was

not aware of sexual abuse within the family. However, Donna felt that LM had been sexually

abused by an acquaintance of the family.

       The following day, DSHS filed a report of abuse and neglect to the police. DSHS noted

that LM was subject to physical and sexual abuse, and that Donna failed to protect. As to the

referral made by Miller on November 16, 1990, DSHS reports indicate that it was unable to

complete its own investigation, and it made “No Finding.” Id. at 655-56. There is no indication

as to why DSHS was unable to complete its investigation.

       In December 1990, DSHS received a referral from Ann Kaluzny, a social worker who had

spoken with KC. Kaluzny reported that KC seemed uncomfortable with Johnson living in the

home. Kaluzny also noted that Donna was ignoring Johnson’s actions and did not believe he was

an offender.

       In January 1991, the police interviewed LM and Donna. LM denied that she was touched.

She said she did not remember telling Miller otherwise. However, LM said that Johnson or Ken

might have molested KC. In her written statement given the same day, LM said that one time she

awoke and Johnson was in her bedroom staring at her. Johnson pulled down her underwear, but

then LM jumped up, and Johnson left.

       A few weeks later, the police interviewed KC. KC denied that either Johnson or Ken

touched her.

       The prosecutor’s office decided not to press charges against Ken. Although no records

indicate as much, presumably the prosecutor’s office made the same determination as to Johnson.




                                              5
No. 51400-1-II


DSHS reports indicate that it was unable to complete its own investigation, and it made “No

Finding.” Id. at 655.

        In May 1991, DSHS received another referral from Miller. Miller said that KC and LM’s

family was incestuous. Miller reported that Donna put a lock on LM’s door to keep Ken out and

that recently, KC had awoken to find Ken in her room. Miller noted that Donna was “basically in

denial.” Id. at 124. She also noted that the “whole family is caught up in covering up behavior

and avoiding dealing with issues” by “mak[ing] allegations and then recant[ing] them.” Id. DSHS

reports indicate that it was unable to complete its own investigation, and it made “No Finding.”

Id. at 654.

        In October 1991, Donna and Johnson separated. However, even after their separation, LM

and KC continued to tell school counselors that Johnson was being given access to them, was

touching them inappropriately, and was making sexual comments directed at them. At one point,

LM wrote a letter discussing the abuse that she had suffered throughout her childhood. LM’s letter

discussed how, when she was younger, Johnson would “come to [her] room at night [and] pull

down [her] covers [and] pull [her] underwear down.” Id. at 278. LM said that Johnson used her

to see if he could still get erect. LM discussed how, on one occasion, Johnson told her that he

wanted to perform oral sex on her. LM also discussed Johnson’s sexual abuse of other members

of her family.

        Shortly thereafter, Johnson died. At no point did DSHS file a dependency petition as to

either KC or LM.




                                                6
No. 51400-1-II


                                        IV. KC’S INJURIES5

       In 2012, KC was diagnosed with post-traumatic stress disorder (PTSD) and began taking

medicine to deal with her symptoms. Those symptoms included depression, anxiety, and suicidal

thoughts. KC’s symptoms had been present her entire adult life. However, KC claims that she

did not attribute her symptoms to Johnson’s sexual abuse until 2012.

                                           V. LAWSUIT

       In 2013, KC and LM sued DSHS. They alleged that Johnson began abusing them

immediately upon living together, DSHS acted negligently by inadequately investigating the

allegations of abuse and by failing to remove them from the home, and as a result, they suffered

years of preventable abuse.

       After some discovery, DSHS moved for summary judgment, claiming that no genuine issue

of material fact existed as to breach and causation, that KC’s claims were barred by the statute of

limitations, and that laches applied.

       KC and LM opposed summary judgment. They relied in part on the declaration of Barbara

Stone, who worked for DSHS from 1968 until 2000. Stone stated that after receiving the referrals

of abuse, DSHS acted negligently by failing to act on those referrals. Specifically, Stone stated

that when DSHS removed JJ from Johnson’s home in February 1986 based on renewed allegations

of sexual abuse, DSHS did not follow standard practices when it failed to remove or otherwise

protect all the children in Johnson’s home. Stone also suggested that a proper investigation in




5
  Legal arguments related to LM’s injuries have been previously resolved by this court and thus
are not relevant to the issues currently on appeal. See K.C. v. Johnson, No. 48029-9-II, slip op. at
15 (Feb. 28, 2017), http://www.courts.wa.gov/opinions/.

                                                 7
No. 51400-1-II


1986 would have revealed a risk that Johnson was sexually abusing KC and LM. Finally, Stone

stated that if DSHS had conducted proper investigations pursuant to KC’s and LM’s allegations

of abuse occurring in the 1990s, DSHS would have removed them from Johnson’s home.

        In her declaration, LM stated that “[i]f anyone would have believed [her] and promised to

keep [her and her family] safe [she] would have told.” Id. at 401.

        The trial court granted DSHS’ motion for summary judgment. The court based its decision

on the fact that KC and LM’s case was speculative. The court also ruled that the statute of

limitations barred KC’s claim.

        KC and LM then amended their complaint to add, among others, the hospital that had

employed the counselor who had recommended that Johnson live with Donna, KC, and LM. The

hospital filed for summary judgment on the same grounds that DSHS had. The hospital also argued

that KC was collaterally estopped from relitigating whether her claims were barred by the statute

of limitations.

        This time, the trial court denied the motion for summary judgment.         The hospital

interlocutory appealed, and we granted review. We ruled that KC was not collaterally estopped

from relitigating whether her claims were time-barred. K.C. v. Johnson, No. 48029-9-II, slip op.

at 15 (Feb. 28, 2017), http://www.courts.wa.gov/opinions/. We also ruled that a genuine issue of

material fact existed as to whether LM’s claims were time-barred, precluding summary judgment.

Id. at 16-17. However, the hospital did not argue on appeal that KC’s claims were in fact barred

by the statute of limitations. Id. at 8 n.4.

        KC and LM now appeal the trial court’s grant of summary judgment to DSHS.




                                                8
No. 51400-1-II


                                           ANALYSIS

                                     I. STANDARD OF REVIEW

       We review an order for summary judgment de novo, performing the same inquiry as the

trial court. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). “We consider all facts

submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving

party.” Rublee v. Carrier Corp., 192 Wn.2d 190, 199, 428 P.3d 1207 (2018). “Summary judgment

is proper when the record demonstrates there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.” Munich v. Skagit Emergency Commc’ns Ctr.,

175 Wn.2d 871, 877, 288 P.3d 328 (2012).

                                  II. NEGLIGENT INVESTIGATION

       KC and LM argue that genuine issues of material fact exist as to (1) whether DSHS

breached its duty to investigate under former RCW 26.44.050 (2012) and (2) whether the breach

proximately caused a harmful placement decision. We agree.

A. LEGAL PRINCIPLES

       Former RCW 26.44.050 provides that DSHS must investigate reports of abuse or neglect

of a child. Additionally, during its investigation, DSHS “has [a] duty to act reasonably in relation

to all members of the family.” Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 79, 1 P.3d

1148 (2000). Based on this statutory duty, children have an implied cause of action against DSHS

for negligent investigation under certain circumstances. M.W. v. Dep’t of Soc. & Health Servs.,

149 Wn.2d 589, 595, 70 P.3d 954 (2003). The negligent investigation cause of action based on

former RCW 26.44.050 is a “narrow exception” to the rule that there is no general tort claim for

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


                                                 9
No. 51400-1-II


       To prevail on a negligent investigation claim, a plaintiff must prove both that (1) DSHS

breached its duty of care by failing to conduct an adequate investigation and (2) the investigation’s

inadequacy proximately caused a harmful placement decision by DSHS. Id. at 595. A harmful

placement decision includes “letting a child remain in an abusive home.” Id. at 602.

       Whether a defendant breached its duty is generally a question of fact. See Hertog v. City

of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999); Yonker v. Dep’t of Soc. & Health Servs., 85

Wn. App. 71, 76, 930 P.2d 958 (1997). However, summary judgment is appropriate if reasonable

minds could reach only one conclusion. Hertog, 138 Wn.2d at 275.

       Proximate cause has two elements: cause in fact and legal causation. Tyner, 141 Wn.2d

at 82. Cause in fact exists when “but for” the defendant’s actions, the claimant would not have

been injured. Id. Cause in fact generally is a jury question. Id. Legal causation involves a policy

determination as to how far the consequences of an act should extend and generally is a legal

question. Id.; see Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 478-79, 951 P.2d 749

(1998) (focusing on “whether, as a matter of policy, the connection between the ultimate result

and the act of the defendant is too remote or insubstantial to impose liability”).

B. EXISTENCE OF A DUTY

       KC and LM allege that DSHS owed them a duty to investigate allegations of abuse.

Additionally, Stone contends that, at all relevant times, DSHS’ standard practice was to investigate

abuse as to all children in a home when allegations of abuse were made by one child in the home.

       DSHS does not argue that it did not owe KC and LM a duty based on JJ’s reported abuse

in 1986. The agency also does not dispute that it owed a duty to KC or LM based on the other

incidents of reported abuse during the 1990s.


                                                 10
No. 51400-1-II


        Thus, we need not decide whether DSHS’ duty to investigate always extends to other

children in a home when allegations of abuse are made by one child in the same home. Instead,

we simply conclude that, based upon the facts here, JJ’s allegation of abuse in 1986 triggered

DSHS’ duty to investigate as to KC and LM, as well as to JJ. Similarly, we conclude that KC’s

allegations of abuse in the 1990s triggered DSHS’ duty to investigate as to both KC and LM, and

LM’s allegations of abuse in the 1990s likewise triggered DSHS’ duty to investigate as to both

children.

C. BREACH

        KC and LM argue that genuine issues of material fact exist regarding whether DSHS

breached its duty to investigate both in 1986 and in the 1990s. We agree.

        In 1986, DSHS received a report that Johnson was sexually abusing JJ. DSHS was aware

that Johnson had previously sexually abused JJ and had been convicted of indecent liberties for

doing so.

        During this time, Johnson lived in a home with Donna, JJ, KC, and LM. DSHS was aware

of the living situation.

        Shortly after JJ reported the abuse, DSHS filed a dependency petition, but only as to JJ.

The petition detailed Johnson’s past and present sexual abuse of JJ.

        At this time, KC and LM, ages 7 and 9 respectively, were in an at-risk age range given that

Johnson had been convicted of sexually abusing his 11-year-old daughter a few years prior. Yet,




                                                11
No. 51400-1-II


KC does not remember being interviewed about whether Johnson was abusing her until months

after DSHS had removed JJ from their home.6

       Stone claims that DSHS did not conduct an adequate investigation based upon JJ’s reported

abuse because a reasonable investigation would have uncovered that Johnson was abusing KC and

LM. As a result, DSHS would have removed them from the home or otherwise implemented

adequate safeguards. This, Stone claims, was standard practice.

       Based on the above, a genuine issue of material fact exists as to whether DSHS breached

its duty to conduct an adequate investigation and act reasonably pursuant to such an investigation.

       Additionally, subsequent referrals to DSHS in the 1990s alerted the agency about potential

abuse of KC and LM by Johnson. These allegations further triggered the agency’s duty to

investigate. Many of these allegations contained factual similarities, both to each other and to

prior allegations against Johnson, and for many of these instances, DSHS records indicate that it

was unable to complete its own investigation. Based on these reported instances of abuse, a

reasonable jury could find that DSHS breached its duty to conduct an adequate investigation.

       For example, in 1991, LM disclosed that Johnson was abusing her, but when the police

interviewed LM, she denied that Johnson touched her. However, LM did not fully recant. She

maintained that one time while she was in bed, she awoke, and Johnson was in her bedroom and

pulled down her underwear. A reasonable jury could find that DSHS did not conduct an adequate

investigation because such an investigation would have uncovered that Johnson was continuing to

abuse KC and LM.



6
 At summary judgment, we must view the evidence in the light most favorable to KC and LM.
KC claims that she did not remember being interviewed until she was eight or nine years old. KC
was seven years old when JJ reported her abuse. She turned eight years old eight months later.
                                              12
No. 51400-1-II


       Viewing the facts in the light most favorable to KC and LM, a reasonable jury could find

that DSHS failed to conduct an adequate investigation as to KC and LM.

D. CAUSE IN FACT

       KC and LM argue that due to the allegations of sexual abuse occurring in their household,

genuine issues of material fact exist as to whether DSHS caused a harmful placement decision.

We agree.

       Whether a reasonable jury could find cause in fact satisfied here is largely determined by

answering the following question: if DSHS had conducted an adequate investigation, would they

have discovered that Johnson was abusing KC and LM?

       Viewing the evidence in the light most favorable to KC and LM, we must answer in the

affirmative. The record supports at least an inference that Johnson began sexually abusing KC

and LM prior to 1986. The record suggests that Johnson began abusing KC and LM when they

were about four years old and that his abuse worsened as they got older.

       Additionally, LM stated that “[i]f anyone would have believed [her] and promised to keep

[her and her family] safe [she] would have told.” CP at 401. Thus, the evidence shows there is a

genuine issue of material fact that if DSHS had conducted an adequate investigation and

interviewed KC and LM, the agency would have learned that Johnson was abusing them.

Furthermore, Stone suggests that a proper investigation in 1986 would have revealed a risk that

Johnson was sexually abusing KC and LM. We have determined that this presents a question for

the jury in similar situations. See, e.g., H.B.H. v. State, 197 Wn. App. 77, 93-95, 387 P.3d 1093

(2016), aff’d, 192 Wn.2d 154, 429 P.3d 484 (2018).




                                               13
No. 51400-1-II


       We recognize that in 1991, LM denied to the police that Johnson was abusing her.

However, LM’s denial only further highlights that the question we posed above is indeed one of

fact. LM stated in a declaration that she would have disclosed if she would have been promised

that she and her family would be safe. The fact that she denied that Johnson was abusing her in

1991 suggests otherwise. Such conflicting evidence presents a question for the jury.

       DSHS contends that JJ’s 1986 allegations of abuse were not sexual in nature. DSHS’

argument relies on a statement by Donna regarding JJ’s alleged recantation. Although DSHS

contends that JJ recanted her 1986 sexual abuse allegations shortly after making them and that it

was aware of her recantation at that time, the record only supports DSHS’ argument if we view it

in a light most favorable to DSHS. We decline to do so. Instead, the record simply shows that at

some time between 1986 and 1992, JJ told her biological mother that she made up the 1986

allegations of abuse. It is unclear whether JJ made similar statements to DSHS or the police, and

it is unclear when JJ told this to her mother.

       As a result, we must view the evidence as if DSHS was unaware that JJ recanted in 1986.

And if DSHS was unaware in 1986 that JJ recanted her allegation of sexual abuse, then it removed

JJ from Johnson’s home due to the fact that she alleged he was sexually abusing her. DSHS was

aware, at that time, that Johnson lived with KC and LM. Thus, upon DSHS’ completion of an

adequate investigation (one that uncovered Johnson’s abuse of KC and LM), DSHS could similarly

have removed them.

       Therefore, viewing the evidence in the light most favorable to KC and LM, a reasonable

jury could find that DSHS’ inadequate investigation proximately caused a harmful placement

decision in 1986. A reasonable jury could find that if DSHS would have conducted an adequate


                                                 14
No. 51400-1-II


investigation, it would have discovered that Johnson was abusing KC and LM, and it could have

removed them from Johnson’s home or otherwise protected them from him. Furthermore, a

reasonable jury could find that the agency’s failure to do either caused KC and LM to be left in an

abusive home with Johnson.

       Finally, KC’s and LM’s allegations of abuse in the 1990s present further questions of

material fact. At various times, KC and LM each reported Johnson’s abuse. As noted above, LM

stated that she would have confirmed the abuse if certain conditions had been met. And although

LM denied to the police that Johnson touched her, as noted above, she also confirmed at that same

time that Johnson had in fact abused her in the past.

       As discussed previously, a reasonable jury could find that DSHS conducted an inadequate

investigation. Here, we conclude that a reasonable jury could find that the investigation’s

inadequacy proximately caused, in 1986 or later in the 1990s, a harmful placement decision by

DSHS as to both KC and LM.

E. LEGAL CAUSATION

       DSHS argues that KC and LM cannot establish legal causation because evidence has either

been lost or destroyed and therefore KC’s and LM’s claims simply rely on speculation. We

disagree.

       DSHS is tasked with adequately investigating reported abuse and acting reasonably

pursuant to those investigations. We conclude that the connection between KC’s and LM’s

injuries, sexual abuse over a number of years, and DSHS’ failure to investigate and act reasonably

is not, as a matter of law, “too remote or insubstantial to impose liability.” Schooley, 134 Wn.2d

at 478-79.


                                                15
No. 51400-1-II


                                   III. STATUTE OF LIMITATIONS

       KC and LM argue that dismissing KC’s claim at summary judgment based on the statute

of limitations grounds was improper. We agree.

       Under RCW 4.16.340(1)(c), a childhood sexual assault victim’s three-year statute of

limitations is tolled until “the victim discovered that the act caused the injury for which the claim

is brought.” This statutory tolling provision “‘is unique [because] . . . it specifically focuses on

when a victim of sexual abuse discovers the causal link between the abuse and the injury for which

the suit is brought.’” B.R. v. Horsley, 186 Wn. App. 294, 299, 345 P.3d 836 (2015) (quoting Korst

v. McMahon, 136 Wn. App. 202, 208, 148 P.3d 1081 (2006)). The statute of limitations does not

begin when a victim identifies an injury, but rather when a victim associates an injury with prior

abuse. Id. at 299-301.

       Here, KC claims that she did not associate her lifelong symptoms of depression, anxiety,

and suicidal thoughts with her childhood sexual abuse until 2012, when she was diagnosed with

PTSD. Because we are reviewing DSHS’ motion for summary judgment, we must accept KC’s

assertion as true. Rublee, 192 Wn.2d at 199.

       Therefore, because KC and LM filed their lawsuit in 2013, well within three years from

when she associated her injuries to her abuse, the trial court erred in granting summary judgment

as to KC’s claim.

                                            IV. LACHES

       DSHS argues that laches bars KC’s and LM’s claims. It contends that it raised the issue

below and thus preserved its argument on appeal. We agree that the issue is preserved but conclude

that laches does not bar KC’s and LM’s claims.


                                                 16
No. 51400-1-II


         Laches is an equitable defense to an action. Newport Yacht Basin Ass’n of Condo. Owners

v. Supreme Nw., Inc., 168 Wn. App. 56, 76, 277 P.3d 18 (2012). Laches involves two elements:

(1) inexcusable delay in commencing an action and (2) prejudice to the other party because of the

delay. Auto. United Trades Org. v. State, 175 Wn.2d 537, 542, 286 P.3d 377 (2012). Laches is

an extraordinary remedy that generally is not applied when the action is filed within the applicable

limitation period. Harmony at Madrona Park Owners Ass’n v. Madison Harmony Dev., Inc., 143

Wn. App. 345, 362, 177 P.3d 755 (2008). The party asserting laches has the burden of proof.

Newport Yacht Basin, 168 Wn. App. at 77.

         The main component of laches is not the length of the delay, but the resulting prejudice to

others. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 849, 991 P.2d 1161

(2000). Application of laches requires some change in a party’s condition that would make a delay

in asserting a claim inequitable. Newport Yacht Basin, 168 Wn. App. at 77.

         Our legislature has recognized that

         sexual abuse is a pervasive problem that affects the safety and well-being of many
         citizens. Childhood sexual abuse is traumatic, and the damage is long-lasting.
         Victims may not only repress the memory of the abuse for many years after the
         abuse occurred, but may also be unable to connect being abused with any injury
         until later in life.

H.B. REP. ON ENGROSSED SUBSTITUTE H.B. 2058, at 2, 52d Leg., Reg. Sess. (Wash. 1991).

         To afford sexual abuse victims an avenue for relief, the legislature amended RCW 4.16.340

to toll the three-year statute of limitations until the victim discovers that their abuse caused their

injury. In doing so, the legislature expressed its intent that victims be afforded a cause of action

later in life.




                                                 17
No. 51400-1-II


        Because the legislature recognizes that sexual abuse victims’ delay in filing lawsuits is

excusable delay, DSHS cannot satisfy the first element of laches. As a result, the doctrine does

not bar KC’s and LM’s claims.

                                        CONCLUSION

        We conclude that genuine issues of material fact exist as to whether DSHS breached its

duty to investigate under former RCW 26.44.050 and whether the breach caused a harmful

placement decision. We also conclude that legal causation exists. Additionally, we conclude that

the statute of limitations does not bar KC’s claim and that the doctrine of laches does not bar KC

and LM’s lawsuit.

        Therefore, the trial court’s grant of summary judgment was improper, and we reverse and

remand for further proceedings.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    CRUSER, J.
 We concur:



 MAXA, C.J.




 SUTTON, J.




                                               18
