Judith Cox v. Wa Dept. Social & Health Svcs.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUDITH COX, individually and as Nos.15-35964

Personal Representative of the estate 15-35980

of C. J. P., and estate of B. T. P. and

CHARLES COX, individually and as D.C. No.

Personal Representatives of the 3:14-cv-05923-

estate of C. J. P. and estate of RBL

B. T. P.,

Plaintiffs-Appellants/

Cross-Appellees, OPINION

v.

STATE OF WASHINGTON,

DEPARTMENT OF SOCIAL AND

HEALTH SERVICES; FOREST

JACOBSON; RANDY STEPHENSON;

JANE WILSON; BILLIE REED-LYYSKI,

Defendants-Appellees/

Cross-Appellants.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted December 4, 2017

Seattle, Washington

Filed January 10, 2019

2 COX V. STATE OF WASHINGTON DSHS

Before: Michael Daly Hawkins and Morgan Christen,

Circuit Judges, and Leslie E. Kobayashi,* District Judge.

Opinion by Judge Kobayashi

SUMMARY**

Civil Rights

The panel affirmed a grant of summary judgment in favor

of social workers and reversed the dismissal of negligence

claims against Washington’s Department of Social and

Health Services, and remanded, in an action arising from the

murder of two young boys by their father during a social-

worker-supervised visit.

The amended complaint alleged a 42 U.S.C. § 1983 claim

against the social workers for disregarding facts showing that

the father presented a serious risk of harm to the boys, as well

as negligence claims against the Department for its failure to

investigate and monitor the father prior to and during the

visits, and failure to train.

The panel held that viewing the record in the light most

favorable to the plaintiffs, there was insufficient evidence to

show that the social workers recognized, or should have

*

The Honorable Leslie E. Kobayashi, United States District Judge for

the District of Hawai`i, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

COX V. STATE OF WASHINGTON DSHS 3

recognized, an objectively substantial risk that the father

would physically harm his sons. As the social workers did

not act with deliberate indifference to the boys’ liberty

interest, the district court did not err in concluding that the

social workers were entitled to qualified immunity.

Addressing the negligence claims, the panel held that the

Department of Social and Health Services had a duty to

investigate in order to reasonably ensure that a child is not

placed in an abusive situation. The panel held that material

issues of fact existed regarding whether the Department used

reasonable care to avoid placing the boys in harm’s way,

including: (1) determining the visitation location; (2)

facilitating the February 5, 2012 visitation; and (3) training

its social workers to conduct visitations. There also existed

material issues of fact as to whether the Service’s actions

proximately caused the boys to be placed in harm’s way.

COUNSEL

Ted Buck (argued), Evan Bariault, Anne M. Bremner, Frey

Buck P.S., Seattle, Washington, for Plaintiffs-Appellants/

Cross-Appellees.

Peter John Helmberger (argued), Assistant Attorney

General; Robert W. Ferguson, Attorney General; Office

of the Attorney General, Tacoma, Washington; for

Defendants-Appellees/Cross-Appellants.

4 COX V. STATE OF WASHINGTON DSHS

OPINION

KOBAYASHI, District Judge:

This appeal arises from the gruesome murder of two

young boys by their father during a social-worker-supervised

visit during dependency proceedings brought by the State of

Washington’s Department of Social and Health Services

(“DSHS”). One set of grandparents, Judith Cox and Charles

Cox (“Coxes”), subsequently sued the social workers under

42 U.S.C. § 1983, and DSHS for negligence. The Coxes

appeal the adverse grant of summary judgment in favor of the

social workers and DSHS. On cross-appeal, DSHS

challenges the conclusion that, in placement decisions,

Washington state law imposes a duty to conduct investigation

necessary to avoid placing a child in an abusive or dangerous

situation. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm the grant of summary judgment in favor of the

social workers based on qualified immunity and the

conclusion that, under Washington state law, those making

placement decisions have a duty to reasonably ensure a child

is not placed in an abusive situation. We reverse as to the

negligence claims against DSHS, and remand for further

proceedings.

I. BACKGROUND

The following facts are not in dispute. In December

2009, Susan Powell disappeared from the Utah home she

shared with her husband, Joshua Powell and their two boys.

Joshua, the lead suspect in Susan’s disappearance,

subsequently moved with the two boys to his father Stephen

Powell’s home in Washington. On August 25, 2011,

Washington authorities—acting on information from Utah

COX V. STATE OF WASHINGTON DSHS 5

authorities investigating Susan’s disappearance—conducted

a search of Stephen’s home. Washington authorities

confiscated fifteen computers that, when examined, were

found to contain child pornography and evidence of

Stephen’s obsession with Susan. Stephen was arrested, and

the two boys were removed from the home and placed under

DSHS’s care.

On September 28, 2011, the Superior Court of

Washington, County of Pierce, Juvenile Court (“the

Dependency Court”) issued orders placing the two boys in the

custody of DSHS; authorizing placement with the Coxes;

allowing Joshua weekly visits with the two boys under

supervision by a DSHS-approved provider; and prohibiting

Joshua from either discussing pending litigation with the boys

or making disparaging remarks about the Coxes. Pursuant to

these orders, one of the social workers submitted an initial

visiting plan to the Dependency Court that recommended the

weekly supervised visits take place in DSHS’s Division of

Child and Family Services (“DCFS”) offices or another

preapproved DCFS location.

Following an initial review, the Dependency Court found

the two boys were dependent and ordered the boys continue

to be placed with the Coxes but maintained weekly visits with

their father. The Dependency Court also ordered that

visitations could be expanded if the parties agreed and that

Joshua undergo a psychological evaluation and parenting

assessment. In November 2011, DSHS changed the location

of the boys’ visits from a DCFS facility to a residence Joshua

had established separate and apart from his father. The

change was noted in the guardian ad litem’s report, filed with

the Dependency Court on January 6, 2012.

6 COX V. STATE OF WASHINGTON DSHS

Psychologist James Manley, Ph.D., evaluated Joshua

between October 2011 and January 2012. As part of his

evaluation, Dr. Manley assessed Joshua during visitations

occurring both at a DCFS location and Joshua’s newly-

established residence. Dr. Manley’s initial report registered

concerns about some of Joshua’s behaviors but concluded

that supervised visitations should continue. In January 2012,

Dr. Manley drafted an addendum to his report that included

a review of 400 pornographic images collected from

Stephen’s computer. Joshua’s potential connection to these

images led Dr. Manley to conclude “he may not presently be

a stable and appropriate resource for his children.” Dr.

Manley referred Joshua to a psychosexual evaluation and

recommended no “additional or change of visit structure.”

The Dependency Court held its second review shortly

thereafter. At this hearing, the Dependency Court denied

Joshua’s motion to have the boys returned to him or placed

with his pastor. After reviewing reports from Dr. Manley, the

guardian ad litem, and social workers, the Dependency Court

ordered visitation to continue twice a week for three hours.

The boys continued to live with the Coxes.

On February 5, 2012, the visitation supervisor—a social

worker who is not a defendant in this case—brought the boys

to Joshua’s newly-established residence for a scheduled visit.

As they had done on prior visits, the boys, anxious to see their

father, ran into Joshua’s house ahead of the visitation

supervisor. Joshua locked the door to prevent the visitation

supervisor from entering the home, and proceeded to

bludgeon both boys to death, set the house on fire, and kill

himself.

COX V. STATE OF WASHINGTON DSHS 7

The Coxes’ lawsuit seeks damages from the social

workers, Forest Jacobson, Randy Stephenson, Jane Wilson,

and Billie Reed-Lyyski, as well as DSHS. The Coxes’

original complaint was filed solely against DSHS, and was

superseded by their amended complaint, which added the

social workers as defendants. The amended complaint

alleges a 42 U.S.C. § 1983 claim against the social workers

for disregarding facts showing that Joshua presented a serious

risk of harm to the boys, as well as negligence claims against

DSHS for its failure to investigate and monitor Joshua prior

to and during the visits, and failure to train.

The district court granted the defendants’ motion for

summary judgment and concluded that the social workers

had absolute immunity or, alternatively, qualified immunity

from the Coxes’ § 1983 claims. As to DSHS, the district

court found that DSHS did not fail to provide material

information about Joshua to the Dependency Court, that the

Dependency Court’s February 1, 2012 order was a

superseding, intervening cause that precluded liability for the

deaths, and that DSHS did not negligently facilitate the fatal

visit. The district court also found that, under state law and

in placement decisions, DSHS has a duty to investigate in

order to reasonably ensure that a child is not placed in an

abusive situation. This appeal and cross-appeal followed.

II. STANDARD OF REVIEW

We review de novo an order granting summary judgment,

applying the same standard as the district court. Howard v.

City of Coos Bay, 871 F.3d 1032, 1038 n.1 (9th Cir. 2017).

Whether a public official is entitled to immunity and the type

of that immunity are questions of law also reviewed de novo.

Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237

8 COX V. STATE OF WASHINGTON DSHS

F.3d 1101, 1106 (9th Cir. 2001) (citing Greater L.A. Council

on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987)).

III. DISCUSSION

A. Liability of the Individual Social Workers under

§ 1983

1. Absolute Immunity

We turn first to whether the district court properly

concluded that the social workers were entitled to absolute

immunity with regard to their reports to the Dependency

Court and supervision of Joshua’s visits with the two boys.

“Absolute immunity from private lawsuits covers the official

activities of social workers only when they perform quasi-

prosecutorial or quasi-judicial functions in juvenile

dependency court.” Hardwick v. Cty. of Orange, 844 F.3d

1112, 1115 (9th Cir. 2017) (citing Miller v. Gammie, 335

F.3d 889, 898 (9th Cir. 2003) (en banc)). Absolute immunity

is available only if the social worker’s “activity or ‘function’

. . . was . . . part and parcel of presenting the state’s case as a

generic advocate.” Id. “[S]ocial workers are not afforded

absolute immunity for their investigatory conduct,

discretionary decisions or recommendations.” Tamas v.

Dep’t of Soc. & Health Servs., State of Wash., 630 F.3d 833,

842 (9th Cir. 2010) (citing Beltran v. Santa Clara Cty., 514

F.3d 906, 908–09 (9th Cir. 2008); Miller, 355 F.3d at 898).

Viewing the record in the light most favorable to the

Coxes, the visitation location was within the social workers’

discretion. There is insufficient evidence that the

Dependency Court required the boys’ visits to take place in

Joshua’s home. None of the Dependency Court’s rulings,

COX V. STATE OF WASHINGTON DSHS 9

oral and written, dictated the visitation location. Thus, the

district court erred in concluding that the social workers were

entitled to absolute immunity.

2. Qualified Immunity

Whether qualified immunity shields the social workers

from liability is a closer question. We must examine “(1)

whether the facts, taken in the light most favorable to the

party asserting the injury, show that the [social workers’]

conduct violated a constitutional right and (2) if so, whether

the right was clearly established, such that a reasonable

official would understand that his conduct violated that

right.” Id. (citing Conn v. City of Reno, 572 F.3d 1047, 1061

(9th Cir. 2009)). Because we conclude that the social

workers’ conduct did not violate a constitutional right, we

need not consider the second prong.

Where children are in state custody, the Fourteenth

Amendment’s substantive due process clause protects their

liberty interest “in social worker supervision and protection

from harm inflicted by [a third party].” Id. (citing Carlo v.

City of Chino, 105 F.3d 493, 501 (9th Cir. 1997); Campbell

v. Burt, 141 F.3d 927, 931 n.2 (9th Cir. 1998)).

“To violate due process, state officials must act with such

deliberate indifference to the liberty interest that their actions

‘shock the conscience.’ Conduct that ‘shocks the conscience’

is deliberate indifference to a known or so obvious as to

imply knowledge of, danger.” Tamas, 630 F.3d at 844

(footnote, citations, and some internal quotation marks

omitted). As applied to children in state custody, deliberate

indifference “requires a showing of an objectively substantial

risk of harm and a showing that the officials were

10 COX V. STATE OF WASHINGTON DSHS

subjectively aware of facts from which an inference could be

drawn” that such a risk existed and that “either the official

actually drew that inference or that a reasonable official

would have been compelled to draw that inference.” Id. at

845.

The Coxes argue that the social workers disregarded facts

that would compel an inference that there existed an

objectively substantial risk that Joshua would physically harm

his two sons. Specifically, the Coxes rely on several

sources—Joshua’s sister, Jennifer Graves, law enforcement

officials, and the Coxes—who told the social workers about

their specific concerns that Joshua would physically harm the

boys. The district court discounted such evidence as mere

hunches, gut feelings, and speculations that were not

supported by “superior knowledge” about what Joshua might

do.

While we disagree with the district court’s

characterization of the evidence, we recognize how difficult

it is for social workers to sift through safety fears and

concerns, and to make reasoned and expeditious judgments

about the risk of harm. In hindsight, family members’

concerns about Joshua physically harming the two boys were

heartbreakingly prescient. But entitlement to qualified

immunity turns on whether the facts known at the time

reasonably revealed this terrible risk. Regrettably, the facts

did not. The initial visiting plan identified a potential safety

issue related to the risk that Joshua might flee with the two

boys, but not that he might cause them serious physical harm.

Next, the reports by the Coxes, Joshua’s sister and law

enforcement expressed only generalized (albeit strongly

voiced) fears about Joshua harming his sons. Further, the

guardian ad litem reported that Joshua had a strong bond with

COX V. STATE OF WASHINGTON DSHS 11

the two boys and that the visits were going well. Lastly,

while the two boys ran into their father’s house ahead of the

visitation supervisor on at least nine occasions prior to the

final, fatal visit, the children’s actions reasonably could be

interpreted as indications that they were not afraid of and

were excited to see their father, as opposed to indications of

a risk of physical harm. Viewing the record in the light most

favorable to the Coxes, there is insufficient evidence to show

that the social workers recognized, or should have

recognized, an objectively substantial risk that Joshua would

physically harm his sons. As the social workers did not act

with deliberate indifference to the boys’ liberty interest, the

district court did not err in concluding that the social workers

were entitled to qualified immunity.

B. Negligence Claims

As with a child placed in a foster or prospective adoptive

home, DSHS is the “custodian and caretaker” of a dependent

child who has been removed from his biological parent’s

custody and subject to court-ordered supervised visitations

with the biological parent. The Coxes presented multiple

theories of negligence against DSHS that can be aggregated

into two different groups. The first group involves actions

occurring before the issuance of the Dependency Court’s

February 1 order, and includes claims that DSHS failed to use

reasonable care while: (1) investigating and collecting

information about Joshua’s potential for abusive behavior;1

1

We emphasize that the Coxes did not plead a “negligent

investigation” claim. Under Washington law, there is no “general tort

claim for negligent investigation[,] [and a] negligent investigation cause

of action against DSHS is a narrow exception that is based on, and limited

to,” the scope of Wash. Rev. Code § 26.44.050. M.W. v. Dep’t of Soc. &

12 COX V. STATE OF WASHINGTON DSHS

and (2) determining Joshua’s visitation duration and location.

The second group involves actions occurring after or

unrelated to the issuance of the Dependency Court’s February

1 order, and includes claims that DSHS failed to use

reasonable care while: (1) facilitating the February 5, 2012

visitation; and (2) training its social workers to conduct

visitations.

Under Washington law, a negligence action requires proof

of four elements: existence of a duty; breach of the duty; a

resulting injury; and proximate causation between the breach

and the resulting injury. Michaels v. CH2M Hill, Inc., 257

P.3d 532, 542 (Wash. 2011).

Health Servs., 70 P.3d 954, 960 (Wash. 2003) (en banc). Section

26.44.050 states, in pertinent part:

Except as provided in [Wash. Rev. Code]

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 chapter 74.13 [Wash. Rev. Code], and where

necessary to refer such report to the court.

Wash. Rev. Code § 26.44.050. Thus, “a claim for negligent investigation

against DSHS is available only to children, parents, and guardians of

children who are harmed because DSHS has[, in response to report of

possible abuse or neglect,] gathered incomplete or biased information that

results in a harmful placement decision.” M.W., 70 P.3d at 960. The

Coxes do not allege a negligent investigation claim pursuant to

§ 26.44.050; they merely rely on DSHS’s failure to use reasonable care in

its investigation of this case as one of the ways in which DSHS breached

the duty of care it owed the boys because of its special relationship with

the boys. See infra.

COX V. STATE OF WASHINGTON DSHS 13

1. Duty of Care Owed to the Boys

On cross-appeal, DSHS contends that the district court

erred in concluding that, under Washington law, DSHS owed

the boys a duty of care to reasonably ensure it did not place

the boys in a dangerous or abusive situation. It is wrong.

The threshold determination in a negligence action is

whether a defendant owes a duty of care to the plaintiff. To

be actionable, the duty must be one owed to the injured

plaintiff, and not one owed to the public in general. “While

there is generally no duty to prevent a third person from

intentionally harming another, a duty arises when a special

relationship exists between the defendant and either the third

party or the foreseeable victim of the third party’s conduct.”

H.B.H. v. State, 429 P.3d 484, 492 (Wash. 2018)

(“H.B.H. II”) (citations and internal quotation marks omitted).

A duty to prevent intentional harm by a third party arises

where the defendant has either: (1) a special relationship with

the third party, such that the defendant has a duty to control

the third party’s conduct; or (2) a special relationship with the

victim, such that the defendant has a duty to protect the

victim. Id. (citations omitted). The second type of special

relationship, which the Supreme Court of Washington has

described as an “entrustment for the protection of a

vulnerable victim,” id. at 494 (citation omitted), is relevant to

the Coxes’ claims against DSHS.

In H.B.H. II, the Supreme Court of Washington held that

a special relationship exists between DSHS and the dependent

children it places in foster homes. Id. at 496. The children in

that case sued the State of Washington, claiming “its

negligence in failing to investigate or take other protective

14 COX V. STATE OF WASHINGTON DSHS

action . . . allowed the[ir] [foster parents] to abuse them.” Id.

at 488. The Supreme Court of Washington held:

The State, through DSHS, stands in a

special relationship with foster children.

While DSHS contracts with foster parents and

others to provide day-to-day care for

dependent children, the State alone is

custodian and caretaker of foster children.

Consistent with our precedent, we hold that

the special relationship between DSHS and

foster children gives rise to a protective duty

under Restatement § 315(b). . . .

Id. at 499 (citation and internal quotation marks omitted).

This duty to protect includes the duty to exercise reasonable

care in conducting the investigations underlying DSHS’s

decisions regarding the foster children, and a breach of that

duty is actionable even where a § 26.44.050 claim is not

available. See id. at 496.

Although H.B.H. II and the decision that it

affirmed—H.B.H. v. State, 387 P.3d 1093 (Wash. Ct. App.

2017) (“H.B.H. I”)—were decided after the district court’s

decision in this case, the holdings in H.B.H. I and H.B.H. II

are not novel. See H.B.H. II, 429 P.3d at 496 (noting that

M.W., 70 P.3d 954, “confirms, rather than rejects, common

law claims [against DSHS] based on a special relationship”).

H.B.H. I also recognized the State’s special relationship with

foster children, and a subsequent court of appeals decision

recognized that the court of appeals’ decision in “H.B.H. [I]

is consistent with . . . earlier cases . . . finding a duty of

protection arising from a special relationship under

Restatement (Second) of Torts § 315(b).” C.L. v. Dep’t of

COX V. STATE OF WASHINGTON DSHS 15

Soc. & Health Servs., 402 P.3d 346, 350 (Wash. Ct. App.

2017). Indeed, as early as 1991, the Supreme Court of

Washington implicitly recognized a duty of protection in

allowing foster children to pursue negligence claims against

the State and its caseworkers related to the children’s

placement in foster homes. Babcock v. State, 809 P.2d 143

(Wash. 1991).

Although H.B.H., C.L., and Babcock involved placement

of dependent children in foster or adoptive homes and

subsequent harm inflicted upon the children as a result of that

placement, the relationship here is identical. As with a child

placed in a foster or prospective adoptive home, DSHS is the

“custodian and caretaker” of a dependent child who has been

removed from his biological parent’s custody and subject to

court-ordered supervised visitations with the biological

parent. See H.B.H. II, 429 P.3d at 499. That child is “wholly

exposed to the will of the [biological] parent” during a

visitation, unless DSHS reasonably investigates and

supervises the conditions of visitation. See H.B.H. I, 387

P.3d at 1101. Thus, a special relationship and duty existed

between DSHS and the boys.2

While the district court’s conclusion was made without

the benefit of the Washington Supreme Court’s holding in

H.B.H. II, there is sufficient basis to affirm its conclusion that

DSHS had a duty to investigate in order to reasonably ensure

that a child is not placed in an abusive situation. Because

DSHS owed a duty to protect the boys, we affirm the district

court’s conclusion that it owed a duty to avoid placing them

2

Because we hold that the second special relationship exception

applies, we need not address whether another type of special relationship

exception applies.

16 COX V. STATE OF WASHINGTON DSHS

in an abusive situation during their visitations with Joshua.

See S. Cal. Painters & Allied Trades, Dist. Council No. 36 v.

Rodin & Co., 558 F.3d 1028, 1034 n.5 (9th Cir. 2009)

(recognizing we “may affirm on any ground supported by the

record, even if it differs from the district court’s rationale”

(citation omitted)). DSHS’s cross-appeal is denied.

2. Breach

The district court held that, as a matter of law, DSHS did

not breach its duty of care owed to the boys in conducting the

investigation necessary to provide all material information to

the Dependency Court,3 determining the duration and location

of visitations, or facilitating the February 5, 2012 visitation.4

What constitutes reasonable care and whether a defendant

breached its duty “are fact questions for the trier of fact.”

Hertog v. City of Seattle, 979 P.2d 400, 406 (Wash. 1999).

Washington courts have declined to comprehensively define

the bounds of the duty DSHS owed to the boys. Indeed,

H.B.H. I cautioned that “compliance with DSHS policies is

[not] necessarily enough to ensure compliance with the duty

3

Because the inquiry into whether DSHS breached its duty of care

by failing to conduct the investigation necessary to inform the

Dependency Court of all material information is the same as the inquiry

into whether the Dependency Court’s February 1 order was a superseding

cause, we address both inquiries in the proximate cause section.

4

The district court did not specifically address the Coxes’ claim that

DSHS negligently trained its social workers to conduct visitations.

However, it appears the district court held the claim necessarily fails

because it concluded that no social worker unreasonably facilitated a

visitation.

COX V. STATE OF WASHINGTON DSHS 17

to exercise ordinary care to protect foster children.” 387 P.3d

at 1101 n.6.

Here, as to the Coxes’ claim that DSHS unreasonably

moved the visitation location to Joshua’s residence, the Coxes

contend the decision took the boys from a secure government

facility to a location where Joshua—who was both the

primary suspect in the disappearance of his wife and

suspected to have been in the possession of child

pornography—had unfettered control. DSHS’s decision was

influenced by discussions Joshua had with the boys about his

new residence—discussions that violated the Dependency

Court’s visitation order. DSHS’s decision was also made

notwithstanding Joshua’s repeated violations of the

Dependency Court’s visitation order and contrary to DSHS’s

visitation plans. Further, DSHS continued to allow visitations

despite Dr. Manley’s notation that “it is difficult to conclude

[Joshua] could provide a stable, safe, and consistent nurturing

environment for his sons.” Similarly, the Coxes claim DSHS

rashly decided to increase the duration of the visitations prior

to the completion of a psychological evaluation and when the

arrest of Joshua was “imminent.”

Viewing the facts and reasonable inferences therefrom in

the light most favorable to the Coxes, there remains a genuine

issue of material fact as to whether DSHS breached its duty

of care owed to the boys in deciding to alter the location and

duration of the visitations. The district court’s reliance on

DSHS’s “continuing goal of reunification” and “relative

success of earlier family visits” to hold that DSHS’s decision

was reasonable as a matter of law ignores the extraordinary

safety concerns Joshua presented. Given the information

DSHS possessed regarding Joshua, we cannot say that

DSHS’s decision to move visitations to Joshua’s home and

18 COX V. STATE OF WASHINGTON DSHS

increase duration of visitations was reasonable as a matter of

law.

The Coxes also argue that DSHS unreasonably facilitated

the February 5, 2012 visitation. They assert that DSHS

should have relocated the visitations before the February 5

visitation because Joshua was in an increasingly desperate

position following Dr. Manley’s concerns in his report

addendum, the Dependency Court’s denial of Joshua’s

motion to remove children from the Coxes’ home, and the

Dependency Court’s order that Joshua undergo a

psychosexual evaluation. As to the actual visitation, the

Coxes argue it was unreasonable that DSHS had no

emergency plan in place, as evidenced by the nearly 10

minutes that elapsed before the visitation supervisor’s phone

call to 911. Similarly, the Coxes argue that DSHS did not use

reasonable care in training its visitation supervisors, and that

the visitation supervisor in this case had never conducted a

residential supervised visitation before supervising the boys.

Again, we cannot conclude as a matter of law that DSHS

reasonably facilitated the February 5 visitation or reasonably

trained its visitation supervisors. DSHS reserves the right to

change aspects of visitations “based on increased or

decreased safety concerns, changes in permanency plans

and/or the well-being of the child.” Reacting to new

information and making appropriate changes falls within the

spirit and duty DSHS owes to dependent children. However,

no documented response was made or emergency plan

contemplated by DSHS despite revelations of increasingly

concerning information about Joshua, and DSHS’s utilization

of a visitation supervisor who lacked firsthand experience

with the safety concerns of residential visitations. If such

COX V. STATE OF WASHINGTON DSHS 19

omissions were reasonable as a matter of law, they would

render hollow DSHS’s duty to dependent children.

3. Proximate Cause

The district court also held that the Dependency Court’s

February 1 order, which concluded that visitation would

“remain as it currently is,” was a superseding cause that

severed DSHS’s liability.

To prevail on its negligence claims, the Coxes must prove

DSHS’s incomplete investigation and failure to produce

material information to the Dependency Court was a

proximate cause of the boys’ death. See Petcu v. State, 86

P.3d 1234, 1244 (Wash. 2004). Proximate cause contains

two elements: cause in fact and legal cause. “Cause in fact is

a jury question, established by showing that ‘but for’ the

defendant’s actions, the claimant would not have been

injured.” Id. at 1244. “Legal cause involves the

determination, in view of ‘logic, common sense, justice,

policy, and precedent,’ of the extent to which a defendant

should remain legally responsible for the harmful

consequences of his acts” and is generally “a question for the

court.” Id. at 1244–45 (quoting Minahan v. W. Wash. Fair

Ass’n, 73 P.3d 1019, 1023 (Wash. Ct. App. 2003)).

Judicial action may sufficiently disrupt the causal

connection between a negligent act and subsequent harm to

become a superseding, intervening cause. See Bishop v.

Miche, 973 P.2d 465, 472 (Wash. 1999). A judicial order

constitutes a superseding, intervening cause “if all material

information has been presented to the court and reasonable

minds could not differ as to this question.” Tyner v. Dep’t of

Soc. & Health Servs., 1 P.3d 1148, 1159 (Wash. 2000).

20 COX V. STATE OF WASHINGTON DSHS

Otherwise, materiality is “a question for the jury.” Id. at

1158.

Under this standard, the district court’s grant of summary

judgment in favor of DSHS must be reversed. While the

district court recognized that the Dependency Court’s order

directed that visitations continue to occur, this directive did

not wholly “ratify” the manner in which DSHS conducted the

boys’ visitations. If DSHS failed to supply “sufficient

material information” to the Dependency Court, then the

Dependency Court’s order did not break the causal chain.

See id. at 1159.

Information withheld from the Dependency Court

included opinions of Detectives Gary Sanders and Teresa

Berg, investigators of the child pornography found in Steven

Powell’s home. Detectives Sanders and Berg told DSHS that,

based on their personal interactions with the boys and Joshua,

they had concerns for the boys’ safety and believed Joshua

posed a danger to the boys.5 DSHS also withheld the opinion

of Joshua’s sister, Jennifer Graves, who stated Joshua was

“unpredictable and volatile” and expressed concerns for the

boys’ well-being while in Joshua’s care. Other information

withheld included concerned opinions from the boys’

counselor, and Joshua’s repeated violations of the

Dependency Court’s orders.

5

DSHS argues that four social workers and attorney John Long

signed declarations denying that Detectives Sanders and Berg ever made

these statements. However, at this stage, we do not resolve issues of

material fact. See Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam)

(“[C]ourts may not resolve genuine disputes of fact in favor of the party

seeking summary judgment.” (citations omitted)).

COX V. STATE OF WASHINGTON DSHS 21

The district court held that the above-referenced

information was immaterial as a matter of law. This is

incorrect. The Supreme Court of Washington has recognized

that such information as opinions about an individual’s

capability to do harm to children from family members or

those with close familiarity with the individual may be

material. See Tyner, 1 P.3d at 1158. Here, it cannot be said

that the Dependency Court could have reached but one

conclusion—to ratify visitations—had it been aware of the

withheld information. Thus, the district court erred in

resolving as a matter of law the question of materiality as to

such information.

IV. CONCLUSION

Material issues of fact exist regarding whether DSHS

used reasonable care to avoid placing the boys in harm’s way,

including: (1) determining Joshua’s visitation location; (2)

facilitating the February 5, 2012 visitation; and (3) training its

social workers to conduct visitations. There also exists

material issues of fact as to whether DSHS’s actions

proximately caused the boys to be placed in harm’s way. We

reverse and remand these issues for trial.

The dismissal of the negligence claims against

Defendants State of Washington and Department of Social

and Health Services is reversed and remanded because the

district court dismissed them without according justifiable

inferences in favor of the non-moving party. We express no

opinion as to the merits of those reinstated claims.

We affirm the district court’s ruling that the social

workers, Defendants Forest Jacobson, Randy Stephenson,

Jane Wilson, and Billie Reed-Lyyski, were entitled to

22 COX V. STATE OF WASHINGTON DSHS

qualified immunity from Plaintiffs Judith Cox and Charles

Cox’s 42 U.S.C. § 1983 claims. The judgment in favor of

Jacobson, Stephenson, Wilson, and Reed-Lyyski is therefore

affirmed.

We affirm the district court’s conclusion that, under

Washington state law, DSHS, in making placement decisions,

has a duty to reasonably ensure that it does not place a

dependent child in an abusive situation.

AFFIRMED in part, REVERSED in part, and

REMANDED.

Each party to bear its own costs on appeal.