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Cox v. State of Washington

United States Court of Appeals, Ninth Circuit

January 10, 2019

Judith Cox, individually and as Personal Representative of the estate of C. J. P., and estate of B. T. P. and Charles Cox, individually and as Personal Representatives of the estate of C. J. P. and estate of B. T. P., Plaintiffs-Appellants/ Cross-Appellees,
v.
State of Washington, Department of Social and Health Services; Forest Jacobson; Randy Stephenson; Jane Wilson; Billie Reed-Lyyski, Defendants-Appellees/ Cross-Appellants.

          Argued and Submitted December 4, 2017 Seattle, Washington

          Appeal from the United States District Court for the Western District of Washington No. 3:14-cv-05923-RBL, Ronald B. Leighton, District Judge, Presiding

          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.

          Before: Michael Daly Hawkins and Morgan Christen, Circuit Judges, and Leslie E. Kobayashi, [*] District Judge.

         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 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.

          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 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.

         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.

         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 ...


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