Wrigley v. State ( 2020 )

/FTUEvIN CLERKS OFPICE X
This opinion was
.filed for record
anSIE COURT.3WE OF VtiASHMSTQIi at o^M on'^A^d^.Qo9o
0Ara_JAN2_iili21l!
Susan L. Carlson
GHm^jusnce Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JESSICA WRIGLEY,individually, and as
Personal Representative for the Estate of No. 96830-6
A.C.A, Deceased, and O.K.P., a minor child,
and I.T.W., a minor child, by and through their
biological mother, JESSICA WRIGLEY,
Respondent,
V. En Banc
STATE OF WASHINGTON;DEPARTMENT
OF SOCIAL & HEALTH SERVICES;
DONALD WATSON & "JANE DOE"
WATSON,husband and wife, individually and
the marital community thereof;
ALESSANDRO LAROSA & "JOHN DOE"
LAROSA, husband and wife, individually and
the marital community thereof; RACHEL
WHITNEY &"JOHN DOE" WHITNEY,
husband and wife, individually and the marital
community thereof; JENNIFER GORDER &
"JOHN DOE" GORDER,husband and wife,
individually and the marital community
thereof;"JOHN DOE" Social Worker &
"JANE DOE" Social Worker, husband & wife,
individually and the marital community
thereof, 1 through 5,
Petitioners.
Filed JAN 2 3 2020
Wrigley v. State, No. 96830-6
JOHNSON,J.—This case requires us to interpret former ROW 26.44.050
(1999)to determine whether the Department of Social and Health Services
(DSHS)' received a "report concerning the possible occurrence of abuse or
neglect" sufficient to invoke its duty to investigate. Here, Jessica Wrigley brought
a negligent investigation claim against DSHS based on the placement of her son,
A.A., with his biological father, Anthony Viles, during dependency hearings.
Within three months of the placement, tragically, Viles killed A.A. The superior
court dismissed the claim on summary judgment, finding that the duty to
investigate was never triggered. In a split opinion, the Court of Appeals reversed
and held that the duty was triggered by Wrigley's prediction that Viles would harm
A.A. We reverse the Court of Appeals. Under the facts of this case, a report
predicting future abuse absent evidence of current or past conduct of abuse or
neglect does not invoke the duty to investigate under former RCW 26.44,050.
FACTS AND PROCEDURAL HISTORY
A.A. was the six-year-old son of Wrigley and Viles. A.A. lived with his
mother and stepfather, the Wrigleys, until DSHS received its sixth referral alleging
'Subsequent to the filing of this case, on July 1, 2018, the powers, duties, and functions
of the Children's Administration within that department were transferred to the newly formed
Department of Children, Youth, and Families. RCW 43.216.906. For the purposes of this case,
the department will be referred to as DSHS.
Wrigley v. State, No. 96830-6
abuse and neglect by the Wrigleys and removed him from the home. A.A. was
placed in shelter care, and DSHS filed a dependency petition.
At a family team decision-making meeting in early October 2011, Wrigley
reported to DSHS representatives that Viles had a criminal history, reputation for
domestic violence, and a record of previously abusing alcohol and drugs. She
described that six years before, he had dragged her by the hair and threatened to
kill her by cutting off her head and running her over, which led her to obtain a
restraining order against him. Then, in late October, Wrigley called the assigned
social worker, Don Watson, and notified him of the prior restraining order and that
Viles had a criminal history, had been arrested for providing alcohol to a minor,
and had never met A.A.
In November 2011, DSHS notified Viles of A.A.'s shelter care status, and
Viles requested placement of A.A. with him, although he had no prior contact with
A.A. Viles, who lived in Idaho, promptly provided six references; they all offered
positive perspectives on his parenting skills with his biological daughter and
fiancee's daughters.^ DSHS ran a background check and found nothing
disqualifying, although he had some criminal history.
^ The references noted that he "would be 'a positive father figure for [A.A.],'" was a
'"[pjatient, strong character, and very loving with his daughters,"' and "is a positive caretaker."
Clerk's Papers at 250, 251. They emphasized his positive discipline techniques and did not report
any cautions of abuse or neglect of children.
Wrigley v. State, No. 96830-6
Viles formally petitioned for placement, and the court held two hearings—
Wrigley did not attend either one. At the first hearing on January 30, 2012, the
only concern about Viles was the lack of a preexisting relationship. Wrigley's
counsel represented,"[M]y client has no strong position either way." Clerk's
Papers(CP)at 305. The court temporarily placed A.A. with Viles for 30 days. On
February 13, 2012, Wrigley called Watson, opposing the placement and claiming
she never told her attorney she had no objections. She insisted that if A.A.
remained with Viles,'"he would be dead within six months.'" CP at 880, 1516.
A week later, at the follow-up hearing, Watson and A.A.'s therapist reported
the placement was positive. The court dismissed the petition with Wrigley's
attorney in agreement. A.A. remained with Viles. In a tragic turn of events, A.A.
died in April 2012 after Viles struck him on the head.^
Wrigley brought suit against the State and DSHS and asserted numerous
claims: negligent investigation based on former RCW 26.44.050, wrongful death,
outrage, loss of consortium, negligent misrepresentation, survival action, negligent
training/supervision, and publication of private facts. The superior court found that
all negligence-based claims arose under former RCW 26.44.050 and granted
DSHS's partial summary judgment motion, dismissing all claims except outrage.
Viles was subsequently convicted of manslaughter.
Wrigley v. State, No. 96830-6
negligent misrepresentation, and publication of private facts. It found that the only
allegations of abuse were against the Wrigleys and that DSHS did not owe a duty
to plaintiffs because it never received a sufficient report to trigger that duty. It
subsequently dismissed the remaining claims on summary judgment.
In a split published-in-part opinion, the Court of Appeals reversed the order
of summary judgment as to the negligence claims based on former RCW 26.44.050
and remanded for trial.'^ The Court of Appeals concluded that DSHS' duty to
investigate under former RCW 26.44.050 is triggered by "reports suggesting a
reasonable possibility of future abuse or neglect if the placement [decision] is
made." Wrigley v. State, 5 Wn. App. 2d 909, 929,428 P.3d 1279 (2018). It held
that Wrigley's communications triggered the duty to investigate because they
suggested a "palpable danger to A.A. if he were placed with Viles." Wrigley, 5
Wn. App. 2d at 931. The interpretation was grounded in the statute's purpose as
laid out in Tyner v. Department ofSocial & Health Services, 141 Wn.2d 68, 1 P.3d
1148 (2000), and the scope of the duty analyzed in M.W. v. Department ofSocial
& Health Services, 149 Wn.2d 589, 70 P.3d 954 (2003).
^ The Court of Appeals also reversed the trial court's denial of a motion to amend the
complaint and remanded to allow plaintiffs to amend their complaint to add alternative
negligence theories. That holding was not challenged.
Wrigley v. State, No. 96830-6
The Court of Appeals' dissent opined that the majority's interpretation of
"report" expands the scope of DSHS' duty to investigate too far and that Wrigley's
statements did not trigger the duty. The dissent concluded that the communications
did not allege any acts of abuse or neglect of a child by Viles as required by the
statutory definitions of"abuse or neglect" and "negligent treatment or
maltreatment," as provided under former RCW 26.44.020(1) and (14)(2010).
Under the facts of this case, the dissent reasoned,"RCW 26.44.050 imposes no
such duty here." Wrigley, 5 Wn. App. at 940 (Sutton, J., dissenting in part).
DSHS petitioned for review on the sole issue of whether Wrigley's
predictions offuture abuse constituted a "report concerning the possible
occurrence of child abuse or neglect" invoking its duty to investigate under former
RCW 26.44.050.^ Pet. for Review at 12. We granted review. Wrigley v. State, 193
Wn.2d 1008, 439 P.3d 1065 (2019).
ANALYSIS
This case involves the somewhat unique issue of what statements qualify as
a "report" and, more specifically, can a prediction of future harmful conduct
against a parent trigger the.duty to investigate. The Court of Appeals has briefly
touched on the scope of a duty-triggering report, properly recognizing that the
^ The Washington State Association of Municipal Attorneys filed a brief as amicus curiae
in support of petitioner, DSHS.
Wrigley v. State, No. 96830-6
issue should be resolved on a case-by-case basis. Yonker v. Dep't ofSoc. & Health
Servs., 85 Wn. App. 71, 81,930 P.2d 958 (1997).
Generally, a report initiates the dependency process. The duty to investigate
cannot be invoked until receipt of a report. Former RCW 26.44.050. DSHS argues
that its duty to investigate is invoked by reports alleging past conduct of child
abuse or neglect, and Wrigley's statement that if A.A. was left with Viles he
"would be dead within six months" contained only future predictions that are
insufficient to warrant further investigation. Wrigley defers to the Court of Appeals
ruling and argues that her communications constituted a report "suggesting a
reasonable possibility offuture abuse or neglect." Resolution ofthis issue requires
interpretation of former RCW 26.44.050.
The statute provides, in relevant part:
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 RCW,
and where necessary to refer such report to the court.
Former RCW 26.44.050. Our inquiry focuses on the language "report concerning
the possible occurrence of abuse or neglect."
The meaning of a statute is reviewed de novo. Our ultimate objective is to
ascertain and carry out the legislature's intent. Plain meaning is discerned from the
language, the statute's context, related provisions, and the statutory scheme as a
Wrigley v. State, No. 96830-6
whole. Gorre v. City ofTacoma, 184 Wn.2d 30, 37, 357 P.3d 625 (2015). We
construe the statute as a whole, giving effect to all of the language used and
interpret provisions in relation to one another. Dep't ofEcology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9-12, 43 P.3d 4(2002).
First, the ordinary meaning of"report concerning the possible occurrence of
abuse or neglect" is ambiguous as to whether it encompasses allegations of future
conduct. Chapter 26.44 RCW does not define "report," and the ordinary dictionary
definition is "something that gives information." Webster's Third New
International Dictionary 1925 (2002). "Possible" has several ordinary
meanings, including "that may or may not occur." Webster's,supra, at 1771.
"Occurrence" means "[sjomething that happens or takes place." Black's Law
Dictionary 1299(11th ed. 2019). This language indicates that "possible
occurrence" could encompass a communication concerning a future prediction of
abuse, ongoing abuse, or completed instances of abuse. However, the statutory
terms must be viewed in the context of the statute as a whole. One Pac. Towers
Homeowners'Ass'n v. HAL Real Estate Invs., Inc., 148 Wn.2d 319, 330, 61 P.3d
1094 (2002).
The statute defines "abuse or neglect" as
sexual abuse, sexual exploitation, or injury of a child by any person
under circumstances which cause harm to the child's health, welfare.
Wrigley v. State, No. 96830-6
or safety, ... or the negligent treatment or maltreatment of a child by
a person responsible for or providing care to the child.
Former RCW 26.44.020(1)(emphasis added). "Negligent treatment or
maltreatment" is defined as
an act or a failure to act, or the cumulative effects of a pattern of
conduct, behavior, or inaction, that evidences a serious disregard of
consequences of such magnitude as to constitute a clear and present
danger to a child's health, welfare, or safety .... [Ejxposure to
domestic violence as defined in RCW 26.50.010 that is perpetrated
against someone other than the child does not constitute negligent
treatment or maltreatment in and of itself.
Former RCW 26.44.020(14).
The definition of"abuse or neglect" requires both (1)"sexual abuse, sexual
exploitation, or injury of a child" and (2)"circumstances which cause harm to the
child's health, welfare, or safety." Where, as in this case, no conduct of"sexual
abuse, sexual exploitation, or injury of a child" has occurred, there are no
"circumstances" in existence "which [would] cause harm to the child's health,
welfare, or safety." Additionally, the definition of"negligent treatment or
maltreatment" identifies "an act or a failure to act, or the cumulative effects of a
pattern of conduct, behavior, or inaction," evidencing that reports must contain
existing conduct. Former RCW 26.44.020(14).
Several related provisions offer further guidance. RCW 26.44.030 and RCW
26.44.040 contain the word "reports" in their title and evidence that reports are
Wrigley v. State, No. 96830-6
intended to be backward looking, grounded in some past conduct. We may look to
these related provisions for guidance because they address the same "reports" at
different stages of the process—^the duty to report(RCW 26.44.030,.040) and the
duty to investigate once reports are received(RCW 26.44.050).
Former RCW 26.44.030(1 l)(a)(2009) states,"For reports of alleged abuse
or neglect that are acceptedfor investigation by the department, the investigation
shall be conducted" within a specific time frame.(Emphasis added.) This language
informs that not all communications made to DSHS qualify as duty-triggering
"reports." Only a specific class ofreports will warrant DSHS' duty to investigate—
those involving alleged abuse or neglect.
Further, former RCW 26.44.030(1) and (3)use past tense to describe
incidents to be reported. Where a reasonable belief that "a child has suffered abuse
or neglect" exists, certain professionals must report such incidents. Former RCW
26.44.030(l)(a)(emphasis added). The same language is used to describe
incidents that "[a]ny other person" may report. Former RCW 26.44.030(3). These
subsections incorporate RCW 26.44.040, which defines the required criteria for a
report.
Reports themselves must contain, if known,information ofthe "nature and
extent" ofthe "alleged" injury, neglect, or abuse. Former RCW 26.44.040(2010)
10
Wrigley v. State, No. 96830-6
(titled "Reports—Oral, written—Contents").^ Where no conduct has yet occurred,
there can be no information to convey on the "nature and extent" of any injury,
neglect, or abuse. The word "alleged" also indicates that the event reported must
be verified true or not. See Black's,supra, at 94(defining "alleged" as
"[ajsserted to be true as described"). If an act has not yet occurred, it cannot be
determined true or false; under this provision, the event must have already
occurred or be currently ongoing.
The overall statutory purpose and scheme confirm that a report must allege
some previous or existing behavior or conduct concerning the child. DSHS argues
that allowing reports offuture conduct that has not yet occurred frustrates its other
obligations within the shelter care and dependency processes. We agree. For
instance, after a sufficient report is received, a social worker is assigned to
investigate. When the investigation is complete, DSHS is statutorily mandated to
^ Former RCW 26.44.040 in full: "An immediate oral report must be made by telephone
or otherwise to the proper law enforcement agency or the department of social and health
services and, upon request, must be followed by a report in writing. Such reports must contain
the following information, ifknown:
"(1)The name, address, and age ofthe child;
"(2)The name and address of the child's parents, stepparents, guardians, or other persons
having custody ofthe child;
"(3)The nature and extent ofthe alleged injury or injuries;
"(4)The nature and extent ofthe alleged neglect;
"(5)The nature and extent ofthe alleged sexual abuse;
"(6) Any evidence of previous injuries, including their nature and extent; and
"(7) Any other information that maybe helpful in establishing the cause ofthe child's
death, injury, or injuries and the identity ofthe alleged perpetrator or perpetrators."
11
Wrigley v. State, No. 96830-6
make a finding of whether the report is founded or unfounded. Former RCW
26.44.030(1 l)(a). The chapter defines "founded" as a "determination following an
investigation by the department that, based on available information, it is more
likely than not that child abuse or neglect did occur.'" Former RCW 26.44.020(9)
(emphasis added)."Unfounded" means that "more likely than not, child abuse or
neglect did not occur, or that there is insufficient evidence for the department to
determine whether the alleged child abuse did or did not occur." Former RCW
26.44.020(24)(emphasis added). DSHS correctly contends that it would be
impossible to make a finding of whether child abuse "did or did not occur" on a
report based on speculation of future abuse because there would be nothing to
assess. Thus, some conduct or incident must exist to make a finding of whether
child abuse or neglect occurred.
This interpretation is consistent with the statutory declaration of intent:
[IJnstances of nonaccidental injury, neglect, death, sexual abuse and
cruelty to children by their parents, custodians or guardians have
occurred, and in the instance where a child is deprived of his or her
right to conditions of minimal nurture, health, and safety, the state is
justified in emergency intervention based upon verified information;
and therefore the Washington state legislature hereby provides for the
reporting of such cases to the appropriate public authorities.
Former RCW 26.44.010 (1999). Here, the statute evinces that reports are
backward looking. The statute declares that chapter 26.44 RCW "provides for
the reporting of such cases" that justify emergency intervention. In describing
12
Wrigley v. State, No. 96830-6
"such cases," the statute utilizes a past tense description of"instances of
nonaccidental injury, neglect, death,[and] sexual abuse" that "have occurred,"
or "instance[s] where a child is deprived of. . . conditions of minimal nurture,
health, and safety." Former RCW 26.44.010. It then provides that "as a result
of such reports," the department should take efforts to "preventfurther abuses,
and to safeguard the general welfare of such children." Former RCW 26.44.010
(emphasis added). This consistent use of past tense and the term "instances"
indicate that the legislature intended the reports to be based on existing
conduct, not on future speculation.
For the statute to remain harmonious with constitutional familial rights, it
requires existing conduct that has already occurred. Tyner emphasized that RCW
26.44.050 has two core purposes: to protect children and to preserve the integrity
of the family specifically to protect from unwarranted separation. Tyner, 141
Wn.2d at 79. This purpose is consistent with the recognition that parents possess a
fundamental liberty and privacy interest in the care, custody, and companionship of
their children. In re Welfare ofSumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).
Only where parental actions or decisions conflict with the physical or mental
health of the child does the State possess a parens patriae right to intervene.
The right is recognized in chapter 13.34 RCW,which governs the
dependency process. The legislature declared that "the family unit is a fundamental
13
Wrigley v. State, No. 96830-6
resource of American life which should be nurtured. . . . [It] should remain intact
unless a child's right to conditions of basic nurture, health, or safety is
jeopardized." RCW 13.34.020. Chapter 26.44 RCW also recognizes "[t]he bond
between a child and his or her parent, custodian, or guardian is of paramount
importance, and any intervention into the life of a child is also an intervention into
the life of the parent." Former RCW 26.44.010. A natural parent is the preferred
placement for a child who is declared dependent or in shelter care, and the court
will defer to a natural parent's placement choice. See RCW 13.34.065(5)(a),
.260(1).
To balance the integrity ofthe family and the welfare of children in the
context of investigations, we have not recognized a general tort claim of negligent
investigation. The negligent investigation claim—limited to the duty to investigate
of RCW 26.44.050—is a "narrow exception." M.W., 149 Wn.2d at 601. DSHS
would unnecessarily infringe on the integrity ofthe family if it were directed to
investigate a mere prediction that something bad would occur. This would defeat
the intentionally narrow confines of the negligent investigation claim.
Wrigley argues that a duty must be invoked here, otherwise children will not
be adequately protected from future abuse. We disagree. Requiring existing
conduct to trigger the duty to investigate does not necessarily mean that DSHS
must wait for the child to be harmed before taking any action. Conduct that
14
Wrigley v. State, No. 96830-6
"constitute[s] a clear and present danger" to the child's welfare will still trigger the
action even where no harm has occurred yet. Former RCW 26.44.020(14). DSHS
owes other statutory obligations to protect children within chapter 74.13 RCW
(outlining services and duties of DSHS)and chapter 13.34 RCW (outlining
dependency, shelter care, and termination of parental rights processes). For
example, chapter 74.13 RCW,which is expressly referenced in the statute, includes
a provision mandating that.DSHS investigate before harm occurs. DSHS has a duty
to investigate complaints concerning a caretaker's "recent act or failure to act. . .
that presents an imminent risk of serious harm." RCW 74.13.031(3). The
complaints specified in RCW 74.13.031(3) require existing conduct—an act or
failure to act—to trigger the duty to investigate. It follows then that the duty to
investigate offormer RCW 26.44.050, which implicates tort liability, also requires
an allegation of past or current conduct.
In this case, Wrigley's prediction that A.A."would be dead within six
months" was not a report sufficient to trigger the duty to investigate. It did not
allege past or current conduct of abuse or neglect by Viles toward A.A. Until the
temporary placement in January 2012, Viles had no contact with A.A. Wrigley's
prediction did not allege that Viles engaged in any past or current sexual abuse,
sexual exploitation, or injury of a minor child, constituting abuse or neglect as
provided in former RCW 26.44.020(1). It also did not identify an act, a failure to
15
Wrigley v. State, No. 96830-6
act, or a pattern of behavior evidencing a "clear and present danger to a child's
health, welfare, or safety," to constitute negligent treatment or maltreatment under
former RCW 26.44.020(14). Since DSHS did not receive a report of any past or
current conduct indicating abuse or neglect by Viles against A.A., the duty to
investigate was not triggered.
CONCLUSION
We find that DSHS never received a report involving conduct of abuse or
neglect of A.A. by Viles. Since no report was received, the duty to investigate was
not triggered. Since we find the statutory duty to investigate was never triggered,
we do not evaluate the sufficiency of any investigation that DSHS performed.^ We
reverse the Court of Appeals, reinstate the superior court's dismissal ofthe original
^ Wrigley's legitimate concerns of Viles's prior acts of domestic violence against her
cannot alone form the basis of a sufficient report of child abuse or neglect of A.A. under former
RCW 26.44.050. See former RCW 26.44.020(14). This allegation may be appropriately
addressed in a general negligence claim on remand.
16
Wrigley v. State, No. 96830-6
negligence-based claims, and remand for further proceedings.
WE CONCUR:
17
Wrigley v. State
(Stephens, CJ., concurring)
No. 96830-6
STEPHENS, C.J.(concurring)—^Near the end of dependency and placement
proceedings, Jessica Wrigley warned the State of Washington that her son, A.A.,
would be dead within six months if the State sent him to live with his biological
father. Despite this report, the State placed the child with the father. A.A. died from
physical abuse eight weeks later. Wrigley sued the State based on an alleged
violation of the State's duty to investigate under former RCW 26.44.050 (1999).
The narrow question before us is whether the direct implied cause of action arising
under this statute encompasses Wrigley's claim. I agree with the majority that it
does not but for different reasons than the majority offers. Because this statute
governs only when the State initiates an investigation into allegations of child abuse
or neglect and does not address placement decisions once a child is in the State's
protective custody, it is not applicable to the situation presented here. But our
decision in this case should go no further than recognizing that the State did not have
Wrigley v. State, 96830-6(Stephens, CJ., concurring)
a duty to investigate under this particular statute. I agree with the majority that, on
remand, Wrigley may be able to show the State had a common law duty to
investigate her allegations. Accordingly, I concur.
FACTUAL BACKGROUND
Wrigley and Anthony Viles met in Idaho in December 2004. Wrigley became
pregnant with their son, A.A., a few months later. Viles soon began to abuse
Wrigley, first verbally and later physically. Viles dragged Wrigley up a staircase by
her hair, threatened to cut off her head, and tried to run her over with his vehicle.
Fearing for her safety and that of her unborn child, Wrigley sought and obtained a
protection order against Viles in the months before A.A. was bom.
A brief review of Viles's history shows Wrigley's fears were well founded.
Between 1998 and 2001, Viles was repeatedly held in juvenile detention for
assaultive behavior and threats of suicide. During his detention at a psychosocial
rehabilitation center in Idaho, Viles had to be physically restrained after assaulting
another inmate. Over the years, several members of Viles's family—including his
mother, grandfather, and another girlfriend—^had called law enforcement to report
domestic disturbances involving Viles. Before meeting Wrigley, Viles had pleaded
guilty to battery and disturbing the peace in connection with a domestic disturbance.
-2-
Wrigley v. State, 96830-6(Stephens, CJ., concurring)
Wrigley's fears were further substantiated by Viles's behavior after she
obtained the protection order. Over the next few years, Viles pleaded guilty to
contributing to the delinquency of a minor, was charged with unlawful entry after
breaking into an ex-girlfriend's fiance's property, and threatened to break another
relative's neck. This last incident came in December 2011, only one month before
the State recommended placing A.A. in Viles's care.
Prior to the State's placement decision, A.A. had never met or lived with
Viles. A.A. was living with Wrigley and her husband. Tared Wrigley, when the State
initiated dependency proceedings in 2011. There is no dispute that the proceedings
were justified by reports of abuse and neglect of A.A. by Wrigley and her husband.
After both A.A. and his younger brother were removed from the Wrigleys'
care, the State located Viles, who expressed interest in seeking custody of A.A. The
State was aware at that time of Wrigley's concerns about Viles's prior violent
behavior. During a family team decision meeting in September 2011, Wrigley had
informed case workers that she had a prior restraining order against Viles because
of his history of domestic violence and substance abuse issues. Wrigley described
how Viles had threatened to cut off her head, had tried to run her over, and had
dragged her up a staircase by her hair. Wrigley also described Viles's criminal
-3-
Wrigley v. State, 96830-6(Stephens, C.J., concurring)
history and said Viles had garnered a reputation for violence during his detention at
the psychosocial rehabilitation center in the early 2000s.
Noting Wrigley's concerns, the State conducted a series of background
checks, criminal history searches, and interviews to determine Viles's fitness as a
parent. It determined nothing in Viles's criminal history was disqualifying.
Investigators interviewed six character references, all of whom testified Viles was a
good father to his biological daughter and his fiancee's children. On this basis, the
dependency court allowed A.A. to live with Viles for 30 days, during which social
workers and A.A.'s therapist checked in with A.A. multiple times. They found no
indication that Viles abused or neglected A.A. during that time.
However, A.A.'s social worker did not believe he had the authority to use
available tools that would have resulted in a more thorough background check,
which would have alerted the State to Viles'sjuvenile battery conviction, his history
ofanger issues, and a parenting assessment completed as part ofan unrelated custody
dispute. Nor did the social worker conduct follow-up investigations into Viles's
behavior that led Wrigley to seek a protection order in 2005. This remained the case
even after Wrigley called the social worker to remind him of Viles's history of
violence. It was during this call that Wrigley said A.A. would be "dead within six
months" if he were sent to live with Viles. Clerk's Papers(CP)at 880.
-4-
Wrigley v. State, 96830-6(Stephens, C.J., concurring)
Despite this stark warning, at the placement hearing, the State highlighted
only the positive aspects of A.A.'s potential placement with Viles. In Wrigley's
absence, her attorney suggested she was in agreement with dismissing the
dependency petition upon A.A.'s placement with Viles. The court explicitly found
that placement with Viles was in A.A.'s best interest and dismissed the dependency
petition, sending A.A. to live with Viles permanently.
Eight weeks later, A.A. died from his father's physical abuse. Viles was
ultimately convicted of manslaughter.
PROCEDURAL BACKGROUND
Wrigley filed this lawsuit against the State of Washington in 2014, alleging,
inter alia, that the State violated its duty to investigate reports concerning the
possible occurrence ofabuse or neglect by Viles under former RCW 26.44.050. The
State answered that it never received a report that triggered its duty under this statute
and moved for summary judgment on this ground. The trial court granted partial
summary judgment, dismissing most of Wrigley's claims. The trial court then
denied Wrigley's motion to amend her complaint to add common law negligence
claims and granted the State's second summary judgment motion, dismissing the
remainder of Wrigley's claims. The trial court denied Wrigley's motion for
reconsideration, so she appealed. The State cross appealed.
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Wrigley v. State, 96830-6(Stephens, CJ., concurring)
A divided panel of the Court of Appeals reversed the trial court's grant of
partial summary judgment as to Wrigley's negligence claim under former RCW
26.44.050. The Court of Appeals reasoned that statute imposes a duty on the State
to investigate "reports suggesting a reasonable possibility of future abuse or
neglect," and determined Wrigley's prediction of A.A.'s death at Viles's hands
alerted the State to a "palpable danger" offuture abuse more than sufficient to trigger
its duty to investigate. Wrigley v. State,5 Wn. App.2d 909,929,931,428 P.3d 1279(2018). In an unpublished portion ofthe opinion,the Court of Appeals also held the
trial court abused its discretion when it denied Wrigley's motion to amend her
complaint. The Court of Appeals remanded and directed the trial court to allow
Wrigley to amend her complaint to add a number of claims, including alternative
theories of negligence arising from the State's common law duties.
The State appealed, challenging only the holding that Wrigley's prediction of
A.A.'s death constituted a "report concerning the possible occurrence of child abuse
or neglect" triggering its duty to investigate under former RCW 26.44.050. Pet. for
Review at 12. We granted review. Wrigley v. State, 193 Wn.2d 1008 (2019).
ANALYSIS
The sole question in this case is whether Wrigley can sue the State for
negligent investigation under former RCW 26.44.050. Wrigley argues her warning
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Wrigley v. State, 96830-6(Stephens, C.J., concurring)
to the State, including that A.A. would be "dead within six months" if he were sent
to live with Viles, CP at 880, constituted a report concerning the possible occurrence
of abuse and neglect triggering the State's statutory duty to investigate, and that the
State breached this duty by placing A.A. with Viles. The State counters that
Wrigley's warning did not trigger its duty to investigate because former RCW
26.44.050 does not include a duty to investigate allegations offuture abuse made in
the course of ongoing dependency and placement proceedings.
Like the majority, I ultimately agree that the State owed Wrigley no duty
under former RCW 26.44.050. But unlike the majority, I would not rely on other
provisions within chapter 26.44 RCW to conclude Wrigley carmot succeed in her
claim because her waming did not involve allegations ofpast abuse. Instead,I would
hold that Wrigley's claims do not fall within the scope ofthe statute's implied cause
of action because former RCW 26.44.050 does not concern placement decisions
during an ongoing dependency matter. I would not otherwise opine about
allegations of past versus possible future abuse, as there may be other situations in
which allegations of potential abuse are sufficient to trigger the State's duty to
investigate under RCW 26.44.050. I see no reason to preemptively foreclose such
claims here.
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Wrigley v. State, 96830-6 (Stephens, C.J., concurring)
A. Wrigley Did Not State a Cognizable Claim within the Implied Cause of
Action We Have Recognized under Former RCW 26.44.050 Because the
State's Investigation Was Not Governed by That Statute
Whether Wrigley can sue the State under former RCW 26.44.050 presents a
question of statutory interpretation, which is a question of law we review de novo.
Dep't ofEcology v. Campbell & Gwinn,LLC, 146 Wn.2d 1,9,43 P.3d 4(2002). To
determine the statute's plain meaning, we look to "the ordinary meaning of the
language at issue,the context ofthe statute in which [the relevant] provision is found,
related provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d
572,578,210 P.3d 1007(2009)(citing State v. Jacobs, 154 Wn.2d 596,600-01,115
P.3d281 (2005)).
Former RCW 26.44.050 provides that
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 RCW,and where necessary to refer
such report to the court.
A law enforcement officer may take, or cause to be taken, a child into
custody without a court order if there is probable cause to believe that the
child is abused or neglected and that the child would be injured or could not
be taken into custody ifit were necessary to first obtain a court order pursuant
to RCW 13.34.050. The law enforcement agency or the department ofsocial
and health services investigating such a report is hereby authorized to
photograph such a child for the purpose of providing documentary evidence
of the physical condition of the child.
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Wrigley v. State, 96830-6(Stephens, C.J., concurring)
This statute imposes on the State a duty to investigate allegations of child abuse but
does not provide an explicit remedy ifthe State breaches that duty. Recognizing that
'"a legislative enactment may be the foundation ofa right ofaction'" even when that
right of action is not explicit in the legislative text, we have determined that former
RCW 26.44.050 implies a cause of action for claims of negligent investigation
against the State. Tyner v. Dep't ofSoc. & Health Servs., 141 Wn.2d 68, 77, 1 P.3d
1148 (2000) (internal quotation marks omitted) (quoting Bennett v. Hardy, 113
Wn.2d 912, 919, 784 P.2d 1258 (1990)); see also M.W. v. Dep't ofSoc. & Health
Servs., 149 Wn.2d 589, 602,70 P.3d 954(2003)(recognizing cause of action where
the State gathered incomplete or biased information that resulted in a harmful
placement decision, such as allowing a child to remain in an abusive home, placing
a child in an abusive home, or removing a child from a nonabusive home).
However, this cause of action is not a remedy for every harm caused by the
State. See M.W., 149 Wn.2d at 598 ("Because the cause of action of negligent
investigation originates from the statute, it is necessarily limited to remedying the
injuries the statute was meant to address."). We have repeatedly declined to expand
the implied cause of action under former RCW 26.44.050 to other parties or other
harms that arise as a result of the State's investigation. See Ducote v. Dep't ofSoc.
& Health Servs., 167 Wn.2d 697, 706, 222 P.3d 785 (2009)(rejecting stepparents'
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Wrigley v. State, 96830-6(Stephens, C.J., concurring)
negligent investigation claims under RCW 26.44.050 because the class of persons
protected by the statute includes only children, parents, or guardians of children);
M.W., 149 Wn.2d at 601 (rejecting minor's negligent investigation claims under
RCW 26.44.050 where the alleged harm was not a harmful placement decision);
Roberson v. Perez, 156 Wn.2d 33, 46-48, 123 P.3d 844(2005)(rejecting negligent
investigation claims under RCW 26.44.050 to include harms caused by
'"constructive placement' decisions"). Today,I would decline to extend the implied
cause of action under former RCW 26.44.050 to include another type of
investigation—namely, the State's investigation into whether living with Viles
would be a suitable placement for A.A. after he was removed from Wrigley's care.
This circumstance simply falls outside the scope ofthe statute.
To understand why,it is important to consider former RCW 26.44.050 within
the context of Washington's comprehensive child welfare "statutory scheme as a
whole." 166 Wn.2d at 578.
The legislature first provided for child welfare services in 1965. See Laws of
1965, ch. 30,§ 2("The purpose ofthis chapter is to safeguard, protect and contribute
to the welfare ofthe children ofthe state, through a comprehensive and coordinated
program ofpublic child welfare services."). In the 50 years since,the legislature has
updated and expanded Washington's "comprehensive statutory framework"
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Wrigley v. State, 96830-6(Stephens, CJ., concurring)
governing Washington's child welfare system. H.B.H. v. State, 192 Wn.2d 154,164,
429 P.3d 484(2018)(citing chs. 13.34 RCW(dependency and termination ofparent-
child relationship), 26.44 RCW (abuse of children), 74.13 RCW (child welfare
services), 74.15 RCW (care of children, expectant mothers, persons with
developmental disabilities)). "Balancing the interests of parents, children, and the
State," Washington's child welfare laws recognize that "while parents have a
fundamental liberty interest in the care and custody of their children, the State has
an equally compelling parens patriae interest in protecting the physical, mental, and
emotional health of children in this state." H.B.H., 192 Wn.2d at 163-64 (citing In
re Dependency ofSchermer, 161 Wn.2d 927,941,169 P.3d 452(2007)). The central
purpose of Washington's statutory scheme is "to safeguard, protect, and contribute
to the welfare of the children of the state." RCW 74.13.010. To this end, when a
parent's actions "seriously conflict with the physical or mental health of the child,"
the State has both a "right and responsibility to intervene to protect the child" by
removing them from their parent's custody. In re Welfare ofSumey,94 Wn.2d 757,
762,621 P.2d 108 (1980).
An essential part of Washington's "detailed statutory scheme authorizes the
State to remove a child from the family home,take the child into state custody, and
declare the child 'dependent' when doing so is in the best interest and safety of the
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Wrigley v. State, 96830-6(Stephens, CJ., concurring)
child." 192 Wn.2d at 164-65 (footnote omitted)(citing RCW 26.44.010;
Schermer, 161 Wn.2d at 942). These dependency proceedings are initiated when
the State receives a report regarding the possible occurrence of child abuse or
neglect, which triggers the State's duty to investigate such allegations under former
RCW 26.44.050. See H.B.H.^\92 Wn.2d at 165 ("The dependency process is
initiated when DSHS [Department of Soeial and Health Services] receives a report
that a ehild has been abused, neglected, or abandoned." (citing RCW 26.44.050)).
"Upon receiving the report, DSHS assigns a social worker to investigate the
allegations[ and i]fthere appears to be merit to the allegations ofabuse and the child
is in immediate danger, the social worker may file a dependency petition with the
juvenile eourt to remove the child from the family home." Id. (eiting RCW
13.34.040(1)).
Once a child has been taken into custody pursuant to former RCW 26.44.050,
the State must make reasonable efforts to inform the child's parents of its decision
and rationale. RCW 13.34.062. Within 72 hours, the juvenile court must hold a
shelter eare hearing to determine whether the ehild can be safely returned home
while the dependency process is ongoing or whether the child should be placed
elsewhere. RCW 13.34.065(1). Washington law requires the State to release a ehild
alleged to be dependent into the care ofa parent, guardian, or legal custodian, unless
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Wrigley v. State, 96830-6(Stephens, C.J., concurring)
such release would present a threat of substantial harm to the child. RCW
13.34.065(5)(a)(ii)(B). While the child is safely in shelter care, the State and the
juvenile court work to determine where the child should be permanently placed. See
RCW 13.34.130. When the State initiates a dependency proceeding after an
investigation under former RCW 26.44.050, it is a party to the proceeding and owes
a duty of candor to the court. As such, the State has a responsibility to fully and
accurately inform the court of evidence it uncovers when evaluating the suitability
of potential placements.
The State's duty to evaluate the suitability of a potential placement is separate
and distinct from the State's duty to investigate allegations of child abuse under
former RCW 26.44.050. These duties arise in different contexts and at different
times during the dependency process. The State's duty to investigate under former
RCW 26.44.050 triggers the State's intervention into an allegedly abusive family
unit and so necessarily precedes the placement decision process. The duty to
investigate under former RCW 26.44.050 cannot arise within the dependency and
placement process itself. Rather, once the State has investigated a report under
former RCW 26.44.050 and concluded the child should be removed and placed
elsewhere, its investigation into potential placement options must be conducted
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Wrigley v. State, 96830-6(Stephens, C.J., concurring)
pursuant to RCW 13.34.065 and other portions of Washington's comprehensive
child welfare laws, and consistent with ordinary standards of care.
Here, the State's investigation into Viles as a suitable parent to take custody
of A.A. was conducted pursuant to duties other than those prescribed by former
RCW 26.44.050. In its briefing at summaryjudgment,the State suggested that RCW
13.34.065 might be applicable. See CP at 50("At most,[the investigation into Viles]
might be seen as an investigation under RCW 13.34.065(5)...."). However,it was
Jessica and Jared Wrigley who were the subjects ofinvestigation under former RCW
26.44.050 when the State initially received reports of suspected abuse and neglect.
Wrigley's warnings about Viles came during ongoing shelter care and placement
proceedings, and concerned the risks of a particular placement for A.A., not a report
triggering the State's duties under former RCW 26.44.050.
Consequently, I would hold that the implied cause of action we have
recognized under former RCW 26.44.050 does not encompass Wrigley's claim of
negligent investigation based on warnings she gave as to placing A.A. with Viles.
See M.W.,\A9 Wn.2d at 598("Because the cause ofaction ofnegligent investigation
originates from the statute, it is necessarily limited to remedying the injuries the
statute was meant to address."). That holding fully resolves this appeal, and we
should say no more.
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Wrigley v. State, 96830-6 (Stephens, CJ., concurring)
B, The Majority Errs by Answering a Question We Should Not Reach
Today's majority goes beyond interpreting former RCW 26.44.050 and opines
that no allegation offuture abuse or neglect—^regardless how serious or certain such
allegation may be—is sufficient to trigger the State's duty to investigate. There is
no need to announce so categorical a proposition, and the majority goes too far by
foreclosing a potentially valid cause of action under this or related statutes.
There may well be cases in which allegations offuture abuse are sufficient to
trigger the State's duty under former RCW 26.44.050. Imagine a child telling her
teacher that her father would beat her that night because she failed her spelling test.
That teacher is a mandatory reporter under RCW 26.44.030, and it stands to reason
that a report ofsuch an imminent threat ofabuse may well trigger the State's duty to
investigate under RCW 26.44.050.1 cannot agree with the majority's suggestion that
the State would have no obligation to initiate proceedings to protect a child under
these circumstances. We should decide that question when it is squarely before us,
and not before.
I recognize that the State asserts the argument the majority relies on in
rejecting Wrigley's statutory claim. It focuses on the past tense verbiage in the
statute to argue that the State's duty to investigate can never be triggered unless the
alleged abuse has actually occurred. See majority at 13. In my view, this reading of
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Wrigley v. State, 96830-6 (Stephens, CJ., concurring)
the statute elevates form over substance; we must read the statute in consideration
ofits purpose, and not wooden rules of grammar. Moreover, use ofthe past tense in
this context does not denote that abuse must have already occurred. A more natural
reading is that it speaks to the State's duty when it receives any report of abuse or
neglect. Such reports will certainly involve a wide range of circumstances. We
should not artificially constrict the statute's reach, especially when this is entirely
unnecessary to resolving the present appeal.
CONCLUSION
Because former RCW 26.44.050 governs when the State initiates an
investigation into allegations of child abuse or neglect and does not address
placement decisions once a child is in the State's protective custody, I would hold
Wrigley's warnings about Viles were not a "report" under that statute and therefore
cannot support a claim under its implied right of action. I concur because this
conclusion is logically prior to the question of whether allegations offuture abuse or
neglect may trigger the State's duty to investigate under former RCW 26.44.050,
and so I would not answer that question today. But I agree with the majority on one
essential point: today's decision does not disturb the unpublished portion of the
Court of Appeals decision directing the trial court to allow Wrigley to amend her
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Wrigley v. State, 96830-6(Stephens, CJ., concurring)
complaint to add alternative claims and theories of liability, including statutory and
common law negligence claims.
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Wrigley v. State, 96830-6 (Stephens, C.J., concurring)
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