Susan A. Kirchoff, V City Of Kelso ( 2015 )

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SUSAN A. KIRCHOFF, f/k/a
SUSAN LOWE, a/k/a SUSAN No. 73666-3-1
CASSIDY, a married person,
Appellants,
DIVISION ONE
CITY OF KELSO, a municipal corpora
tion of the STATE OF WASHINGTON,
COWLITZ COUNTY, a municipal UNPUBLISHED OPINION
corporation of the STATE OF
WASHINGTON, DEPARTMENT OF
SOCIAL AND HEALTH SERVICES,
Respondents. FILED: October 12, 2015
Spearman, C.J. — In 2007, Susan Kirchoff sued the Department of Social
and Health Services (DSHS), alleging that its investigation of her home during
1979-1980 was negligent and resulted in Kirchoff remaining in the home with her
sexually abusive stepfather. The trial court dismissed Kirchoffs claim as time
barred. Under RCW 4.16.340, a claim based on childhood sexual abuse may be
brought within three years of the time the victim discovers the causal connection
between the wrongful act and her injury. We hold that a genuine question of fact
exists as to when Kirchoff made the causal connection between DSHS's failure
to act and her injury. We reverse and remand.
No. 73666-3-1/2
FACTS
The facts of the case are largely uncontested. In 1979, Susan Kirchoff and
her two older sisters, aged 13, 14, and 17, lived with their mother and their
stepfather, Lotus Cassidy. The middle sister, C.B., disclosed to her school
counselor that Cassidy was sexually abusing her.1 The counselor contacted
Child Protective Services (CPS).
Ann Watkins, a CPS social worker, investigated. Cassidy and the girls'
mother denied the abuse and accused C.B. of making up stories to seek
attention. Although the oldest sister, N.B., was pregnant, she denied being
abused by Cassidy and initially denied being sexually active. Watkins stated that
Kirchoff also denied the abuse. However, Watkins could not actually recall
speaking with Kirchoff and the parties disputed whether Watkins ever interviewed
Kirchoff.
C.B. did not want to remain in the home, and her mother allowed CPS to
immediately place her in foster care without a court order. On December 10,
1979, C.B. took a polygraph test that indicated that her allegations about the
sexual abuse were truthful. On January 7, 1980, officers from the Kelso Police
Department questioned Cassidy about the allegations. When told that a
polygraph examination confirmed C.B.'s story, Cassidy admitted that he had
engaged in sexual intercourse with both C.B. and N.B. and had "gotten fresh"
1 Individuals who were minor children at the time of the allegations and are not parties to
this lawsuit are referred to by initials to maintain their privacy.
No. 73666-3-1/3
with Kirchoff. Clerk's Papers (CP) at 33-34. Cassidy was charged with indecent
liberties in regards to C.B. and returned home to await trial. A dependency
hearing was subsequently held for N.B. and the court ordered her removed from
the home and placed in foster care.
At that time, Kirchoff was not aware that CPS had investigated the family
and placed her sisters in foster homes because of the sexual abuse. Cassidy told
Kirchoff that everything he did to her and her sisters was pleasurable and was to
prepare them for married life. Kirchoff's mother told her that C.B.'s lies had gotten
the family in trouble and that C.B. left because she wanted to live in a nicer
house. Kirchoff stated that Cassidy continued to abuse her until about April,
1980, when she went to stay with relatives who lived out of state.
As an adult, Kirchoff experienced symptoms including anxiety, depression,
irritability, and sexual aversions. She sought counseling and received treatment
on various occasions. Kirchoff connected her symptoms to the abuse she had
suffered as a child and worked hard to overcome the symptoms and forgive her
stepfather.
In 2002, Kirchoff and her husband applied to DSHS for a foster care
license and also applied to become adoptive parents. On both applications,
Kirchoff stated that she had been sexually abused as a child. She stated that her
sisters had been placed in foster homes because of the abuse and she did not
know why she had not been placed in foster care.
No. 73666-3-1/4
In 2007, Kirchoff attended a class offered by DSHS to become a foster
home licensor. During instruction about the duties of CPS, the instructor used a
hypothetical in which CPS investigated allegations of abuse and removed two
girls from a home but left a third, who then suffered further abuse. The instructor
stated that this would be deficient performance by CPS. Upon hearing this,
Kirchoff asserts that she realized for the first time that CPS had failed in its duty
to protect her from further abuse and that she was injured as a result. After
making this connection, Kirchoff felt betrayed. Her symptoms of irritability, anger,
and depression were renewed. She also developed a gambling problem and
further sexual aversion.
In 2008, Kirchoff consulted a psychologist, Dr. Laura Brown. Dr. Brown
diagnosed aggravation of preexisting Post-Traumatic Stress Disorder (PTSD)
attributable to betrayal trauma.2 Betrayal trauma theory explains the trauma
experienced as a result of feeling betrayed, as, for instance, when an individual
or institution fails in a protective duty. Kirchoff suffered psychological distress as
a result of learning that CPS should have protected her, and this distress
aggravated her preexisting PTSD. Dr. Brown also stated that it would be "difficult
to separate" the treatment necessary as a result of the PTSD that resulted from
betrayal and the preexisting PTSD due to the abuse. CP at 208. "When you are
treating PTSD, you are treating PTSD, so the betrayal trauma aggravates the
2 Dr. Brown described all of Ms. Kirchoffs preexisting symptoms as symptoms of PTSD.
While Ms. Kirchoff had received treatment for these symptoms previously, there is no indication
that she had received a diagnosis of PTSD prior to meeting with Dr. Brown.
No. 73666-3-1/5
trauma related to the sexual abuse. You can't in treatment really segregate them
one from the other." Id.
Kirchoff brought suit against DSHS in 2009.3 DSHS moved for summary
judgment on the grounds that Kirchoff's claim was time barred and that she had
failed to establish the elements of her negligent investigation claim. The trial
court granted summary judgment for DSHS. The court ruled that Kirchoff's claim
was time barred because her 2007 discoveries about DSHS concerned only the
legal basis for her claim, not facts about DSHS's actions. The trial court also
ruled that betrayal trauma was not a qualitatively different harm from that which
Kirchoff had previously attributed to the abuse.4 The court did not address
DSHS's argument that Kirchoff had failed to establish the elements of her claim.
DISCUSSION
We review a summary judgment order de novo. Camicia v. Howard S.
Wright Constr. Co.. 179 Wash. 2d 684, 693, 317 P.3d 987 (2014). Summary
judgment based on the statute of limitations is appropriate only when there is no
genuine issue of material fact regarding when the statutory period began. Young
Soo Kim v. Choong-Hvun Lee. 174 Wash. App. 319, 323, 300 P.3d 431 (2013); CR
3 Kirchoff joined the City of Kelso and Cowlitz County to the suit, but voluntarily dismissed
these parties.
4 DSHS also argued that Dr. Brown's testimony concerning "betrayal trauma" was
inadmissible under Frve v. United States. 293 F. 1013 (D.C. Cir. 1923). Under the Frve standard,
expert testimony is admissible only where both "the theory underlying the evidence and the
methodology used to implement the theory" are generally accepted in the scientific community.
Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wash. App. 168,
175, 313 P.3d 408, 412 (2013) (citing State v. Gregory. 158 Wash. 2d 759, 829-30, 147 P.3d 1201
(2006)), review denied, 179 Wash. 2d 1019, 318 P.3d 280 (2014).The trial court assumed, without
deciding, that the diagnosis of "betrayal trauma" satisfied the Frve requirements.
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56(c). Where reasonable minds could draw more than one conclusion on the
evidence, summary judgment is not appropriate. Smith v. Safeco Ins. Co., 150
Wash. 2d 478, 485, 78 P.3d 1274 (2003); Morris v. McNicol, 83 Wash. 2d 491, 494-95,
519 P.2d 7 (1974). The statute of limitations is an affirmative defense and the
defendant bears the burden of proof. Korst v. McMahon. 136 Wash. App. 202, 208,
148 P.3d 1081 (2006). We perform the same inquiry as the trial court, review the
evidence in the light most favorable to the nonmoving party, and draw all
reasonable inferences in the nonmoving party's favor. Lakev v. Puget Sound
Energy, Inc., 176 Wash. 2d 909, 922, 296 P.3d 860 (2013).
RCW 4.16.340 establishes limitations for claims of childhood sexual
abuse. The statute provides in relevant part:
(1) All claims or causes of action based on intentional conduct
brought by any person for recovery of damages for injury
suffered as a result of childhood sexual abuse shall be
commenced within the later of the following periods:
(a) Within three years of the act alleged to have caused the
injury or condition;
(b) Within three years of the time the victim discovered or
reasonably should have discovered that the injury or condition
was caused by said act; or
(c) Within three years of the time the victim discovered that
the act caused the injury for which the claim is brought....
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At issue in this appeal is subsection (1)(c).5 That subsection applies where
the victim is aware of the abuse and aware that she suffered harm as a result,
but discovers a new and qualitatively different injury attributable to the abuse.
Carollo v. Dahl. 157 Wash. App. 796, 801.240P.3d 1172(2010). It also applies
where the victim is aware of the abuse and aware of her injury, but discovers a
causal connection, of which she was previously unaware, between the wrongful
act and her harm. Hollmann. 89 Wash. App. at 325. Kirchhoff contends that her
claim falls within both applications of subsection (1)(c).
Kirchofffirst argues that she brought her claim within three years of
suffering a new injury connected to the abuse, betrayal trauma. A claim of
childhood sexual abuse may be brought within three years of the time that the
victim discovers an injury that is "qualitatively different from other harms
connected to the abuse which the plaintiff had experienced previously." Carollo.
157 Wash. App. at 801. "[M]ore severe manifestations of a prior injury" are not
qualitatively different and are not within provision (1)(c). Id. at 803. The trial court
concluded as a matter of law that Kirchoff had failed to establish that her
diagnosis of betrayal trauma was qualitatively different from the injuries of which
she had previously been aware, i.e., anxiety, depression, irritability, etc. The
evidence in the record supports the trial court's ruling.
5 Kirchoff also argues that her claim falls within subsection (b), but the argument is
without merit. It is well settled that that subsection applies to cases involving repressed memory,
"where the victim discovers his or her injury or condition was caused by a previously
undiscovered act." Hollmann v. Corcoran. 89 Wash. App. 323, 334, 949 P.2d 386 (1997). That
circumstance is not present in this case.
No. 73666-3-1/8
Kirchoff's expert, Dr. Brown, diagnosed aggravation of preexisting PTSD
attributable to betrayal trauma. Dr. Brown stated that Kirchoff suffered
psychological distress as a result of learning that CPS should have protected her,
and this distress caused her to experience renewed symptoms of PTSD.
However, Dr. Brown also stated that Kirchoffs PTSD predated her 2007
discovery of DSHS's alleged negligence and that the symptoms had "waxed and
waned" throughout her adult life. Dr. Brown explained betrayal trauma as
"aggravat[ing] the trauma related to the sexual abuse," and stated that the
symptoms caused by the betrayal trauma could not be segregated from those
caused by the abuse. CP at 208.
Because the betrayal trauma resulted in a recurrence and aggravation of a
preexisting injury that Kirchoff was aware of prior to 2007, we affirm the trial
court's ruling that the diagnosis of betrayal trauma was not a discovery of a new
injury within RCW 4.16.340(1 )(c).
RCW 4.16.340(1 )(c) also applies when a victim discovers the causal link
between the wrongful act and her injury. Carollo, 157 Wash. App. at 801. DSHS
argues that RCW 4.16.340(1 )(c) applies only to the discovery of a causal
connection between the act of abuse and the victim's injury, not to the discovery
of a causal connection between a third party's negligence and the victim's injury.
We disagree.
C.J.C. v. Corp. of Catholic Bishop of Yakima. 138 Wash. 2d 699, 709-10, 985
P.2d 262 (1999), is instructive. In that case, various religious organizations
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No. 73666-3-1/9
argued that RCW 4.16.340 did not apply to negligence claims against third
parties because, by the statute's plain language, it applies to "[a]ll claims or
causes of action based on intentional conduct. . .." RCW 4.16.340(1); C.J.C
138 Wash. 2d at 706-707 (emphasis added). The court rejected this argument
because "an action is 'based on intentional conduct' if intentional sexual abuse is
the starting point or foundation of the claim." ]d. at 709. In a negligence claim
against a third party, "intentional sexual abuse is the predicate conduct. .. ." jd.
at 709. The Court thus held that "RCW 4.16.340 encompasses causes of action
sounding in negligence against parties who did not themselves directly
perpetrate acts of childhood sexual abuse, but who allegedly failed to protect
child victims or to otherwise prevent the abuse." ]d. at 714.
The C.J.C. court noted that this interpretation is consistent with the
statutory scheme as a whole and with the Legislature's intent "to provide a broad
avenue of redress for victims of childhood sexual abuse who too often were left
without a remedy under previous statutes of limitation." Id, at 712-713. It is also
consistent with the "strong public policy in favor of protecting children against
acts of sexual abuse." Id. at 726. The Court further noted that the application of
RCW 4.16.340 to negligence claims "is consistent with our cases recognizing a
duty to prevent intentionally inflicted harm where the defendant is in a special
relationship with ... the victim, and where the defendant is or should be aware of
the risk." Id. at 724. In such a case, the focus of the court's inquiry is "not on
No. 73666-3-1/10
where or when the harm occurred, but on whether the [third party] negligently
caused the harm . . . when the risk was, or should have been, known." Id.
Here, as in C.J.C the intentional act of abuse is the predicate conduct on
which the claim is based. Thus, RCW 4.16.340(1 )(c) is equally applicable to the
victim who makes a causal connection between intentional abusive conduct and
injury and the victim who makes a causal connection between a third party's
negligent failure to protect and injury.
DSHS also argues that the statute of limitations began to run on Kirchoff's
claim when she discovered the factual basis of her claim. DSHS asserts that
Kirchoff had discovered at least by 2002 that her sisters had been placed in
foster homes due to the abuse and, for reasons unknown to her, she was not.
Relying on Allen v. State. 118 Wash. 2d 753, 826 P.2d 200 (1992), DSHS argues
that based on the facts Kirchoff knew in 2002, she had a duty to inquire whether
a cause of action was available to her. DSHS is incorrect.
Allen, in addressing the general statute of limitation, RCW 4.16.080(2),
held that "[t]he action accrues when the plaintiff knows or should know the
relevant facts, whether or not the plaintiff also knows that these facts are enough
to establish a legal cause of action." Allen. 118 Wash. 2d at 758. But a different
statute is involved here. Unlike the general statute of limitation in Allen. RCW
4.16.340(1 )(c) does not impose a duty of discovery on the plaintiff. Allen. 118
Wash. 2d at 758; Korst. 136 Wash. App. at 207-208; Hollman, 89 Wash. App. at 334.
10
No. 73666-3-1/11
While RCW 4.16.340(1 )(b) begins to run when the victim "discovered or
reasonably should have discovered that the injury or condition was caused by
said act," subsection (1)(c) omits the phrase "or should have discovered." RCW
4.16.340. This omission is consistent with the Legislature's recognition that the
"victim of childhood sexual abuse may be unable to understand or make the
connection between childhood sexual abuse and emotional harm or damage until
many years after the abuse occurs." Laws of 1991, ch. 212, § 1. RCW
4.16.340(1)(c) thus applies a subjective standard, and requires analysis of when
the victim actually discovered the causal connection. Korst. 136 Wash. App. at 207-
208; Hollman. 89 Wash. App. at 334.6
In the present case, the inquiry is when in fact Kirchoff discovered the
causal connection between DSHS's allegedly negligent investigation and her
injuries. Based on the evidence on the record, a jury could find that Kirchoff did
not subjectively make the connection between DSHS's failure to act and her
injury until 2007. Summaryjudgment based on the statute of limitations was thus
improper.
DSHS also moved for summary judgment on the grounds that Kirchoff
failed to establish breach or causation in her negligent investigation claim. The
trial court did not address this argument, but DSHS urges us to consider it here.
6We also reject Kirchoffs contention that RCW 4.16.340(1 )(c) begins to run when the
plaintiff discovers her cause of action. She argues that she discovered her cause of action in
2007 when she learned that DSHS owed her a duty of protection and had breached that duty.
However, the inquiry under (1)(c) is not when the plaintiff discovered a legal claim, but when she
in fact became aware of a causal connection between the defendant's act and her injury. Korst,
136 Wash. App. at 207-208; Hollmann, 89 Wash. App. at 325.
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No. 73666-3-1/12
We may affirm the superior court's ruling on any grounds adequately supported
by the record. Fulton v. Dep't of Soc. & Health Servs.. 169 Wash. App. 137, 147,
279 P.3d 500 (2012).
A negligent investigation claim arises from the State's statutory duty under
RCW 26.44.050 to investigate allegations of child abuse. Tvner v. Dep't of Soc. &
Health Servs.. 14 Wash. 2d 68, 1 P.3d 1148 (2000). To prevail on a claim for
negligent investigation, the plaintiff must prove that DSHS conducted a faulty
investigation and that the faulty investigation caused a harmful placement
decision. M.W. v. Dep't of Soc. & Health Servs., 149 Wash. 2d 589, 602, 70 P.3d
954 (2003); Petcu v. Dep't of Soc. & Health Servs.. 121 Wash. App. 36, 56, 86 P.3d
1234 (2004). A placement decision is harmful if it removes a child from a
nonabusive home, lets a child remain in an abusive home, or places a child in an
abusive home. M.W.. 149 Wash. 2d at 595.
The record includes statements from Ann Watkins, the investigating social
worker, that the investigation was conducted according to the standards and
procedures in place at the time, including interviewing Kirchoff separately from
her mother and stepfather. However, this testimony is disputed. Kirchoff and her
mother both stated that CPS never interviewed Kirchoff. The record includes
declarations from two experts who opine that CPS conducted a negligent
investigation. The record establishes a question offact as to whether DSHS's
investigation was negligent.
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No. 73666-3-1/13
DSHS also argues that Kirchoff did not establish causation because even
if its investigation was faulty, that investigation was not the cause of Kirchoff
being left in her stepfather's home. Watkins stated that at the time in question
CPS did not have the authority to remove a child from her home. However,
Watkins also stated that CPS could, at the time, ask the county prosecutor to
seek dependency. She did not recall if CPS had made such a request concerning
Kirchoff or if CPS was involved in the decision to seek a court order removing
N.B., but not Kirchoff, from the home. The record establishes a question of fact
concerning whether the allegedly negligent investigation caused the harmful
placement decision.
Genuine questions of fact exist as to when Kirchoff discovered the causal
connection between DSHS's allegedly negligent investigation and her injury and
whether DSHS conducted a negligent investigation that resulted in a harmful
placement decision. We accordingly reverse and remand for further proceedings
consistent with this opinion.
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