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M.W. v. Department of Social And Health Services2/8/2002
Concurring: Karen G. Seinfeld
Dissenting: J. Dean Morgan
J.C.W., through her guardian, sued the Department of Social and Health Services (DSHS), alleging that several employees were negligent in examining her for sexual abuse. DSHS argued that it has a statutory duty to investigate allegations of child abuse and that its examination was reasonable. The trial court granted DSHS's motion for summary judgment. J.C.W. appeals, contending that there remains a genuine issue of material fact as to whether DSHS's investigation was reasonable.
We agree and, therefore, reverse and remand for trial.
FACTS
In March 1996, J.C.W. lived with her foster parents, M.W. and A.W. On March 18, 1996, when J.C.W. was 16 months old, her biological father, S.H., reported to DSHS that J.C.W. was being sexually abused. S.H. complained to Dale Francis, a DSHS supervisor, that J.C.W. often had vaginal redness, exhibited antisocial behavior, and was clingy. S.H. also showed Francis pictures of J.C.W. taken by M.W. and A.W. S.H. claimed that the pictures, which showed J.C.W. in the bathtub, were pornographic. The same day, when A.W. was at the DSHS office with J.C.W., Francis asked two female DSHS workers to see if J.C.W. had vaginal redness.
A.W. took J.C.W. into the DSHS conference room. 'Home support specialists' Insu Baker and Lila Stinson came into the conference room; program manager Kenneth Panitz, social worker Mat Reitzug, and Francis remained in the doorway. Baker and Stinson asked A.W. to remove J.C.W.'s diaper. They then examined J.C.W.'s genitals and 'pulled apart {J.C.W.'s} vaginal area to see if there was vaginal redness.' CP at 76. A.W. stated in her deposition:
The first thing is {Stinson and Baker} were kind of looking at {J.C.W.}. 'Geez, do you see redness?' One would say yes; one would say no. And then they started pointing and touching the outside. And I would say it was probably -- it was both of them. I think one did it first and then the other one, and they were kind of bantering back and forth.
And then that's when they went in and stuck their hands in and pulled apart like this.
. . . {T}here was {sic} two types of touching. One was the actual poking of the outer area. Not her legs, but her private areas.
The other was sticking their hands inside of her and pulling her apart like so. CP at 227-29.
A.W. compared the women's actions to pulling apart and inserting one's hands inside the opening of a Kleenex tissue box. A.W. estimated that the touching and poking lasted four to five minutes. J.C.W. began to cry during the examination. A.W. also cried.
Another DSHS employee entered the conference room, concluded there was no vaginal redness, and told Baker and Stinson to 'cover that baby up.' CP at 76. A.W., Baker, and Stinson then took J.C.W. to Mary Bridge Hospital where a doctor examined her for sexual abuse. The doctor found no signs of abuse. Following an investigation, DSHS concluded that the allegations were unfounded and cleared M.W. and A.W. of wrongdoing. J.C.W.'s counselor submitted a declaration stating that J.C.W. suffered from post-traumatic stress disorder because of the examination.
ANALYSIS
I. Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter o
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