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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 

### CASSIDY, a married person, Appellants,



### CITY OF KELSO, a municipal corpora tion ofthe STATE OF WASHINGTON, COWLITZ COUNTY, a municipal corporation ofthe STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondents. No. 73666-3-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: October 12, 2015 Spearman, C.J. — In2007, Susan Kirchoffsued the Department ofSocial 

### and Health Services (DSHS), alleging that its investigation ofher home during 1979-1980 was negligent and resulted in Kirchoffremaining inthe 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 ofthe time the victim discovers the causal connection between the wrongful act and her injury. We hold that a genuine question offact 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 ofthe case are largely uncontested. In 1979, Susan Kirchoffand hertwo 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 

### counselorthat Cassidy was sexually abusing her.1 The counselorcontacted Child Protective Services (CPS). 

### Ann Watkins, a CPS social worker, investigated. Cassidy and the girls' mother denied the abuse and accused C.B. ofmaking up stories to seek attention. Although the oldest sister, N.B., was pregnant, she denied being abused by Cassidy and initiallydenied being sexually active. Watkins stated that Kirchoffalso denied the abuse. However, Watkins could not actually recall speaking with Kirchoffand the parties disputed whetherWatkins ever interviewed Kirchoff. C.B. did not want to remain in the home, and her mother allowed CPS to immediately place her infoster care without a court order. On December 10, 1979, C.B. took a polygraph testthat indicated that her allegations aboutthe 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"

1Individuals who were minorchildren at the time ofthe 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 awaittrial. Adependency hearing was subsequently held for N.B. and the court ordered her removed from the home and placed infoster care. 

### Atthat time, Kirchoffwas not aware that CPS had investigated the family and placed her sisters infoster homes because ofthe sexual abuse. Cassidy told Kirchoffthat everything he did to her and her sisters was pleasurable and was to prepare them for married life. Kirchoff's mothertold herthat C.B.'s lies had gotten 

### the family introuble and that C.B. leftbecause she wanted to live in a nicer house. Kirchoffstated that Cassidy continued to abuse her until aboutApril, 

### 1980, when she wentto stay with relatives who lived out ofstate. As an adult, Kirchoffexperienced symptoms including anxiety, depression, 

### irritability, and sexual aversions. She sought counseling and received treatment
on various occasions. Kirchoffconnected her symptoms to the abuse she had suffered as a child and worked hard to overcome the symptoms and forgive her stepfather. In 2002, Kirchoffand her husband applied to DSHS for a foster care 

### license and also applied to become adoptive parents. On both applications, Kirchoffstated that she had been sexually abused as a child. She stated that her 

### sisters had been placed infoster homes because ofthe abuse and she did not know why she had not been placed infoster care.No. 73666-3-1/4 

### In2007, Kirchoffattended a class offered by DSHS to become a foster home licensor. During instruction aboutthe duties ofCPS, the instructor used a 

### hypothetical in which CPS investigated allegations ofabuse 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 byCPS. Upon hearing this, 

### Kirchoffasserts that she realized for thefirst time that CPS hadfailed in its duty to protect her from further abuse and that she was injured as a result. After 

### making this connection, Kirchofffeltbetrayed. Her symptoms ofirritability, anger, and depression were renewed. She also developed a gambling problem and further sexual aversion. In2008, Kirchoffconsulted a psychologist, Dr. Laura Brown. Dr. Brown 

### diagnosed aggravation ofpreexisting Post-Traumatic Stress Disorder (PTSD) 

### attributable to betrayal trauma.2 Betrayal trauma theory explains the trauma experienced as a result offeeling betrayed, as, for instance, when an individual
or institution fails in a protective duty. Kirchoffsuffered psychological distress as
a result oflearning that CPS should have protected her, and this distress aggravated her preexisting PTSD. Dr. Brown also stated that itwould be "difficult to separate" the treatment necessary as a result ofthe 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

2Dr. Brown described all of Ms. Kirchoffs preexisting symptoms as symptoms of PTSD. While Ms. Kirchoffhad received treatmentfor 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'tin treatmentreally segregatethem

one from the other." Id. 

### Kirchoffbrought suit against DSHSin 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 summaryjudgmentfor 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, notfacts about DSHS's actions. The trial court also 

### ruled that betrayal trauma was not a qualitatively different harm fromthatwhich Kirchoffhad previously attributed to the abuse.4 The court did not address DSHS's argument that Kirchoffhad failed to establish the elements ofher claim. DISCUSSION We review a summaryjudgment order de novo. Camicia v. Howard S. 

### Wright Constr. Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014). Summary judgment based on the statute oflimitations is appropriate only when there is no 

### genuine issue ofmaterial fact regarding when the statutory period began. Young Soo Kim v. Choong-Hvun Lee. 174 Wn. App. 319, 323, 300 P.3d 431 (2013); CR

3Kirchoffjoined the City of Kelso and Cowlitz County to the suit, but voluntarilydismissed these parties. 4DSHS also argued that Dr. Brown's testimony concerning "betrayal trauma" was inadmissible under Frve v. United States. 293 F. 1013 (D.C. Cir. 1923). Underthe Frve standard, experttestimony is admissible only where both "the theory underlying the evidence and the methodology used to implement the theory" are generally accepted inthe scientific community. Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire &Marine Ins. Co., 176Wn. App. 168, 175, 313 P.3d 408, 412 (2013) (citing State v. Gregory. 158 Wn.2d 759, 829-30, 147 P.3d 1201 (2006)), review denied, 179 Wn.2d 1019, 318 P.3d 280 (2014).The trial court assumed, without deciding, that the diagnosis of "betrayal trauma" satisfied the Frve requirements.No. 73666-3-1/6 56(c). Where reasonable minds could draw more than one conclusion on the evidence, summaryjudgment is not appropriate. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 485, 78 P.3d 1274 (2003); Morris v. McNicol, 83 Wn.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 Wn. App. 202, 208, 148 P.3d 1081 (2006). We perform the same inquiry as the trial court, review the evidence inthe light mostfavorable to the nonmoving party, and draw all reasonable inferences inthe nonmoving party's favor. Lakev v. Puget Sound Energy, Inc., 176 Wn.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 ofaction based on intentional conduct brought by any person for recovery ofdamages for injury suffered as a result ofchildhood sexual abuse shall be 

### commenced within the later ofthe following periods: 

### (a) Withinthree years ofthe act alleged to have caused the injury or condition; 

### (b) Withinthree years of the time the victim discovered or reasonably should have discovered thatthe injury or condition was caused by said act; or 

### (c) Withinthree years ofthe time the victimdiscovered that the act caused the injury for which the claim is brought....No. 73666-3-1/7


### Atissue in this appeal is subsection (1)(c).5That subsection applies where the victim is aware ofthe 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 Wn. App. 796, 801.240P.3d 1172(2010). Italso applies where the victim is aware ofthe abuse and aware of her injury, butdiscovers a causal connection, ofwhich she was previously unaware, between the wrongful act and her harm. Hollmann. 89 Wn. App. at 325. Kirchhoff contends that her claim falls within both applications of subsection (1)(c). 

### Kirchofffirst argues that she brought her claim withinthree years of 

### suffering a new injuryconnected to the abuse, betrayal trauma. A claim of childhood sexual abuse may be broughtwithinthree years ofthe time thatthe 

### victim discovers an injurythat is "qualitatively different from other harms connected to the abuse which the plaintiff had experienced previously." Carollo. 

### 157 Wn. App. at 801. "[M]ore severe manifestations of a priorinjury" are not qualitatively different and are notwithin provision (1)(c). Id. at 803. The trial court concluded as a matter oflaw that Kirchoffhad failed to establish that her 

### diagnosis of betrayal trauma was qualitatively differentfrom the injuries ofwhich she had previouslybeen aware, i.e., anxiety, depression, irritability, etc. The evidence inthe record supports the trial court's ruling.

5Kirchoffalso argues that her claim fallswithin 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 Wn. 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 Kirchoffsuffered 

### psychologicaldistress as a result of learning that CPS should have protected her, and this distress caused her to experience renewed symptoms of PTSD. However, Dr. Brownalso stated that Kirchoffs PTSD predated her 2007 

### discovery ofDSHS's alleged negligence and that the symptoms had "waxed and waned" throughout her adult life. Dr. Brownexplained 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 Wn. App. at 801. DSHS argues that RCW 4.16.340(1 )(c) applies only to the discovery of a causal connection between the act ofabuse 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. ofCatholic Bishop ofYakima. 138 Wn.2d 699, 709-10, 985 P.2d 262 (1999), is instructive. In that case, various religious organizations

8No. 73666-3-1/9 argued that RCW4.16.340 did not apply to negligence claims against third parties because, by the statute's plain language, itapplies to "[a]ll claims or
causes ofaction based on intentionalconduct.
. .." RCW 4.16.340(1); C.J.C 138 Wn.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 ofthe claim." ]d. at 709. In a negligence claim 

### against a third party, "intentional sexual abuse is the predicate conduct.
.. ." jd. at 709. The Courtthus held that "RCW4.16.340 encompasses causes ofaction 

### sounding innegligence against parties who did not themselves directly perpetrate acts ofchildhood sexual abuse, but who allegedly failed to protect child victims or to otherwise preventthe abuse." ]d. at 714. The C.J.C. court noted thatthis interpretation is consistentwith the 

### statutory scheme as a whole and with the Legislature's intent "to provide a broad

avenue ofredress for victims ofchildhood sexual abuse who too often were left 

### without a remedy under previous statutes oflimitation." Id, at 712-713. It is also consistentwiththe "strong public policy in favor ofprotecting children against acts ofsexual abuse." Id. at 726. The Courtfurther noted thatthe application of 

### RCW4.16.340 to negligence claims "isconsistentwith our cases recognizing a 

### duty to preventintentionally inflicted harm where the defendant isin a special relationshipwith
... 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 onNo. 73666-3-1/10 

### where or when the harm occurred, but on whetherthe [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 ofabuse is the predicate conduct on 

### which the claim is based. Thus, RCW4.16.340(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 thatthe statute of limitations began to run on Kirchoff's claim when she discovered the factual basis of her claim. DSHS asserts that Kirchoffhad 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 Wn.2d 753, 826 P.2d 200 (1992), DSHS argues that based on the facts Kirchoffknew in 2002, she had a duty to inquire whether

a cause ofaction was available to her. DSHS is incorrect. 

### Allen, inaddressing the general statute of limitation, RCW 4.16.080(2), held that "[t]heaction accrues when the plaintiffknows or should know the relevantfacts, whether or not the plaintiffalso knows thatthese facts are enough to establish a legal cause ofaction." Allen. 118 Wn.2d at 758. But a different statute is involved here. Unlikethe general statute of limitation in Allen. RCW 

### 4.16.340(1 )(c) does not impose a duty ofdiscovery on the plaintiff. Allen. 118 Wn.2d at 758; Korst. 136 Wn. App. at 207-208; Hollman, 89 Wn. App. at 334.

10No. 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 consistentwith 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 afterthe abuse occurs." Laws of 1991, ch. 212, § 1. RCW 4.16.340(1)(c) thus applies a subjective standard, and requires analysis ofwhen 

### the victim actually discovered the causal connection. Korst. 136 Wn. App. at 207- 

### 208; Hollman. 89 Wn. App. at 334.6 In the presentcase, the inquiry is when in fact Kirchoffdiscovered the causal connection between DSHS's allegedly negligent investigation and her 

### injuries. Based on the evidence on the record, ajurycouldfind thatKirchoffdid not subjectively make the connection between DSHS's failure to act and her 

### injury until 2007. Summaryjudgment based on the statute oflimitations was thus improper. 

### DSHS also moved forsummaryjudgmenton the grounds that Kirchoff failed to establish breach or causation inher negligent investigation claim. The 

### trial court did not address this argument, but DSHS urges us to consider it here.

6We also rejectKirchoffs contentionthatRCW4.16.340(1 )(c) begins torun when the plaintiffdiscovers her cause ofaction. She argues that she discovered her cause ofaction 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 plaintiffdiscovered a legalclaim, butwhen she infact became aware of a causal connection between the defendant's act and her injury. Korst, 136Wn. App. at 207-208; Hollmann, 89 Wn. App. at 325.

11No. 73666-3-1/12 

### We may affirmthe superiorcourt's ruling on any grounds adequately supported by the record. Fulton v. Dep't ofSoc. &Health Servs.. 169 Wn. 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. Tvnerv. Dep't ofSoc. & Health Servs.. 14 Wn.2d 68, 1 P.3d 1148 (2000). To prevail on a claim for 

### negligent investigation, the plaintiffmust prove that DSHS conducted a faulty 

### investigation and thatthe faulty investigation caused a harmful placement decision. M.W. v. Dep't ofSoc. & Health Servs., 149 Wn.2d 589, 602, 70 P.3d 

### 954 (2003); Petcu v. Dep't ofSoc. & Health Servs.. 121 Wn. App. 36, 56, 86 P.3d 1234 (2004). Aplacementdecision is harmful if itremoves 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 Wn.2d at 595. The record includes statements from Ann Watkins, the investigating social 

### worker, that the investigation was conducted according to the standards and 

### proceduresin place at thetime, including interviewing Kirchoffseparatelyfrom her mother and stepfather. However, this testimony is disputed. Kirchoffand her mother both stated that CPS never interviewed Kirchoff. The record includes 

### declarations from twoexperts who opine that CPS conducted a negligent 

### investigation. Therecord establishes aquestion offact as to whetherDSHS's investigation was negligent.

12No. 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 inherstepfather's home. Watkins stated that at the time inquestion 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 prosecutorto seek dependency. She did not recall ifCPS had made such a request concerning Kirchoff or ifCPS was involved inthe decision to seek a court order removing N.B., but not Kirchoff, from the home. The record establishes a question offact 

### concerning whetherthe allegedly negligent investigation caused the harmful placement decision. Genuine questions offact exist as to when Kirchoffdiscovered the causal 

### connection between DSHS's allegedly negligent investigation and her injuryand 

### whether DSHS conducted a negligent investigation that resulted in a harmful placement decision. We accordingly reverse and remand for further proceedings consistentwith this opinion. 

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WE CONCUR: 

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