IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

MICHELLE A. DESMET and SANDOR 

KACSO, individually and as the General 

Guardians of their daughter, A.K., a minor,

No. 53962-4-II 

Respondents,

v. PUBLISHED OPINION

STATE OF WASHINGTON, by and through 

its agency the DEPARTMENT OF SOCIAL 

AND HEALTH SERVICES and the CHILD 

PROTECTIVE SERVICES DIVISION thereof 

and YOLANDA A. DURALDE, M.D., 

Appellant.

MAXA, J. – The State of Washington, its agency the Department of Social and Health 

Services (DSHS), and the Child Protective Services (CPS) division (collectively the 

Department)

1

appeal the trial court’s denial of their summary judgment motion seeking the 

dismissal of a lawsuit filed against the Department by Michelle Desmet and Sandor Kacso. The 

Department asserted that it had immunity under RCW 4.24.595(2) and therefore the lawsuit must 

be dismissed.

 

1

In 2018, CPS was transferred from DSHS to the newly-created Department of Children, Youth, 

and Families (DCYF). RCW 43.216.906. This opinion also will use “the Department” to refer 

to both DSHS and DCYF.

Filed

Washington State

Court of Appeals

Division Two

April 27, 2021
No. 53962-4-II

2

The lawsuit arose from a series of events that occurred after Desmet and Kacso’s threemonth-old daughter, AK, was diagnosed with a fracture of her femur. Because there was a 

concern that the injury was caused by nonaccidental trauma, the King County Sheriff’s Office 

(KCSO) placed AK into protective custody and CPS initiated a dependency proceeding. At the 

72-hour shelter care hearing, the juvenile court ordered that AK be placed in the care of Kacso’s 

sister. The Department opposed Desmet and Kacso’s subsequent motion to return AK to their 

home, and AK remained in shelter care for approximately six months. Meanwhile, CPS had 

issued a “founded” letter to Desmet stating that it was more likely than not that Desmet had 

abused AK. CPS ultimately dismissed the dependency proceeding and later replaced the 

founded finding with an unfounded finding.

Desmet and Kacso’s lawsuit alleged that the Department’s negligent investigation 

resulted in AK being prevented from returning to their home. They also asserted claims for 

negligent infliction of emotional distress and invasion of privacy by false light. The trial court 

denied the Department’s summary judgment motion regarding immunity under RCW 

4.24.595(2), which states that the Department and its employees are not liable for acts performed 

to comply with court shelter care and dependency orders. The court then entered an order under 

CR 54(b) directing entry of a final judgment on the issue of the Department’s claim of immunity 

under RCW 4.24.595(2).

We hold that RCW 4.24.595(2) does not apply to Desmet and Kacso’s negligent 

investigation claim or to their negligent infliction of emotional distress and false light claims. 

We decline to address the Department’s arguments that summary judgment is appropriate on the 

merits of the negligent investigation claim because that issue is beyond the scope of the trial 

court’s CR 54(b) order. Accordingly, we affirm the trial court’s order denying the Department’s 
No. 53962-4-II

3

summary judgment motion on the issue of immunity under RCW 4.24.595(2) for Desmet and 

Kacso’s claims and remand for further proceedings.

FACTS

Background

Desmet and Kacso were parents of a baby named AK who was born in October 2015. 

Desmet took maternity leave when AK was born. After Desmet went back to work on February 

1, 2016, AK began to attend daycare.

After three days at daycare, AK became fussy and sick. Desmet and Kacso took AK to 

urgent care. The examining doctor diagnosed her with an upper respiratory infection. The 

musculoskeletal exam was normal. The next day, Desmet stayed home with AK instead of 

sending her back to daycare.

On February 5, Desmet noticed that AK’s left leg looked swollen and felt firm to the 

touch. Desmet took AK to the emergency department at Mary Bridge Children’s Hospital that 

morning. X-rays revealed that AK had a broken femur. Desmet and Kacso were unable to 

provide an explanation for AK’s injury. Dr. Yolanda Duralde, the director of the Child Abuse 

Intervention Department at Mary Bridge, reviewed AK’s chart and her assessment was “probable 

inflicted trauma.” Clerk’s Papers (CP) at 986. Dr. Duralde stated that AK needed to be in a safe 

environment until an investigation could be done.

A social worker at Mary Bridge reported the injury to CPS. CPS assigned Jennifer 

Schooler, a social worker, to the case. Schooler interviewed Desmet and Kacso that day. She 

also recorded Dr. Duralde’s belief that the chance that the injury occurred at daycare was 

minimal.
No. 53962-4-II

4

The KCSO also was contacted. Officers arrived later that evening and interviewed 

Desmet and Kacso. The officers then decided to take AK into protective custody. Desmet and 

Kacso were very upset. Kacso’s sister agreed to take AK into her custody.

Dependency Proceedings

On February 9, Schooler filed a dependency petition with the juvenile court and 

requested out-of-home placement. On February 10, Desmet and Kacso appeared in juvenile 

court for the 72-hour shelter care hearing and waived the presentation of evidence. The court 

entered an agreed shelter care order, which stated, “The child is in need of shelter care because 

there is reasonable cause to believe: [t]he release of the child would present a serious threat of 

substantial harm to the child . . . as assessed by Petitioner.” CP at 386-87. The shelter care order 

placed AK with Kacso’s sister and authorized liberal supervised visitation rights to Desmet and 

Kacso.

Desmet and Kacso waived the 30-day shelter care hearing, scheduled for March 8. As a 

result, the February 10 shelter care order remained in effect. The fact-finding hearing for the 

dependency was scheduled for April 13.

Desmet and Kacso filed a motion to modify the shelter care order and to return AK to 

their home. Their supporting evidence included both parents passing polygraph tests, Dr. 

Duralde’s notes stating that this type of injury could be caused by an accident, and an expert 

opinion from a pediatric orthopedic physician who concluded that AK’s injury likely did not 

result from child abuse. DSHS opposed the motion. DSHS submitted the declaration of a DSHS 

supervisor on AK’s case, and various exhibits.

On April 12, the juvenile court heard oral argument regarding Desmet and Kacso’s 

motion to return AK home and denied the motion. The court’s order noted the voluminous 
No. 53962-4-II

5

documents that both parties had submitted. The court stated that “based on the current evidence, 

the cause of [AK’s] facture remains unclear (whether forcible or accidental) and without a 

plausible explanation for same the court finds the reasonable cause standard for continuing 

shelter care (out of home placement) continues to be met.” CP at 419. The order stated that the 

shelter care order remained in full force and effect, and that Desmet and Kacso had agreed to 

participate in psychological evaluations as soon as possible.

Desmet and Kacso agreed to two continuances of the fact-finding hearing through August 

8. They subsequently completed psychological evaluations. On August 8, all parties agreed that 

AK could return home based on the results of the evaluations.

The Department ultimately terminated the dependency action on October 24 based on 

Desmet and Kacso’s completion of various court-ordered conditions.

CPS Founded Letter

Meanwhile in March, CPS officially had concluded that the allegations of negligent 

treatment or maltreatment were founded. On March 31, CPS sent a letter informing Desmet of 

the results of its investigation into AK’s injury. The letter stated that CPS had found that 

Desmet’s alleged abuse of AK had occurred. The letter explained that a “founded” 

determination meant that CPS determined that it was more likely than not that the abuse and/or 

neglect occurred and that Desmet was the person responsible for the abuse and/or neglect. The 

founded finding was “based on information collected during the CPS investigation including 

medical records, polygraph results, law enforcement reports, and expert testimony.” CP at 443.

Desmet contested the founded determination in an administrative appeal. The 

Department eventually changed the founded letter to unfounded several months after the 

dependency action was dismissed.
No. 53962-4-II

6

Desmet and Kacso’s Lawsuit 

Desmet and Kacso filed a lawsuit against the State, the Department and CPS, asserting 

claims for negligent investigation, negligent infliction of emotional distress, and invasion of 

privacy by false light.

The Department filed a summary judgment motion to dismiss all claims, arguing among 

other things that it had complete immunity against all of Desmet and Kacso’s claims under RCW 

4.24.595(2). The trial court denied the Department’s motion. In an order denying 

reconsideration, the court directed entry of a final judgment under CR 54(b) on the issue of the 

Department’s claim of immunity under RCW 4.24.595(2). The Department appeals the trial 

court’s denial of its summary judgment motion.

ANALYSIS

A. SUMMARY JUDGMENT STANDARD

We review summary judgment orders de novo. Freedom Found. v. Bethel Sch. Dist., 14 

Wn. App. 2d 75, 80, 469 P.3d 364 (2020). Similarly, when a summary judgment order is based 

on an issue of statutory interpretation, we review the trial court’s interpretation of the statute de 

novo. Guillen v. Pearson, 195 Wn. App. 464, 470, 381 P.3d 149 (2016). This appeal turns on

interpretation of RCW 4.24.595(2), not on any factual issues. Summary judgment is appropriate 

only when there is no genuine issue of material fact and the moving party is entitled to judgment 

as a matter of law. Freedom Foundation, 14 Wn. App. 2d at 80; CR 56(c).

B. LEGAL BACKGROUND

Chapter 26.44 RCW governs the duty to report child abuse or neglect. Chapter 13.34 

RCW governs dependency actions. The legislature enacted chapter 26.44 RCW and chapter 

13.34 RCW as part of a comprehensive child welfare system that is guided by the principle that 
No. 53962-4-II

7

the child’s health and safety is of paramount concern. See RCW 26.44.010; RCW 13.34.020; see 

also H.B.H. v. State, 192 Wn.2d 154, 164, 429 P.3d 484 (2018). “When the rights of basic 

nurture, physical and mental health, and safety of the child and the legal rights of the parents are 

in conflict, the rights and safety of the child should prevail.” RCW 13.34.020.

1. Investigation of Child Abuse or Neglect

In 2016, the Department had certain responsibilities regarding the investigation of 

suspected child abuse or neglect. Former RCW 26.44.030(1)(a) (2015); former RCW 26.44.050 

(2012). Currently, the Department of Children, Youth and Families (DCYF) has those 

responsibilities. RCW 26.44.020(10); RCW 26.44.030(13)(a); RCW 26.44.050. 

When persons in certain listed positions, including nurses and social service counselors, 

have reasonable cause to believe that a child has been abused or neglected, they are required to 

report the incident to law enforcement or to the Department. RCW 26.44.030(1)(a). A law 

enforcement officer may take 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 if it were necessary to first obtain a court order.” RCW 26.44.050. 

Once a report has been filed, RCW 26.44.050 requires law enforcement or the Department to

investigate and “where necessary to refer such report to the court.”

After the investigation has been completed, the Department must make a finding that the 

report of child abuse or neglect is founded or unfounded. RCW 26.44.030(13)(a). “Founded” is 

defined as “the 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.” RCW 

26.44.020(13). “Unfounded” is defined as “the determination following an investigation by the 

department that available information indicates that, more likely than not, child abuse or neglect 
No. 53962-4-II

8

did not occur, or that there is insufficient evidence for the department to determine whether the 

alleged child abuse did or did not occur.” RCW 26.44.020(28). The person named as an alleged 

perpetrator in the founded letter may challenge that finding. WAC 110-30-0220.

2. Dependency Actions

Under RCW 13.34.040(1), the Department may initiate a dependency action when a 

person suspects that a child has been abused or neglected by a legal parent, guardian, or other 

custodian. After a dependency petition has been filed, the juvenile court must set a fact-finding 

hearing within 75 days to determine if a child is dependent. RCW 13.34.070(1). A child is 

dependent when he or she has been abandoned, abused or neglected by his or her legal guardian, 

has no legal guardian who is capable of adequately caring for the child, or is receiving extended 

foster care services. RCW 13.34.030(6).

RCW 13.34.065(1)(a) requires that a shelter care hearing take place within 72 hours of a 

child’s removal from his or her home. “The purpose of the shelter care hearing is to determine 

whether the child can be immediately and safely returned home while the adjudication of the 

dependency is pending.” RCW 13.34.065(1)(a). At the shelter care hearing, all parties may 

present testimony regarding the need or lack of need for shelter care. RCW 13.34.065(2)(b). 

After the juvenile court determines that a child should be placed in shelter care, there is a 30-day 

second shelter care hearing to evaluate whether the shelter care order should be maintained. 

RCW 13.34.065(7)(a).

3. Negligent Investigation Cause of Action

The Supreme Court in Tyner v. Department of Social and Health Services recognized that 

parents suspected of child abuse have an implied cause of action against the Department under 

RCW 26.44.050 for negligent investigation of child abuse allegations. 141 Wn.2d 68, 82, 1 P.3d 
No. 53962-4-II

9

1148 (2000). This negligent investigation cause of action is an exception to the general rule that 

there is no tort claim for negligent investigation. McCarthy v. County of Clark, 193 Wn. App. 

314, 328-29, 376 P.3d 1127 (2016).

To prevail on a negligent investigation cause of action, the claimant must show that the 

Department conducted “an incomplete or biased investigation that ‘resulted in a harmful 

placement decision.’ ” Id. at 329 (quoting M.W. v. Dep’t of Soc. & Health Servs., 149 Wn.2d 

589, 601, 70 P.3d 954 (2003)). “A harmful placement decision includes ‘removing a child from 

a nonabusive home, placing a child in an abusive home, or letting a child remain in an abusive 

home.’ ” McCarthy, 193 Wn. App. at 329 (quoting M.W., 149 Wn.2d at 602)). A claimant also 

must show that the Department’s negligent investigation was a proximate cause of the harmful 

placement decision. McCarthy, 193 Wn. App. at 329.

“A negligent investigation may be the cause in fact of a harmful placement even when a 

court order imposes that placement.” Id. “Liability in this situation depends upon what 

information . . . [the Department] provides to the court. [Citation omitted.] A court order will 

act as a superseding cause that cuts off liability ‘only if all material information has been 

presented to the court.’ ” Id. at 329-30 (quoting Tyner, 141 Wn.2d at 88). Materiality of 

information generally is a question of fact unless reasonable minds could only reach one 

conclusion. McCarthy, 193 Wn. App. at 330.

C. IMMUNITY UNDER RCW 4.24.525(2)

The Department argues that it is immune from liability for Desmet and Kacso’s negligent 

investigation, negligent infliction of emotional distress and false light claims under RCW 

4.24.595(2), which states that the Department and its employees are not liable for acts performed 

to comply with court shelter care and dependency orders. We disagree.
No. 53962-4-II

10

1. Statutory Interpretation

We review questions of statutory interpretation de novo. Jametsky v. Olsen, 179 Wn.2d 

756, 761, 317 P.3d 1003 (2014). The primary goal of statutory interpretation is to determine and 

give effect to the legislature’s intent. Gray v. Suttell & Assocs., 181 Wn.2d 329, 339, 334 P.3d 

14 (2014). To determine legislative intent, we look at the plain language of the statute, consider 

the text of the provision, the context of the statute, any related statutory provisions, and the 

statutory scheme as a whole. Id. We must apply the statute as written; “we cannot rewrite plain 

statutory language under the guise of construction.” McColl v. Anderson, 6 Wn. App. 2d 88, 91, 

429 P.3d 1113 (2018). If the plain meaning of the statute is unambiguous, we apply that 

meaning. Ronald Wastewater Dist. v. Olympic View Water and Sewer Dist., 196 Wn.2d 353, 

364, 474 P.3d 547 (2020).

If the plain language of the statute is susceptible to more than one reasonable 

interpretation, then the statute is ambiguous. Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 

1003 (2014). We resolve ambiguity by considering outside sources that may indicate legislative 

intent, including principles of statutory construction, legislative history, and relevant case law. 

Id.

2. Statutory Language

RCW 4.24.595 grants immunity in two different situations. First, RCW 4.24.595(1) 

provides that absent gross negligence, governmental entities and their employees are “not liable 

in tort for any of their acts or omissions in emergent placement investigations of child abuse or

neglect under chapter 26.44 RCW.” The statute defines “emergent placement investigations” as 

“those conducted prior to a shelter care hearing.” RCW 4.24.595(1). Desmet and Kacso’s 
No. 53962-4-II

11

claims relate to the Department’s actions after the initial shelter care hearing. Therefore, there is 

no dispute that RCW 4.24.595(1) does not apply here.

Second, RCW 4.24.595(2) states that the Department and its employees “shall comply 

with the orders of the court, including shelter care and other dependency orders, and are not 

liable for acts performed to comply with such court orders.” (Emphasis added.) RCW 

4.24.595(2) also states that “[i]n providing reports and recommendations to the court,” the 

Department’s employees “are entitled to the same witness immunity as would be provided to any

other witness.”

When the legislature enacted RCW 4.24.595 in 2012, it also enacted RCW 26.44.280. 

That statute states:

Consistent with the paramount concern of the department to protect the child's 

interests of basic nurture, physical and mental health, and safety, and the 

requirement that the child’s health and safety interests prevail over conflicting legal 

interests of a parent, custodian, or guardian, the liability of governmental entities, 

and their officers, agents, employees, and volunteers, to parents, custodians, or 

guardians accused of abuse or neglect is limited as provided in RCW 4.24.595.

RCW 26.44.280.

3. Negligent Investigation Claim

RCW 4.24.595(2) grants immunity to the Department for “acts performed to comply” 

with court shelter care and dependency orders. The Department argues that this language 

provides immunity from negligent investigation liability any time an alleged harmful placement 

decision results from a court order.

But the plain language of RCW 4.24.595(2) is inconsistent with this argument. Desmet 

and Kacso’s negligent investigation claim is not based on the Department’s compliance with 

court orders. Instead, their claim is based on the Department’s alleged failure to conduct a 

complete and accurate investigation of the abuse allegation against Desmet and the Department’s 
No. 53962-4-II

12

alleged act of providing false information and misrepresenting evidence to the juvenile court. 

No court order directed the Department to engage in such conduct.

The Department emphasizes that at all times it was complying with the juvenile court’s 

orders regarding the out-of-home placement of AK and when she could return home. But 

Desmet and Kacso are not claiming that the Department should have disregarded the court’s 

placement orders. They are claiming that the Department’s negligent investigation caused the 

court to issue those orders.

The Department also argues that RCW 4.24.595(2) reflects the legislature’s 

determination that child safety should prevail over the rights of the child’s parents. The 

Department cites RCW 26.44.280, which states that because a child’s health and safety interests 

prevail over the parents’ conflicting legal interests, the liability of governmental entities to 

parents “is limited as provided in RCW 4.24.595.” But RCW 26.44.280 does not state that the 

Department is immune from negligent investigation liability, only that RCW 4.24.595 limits 

liability. And as noted above, the plain language of RCW 4.24.595(2) does not eliminate 

negligent investigation liability.

Ultimately, the Department’s argument and the dissent’s analysis are based on what the 

Department wishes that RCW 4.24.595(2) stated. The Department suggests that RCW 

4.24.595(2) eliminates the negligent investigation cause of action under Tyner. Similarly, the 

Department suggests that RCW 4.24.595(2) precludes the recovery of any damages that result 

from a court placement order. But if the legislature had intended those results, it certainly would 

have adopted more specific language. After all, RCW 4.24.595(1) does provide blanket 

immunity for any acts by the Department in emergent placement investigations. The legislature 

did not include similar language in RCW 4.24.595(2).
No. 53962-4-II

13

And the dissent’s discussion of the legislative history is immaterial because the language 

actually used in RCW 4.24.595(2) is unambiguous. Therefore, we must apply the statute’s plain 

language as written. Ronald Wastewater Dist., 196 Wn.2d at 364. If the legislature had intended 

something different, it would have used different language.

We conclude that RCW 4.24.595(2) unambiguously does not provide immunity for 

Desmet and Kacso’s negligent investigation claim. The statutory language is clear: immunity 

extends only to the Department’s acts performed to comply with court orders. Here, the 

Department’s investigation of the abuse claims against Desmet was not performed to comply 

with court orders. The Department’s duty to investigate arises under RCW 26.44.050, 

independent of any court order. McCarthy, 193 Wn. App. at 328. And the Department did not 

provide information to the juvenile court in order to comply with a court order.

Accordingly, we hold that the trial court did not err in denying the Department’s 

summary judgment motion regarding immunity under RCW 4.24.595(2) for that claim.2

4. Negligent Infliction of Emotional Distress and False Light Claims

The Department argues that RCW 4.24.595(2) also applies to Desmet and Kacso’s claims 

for negligent infliction of emotional distress and invasion of privacy by false light. We disagree.

A negligent infliction of emotional distress requires proof of negligence (duty, breach of 

the standard of care, proximate cause, and damage) and objective symptomatology. Kumar v. 

Gate Gourmet Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014). Objective symptomology 

requires emotional distress that is susceptible to medical diagnosis and can be proved through 

medical evidence. Id. at 506.

 

2 We emphasize that we are addressing only immunity under RCW 4.24.595(2), not the merits of 

Desmet and Kacso’s negligent investigation claim.
No. 53962-4-II

14

An invasion of privacy by false light claim arises “when a defendant publishes statements

that place a plaintiff in a false light if (1) the false light would be highly offensive and (2) the 

defendant knew of or recklessly disregarded the falsity of the publication and the subsequent 

false light it would place the plaintiff in.” Seaquist v. Caldier, 8 Wn. App. 2d 556, 564, 438 P.3d 

606, review denied, 193 Wn.2d 1041 (2019).

Desmet and Kacso base their emotional distress claim on their general allegations that the 

Department engaged in negligent conduct and possibly on the Department’s founded finding. 

They base their false light claim on the founded finding. For the same reasons discussed above, 

RCW 4.24.595(2) does not provide immunity for these claims. The statutory language extends 

immunity only to the Department’s acts performed to comply with court orders. Here, the 

alleged negligence giving rise to the emotional distress claim did not arise from compliance with 

a court order. And the Department’s issuance of a founded finding against Desmet was not 

performed to comply with a court order. 

Accordingly, we hold that the trial court did not err in denying the Department’s 

summary judgment motion regarding immunity under RCW 4.24.595(2) for Desmet and Kacso’s 

negligent infliction of emotional distress and false light claims.3

5. Witness Immunity

In its reply brief, the Department suggests that to the extent its employees provided false 

testimony to the juvenile court, the Department is immune from liability under the witness 

immunity provision of RCW 4.24.595(2). We decline to address this argument.

 

3 Again, we emphasize that we are addressing only immunity under RCW 4.24.595(2), not the 

merits of Desmet and Kacso’s false light and negligent inflection of emotional distress claims.
No. 53962-4-II

15

As noted above, RCW 4.24.595(2) states that “[i]n providing reports and 

recommendations to the court,” the Department’s employees “are entitled to the same witness 

immunity as would be provided to any other witness.” The Department appears to argue that 

even though this clause is expressly limited to its employees, witness immunity should extend to 

the Department as well.

We decline to address this argument for two reasons. First, the Department did not make 

this argument in the trial court. We generally do not consider arguments raised for the first time 

on appeal. RAP 2.5(a); Kave v. McIntosh Ridge Primary Road Ass’n, 198 Wn. App. 812, 823, 

394 P.3d 446 (2017). Second, the Department did not raise this argument until its reply brief. 

We generally do not consider arguments raised for the first time in a reply brief. In re

Vulnerable Adult Petition for Winter, 12 Wn. App. 2d 815, 842, 460 P.3d 667, review denied,

196 Wn.2d 1025 (2020).

D. LIABILITY ON THE MERITS 

The Department argues in the alternative that even if there is no immunity under RCW 

4.24.595(2) for Desmet and Kacso’s negligent investigation claim, we should conclude that 

DSHS is entitled to summary judgment on the merits of that claim. The Department argues that 

(1) the Department did not present false testimony or misrepresent evidence to the juvenile court; 

(2) Desmet and Kacso’s agreement to place AK with Kacso’s sister precludes them from 

bringing a negligent investigation cause of action under Roberson v. Perez, 156 Wn.2d 33, 46, 

123 P.3d 844 (2005); (3) the fact that Desmet and Kacso agreed to a number of the juvenile 

court’s orders precludes them from claiming damages; and (4) the juvenile court had all available 

material facts, which breaks the chain of causation.
No. 53962-4-II

16

The Department also argues that Desmet and Kacso cannot recover damages for 

negligent infliction of emotional distress or false light based on DSHS’s founded finding because 

(1) the founded finding did not cause any damages, (2) Desmet and Kacso obtained relief –

removal of the founded finding – through their administrative appeal, and (3) there is no separate 

cause of action for any damages related to the founded finding.

We decline to address these arguments because they are beyond the scope of the trial 

court’s CR 54(b) order, which is limited to whether the Department has immunity under RCW 

4.24.595(2) against Desmet and Kacso’s claims. See Dreiling v. Jain, 151 Wn.2d 900, 907, 918-

19, 93 P.3d 861 (2004).

CONCLUSION

We affirm the trial court’s denial of the Department’s summary judgment motion on the 

issue of immunity under RCW 4.24.595(2) for Desmet and Kacso’s claims and remand for 

further proceedings.

MAXA, J.

I concur:

SUTTON, A.C.J.
No. 53962-4-II

17

GLASGOW, J. (dissenting in part)—I agree with the majority that RCW 4.24.595 does not 

bar Michelle A. Desment’s and Sandor Kacso’s (Desmets) false light claim, nor does it entirely 

bar their negligent investigation claim established under Tyner v. Department of Social & Health 

Services, 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). I would conclude, however, that the plain 

language of RCW 4.24.595 limits the Department’s liability to a greater extent than the majority 

concludes. I would recognize that while the Desmets may be entitled to damages based on other 

harms resulting from the Department’s actions, they cannot recover for damages allegedly 

resulting from AK’s continued placement outside of her home pursuant to court orders. 

RCW 4.24.595(2) states that the Division of Children, Youth and Families and its 

employees “shall comply with the orders of the court, including shelter care and other dependency 

orders, and are not liable for acts performed to comply with such court orders.” (Emphasis added.)

The agreed initial placement of AK outside of the Desmets’ home with her aunt, and ongoing 

placement of AK with her aunt during the dependency, were “acts performed to comply with [the 

trial court’s] orders” under RCW 4.24.595(2). AK’s placement in compliance with shelter care 

and dependency orders cannot be the basis for liability for damages under the plain language of 

the statute.4

Damages for other harms remain unimpeded by the immunity established in RCW 

4.24.595(2). For example, the complaint alleges the Desmets suffered “false light in their 

community, their circle of friends, and their family from the unsupported and unfounded 

allegations alleged against them.” Clerk’s Papers at 168. The Desmets also claim that loss of 

 

4 An immunity statute can provide limited immunity against a particular type of damages or relief, 

rather than immunity against an entire claim. See, e.g., Cowell v. Good Samaritan Cmty. Health 

Care, 153 Wn. App. 911, 924 n.15, 225 P.3d 294 (2009) (concluding that the Health Care Quality 

Improvement Act of 1986, 42 U.S.C. §§ 11101-11152, provided immunity from damages but not 

from injunctive relief). 
No. 53962-4-II

18

employment and ongoing inability to obtain employment were harms that resulted from the 

Department’s allegations. If they prevail on their claim of negligent investigation or false light, 

they could recover for damages to their reputation suffered as a result of the Department’s 

allegations and its temporary founded finding that child abuse or neglect occurred.5

RCW 4.24.595(2) limits the Tyner negligent investigation cause of action, but that is 

exactly what the legislature intended the statute to do. The provisions codified in RCW 4.24.595 

were proposed in Engrossed Substitute House Bill (ESHB) 2510, section 3, and the language from 

that bill was eventually incorporated in its entirety into a different bill, Engrossed Substitute Senate 

Bill (ESSB) 6555, on the house floor. ESHB 2510, 62nd Leg. Reg. Sess. (Wash. 2012); ESSB 

6555, 62nd Leg. Reg. Sess. (Wash. 2012). Legislative history, including bill reports and committee 

testimony on ESHB 2510, reflects that the legislature was concerned with eliminating the 

competing incentives that Tyner created. 

After Tyner, the legislature understood that the Department could be liable for negligently 

failing to remove a child from a dangerous home and for negligently removing a child from a home 

that turned out not to be dangerous. Hr’g on ESHB 2510 Before the H. Judiciary Comm., 62nd 

Leg. Reg. Sess. (Wash. Jan. 25, 2012), at 56 min., 0 sec., audio recording by TVW, Washington 

State’s Public Affairs Network, https://www.tvw.org/watch/?eventID=2012011124; S.B. REPORT 

ON ESHB 2510, 62nd Leg. Reg. Sess. (Wash. 2012), at 2. The legislature amended the child abuse 

statute’s purpose section to emphasize that concern for the safety of children is paramount and 

child safety outweighs concerns for the rights of the parents. ESSB 6555, supra, § 12; ESHB 2510, 

supra, § 1. This amendment was intended to respond to the Tyner court’s reliance on other 

 

5

In contrast, the claim for negligent infliction of emotional distress in the complaint is currently 

based solely on the loss of the parent child relationship during the separation. This claim, based 

solely on AK’s placement in compliance with court orders, is entirely barred by RCW 4.24.595(2).
No. 53962-4-II

19

language in that purpose section discussing the importance of the family unit and the parent child 

bond to create conflicting obligations to both parents and children when child abuse or neglect is 

reported. Hr’g on ESHB 2510, supra, at 53 min., 0 sec. 

The prime sponsor of ESHB 2510, Representative Ruth Kagi, and others testifying in 

committee expressed that the intent behind the immunity language was to limit the impact of Tyner 

and to use the immunity statute to ensure the Department errs on the side of child safety when 

placing children outside of the home. Id. at 56 min., 0 sec. through 59 min., 0 sec. and 1 hr., 4 

min., 3 sec. through 1 hr., 4 min., 6 sec. (explaining that the bill would “restore what the law was 

prior to [the] Tyner” decision, and emphasizing that immunity would not protect the Department 

or its employees if they fabricated evidence or committed perjury).

6

Thus, the legislature struck a balance by creating limited immunity that eliminates the 

possibility of damages arising from placement of a child after allegations of abuse—either initial 

placement in response to a report of abuse or neglect or later placement ordered by a court. This 

balance emphasizes and protects child safety by removing a disincentive to temporarily place a 

child outside the home or to ask a court to approve temporary out-of-home placement. It removes 

the threat of having to pay damages if a jury later finds, with the benefit of hindsight, that the outof-home placement was not actually necessary. But the legislature left intact a parent’s ability to 

recover for other harms. And the immunity statute does not protect a social worker or other 

Department employee who fabricates evidence or lies in court. 

I would hold that the Department is immune from payment of damages resulting from the 

placement of AK outside of her home as a result of a court order in this case, but if the Desmets 

 

6 Representatives of the Washington State Association for Justice also testified in favor of the 

immunity language because it was a reasonable way to ensure the safety of children. “Children’s 

safety is the number one priority.” Hr’g on ESHB 2510, supra, at 1 hr., 11 min., 0 sec.
No. 53962-4-II

20

prove their claims, they may be entitled to damages for other harms arising from false light or 

negligent investigation. I respectfully dissent in part.

____________________________________

Glasgow, J.