IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAN ALBERTSON, as court appointed

limited guardian for L.O. and T.J.; and

TERESA JOHNSON, individually,

Appellant,

PIERCE COUNTY,

Respondent.

No. 71317-5-1

DIVISION ONE

UNPUBLISHED OPINION

ro

CO

en

FILED: February 23, 2015

Appelwick, J. — T.J. and L.O. were sexually abused by their grandfather, Finch,

after DSHS placed the girls with him through the foster care system. Eleven years earlier,

DSHS and Pierce County were informed that Finch had reportedly molested his daughter,

Teresa Johnson, T.J. and L.O.'s mother. Despite the earlier allegation of abuse, DSHS's

background check of Finch came back clear. Albertson, T.J.'s and L.O.'s limited

guardian, filed suit contending that Pierce County's investigation of Teresa's abuse was

negligent and that Pierce County owed T.J. and L.O. a duty to investigate under RCW

26.44.050. Teresa added individual claims based on RCW 4.24.010 for her children's

abuses and RCW 26.44.050 for her own abuse. T.J.'s and L.O's claims were dismissed

on summary judgment because of the publicduty doctrine. Teresa's individual claim was

dismissed under the statute of limitations. We affirm.
No. 71317-5-1/2

FACTS

Approximately June 1996, Child Protective Services (CPS)1 sent the Pierce

County Sheriff's Department (Pierce County) a sexual assault referral. Gwendolyn

Johnson reported that her husband, Emanuel Finch, had sexually assaulted her two

daughters, Veronica Johnson and Teresa Johnson.2

On or about July 17,1996, the investigation was assigned to Detective Loren Page

of Pierce County. On September 13, 1996, Detective Page began investigating. There

was no phone number listed for the alleged victims on the report so Detective Page called

the assigned case worker at CPS, Lazona Harris. Harris did not answer and Detective

Page left her a message. By September 16, Detective Page had not heard from Harris

and left another message on her voicemail. On September 17, Harris called Detective

Page and said that she had already spoken with the listed victims. According to Harris,

during her conversation with the alleged victims and their mother, each girl took opposite

positions about whether the abuse happened. But, at least one of the girls3 disclosed that

she had been abused. One of the girls was embarrassed and did not wish to go into

detail about the abuse.

On September 20, 1996, Detective Page went to the family's home. No one was

home so Detective Page left a business card with a request to call as soon as possible.

By September 23, there was no response and Detective Page sent a letter to Gwendolyn.

1 CPS is the Child Protective Services Section of the State Department of Social

and Health Services. RCW 26.44.020(4); RCW 26.44.020(8).

2Going forward, we refer to Gwendolyn and Teresa by their first names to avoid

confusion. No disrespect is intended.

3 The names in the record are redacted. As such, it is difficult to determine which

girl made which statements regarding the abuse.
No. 71317-5-1/3

Detective Page did not hear back from Gwendolyn or either of the children. The letter

was not returned by the post office. On October 12, 1996, Detective Page placed the

case in an inactive file pending contact or further evidence.

In 1999 and 2000, Teresa gave birth to two daughters, T.J. and L.O. Teresa lost

custody of both daughters to the foster care system. After a number of failed placements,

the Department of Social and Health Services (DSHS) considered placing the girls with

their grandfather, Finch. Before doing so, the girl's caseworker reviewed Finch's

background check and found that it was clear. In 2007, DSHS placed the children in

foster care with Finch. For three years, Finch raped and molested the girls until he was

finally arrested, convicted, and sentenced.

On July 25, 2013, Dan Albertson as limited guardian for T.J. and L.O. sued Pierce

County alleging negligent investigation ofthe original allegations against Finch in 1996,

pursuant to chapter26.44 RCW. On August 14, 2013, Teresa was added as an additional

plaintiff, pursuant to RCW 4.24.010, based on her children's abuse.

On September 24, 2013, Albertson filed a motion for partial summary judgment

regarding Pierce County's breach of a statutory duty. On November 6, 2013, Pierce

County filed a CR 12(b)(6) motion to dismiss. Pierce County argued that it owed the

plaintiffs no duty and that PierceCounty's investigation was notthe legal orfactual cause

of T.J.'s and L.O.'s harm.

Plaintiffs responded by submitting and citing to declarations of Teresa and their

law enforcement expert, Sue Peters, as sufficient factual support for their assertions.

Plaintiffs also asserted a new claim for the first time—that Teresa herself was owed a

duty as a victim suspected of being abused.
No. 71317-5-1/4

On December 2, 2013, the trial court issued orders denying Pierce County's motion

to strike the declarations, denying plaintiffs' motion for partial summary judgment, and

granting Pierce County's motion to dismiss the complaint.4 In dismissing the plaintiffs'

claims, the court concluded that Pierce County did not owe a legally cognizable duty to

the unborn, unconceived children who did not fall within the particular, circumscribed

class or exception to the public duty doctrine. The trial court further concluded that

Teresa's claims connected to the children's claims were similarly dismissed and that

Teresa's individual claim was legally barred by the statute of limitations.

Albertson and Teresa appeal.

DISCUSSION

Albertson argues that Pierce County owed T.J. and L.O. a duty under RCW

26.44.050 and that summary judgment dismissal was improper. Teresa contends that

her individual claims against Pierce County should survive even if Pierce County did not

owe T.J. and L.O. a duty.

4Albertson and Teresa requested that the trial court treat Pierce County's motion

to dismiss as a motion for summary judgment after it presented Teresa's and Sue Peters'

declarations. While it is somewhat unclear from the record, it does appear that the trial

court treated Pierce County's motion as a motion for summary judgment. Despite the

order's reference to Pierce County's motion as a "motion to dismiss complaint," the trial

court refers to Pierce County's motion as a motion for summary judgment in its summary

findings and conclusions. It further concluded that "there is no genuine issue ofmaterial

fact that would dictate a contrary result." CR 56(c). Courts treat a CR 12(b)(6) motion to

dismiss for failure to state a claim as a motion for summary judgment when matters

outside the pleadings are presented to, and notexcluded by, the superior court. Sea-Pac

Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800, 802, 699

P.2d 217 (1985). As the trial court denied Pierce County's motion to strike the

declarations, we treat Pierce County's motion as a motion for summary judgment and

evaluate the trial court's granting of that motion and appellants' challenge accordingly.
No. 71317-5-1/5

We review a grant or denial of summary judgment de novo. Washburn v. City of

Federal Way. 169 Wn. App. 588, 609, 283 P.3d 567 (2012), affd, 178 Wn.2d 732, 310

P.3d 1275 (2013). Summary judgment is appropriate where there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law. CR

56(c). A defendant in a civil action is entitled to summary judgment when the party shows

that there is an absence of evidence supporting an element essential to the plaintiff's

claim. Las v. Yellow Front Stores. Inc.. 66 Wn. App. 196, 198, 831 P.2d 744 (1992).

The threshold determination in any negligence action is whether a duty of care is

owed by the defendant to the plaintiff. Taylor v. Stevens County. 111 Wn.2d 159, 163,

759 P.2d 447 (1988). If the defendant owed the plaintiff no duty, the negligence action

fails. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). The existence

of duty is a question of law that we review de novo, jd.; Hertog v. City of Seattle, 138

Wn.2d 265, 275, 979 P.2d 400 1999).

A defendant is liable for negligence for breach of a duty of care owed only to the

plaintiff, not to the public at large. Yonker v. Dept. of Soc. & Health Servs., 85 Wn. App.

71, 76, 930 P.2d 958 (1997). When a governmental agency is the defendant, this rule is

known as the public duty doctrine. Id. Thus, a government official's negligent conduct

does not expose the government to tort liability unless the plaintiff can show that a duty

was owed to the plaintiff individually, as opposed to the public in general. Id

I. Albertson's Claims on Behalf of T.J, and L.O.

Albertson argues that Pierce County owed a duty to T.J. and L.O., because chapter

26.44 RCW creates a duty to all children who may be abused or neglected.
No. 71317-5-1/6

The trial court found that RCW 26.44.050 evidences no clear intent to encompass

children in T.J.'s and L.O.'s situation. The trial court concluded that Pierce County did

not owe a duty to T.J. and L.O., because they did not fall within this statutory exception

to the public duty doctrine.

Courts have recognized numerous exceptions to the public duty doctrine. Yonker,

85 Wn. App. at 76. One such exception is when the legislature expresses by statute "'an

intent to identify and protect a particular and circumscribed class of persons (legislative

intent).'" id, (quoting Bailey v. Forks. 108 Wn.2d 262, 268, 737 P.2d 1257 (1987)). A

statute that creates a governmental duty to protect particular individuals can be the basis

for a negligence action where the statute is violated and the injured party was one of the

persons designed to be protected. Rodriguez v. Perez. 99 Wn. App. 439, 444, 994 P.2d

874 (2000).

Statutory interpretation is a question of law that we review de novo. State v. Gray,

174 Wn.2d 920, 926, 280 P.3d 1110 (2012). The court's primary duty is to ascertain and

carry out the legislature's intent. Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d

359, 367, 89 P.2d 217 (2004). Statutory interpretation begins with the statute's plain

meaning. Entv. Wash. State Criminal Justice Training Comm'n, 174 Wn. App. 615, 619,

301 P.3d 468 (2013). Plain meaning is discerned from the ordinary meaning of the

language at issue, the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole. Christensen v. Ellsworth, 162 Wn.2d

365,373, 173 P.3d 228 (2007).
No. 71317-5-1/7

RCW 26.44.050 states in pertinent part:

[Ujpon 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.

The plain language of RCW 26.44.050 does not specify to whom the law enforcement

agency owes this duty to investigate nor who might bring an action for breach of any duty.

However, case law interpreting chapter 26.44 RCW has indicated that children who are

suspected of being abused and their parents comprise a protected class under chapter

26.44 RCW and may bring actions for negligent investigation. Perez, 99 Wn. App. at 445.

Albertson seeks to extend the protected class beyond that defined in Perez.

Albertson asks this court to hold that the duty under RCW 26.44.050 is owed not only to

those children (and parents of those children) who are suspected of being abused, but

also to any child whomight become at risk of abuse from the alleged abuser in the future.

In his argument, he includes children not yet born or in existence at the time of the

negligent investigation—when the duty to investigate would arise. He bases his

arguments on chapter 26.44 RCW's declaration of purpose (RCW 26.44.010), cases

interpreting RCW 26.44.050, the duty to report (RCW 26.44.030), and several cases

addressing duties owed to children not yet in existence.

First, Albertson refers to RCW 26.44.010 to establish the broader class of

individuals that he argues the law was designed to protect. RCW 26.44.010 is the

legislature's declaration of purpose:

[l]n 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
No. 71317-5-1/8

appropriate public authorities. It is the intent of the legislature that, as a

result of such reports, protective services shall be made available in an

effort to prevent further abuses, and to safeguard the general welfare of

such children.

(Emphasis added).

Albertson argues that the declaration of purpose is clear that the duties owed are

broad and extend to all children that are injured as a result of failure to carry out the

obligations in RCW 26.44.050. In so doing, Albertson ignores the language regarding

"further abuses" and "such children" that were the subject of "such reports" in RCW

26.44.010's stated purpose. We must give effect to every phrase or words in a statute

wherever possible. Nw. Steel Rolling Mills. Inc. v. Dept. of Revenue, 40 Wn. App. 237,

240, 698P.2d 100(1985).

The plain language of RCW 26.44.010 is instructive when defining the relevant

class of children protected by the statute. First, the statute contemplates that it protects

children who have already suffered abuse. ]d Second, it acknowledges that authorities

were made aware of the abuse, id. Third, it dictates that such children are to receive

protective services. \_± Implicit in the language of RCW 26.44.010 is the fact that the

child was in existence at the time the abuse was discovered and thus their "further" abuse

can be prevented.

Albertson contends that interpreting RCW 26.44.010 to apply to only the reported

victims would be a ridiculous result that the legislature could not have intended—that

there would be no duty owed to a second child in an abusive household when there was

a report of abuse made only about the first child. The case law is clear, that children who

are suspected of being abused also fall within the protected class under chapter 26.44

RCW and may bring an action for negligent investigation under the statute. See Perez,

8
No. 71317-5-1/9

99 Wn. App. at 445. A report of abuse about a particular child in a household triggers a

duty to investigate that abuse, but does not automatically create a duty to investigate on

behalf of another child, even in the same household. However, if in investigating the

alleged abuse of the first child, law enforcement learns, discovers, or suspects that

another child is being abused, the other child is then owed the duty to investigate those

allegations. This was the case in Lewis v. Whatcom County, 136 Wn. App. 450, 452-53,

460, 149 P.3d 686 (2006).

The Lewis court held that a sheriff's department had a duty under RCW 26.44.050

to investigate when it discovered that the victim was likely being molested while it was

investigating another girl's sexual abuse, jd, at 452-53. Albertson relies on Lewis to

assert that RCW 26.44.050 creates a duty to all children who may be abused or

neglected, regardless of the relationship between the child and his or her abuser. While

the Lewis court did use those words, the statement was made in the context of clarifying

that the duty was not limited to investigating cases where only a parent was the alleged

perpetrator. Id, at 452. The court held that the duty to investigate extended to

victimization by nonparents. Id. Contrary to Albertson's argument, Lewis did not raise

any question as to duty owed to children forwhom no complaint was made nor information

of abuse known nor to children who were not yet born. Consequently, Albertson's

argument is not well founded.

Albertson also claims that RCW 26.44.030 extends a duty to all children at risk of

future harm. RCW 26.44.030(1 )(a) establishes a duty to report child abuse or neglect.

RCW 26.44.030(2) then provides:

The reporting requirement. . . does not apply to the discovery of abuse or

neglect that occurred during childhood if it is discovered after the child has
No. 71317-5-1/10

become an adult. However, if there is reasonable cause to believe other

children are or may be at risk of abuse or neglect by the accused, the

reporting requirement.. . does apply.

Notably, the section speaks to only the duty to report, not the duty to investigate. Id. And,

the duty to report is much broader and binds a different class of individuals than the duty

to investigate. Compare RCW 26.44.030(1 )(a) with RCW 26.44.050. But, the language

of the statute contemplates a duty to report the identity of other children are who are or

may be at risk so that an investigation may be done. RCW 26.44.030(2). To facilitate

that investigation, the children at risk must be in existence and identified. See Id. RCW

26.44.030(2) does not extend the duty to investigate to all yet-to-be-born children at risk

of harm in the future.

Next, Albertson contends that RCW 26.44.050 is also intended to protect unborn

children at risk of being abused in the future. He cites to In re Welfare of Frederiksen, 25

Wn. App. 726, 610 P.2d 371 (1980), for thisassertion. In Frederiksen, DSHS took a baby

immediately at birth and placed her in foster care after her parents had been determined

to be unfit and after the parents' other two children had been deemed dependents. \± at

728. The Fredericksen court made its decision based upon both chapter 26.44 RCW and

RCW 13.34.030—thedependency statute. 25 Wn. App. at 728, 731, 740-41. The court

opined that, "[tjhere is no need to wait [to deem a child a dependent] until such a mother

commits physical abuse or neglect and actually damages the child's development by

failure to meet its physical, mental and emotional requirements if danger of such a result

is clear and present." Fredericksen. 25 Wn. App. at 733. In other words, Fredericksen

held that law enforcement's right to intervene and deem a child a dependent istriggered

when children are suspected of being abused at the time of birth. By contrast, RCW

10
No. 71317-5-1/11

26.44.050 does not contemplate any law enforcement intervention until there is a report

of abuse or suspected abuse, or discovery of abuse or suspected abuse against an

existing child. Frederiksen does not stand for the proposition that the government owes

a duty to unborn, unknown future children under RCW 26.44.050.

Albertson also cites to Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 656 P.2d 483

(1983), and claims that the purpose of the statute is to protect future children—even those

not yet in existence. In Harbeson. the court considered whether plaintiffs could maintain

a wrongful birth and wrongful life action against physicians for the birth defects of their

children resulting from medical advice they received while attempting to conceive a child,

id. at 462-63. The physicians provided the medical advice prior to the conception oftheir

children, id at 463. In Harbeson, the court held that a duty may extend to children not

yet conceived at the time ofthe negligent act or omission, id at 480. But, Harbeson was

not interpreting the statute at issue here. The claims in Harbeson, and the holding, were

specifically tailored to cases considering prenatal injuries to a fetus, id at 480. We

decline to extend such a duty under this statute. That policy choice remains the

prerogative of the legislature.

T.J. and L.O. do not fall within the circumscribed class of persons contemplated by

the legislature to be protected by RCW 26.44.050. Therefore, the Pierce County owed

these children no individual duty at the time of itsinvestigation. No statutory exception to

the public duty doctrine applies in this case. The trial court did noterr when it dismissed

T.J.'s and L.O.'s claims.

11
No. 71317-5-1/12

II. Teresa Johnson's Claims Connected to T.J, and L.O.'s Abuse

Teresa brought her own claim under RCW 4.24.010 based upon "the injury

sustained to her children as a result of Pierce County's negligent investigation under

[chapter 26.44 RCW]." In order to withstand summary judgment on her individual claims,

Teresa must establish that she, herself, was owed a duty. Teresa contends that RCW

4.24.010 confers a duty owed to her, as a parent. RCW 4.24.010 authorizes a parent

who has contributed to the support of a minor child to maintain or join an action as plaintiff

for the injury of a child. For the first time on appeal, Teresa also contends that she is

owed a duty as a parent under RCW 4.24.020. RCW4.24.020 states that a parent may

maintain an action for the seduction of a child. Neither statute creates a duty to the parent,

only a derivative claim. Because T.J.'s and L.O.'s claim fails, Teresa's derivative claims

also fail.

Teresa also argues that she herselfis owed a dutyas a parent underchapter 26.44

RCW. She cites to Tvner v. Department of Social and Health Services, which holds that

a duty is owed to a child's parents under chapter 26.44 RCW when investigating

allegations of child abuse. 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). However, in the

negligent investigation at issue here, PierceCounty responded to allegations that Teresa

was abused—not T.J. and L.O. Tvner thus provides a duty to Teresa's mother,

Gwendolyn. For the duty outlined in Tvner to extend to Teresa as a parent, the efficacy

of T.J.'s and L.O.'s investigation would have to be at issue, not Teresa's.

Pierce County did not owe Teresa a duty as a parent under RCW 4.24.010, RCW

4.24.020, or RCW 26.44.050. The trial court properly dismissed Teresa's individual

claims.

12
No. 71317-5-1/13

III. Teresa Johnson's Claims Based on her Abuse

Teresa also maintains her own individual negligent investigation claim against

Pierce County for the abuses she suffered.5 The trial court found that Teresa's individual

claim was barred by the statute of limitations. Teresa argues that her individual claim

against Pierce County is preserved under the childhood sex abuse tolling statute, RCW

4.16.340.6

RCW 4.16.340(1) provides that all claims for childhood sexual abuse shall

commence within the later of the following periods: (a) within three years of the act,

(b) within three years of when the victim discovered the injury, or (c) within three years of

the time the victim discovered that the act caused the injury for which the claim is brought,

provided that the time limit for commencement of an action under this section is tolled for

a child until the child reaches the age of 18. Teresa stated that the last time she was

abused was within a few days of June 24, 1996, when she was approximately 15. As a

result, the statute of limitation expired six years later, at the latest—in 2002. Teresa's

claim was added to the opposition to Pierce County's 12(b)(6) motion to dismiss on

November 13, 2013—over a decade after the abuse ended. The trial court did not err in

finding that Teresa's individual negligent investigation claim was barred by the statute of

limitations.

5 It is unclear whether Teresa continues to make this argument on appeal. In the

interest of addressing all of Teresa's potential claims, we will address this argument.

6 Pierce County argues that Teresa's claimwould fail regardless, because there is

no evidence that she was the victim of abuse after the allegedly negligent investigation.

Teresa concedes that her abuse ended before the investigation. Nonetheless, we

address her argument under RCW 4.16.340, as that was the basis for the trial court's

determination.

13
No. 71317-5-1/14

The trial court did not err when it dismissed the claims on summary judgment.

We affirm.

WE CONCUR:

/<^^/fr^xjt

14