IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DANALBERTSON, 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 No. 71317-5-1 DIVISION ONE UNPUBLISHED OPINION ro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 himthrough the foster care system. Eleven years earlier, 

### DSHS and Pierce County were informedthatFinch had reportedly molested his daughter, Teresa Johnson, T.J. and L.O.'s mother. Despite the earlierallegation ofabuse, 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 ofTeresa'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 summaryjudgmentbecause 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 oraboutJuly 17,1996, the investigation was assigned to Detective LorenPage ofPierce County. On September 13, 1996, Detective Page began investigating. There
was no phone numberlisted forthe 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 girltook opposite 

### positions aboutwhetherthe abuse happened. But, at leastone 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. BySeptember23, there was no response and Detective Page sent a letterto Gwendolyn.

1 CPS is the Child Protective Services Section ofthe 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. 3The 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 ofthe 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 thefostercare system. After a numberof 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. Forthree years, Finch raped and molested the girls until he was finally arrested, convicted, and sentenced. 

### OnJuly 25, 2013, DanAlbertson as limited guardianforT.J. and L.O. sued Pierce 

### County alleging negligent investigation ofthe original allegations againstFinch in 1996, pursuantto chapter26.44 RCW. OnAugust 14, 2013, Teresa was added as anadditional plaintiff, pursuant to RCW4.24.010, based on her children's abuse. 

### On September 24, 2013, Albertson filed a motion forpartial 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 noduty and that PierceCounty's investigationwas notthelegal orfactual cause ofT.J.'s and L.O.'s harm. 

### Plaintiffs responded bysubmitting 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 December2, 2013, thetrialcourtissued 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 bythe 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 judgmentdismissal was improper. Teresa contends that 

### herindividual claims againstPierce County should survive evenifPierce 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 motionfor summary judgment afteritpresented Teresa's and Sue Peters' declarations. While it is somewhat unclear from the record, itdoes appear that the trial 

### court treated Pierce County's motion as a motion for summaryjudgment. 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 judgmentin its summary 

### findings andconclusions. Itfurther concluded that"there is nogenuine issue ofmaterial fact thatwould dictate a contraryresult." CR56(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 

### outsidethepleadings are presentedto, and notexcluded by, thesuperiorcourt. 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 thetrial court'sgranting of thatmotion and appellants' challengeaccordingly.No. 71317-5-1/5
We review a grant or denial of summaryjudgment 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). Summaryjudgment 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). Adefendant in a civilaction is entitled to summaryjudgmentwhen 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 ofcare is owed by the defendant to the plaintiff. Taylor v. Stevens County. 111 Wn.2d 159, 163, 759 P.2d 447 (1988). Ifthe 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 ofcare owed only to the 

### plaintiff, not to the public at large. Yonker v. Dept. ofSoc. & 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 plaintiffcan show that a duty
was owed to the plaintiffindividually, as opposed to the public ingeneral. Id I. Albertson's Claims on BehalfofT.J, and L.O. 

### Albertson argues thatPierce County owed a duty to T.J. and L.O.,becausechapter 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 RCW26.44.050 evidences no clear intent to encompass 

### children inT.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 ofthe persons designed to be protected. Rodriguez v. Perez. 99 Wn. App. 439, 444, 994 P.2d 874 (2000). 

### Statutory interpretation is a question of lawthatwe 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 CriminalJustice 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 forbreach 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 bringactions 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 holdthat the duty under RCW 26.44.050 is owed not only to 

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

### also to anychild whomightbecome atriskofabusefrom the alleged abuser inthefuture. 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 inexistence. 

### 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 ofpurpose: 

### [l]n the instance where a child is deprived of his or her rightto conditions of minimal nurture, health, and safety, the state is justified in emergency 

### intervention based upon verifiedinformation; and therefore the Washington 

### state legislature hereby provides for the reporting of such cases to theNo. 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 ofpurpose 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 itprotects 

### children who have already suffered abuse. ]d Second, itacknowledges that authorities
were made aware ofthe abuse, id. Third, itdictates that such children are to receive 

### protective services. \_± Implicit in the language ofRCW 26.44.010 is the fact that the child was in existence atthe time the abuse was discovered and thus their "further" abuse
can be prevented. 

### Albertson contends that interpreting RCW 26.44.010 to apply to onlythe 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 ofabuse made only about thefirst child. Thecase law is clear, thatchildrenwho
are suspected of being abused also fall within the protected class under chapter 26.44 

### RCW and maybring an action for negligentinvestigation under the statute. See Perez,

8No. 71317-5-1/9 99 Wn. App. at 445. A report ofabuse 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 itdiscovered that the victim was likelybeing molested while itwas 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 asto duty owed to children forwhom no complaint was made norinformation 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 ofabuse or 

### neglect that occurred during childhood ifit is discovered after the childhasNo. 71317-5-1/10 become an adult. However, ifthere 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 onlythe duty to report, notthe 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 ofthe 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 RCW26.44.050 is also intended to protect unborn 

### children atrisk ofbeing abused in thefuture. He cites to In reWelfare ofFrederiksen, 25 

### Wn. App. 726, 610P.2d371 (1980), forthisassertion. In Frederiksen, DSHS tooka baby immediately atbirth and placed herinfoster care after her parents had beendetermined to be unfitand after the parents' other twochildren had been deemed dependents. \± at 728. The Fredericksen court made itsdecision based upon both chapter26.44 RCW and 

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

### opined that, "[tjhere isno need towait [to deem achild adependent] until such a mother commits physical abuse or neglect and actually damages the child's development by failure to meet itsphysical, mental and emotional requirements ifdanger of such a result is clear and present." Fredericksen. 25 Wn. App. at 733. In otherwords, Fredericksen held thatlaw enforcement's rightto intervene and deem a child a dependent istriggered when children are suspected of being abused at the time ofbirth. By contrast, RCW

10No. 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 claimsthatthe purpose ofthe statute is to protectfuture children—even those 

### not yet inexistence. In Harbeson. the courtconsidered 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 receivedwhile attempting to conceive a child, 

### id. at462-63. Thephysicians providedthemedical advicepriorto theconception oftheir children, id at 463. In Harbeson, the court held that a duty may extend to children not 

### yetconceived at thetime ofthenegligentact oromission, id at480. But, Harbesonwas notinterpreting the statute at issue here. Theclaims 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 ofthe legislature. T.J. and L.O. do not fall withinthe circumscribed class ofpersons contemplated by 

### the legislature to be protected by RCW 26.44.050. Therefore, the Pierce County owed these children noindividual duty at the time of itsinvestigation. No statutory exception to 

### thepublic duty doctrine applies inthis case. Thetrial courtdid noterrwhen itdismissed
T.J.'s and L.O.'s claims.

11No. 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 

### [chapter26.44 RCW]." Inorderto withstand summaryjudgmenton 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 supportof 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 RCW4.24.020. RCW4.24.020 states that a parent may maintain an actionfor the seduction of a child. Neitherstatute creates a dutyto 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 herselfisowed 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 ofchild abuse. 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). However, in the negligentinvestigation at issue here, PierceCountyresponded toallegations that Teresa
was abused—not T.J. and L.O. Tvner thus provides a duty to Teresa's mother, 

### Gwendolyn. Fortheduty outlined in Tvnertoextend to Teresa as a parent, theefficacy of T.J.'s and L.O.'sinvestigation would have to be at issue, notTeresa's. 

### Pierce Countydid not oweTeresa a duty as a parent underRCW4.24.010, RCW 4.24.020, or RCW 26.44.050. The trial court properly dismissed Teresa's individual
claims.

12No. 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 thatTeresa'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) withinthree years ofwhen the victimdiscovered the injury, or (c) withinthree years of thetime the victimdiscovered thatthe actcaused the injury for which the claim is brought, 

### provided thatthe time limitforcommencement of an action underthis 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 ofJune 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 afterthe abuse ended. The trial court did not err in 

### finding thatTeresa's individual negligentinvestigation claim was barred by the statute of
limitations.

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

### interest ofaddressing all ofTeresa's potential claims, we will address this argument. 

### 6Pierce Countyargues thatTeresa's claimwould fail regardless, becausethere 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 RCW4.16.340, as that was the basis for the trial court's determination.
13No. 71317-5-1/14
The trial court did not err when itdismissed the claims on summaryjudgment.
We affirm.

WE CONCUR: 

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