The law in Washington and Oregon immunizes the person who reports child abuse from liability, if the report is made in good faith. On the other hand, Washington does allow, in very narrow circumstances, suits against the police and the Department of Social and Health Services (DSHS) for negligence in investigating child abuse reports. A recent case (McCarthy v. County of Clark, No. 46347-4-II (Wash. App., Apr. 12, 2016), https://www.courts.wa.gov/opinions/pdf/46347-4.16.pdf) has narrowed the circumstances to an even narrower range than might have been thought.
This case involves the breakdown of a marriage. The mother called 911 to report that the father had struck one of their children on the head. The sheriff’s office sent a deputy to investigate. He did not interview the mother. He did not interview the child or inspect the child for injury. He did interview the grandmother, who repeated the mother’s allegations. The deputy then interviewed the father, who told him that the mother was taking medication for mental illness and was high on painkillers at the time of the 911 call. Although shown the mother’s medications, the deputy did not investigate further. Instead, he arrested the father, and failed to report the father’s statement. The district court issued a no-contact order against the father, barring him from contacting the mother or the children. A Vancouver city prosecutor charged him with fourth degree assault with a domestic violence specification.
The grandmother then took the child to the emergency room and repeated the abuse allegations. The doctor contacted DSHS. DSHS assigned an investigator, who met with the mother and arranged for a safety plan involving no contact between the father and the children. She did not contact the father because she had been told he was out of the country and because she thought it would interfere with the criminal investigation. In addition, although she claimed to have spoken to the children, one child denied it, and the other child’s day care record showed he was not at home at the time of the visit.
The mother then independently obtained a protective order against the father, and filed a divorce petition. The parents agreed to an interim order restraining each of the parents from contacting the other and allowing the father limited contact with the child not involved in the alleged abuse. The order contained a warning that violation was a criminal offense.
The mother, allegedly at the instigation of the city prosecutor, alleged three violations of the no-contact order. The prosecutor added three counts of violations of the order to the charges.
At this point, the city prosecutor and the father’s defense attorney interviewed the child not alleged to have been abused. He denied that the father had struck the other child. This information does not appear to have been reported to DSHS.
Next, the mother claimed that the father had given her a letter with detailed requests to delete e-mails and deny the charges. The city prosecutor forwarded the case to the county prosecuting attorney, who charged the father with witness tampering and fourth degree assault. The city’s charges were then dismissed. The court extended the no-contact order to cover a 500 foot radius of the allegedly abused child’s home or school. The divorce court also issued a restraining order prohibiting all contact between the father and the child not alleged to have been struck.
Although there had been no investigation by DSHS after the first interviews, ten months after the first report, DSHS finally issued a report that the allegation was founded. A DSHS administrator upheld the finding.
The father plea-bargained to one charge of disorderly conduct, served 15 days in jail, and had the domestic violence no-contact order continuing for two years.
Shortly thereafter, the father notified DSHS of the denial of the alleged abuse by the child not allegedly struck, evidence that the mother was coaching the allegedly abused child, and other evidence calling into question the mother’s credibility. DSHS then changed their finding to “inconclusive.” Based on this, the no-contact order was lifted and replaced with an order affecting only contact between the parents.
Eventually, the divorce was settled, and in the stipulated findings of fact, the mother acknowledged that the abuse allegations were false. The father was granted custody in the agreed parenting plan.
The father and children then sued the county, city, and DSHS on several theories, most notably including negligent investigation. Negligent investigation is recognized in Washington as a result of a law requiring the police and DSHS to investigate child abuse allegations, but it requires not only that the investigation be negligent, but that the negligence result in an improper placement, retention, or removal of children from a home.
The trial court ruled that none of the defendants could, as a matter of law, be held liable. The Court of Appeals reviewed the matter on several grounds. First, it agreed with the father and children that there was a legitimate question whether the city, county, and DSHS had been negligent in their investigation. On the other hand, it ruled that a no-contact order from a criminal case could not be used to meet the removal requirement. Instead, it required DSHS to affirmatively act to have a child removed from the home to qualify. I am not certain that, if the question was presented to the Washington Supreme Court, shat the Supreme Court would agree, but I am not certain that it would not agree. There may be a request for further review.
The Court of Appeals also ruled there was no evidence any court was made aware of DSHS’s investigation, and therefore the inability of the father to use a completed report to terminate no-contact orders could not be held against DSHS.
The city was ruled immune from prosecution because the prosecutor was acting within her prosecutorial role at all times. Although there was evidence the prosecutor pressured the mother not to withdraw the allegations, all of those actions were made when speaking to the mother as a witness and therefore within the scope of the prosecution.
Unfortunately, if you have suspicions that an investigation of child abuse has been mishandled. And DSHS took action to separate the family, then there may be a claim against the investigating agency. On the other hand, if there is a no-contact order in a criminal matter without DSHS’s involvement, at least in southwestern Washington, the courts will not allow you to bring a claim. You may want to talk to a lawyer for more information.