By Gene Barton

On December 1, the Washington Supreme Court, in a 6-3 decision,1 upheld the Court of Appeals and affirmed a reversal of a $3 million jury verdict for Honnah and Jonathan Sims, who claimed that they were the victims of a negligent child-abuse investigation in the infamous Wenatchee sex-ring case.

At the heart of the court’s ruling was its determination that, although the investigation had been conducted negligently, the Simses were not entitled to damages unless they could prove that the investigation had resulted in a “harmful placement decision” for their child.

When Honnah Sims, a Sunday-school teacher, learned in the spring of 1995 that she was being investigated, the Simses sent their son to live with his grandmother in Kansas, fearing that he would be taken away from them and placed into foster care. The boy stayed in Kansas for seven months, through his mother’s trial, in which she was acquitted. Jonathan Sims was never charged.

That decision may have kept the Sims family “together,” but it ultimately cost them the jury award. Their lawsuit was the first such negligent investigation action recognized in the state,2 but the Supreme Court’s decision ultimately fine-tuned the plaintiff’s burden in such a case. The court ruled that for a plaintiff to prevail, a child must be placed by the government in harmful circumstances. Because the Simses voluntarily sent their son out of state, the court ruled, they failed to meet the standard.

The court’s decision was grounded in a 2003 ruling involving the Depart-ment of Social and Health Services.3 According to the Roberson court, that case “clarified the scope of potential claims for negligent investigation under chapter 26.44 RCW, recognizing claims ‘only when DSHS conducts a biased or faulty investigation that leads to a harmful placement decision.’”4

The Supreme Court had decided M.W. between the trial in Spokane County Superior Court and oral argument before the Court of Appeals in Roberson. There, Douglas County argued for the first time that the cause of action under RCW ch. 26.44 did not extend to the Simses “because (1) Ms. Sims was not investigated by the County for abusing her son . . . and (2) the Simses avoided any possible ‘harmful placement decision’ by sending” him to Kansas.

The Court of Appeals (Division Three) agreed and, in so doing, declined to follow Division One’s earlier decision as the law of the case. Citing M.W., the Court of Appeals “determined that the Simses could not maintain a cause of action because ‘their child was not the subject of a negligent criminal investigation that led to a harmful placement decision.’”5

After dispensing with procedural -- and potentially dispositive -- issues raised by the Simses,6 the Supreme Court’s decision was fairly brief, based on its prior rulings in Tyner and M.W. Tyner had been accused of abusing his own children and was separated from them for several months during the course of a Child Protective Services investigation. In concluding that RCW ch. 26.44 provides a cause of action for both parents and their children, the Supreme Court in Tyner noted that the statute has two purposes: “to protect children and to preserve the integrity of the family.”7

The plaintiff in M.W. was a child who allegedly had suffered post-traumatic stress disorder after undergoing a vaginal examination by untrained DSHS workers investigating child-abuse allegations. Rejecting claims that the cause of action “encompassed all physical or emotional injuries suffered by the child as a result of a negligent investigation,” the court held that “negligent investigation claims were cognizable ‘only when DSHS conducts a biased or faulty investigation that leads to a harmful placement decision, such as placing the child in an abusive home, removing the child from a nonabusive home, or failing to remove a child from an abusive home.’”8

Applying these principles to the Simses’ case, the court noted:

Our interpretation of the statute in M.W. unequivocally requires that the negligent investigation to be actionable must lead to a “harmful placement decision.”

The court rejected the Simses’ contention that their decision to send their son to live with his grandmother was a “preemptive move” that amounted to “constructive removal” and, thus, supported a cause of action under RCW ch. 26.44. It stated:

Extending the cause of action for negligent investigation to include so-called “constructive placement” decisions would be problematic and is beyond the statute. First, any “harm” resulting from the investigation would be purely speculative in nature. It cannot be readily determined what placement action, if any, DSHS or law enforcement might have taken, after investigation.

The second reason supplied by the court was that claimants “could largely control the extent of their damages” through their own actions. Damages, the court noted, would largely be based on “disruption to the family unit” and usually measured by “the length of such a disruption.” This was significant in the Simses’ case because they “determined the length of time that (their son) was absent from the home.” The court also noted that, particularly in the Simses’ case, “disruption to the family unit could be minimized,” indicating that the Simses’ son could have stayed with his father while his mother was in jail.

Finally, the court found that “extending the cause of action for negligent investigation to include constructive placement decisions could encourage individuals to frustrate investigations.” The court noted that Ms. Sims had testified that she decided to send her son away, in part, to prevent further investigation.

Ultimately, the court held: We conclude as a matter of law that the County’s investigation did not result in a harmful placement decision . . . . The Simses’ testimony conclusively established that (their son) was sent from their home, and from the state, through their voluntary acts. Accordingly, no amount of evidence can be produced sufficient to meet the legal standard of a harmful placement decision. . . . . The record demonstrates that the County’s negligence did not result in a “harmful placement decision.” We decline Petitioners’ request to enlarge the negligent investigation cause of action under chapter 26.44 RCW to include speculative harms argued as “constructive placement.” n

1 Roberson v. Perez, No. 75486-1. Justices James Johnson, Madsen, Bridge, Charles Johnson, Owens and Fairhurst comprised the majority. Justices Sanders, Alexander and Chambers dissented.

2 As the Supreme Court noted, an earlier Court of Appeals decision “reversed the [trial court’s] dismissal of the negligent investigation claim, recognizing investigation of child-abuse allegations by law enforcement as a basis for tort liability for the first time in the state of Washington.” See Rodriguez v. Perez, 99 Wn. App. 439, 451-52, 994 P.2d 874 (Div. One), rev. denied, 141 Wn.2d 1020 (2000). Four months later, the Supreme Court expressly recognized a similar cause of action against the Department of Social and Health Services under RCW ch. 26.44. See Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 1 P.3d 1148 (2000).

3 M.W. v. Dep’t of Soc. & Health Servs., 149 Wn.2d 589, 70 P.3d 954 (2003).

4 Quoting id. at 591.

5 Quoting Roberson v. Perez, 119 Wn. App. 928, 934, 83 P.3d 1026 (2004).

6 The Simses asserted that Court of Appeals should not have reviewed the scope and availability of their cause of action for negligent investigation because the County’s argument, which was not made until oral argument, was not raised in the trial court and because the law of the case doctrine prevented relitigation of the issue.

7 See 141 Wn.2d at 80.