Dependency Rulings and Family Court Decisions As An Affirmative Defense to CPS Liability

 In Affirmative Defense, Sexual Abuse

Over a decade ago, the Washington Supreme Court declared that RCW 26.44.050 creates an actionable duty that flows from DSHS to both children and parents who are harmed by DSHS negligence that results in wrongfully placing a child into an abusive home or allowing a child to remain in an abusive home.

As a children’s rights advocates and sexual abuse attorneys, lawsuits against the State of Washington for Child Protective Services’ failure to properly investigate child abuse or neglect are common in our practice.  These cases bring about an assortment of unique and challenging affirmative defenses.  One such defense has to do with dependency court orders and/or family court custody orders, which, it is argued, operate as a superseding intervening cause that cuts off Child Protective Services’ liability related to its alleged failure to remove a child from an abusive home.

The lead case on this issue, Tyner v. Dept. of Social and Health Services, 141 Wn.2d 68, 77–82 (1999), tells us that the plaintiff must show that CPS’s negligence deprived the dependency court or family court of a material piece of information that a reasonable jury could conclude would have influenced the court’s decision-making with regards to placement or removal of the child.  If the plaintiff cannot show that CPS’s negligence deprived the court of such material evidence, then the court is likely to grant the state’s motion for summary judgment on this defense.  I’ll go into more detail of the Tyner case in my next post.

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