Child Welfare Workers Liable for Negligence/SUPREME COURT WA

[Dazeemay]

Tyner v. Department of Social and Health Services, No. 67602-0, (Slip Op., June 15, 2000).

June 2000 TYNER v. DSHS 1
Cause No. 67602-0

[No. 67602-0. En Banc.]
Argued September 16, 1999. Decided June 15, 2000.
L. DAVID TYNER, III, ) No. 67602-0
)
Petitioner, )
)
v. ) EN BANC
)
THE STATE OF WASHINGTON )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, CHILD )
PROTECTIVE SERVICES, a state )
government and its division and )
agency, )
)
Respondent, )
)
INDRA DRAKE and JOHN DOE )
DRAKE, husband and wife and the )
marital community composed thereof; )
DENNIS SMITH and JANE DOE )
SMITH, husband and wife and the )
marital community composed thereof; )
and SUSAN HYDE and JOHN DOE )
HYDE, husband and wife and the )
marital community composed thereof, )
)
Defendants. )
_____________________ ) Filed: June 15, 2000

TALMADGE, J., and GUY, C.J., and SMITH, J., dissent by separate
opinion.

Trial Court: Superior Court, King County, No. 95-2-04575-8,
Robert S. Lasnik, J.
Poole & Associates PC, Jeffrey G. Poole, for petitioner.
Richard L. Martens P.S., by Richard L. Martens, for defendants.
Attorney General's Office by Michael E. Tardif and Rene D. Tomisser,
for respondent.
Bryan P. Harnetiaux; Debra L. Stephens, amicus curiae on behalf of
Washington State Trial Lawyers Association.

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MADSEN, J. -- This case arises from a Child Protective Services
(CPS) investigation into allegations of parental child abuse leveled
against Petitioner David Tyner, the father of two minor children.
Tyner filed suit against the Department of Social and Health Services
(DSHS and State) claiming that a negligent CPS investigation resulted
in his four and one-half month separation from his children. The jury
awarded Tyner $201,500 in damages. The Court of Appeals overturned the
jury verdict, holding that while the State owed a duty to Tyner and was
not shielded by immunity, the court's no-contact orders throughout the
case cut off any legal causation between the State's negligence and
Tyner's separation from his children. We agree with the Court of
Appeals' conclusions as to duty and immunity; however, because we find
error in the court's analysis of legal causation, we reverse.

FACTS
On January 11, 1993, Debra Tyner, then wife of Petitioner David
Tyner, arrived home with the couple's two minor children: T., their
four-year-old son, and W., their six-year-old daughter. As Mrs. Tyner
pulled into the driveway, she noticed Mr. Tyner's car and commented,
"Oh, good, Dad's home already." Def's. Ex. 33. At this point her son
allegedly stated "Goody, goody" but then paused and said, "[b]ut
sometimes he's mean to me." id. Upon further inquiry, T.
complained that sometimes his dad "pulls [his] penis too hard,"
Id., and poked him in the

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bottom with his finger. Verbatim Report of Procedings (RP) (Oct. 16
& 17, 1996) at 71-72.
Mrs. Tyner did not immediately relate this conversation to Mr.
Tyner. It was not until later that evening, when Mr. Tyner received an
unexpected telephone call from his brother that he became aware of what
had transpired. Mrs. Tyner had called Mr. Tyner's mother to ask if
there had been any sexual abuse perpetrated against Mr. Tyner during
his childhood and his brother had learned of the call and notified Mr.
Tyner. After Mr. Tyner received the call from his brother, he
confronted his wife and they agreed to call the children upstairs and
ask them about the alleged abuse. According to Mr. Tyner, he asked the
children "very quietly" if "daddy has ever touched your private parts."
RP (Oct. 10, 1996) at 7-8. Both children said "no." Id.
Later that evening, Mr. and Mrs. Tyner visited their former marriage
counselor. The next morning, January 12, 1993, with the counselor's
support, Mrs. Tyner reported her concerns to the Harborview Sexual
Assault Center (SAC). The case was referred to CPS and caseworker
Bill Mix was given the assignment.
That same day Mix interviewed the children at school. Both
children denied their father had sexually abused them, told Mix it was
not something their mother should discuss, and placed their hands over
their ears in protest to the questioning. Mix did not know what to
make of the denial, but believed that the children were overly "scared"
to talk. RP (Oct. 14, 1996) at 62. He came to the conclusion that at
least some of the statements allegedly made to Mrs. Tyner by

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the children had occurred. Mr. Tyner was telephonically interviewed
by Mix the same day and denied any allegations of wrongdoing.
The following day, January 13, 1993, Mrs. Tyner took the children
to their family pediatrician, Dr. Hyde, for a physical examination. No
physical signs of abuse were discovered, but the results did not rule
out abuse either. During the examination, W. did confirm that her
brother had made comments to her mother regarding his father "pulling
on his penis too hard." RP (Oct. 16 & 17, 1996) at 71. Dr. Hyde then
made a recommendation that "because the situation was not clear and
there was strong evidence from statements that had been made that there
could have been molestation . . . the children [should] be with their
father only under supervision." RP (Oct. 16 & 17, 1996) at 76.
On January 14, 1993, Mr. Tyner submitted to a polygraph
examination. "He was asked whether he sexually touched his children
and physiological responses indicated he was not attempting deception
in his denial." Clerk's Papers (CP) at 312.
Within the next two days Mrs. Tyner hired an attorney and prepared
a petition for protection. On January 15, 1993, Mix was asked by Mrs.
Tyner's lawyer to write a declaration in support of the petition and
Mix agreed. Mix submitted a declaration dated January 15, 1993, which
stated:
The mother reports suspicious symptoms we see in sex abuse cases.
Both children have a wetting problem night and day. Tyson sticks
his finger in his rectum periodically. The mother said the
children have told her that the father puts lotion all over their
bodys [sic] and Whitney told her it stung her

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Cause No. 67602-0

vagina. The children report that they have secret words
and secret games they play with their father.
Pending the completion of my investigation and the police
investigation my recommendation to the Court would be:
* That the mother reside in the family dwelling and the father move
to another residence.
* That the children have no contact with their father of any kind
until recommended by the childrens [sic] therapist. The children
and the mother have an appointment to be seen at the sexual
assault center.
* The Department will file a dependency petition.

Ex. 2.
The King County Superior Court granted an ex parte temporary order
of protection on the same day. The order prohibited all contact
between Mr. Tyner and his children.
Throughout the initial investigation, Mr. Tyner repeatedly
requested, to the point of furnishing phone numbers, that Mix interview
collateral witnesses that would testify they knew of no abuse by Mr.
Tyner. Among those suggested were Tyner's former wife who lived
locally, his four grown children from his prior marriage, the
children's daycare provider, neighbors, a local registered nurse who
drove the children to school on a regular basis, and the children's
teachers. Neither Mix nor his successor, Toni Sebastian, contacted any
of these collateral sources.
On January 26, 1993, Mix filed a dependency petition with the court.
Mix testified that the filing of this petition was in part related to
the fact that Tyner, acting on the advice of counsel, refused to
cooperate in having the children evaluated by SAC. Three days later
the court held a shelter care hearing, during

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which Tyner was represented by counsel. After the hearing, in an order
dated January 29, 1993, the court: (1) placed the children in the care
of their mother; (2) prohibited all contact between Mr. Tyner and his
children; (3) ordered a sexual deviancy examination of Mr. Tyner; and
(4) ordered a sexual assault evaluation of the children.
Mix completed his investigation of the Tyner case on February 2,
1993, and transferred the case to Toni Sebastian, another CPS
caseworker. In Mix's final report he checked off on a preprinted form
that the allegations against Tyner were "unfounded," as opposed to the
other two options, "founded" and "inconclusive." The CPS manual
defines "unfounded" as situations in which
there is reasonable cause for the social worker to believe that
the allegations on the CPS referral are untrue and that sufficient
evidence exists to reasonably conclude that the child has not been
abused or neglected.
Ex. 1, at 37; RP (Oct. 14, 1996) at 54.

Neither this report, nor its contents were provided to Mr. Tyner,
Mrs. Tyner, their respective attorneys, or the court. On February 10,
1993, Mrs. Tyner filed a petition for dissolution of marriage.
On March 2, 1993, the court held another shelter care hearing. Mr.
Tyner was present and represented by counsel. The court continued the
placement of the children with Mrs. Tyner, but agreed to visitation
when recommended by the father's therapist, the children's therapist,
and the State. The court also set a dependency fact-finding hearing
for May 3, 1993.

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Mr. Tyner's sexual deviancy evaluation was completed one month later.
Mr. Compte, the evaluator, reported that there was no reason to suspect
Tyner of sexual abuse, to recommend against visitation, or to require
supervised visitation.
On April 23, 1993, Harborview completed its evaluation of the
children. The evaluator could not say with certainty whether Mr. Tyner
had sexually abused his children, but was concerned about the family's
poorly defined sexual boundaries and its history of conflicts
surrounding sexuality. She recommended the children not be questioned
further about the alleged abuse, that contact with Tyner continue to be
supervised, and that further therapy focus on family conflicts rather
than sexual abuse.
The court then continued the scheduled May 3, 1993 dependency fact-
finding hearing until June 28, 1993. This was because the children's
evaluator would be out of town and the parents had not completed all of
their psychological evaluations. Meanwhile, Mr. Tyner began weekly one-
hour supervised visits with the children starting on May 6, 1993.
Also, Mr. and Mrs. Tyner agreed to allow Inda Drake to provide therapy
for the children and determine whether visitation by Mr. Tyner should
be restricted or liberalized. Toni Sebastian, the CPS caseworker who
had taken over for Mix in February of 1993, referred Drake.
On June 28, 1993, the court dismissed the dependency petition on the
State's motion, finding that both Mr. and Mrs. Tyner had cooperated
with court-ordered services and had agreed to a future course of
conduct, and that dismissal was in the best interests of the children.
Mr. Tyner moved to have the dismissal

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contain language to the effect that the State had been unable to
substantiate its case. The motion was denied. This was the final
involvement of the State.
The Tyners' divorce became final in October of 1993. After further
litigation regarding a parenting plan, the court granted joint custody
to the Tyners and lifted all restrictions on Mr. Tyner's contact with
his children.
In February of 1995, Mr. Tyner filed suit against the State and other
actors /1 involved in his separation from his children. By the time
of trial, the action was reduced to a claim against the State for
negligent investigation. The jury found for Mr. Tyner and awarded him
$201,500 in damages.
The Court of Appeals overturned the jury verdict, holding that while
the State owed a duty to Mr. Tyner and was not shielded by immunity,
the court's no-contact orders throughout the case cut off any legal
causation between the State's negligence and Mr. Tyner's separation
from his children. Tyner v. Department of Soc. & Health
Servs., 92 Wn. App. 504, 963 P.2d 215 (1998). Mr. Tyner
petitioned for this court's review, and review was granted. The
Washington State Trial Lawyers Association (WSTLA) appears in this case
as amicus curiae.

DISCUSSION
The first issue presented by this case is whether the State,
acting through its CPS caseworkers, owes a duty of care in conducting
an investigation of parental

_______________
1 Tyner originally filed suit against: Susan Hyde, the Tyner
family physician; Dennis Brown, the family counselor; Inda Drake, the
court appointed therapist for the Tyner children; and the State. Dr.
Hyde and Mr. Brown were dismissed before trial on the grounds of
witness immunity. Ms. Drake was dismissed on grounds of judicial
immunity.

June 2000 TYNER v. DSHS 9
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child abuse to the parent suspected of such abuse. The State has argued
throughout this case, both at trial and on appeal, that it owes no duty
to a parent while investigating allegations of child abuse. /2 Mr.
Tyner, however, contends that an implied statutory cause of action in
favor of a parent, even one suspected of child abuse, should be derived
from RCW 26.44.050. /3
It is clear that the State has a statutorily mandated duty to
investigate child abuse allegations brought to its attention. RCW
26.44.050 provides:
Upon the receipt of a report concerning the possible
occurrence of abuse or neglect, it shall be the duty of the law
enforcement agency or the department of social and health services
to investigate and provide the protective services section with a
report in accordance with the provision of chapter 74.13 RCW, and
where necessary to refer such report to the court.

The State does not contest that RCW 26.44.050 creates a duty to a
child victim when investigating allegations of child abuse. Rather,
the State argues that for purposes of tort law its duty does not flow
to the child's parents, particularly when the parents are suspected of
the abuse.
"`It has long been recognized that a legislative enactment may be
the foundation of a right of action.'" Bennett v. Hardy,
113 Wn.2d 912, 919, 784 P.2d 1258 (1990) (quoting McNeal v. Allen,
95 Wn.2d 265, 274, 621 P.2d 1285 (1980)

_______________
2 The State has not argued that a hierarchy of duties exists
under Washington's statutory scheme, whereby the State would owe a duty
to a parent unless this would conflict with the State's duty to the
child. The State did propose a jury instruction reciting the
overriding goal of child protection laws, stating that these "laws are
designed to protect the safety and welfare of children who have been or
may be victims of child abuse." Clerk's Papers (CP) at 111. This
instruction, which was refused, would not have assisted the jury in
assessing the potentially conflicting duties between a parent and
child. Moreover, the trial court's delivered instruction seems to
convey the same message as the State's proposed instruction, stating
that "[a] Washington State statute provides that the Department of
Social and Health Services and Child Protective Services shall protect
children from abuse . . . ." CP at 141. The State does not raise
instructional error in its petition to this court.

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(Brachtenbach, J., dissenting)). In Bennett, we outlined when a
cause of action will be implied from a statute. The following questions
must be asked:
[F]irst, whether the plaintiff is within the class for whose
"especial" benefit the statute was enacted; second, whether
legislative intent, explicitly or implicitly supports creating or
denying a remedy; and third, whether implying a remedy is
consistent with the underlying purpose of the legislation.[ /4]

Bennett, 113 Wn.2d at 920-21.
As to the first prong of the Bennett test, the parties
disagree as to whether a parent falls within the class for whose
"especial" benefit the statute was enacted. The State contends that
the statute is solely for the benefit of children, whereas Tyner and
WSTLA assert that the statute contemplates a benefit to the family unit
as a whole.
In a case utilizing a test similar to Bennett`s, this
court announced that "[w]e look to the language of the statute to
ascertain whether the plaintiff is a member of the protected class."
Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 475, 951
P.2d 749 (1998). RCW 26.44.050 is nonspecific, in that it fails to do
more than announce a general duty of investigation on the part of the
State.

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3 Three chapters of the Revised Code of Washington set forth
the statutory scheme for State intervention as parens patriae
when child abuse allegations have been reported: chapter 26.44 (abuse
of dependent persons); chapter 13.34 (juvenile courts); and chapter
74.13 (child welfare services).

4 The Bennett test was borrowed from the federal
courts and is similar to 874A of the Restatement (Second) of Torts,
which reads:
When a legislative provision protects a class of persons by
proscribing or requiring certain conduct but does not provide a
civil remedy for the violation, the court may, if it determines
that the remedy is appropriate in furtherance of the purpose of
the legislation and needed to assure the effectiveness of the
provision, accord to an injured member of the class a right of
action, using a suitable existing tort action or a new cause of
action analogous to an existing tort action.
Restatement (Second) of Torts 874A (1979).

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But RCW 26.44.010, the declaration of purpose section, makes it
clear that a parent's interests were contemplated by the Legislature.
That provision reads:
The Washington state legislature finds and declares: The
bond between a child and his or her parent, custodian, or guardian
is of paramount importance, and any intervention into the life of
a child is also an intervention into the life of the parent,
custodian, or guardian . . . .

RCW 26.44.010.
RCW 13.34.020, a counterpart to Title 26, further evinces the
Legislature's strong views regarding the importance of the family,
stating that "the family unit is a fundamental resource of American
life which should be nurtured." RCW 13.34.020. This same provision
also recognizes that "[w]hen the rights of basic nurture, physical and
mental health, and safety of the child and the legal rights of the
parents are in conflict, the rights and safety of the child should
prevail." RCW 13.34.020.
These statutory provisions are not facially inconsistent. They
merely dictate a necessary hierarchy of interests. Those of the
children prevail in cases of conflict. However, the Legislature has
recognized the importance of the family unit and the inextricable link
between a parent and child. During its investigation the State has the
duty to act reasonably in relation to all members of the family. The
procedural safeguards of RCW 26.44.050 protect both children and family
members; children are protected from potential abuse and needless
separation from their families and family members are protected from
unwarranted separation from their children.

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Although not squarely addressed, in Babcock v. Department of Soc.
& Health Servs., 116 Wn.2d 596, 809 P.2d 143 (1991) this court
implicitly approved a negligent investigation claim by a parent in a
similar context. In Babcock, several children were raped by
their foster parent. Id. at 598. The children's paternal
grandparents, father, and the children themselves filed a negligent
placement suit against the State, alleging that DSHS failed to
adequately investigate the backgrounds of the prospective foster
parents. Id. at 604. The specific holding of
Babcock dealt with immunity, but the case recognized that the
gravamen of the plaintiff's claim was "negligent investigation."
Id. at 610. This Court held that the State did not enjoy
immunity for the negligent investigation of its caseworkers and allowed
the lawsuit to proceed, including the claims brought by the paternal
grandparents and father of the foster children. Id. at 622.
The State, however, cites State v. Warner, 125 Wn.2d 876,
889 P.2d 479 (1995) for the contrary proposition. In Warner,
this court held that a criminal defendant may not claim negligent
prosecutorial delay stemming from the failure to promptly report
suspected child abuse, as required by RCW 26.44.030, because the
reporting requirement was intended to benefit victims of child abuse,
not abusers. Warner, 125 Wn.2d at 891. The State's reliance
on Warner is misplaced. First, Warner dealt with a
different statutory provision, the duty to report child abuse, not the
duty to investigate allegations once they have been reported.
Id. Second, Warner did not involve a claim by a
parent or family member. Id. at 881. The interests of a
parent are significantly greater than those of a third party in this

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context. As one court noted, "[c]harges of child abuse leveled against
a parent and ineptly handled strike at the core of a parent's basic
emotional security, providing ample justification for the imposition of
liability." Gray v. State, 624 A.2d 479, 485 (Me. 1993). We
find the first prong of the Bennett test is met.
The second prong of the test asks this court to determine if
legislative intent, explicitly or implicitly, supports creation of a
remedy. In this case, the statute itself is silent as to this point,
but this court "can assume that the legislature is aware of the
doctrine of implied statutory causes of action . . . ." Bennett,
113 Wn.2d at 919 (quoting McNeal, 95 Wn.2d at 274). The
State does not dispute that the governing statutes imply
a cause of action, but argues against extending the duty only to
parents and others persons suspected of abuse. RCW 26.44.050 places
an affirmative duty of investigation on the State. At the same time,
the Legislature has emphasized that the interests of a child and
parent are closely linked. RCW 26.44.010. Thus, by recognizing the
deep importance of the parent/child relationship, the Legislature
intends a remedy for both the parent and the child if that interest
is invaded.
An implied tort remedy in favor of a parent is also consistent
with the underlying purposes of RCW 26.44.050, thereby satisfying the
third prong of the Bennett test. RCW 26.44.050 has two
purposes: to protect children and preserve the integrity of the family.
The Babcock court noted that "[t]he existence of some tort
liability will encourage DSHS to avoid negligent conduct and leave open
the possibility that those injured by DSHS's negligence can recover."

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Babcock, 116 Wn.2d at 622. "Accountability through tort
liability . . . may be the only way of assuring a certain standard of
performance from governmental entities." Bender v. City of
Seattle, 99 Wn.2d 582, 590, 664 P.2d 492 (1983).
The State argues that creating a tort remedy in favor of parents
will frustrate the purpose of the statute by forcing CPS caseworkers to
compromise the interests of children. As argued by the State:
If this Court now determines that the State can owe to a parent
. . . a duty not to initiate a dependency while at the same time
owing to his child a duty to initiate a dependency, the State will
be in an untenable position due to the conflicting
responsibilities created by the Court.

Br. of Appellant at 25.
This concern is unwarranted. By implying a cause of action for
negligent investigation in favor of a parent, all that is required is
that the State act reasonably, not that it act in a flawless manner.
There would never arise a situation in which the State owes a duty to
both initiate and not initiate a dependency, only a duty to act
reasonably in its determination.
Finally, it is worth noting that the Court of Appeals, relying on
Babcock, has allowed negligent investigation claims against
DSHS based on RCW 26.44.050. See Lesley v. Department of Soc. &
Health Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996) (negligent
investigation claim brought by parents accused of abusing their child);
Yonker v. State, 85 Wn. App. 71, 930 P.2d 958 (1997) (parent's
negligent investigation claim for failure to investigate abuse
allegation against other parent); Gilliam v. Department of Soc. &
Health Servs.,

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Cause No. 67602-0

89 Wn. App. 569, 950 P.2d 20 (1998) (negligent investigation claim by
father suspected of abuse; scope of duty not an issue on appeal). Both
Lesley and Yonker were cited approvingly by this Court
in McKinney v. State, 134 Wn.2d 388, 950 P.2d 461 (1998)
(implying a statutory cause of action for failure to comply with
adoption agency reporting requirements). /5
We conclude that under RCW 26.44.050, CPS owes a duty of care to a
child's parents, even those suspected of abusing their own children,
when investigating allegations of child abuse.
Next, the State argues that the court's no-contact orders in this
case, separating Mr. Tyner from his children, break the chain of legal
causation, thereby defeating Mr. Tyner's negligent investigation claim
as a matter of law. There are two elements to proximate causation:
cause in fact and legal causation. Schooley, 134 Wn.2d at 478.
"`Cause in fact' refers to the actual, `but for,' cause of the
injury, i.e., `but for' the defendant's actions [would the] plaintiff
. . . be injured." Id. (quoting in part King v. City of
Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)). This question
is normally left to the jury. Id. Legal causation is a much
more fluid concept. It is grounded "in policy determinations as to how
far the consequences of a defendant's acts should extend."
Schooley, 134 Wn.2d at 478. The focus in legal causation
analysis is on "whether, as a matter of policy, the

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5 Given the unique nature of every state's legislative scheme
in the area of parens patriae, there has been little consistency in
other jurisdictions that has addressed issues similar to the one
presented by this case. See Gray v. State, 624 A.2d 479 (Me.
1993) (finding a duty on the part of the State to a parent suspected of
child abuse for negligently handled investigation); Burney v.
Kansas Dep't of Soc. & Rehabilitation Servs., 23 Kan. App. 2d 394,
931 P.2d 26 (1997) (no duty to nonparent alleged abuser for negligently
handled investigation).

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connection between the ultimate result and the act of the defendant is
too remote or insubstantial to impose liability." Id. at
478-79. This inquiry depends upon "`mixed considerations of logic,
common sense, justice, policy, and precedent.'" Id. (quoting
King, 84 Wn.2d at 250). As we recognized in Schooley,
the concept of legal cause permits the courts to limit liability, for
policy reasons, even though duty and forseeability concepts would
indicate liability. Id. at 479.
In this case, the State argues that public policy is not served by
imposing liability on the State for "asking a court to determine
whether there are adequate grounds to have children examined for
possible abuse." State's Answer to Pet. for Review at 17. As the
Court of Appeals correctly observed, however, terminating the State's
liability at the point that its investigation comes under the
supervision of the court "would create an undesirable incentive for the
State to convert every investigation into a judicial proceeding."
Tyner, 92 Wn. App. at 518.
Similar to the duty of probation officers to supervise, the duty
of CPS workers to investigate exists apart from any action which might
be taken by a court. As we observed in Bishop v. Miche,
137 Wn.2d 518, 973 P.2d 465 (1999):
The duty of a county probation officer is not premised
merely on the reporting of violations to the court, but
rather on the failure to adequately monitor and
report violations, thus failure to adequately supervise the
probationer.

Id. at 526. As with negligent supervision, Tyner's complaint
centers on conduct outside of the judicial arena. CPS was not
enforcing a court order or acting as an arm of the court in its
interactions with Tyner. Rather, it was gathering

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information and conducting an investigation, the results of which ended
up in the hands of a judge. As the Court of Appeals noted, a CPS
caseworker's duty to investigate is statutorily mandated and must be
completed regardless of whether its results may ultimately be presented
to a court of law. Thus, the State's liability arises not from its use
of the Court to further its investigation but from its failure to
adequately investigate the allegations lodged against Tyner.
We agree with the Court of Appeals that the conduct of a CPS
caseworker may, in some circumstances, be the legal cause of a parent's
separation from a child, even when the separation is imposed by court
order. As the court reasoned,
[t]he pivotal consideration is not the involvement of the
court per se, but whether the State has placed before the
court all the information material to the decision the court
must make. Concealment of information or negligent failure
to discover material information may subject the State to
liability even after adversarial proceedings have begun.

Tyner, 92 Wn. App. at 518.
This reasoning is in accord with Babcock and
Bender. In Babcock, this court held that DSHS
caseworkers do not enjoy absolute immunity for their foster care
placement investigations. Babcock, 116 Wn.2d at 606. As this
court noted, the Legislature has granted caseworkers only a qualified
immunity even in the case of an emergency situation. Id. at
607. In Babcock, the State's negligence resulted in the
foster care placement of children with parties connected with a man
who raped them. Id. at 603. The trial court issued an order
confirming that placement. In our decision we said that

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a caseworker cannot escape liability for negligent investigation
because the juvenile court commissioner relies on the caseworker's
recommendation to allow a caseworker's placement decision to
stand. In the absence of a preplacement adversary hearing in
which a predisposition study is entered into evidence, the
caseworker controls the flow of information to the court.

Id. at 608. /6
In Bender, we declined to extend absolute immunity to a
police officer in a claim of false arrest against the officer who was
acting pursuant to a court-ordered arrest warrant, where the same
officer allegedly provided incomplete information to a magistrate in
order to originally obtain the warrant. Bender, 99 Wn.2d at 592.
We held that in such situations the officer "is in a position to
control the flow of information to the magistrate upon which probable
cause determinations are made." Id.
Bishop and Hertog ex rel. S.A.H. v. City of Seattle,
138 Wn.2d 265, 979 P.2d 400 (1999), decided by this court
last term, also utilized a materiality standard similar to that
articulated by the Court of Appeals in this case. Bishop
involved a negligence claim by the parents of a child killed in an
automobile accident caused by a King County probationer, Steven Miche,
who was intoxicated at the time of the accident. Bishop,
137 Wn.2d at 521. Suit was filed against the County claiming its probation
supervision was negligent. Id. Prior to the accident, the
district court refused to revoke Miche's probation despite repeated
probation violations. Id. at 523. This court held that the
district court's

_______________
6 The State cites this discussion for its contention that the duty
to investigate is negated in an adversarial proceeding. Babcock v.
State, 116 Wn.2d 596, 809 P.2d 143 (1991) does not support the
State. The court's (footnote cont'd. next page)

June 2000 TYNER v. DSHS 19
Cause No. 67602-0

action precluded the existence of cause in fact as a matter of law, in
essence serving as a superseding intervening cause, thereby absolving
the County of liability. Id. at 532. Of principal importance in
Bishop was the district court's awareness of all material
information in the case at the time of its decision. Id. at
531-32. As we stated:
The judge knew that Miche had violated the court-imposed condition
of his probation by driving while his license was suspended. He
knew that Miche had an alcohol problem but attended meetings
somewhat sporadically. He knew that Miche was scheduled to attend
intensive alcohol treatment within three days, and thus knew that
Miche was not then in such treatment and that Miche needed such
treatment. Nevertheless, despite Miche's violation of his
probation conditions, the obvious severity of his alcohol problem,
and the fact that Miche knowingly drove after his license had been
suspended, the judge did not revoke probation. The accident
occurred only two days later, one day before Miche's scheduled
treatment was to begin.
As a matter of law, the judge's decision not to revoke
probation under these circumstances broke any causal connection
between any negligence and the accident.

Id.

In Hertog, the guardian ad litem for a six-year old girl who
was raped by a King County probationer, Barry Krantz, brought a claim
against the County alleging negligent supervision. Hertog,
138 Wn.2d at 269. This court allowed the claim, even though a court
had refused to revoke Krantz's probation two months prior to the rape.
Id. at 272. We held that the County probation officer had a
continuing duty to supervise Krantz and under the facts of this case
the chain of causation was not broken by the judge's decision. Id.
at 284. Hertog and Bishop

_______________
statement regarding control of information was made in the context of
the State's immunity argument not in an analysis of duty.

20 TYNER v. DSHS June 2000
Cause No. 67602-0

illustrate that if all material information is presented to the judge,
cause in fact will not be found if the complained of action is linked to
the judge's decision.
Next, we must examine whether all material information was presented
to the court prior to its no-contact orders in this case. In the
context of a negligent investigation claim the State's conduct may be
the proximate cause of injury where the State has failed to supply
sufficient material information. Bishop, 137 Wn.2d at 532.
In such a case, a court order will not break the causal chain.
Mr. Tyner and WSTLA contend that the Court of Appeals' opinion
erroneously invaded the province of the jury when the court concluded
as a matter of law that the evidence was insufficient to support a
finding that any negligence of the caseworkers was a legal cause of the
separation. The Court of Appeals first found sufficient evidence to
allow the jury's cause in fact determination to stand, holding that
[b]ut for the CPS investigation and the recommendation by Mix to
have [Mr. Tyner] removed from the home, it is possible the courts
below would not have issued or extended the orders restricting
[Mr. Tyner's] contact with his children.

Tyner, 92 Wn. App. at 515. Nevertheless, the Court of Appeals
then went on to find legal causation lacking as a matter of law because
in its view all material information was presented to the court.
Id. at 520.
However, the question of materiality is a question of cause-in-
fact, not legal causation. In the circumstances here, the issue of
materiality determines whether court intervention serves as a
superseding, intervening cause, thereby cutting off

June 2000 TYNER v. DSHS 21
Cause No. 67602-0

cause in fact. It is, accordingly, a question for the jury unless
reasonable minds could reach but one conclusion. Hartley v.
State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). C.f.
Bender, 99 Wn.2d at 596 ("[w]hether the additional information
. . . was `material' to the determination of probable cause is a question
for the jury.") Such was the case in Bishop, but not in the
case at bar.
In this case, there were two primary items the jury could have
determined were material information that should have been supplied to
the court. First, caseworker Mix failed to inform the court, as well
as any of the parties, that by February 2, 1993, he had reached the
determination that the allegations against Tyner were "unfounded." RP
(Oct. 14, 1996) at 54. There was expert testimony that this action
was a breach of the standard of care. The Court of Appeals' opinion
suggests that this was a legal conclusion or opinion, not a
representation of fact, and that therefore it was not material to the
court's decision. Tyner, 92 Wn. App. at 517-18. However, the
fact that Mix had reached this determination was itself a fact, a fact
that might have been relied upon by the court in making its decision.
There is little question that courts rely heavily on the judgment of
CPS caseworkers in making dependency determinations. /7

_______________
7 There was expert testimony given at trial that courts "always
follow" the recommendations of social workers in dependency
proceedings. Verbatim Report of Proceedings (RP) (Oct. 10, 1996)
at 148. This testimony was objected to and the objection was
overruled. The jury was free to reach the conclusion that in many
cases a social worker's determination will be material to a judge's
decision, which was the issue in this case.

22 TYNER v. DSHS June 2000
Cause No. 67602-0

Second, caseworker Mix failed to interview collateral sources, and in
turn failed to deliver the information to the court that these sources
would have provided. The Court of Appeals held that:
[T]here is no reason to believe the courts would have relaxed the
no-contact orders sooner if the caseworkers had informed the court
that many people who knew the children did not believe they had
been abused and did not believe David Tyner capable of abusing
them.

Id. at 519. This may be true, but the jury was free to reach
the opposite conclusion. The jury heard testimony from multiple
collateral sources, including Tyner's neighbors, his former wife, and
his adult daughter.
The jury was also informed that CPS' own manual requires that key
collateral sources be contacted by the CPS investigator. /8 The jury
may have reasonably believed that the sources supplied by Tyner to Mix
were key collateral sources and had they been contacted as requested by
Tyner, they would have tipped the scales in favor of relaxing the no-
contact orders.
We hold that a judge's no-contact order will act as superseding
intervening cause, precluding liability of the State for negligent
investigation, only if all material information has been presented to
the court and reasonable minds could not differ as to this question.
The State argues, however, that a "good faith" standard, as
opposed to a negligence standard, ought to measure its duty of
reporting information to the

_______________
8 Provisions within Child Protective Services' own manual require
that collateral sources be contacted. For instance, chapter 26.31
C.11 provides that "[t]he social worker shall interview, in-person or
by telephone, professionals and other persons (physician, nurse,
school personnel, day care, relatives, etc.) who are reported to have
or, the social worker believes may have first-hand knowledge of the
incident, the injury, or (footnote cont'd. next page)

June 2000 TYNER v. DSHS 23
Cause No. 67602-0

court and consequently its duty of investigation. Under this standard,
argues the State, it would be liable only if a CPS caseworker "knowingly
withholds" or "willfully misrepresents" facts to the court. This is the
standard this Court uses to determine whether a police officer may be
sued for falsely obtaining a warrant. See Bender, 99 Wn.2d at 592.
We reject this argument. First, the jury below was instructed
under a negligence standard, which was not objected to by the State,
and this is now the law of the case. See CP at 110. Second,
the State has cited no case, from any jurisdiction, in which this
standard has been applied to the conduct of CPS caseworkers. Third,
the State did not raise this argument below. Finally, factual
differences between CPS caseworkers and police officers obtaining a
warrant also militate against such an extension. Police officers are
often under immense time pressure when attempting to secure a warrant,
relying on information they have no personal knowledge of or time to
verify. The Bender rule is very limited and was created with
the unique demands of police officers in mind. An extension of this
rule into the arena of negligent investigation is unwarranted.
Since in this case reasonable minds could differ as to whether
all material information was presented to the court prior to the
entering of its no-contact order, we reverse the Court of Appeals,
reinstating the jury's verdict.

JOHNSON, ALEXANDER, SANDERS, IRELAND, and BRIDGE JJ., concur.

_______________
the family's circumstances." Pl.'s Ex. 1. See also Pl.'s
Ex. 1 (Washington State Department of Child Protective Services
Manual, chapter 26.22 G, H, I (1992-1993)).

June 2000 TYNER v. DSHS (dissent) 1
Cause No. 67602-0

TALMADGE, J. (dissenting) -- The majority finds Child Protective
Services (CPS) of the Department of Social and Health Services (DSHS)
owed a duty not only to the child victims of alleged physical or sexual
abuse but also to a parent accused of such abuse to "properly"
investigate the circumstances of the abusive conduct. Despite court
decisions removing the child victims from the home of the abusive
parent, the majority believes the requirement of proximate cause as to
DSHS and CPS is satisfied. The majority's opinion only further
confuses the question of the duty owed by the State and its officers
when conducting child abuse investigations. The majority opinion also
contradicts prior case law on proximate cause in a civil case of this
nature. I respectfully dissent.

25 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

A. Duty to Alleged Abusers
The starting place for our analysis of the State's potential
liability to Tyner is the duty the State owes, if any, to alleged
child abusers. The majority cites RCW 26.44.050 and makes passing
reference to chapters 13.34 RCW,
26.44 RCW, and
74.13 RCW, Majority
at 10 n.3, when it agrees with the Court of Appeals below that CPS's
duty to investigate alleged physical or sexual abuse runs not only to
the child victims of such abuse but also to the victims' parents
accused of perpetrating the abuse. Our case law concerning the
State's liability for failing to properly investigate allegations of
child abuse has been hopelessly imprecise; the majority opinion today
only exacerbates such imprecision.
The majority fails to carefully review the statutes imposing the duty
to investigate allegations of physical or sexual abuse of children on
CPS. The purpose of Washington child abuse statutes is to protect
the child. This duty arises out of the State's parens patriae
right and responsibility to intervene to protect the child, which does
not run to the parents because they are adults. In In re Welfare
of Sumey, 94 Wn.2d 757, 762-63, 621 P.2d 108 (1980), we
specifically noted the constitutional right of parents to raise and
nurture their children; however, even that powerfully instinctive and
constitutional right must yield to the State's duty to protect our
children's well-being. We said:
The parents' constitutional rights, however, do not afford
an absolute protection against State interference with the
family relationship. Although "[h]istorically, the natural
parent's right to

June 2000 TYNER v. DSHS (dissent) 3
Cause No. 67602-0

custody of a child . . . [was considered to be]
absolute, barring a showing of unfitness . . . [g]rowing
concern for the welfare of the child and the disappearance
of the concept of the child as property has led to a
gradual modification in judicial attitude." In re
Becker, 87 Wn.2d 470, 477, 553 P.2d 1339 (1976). It
is now well established that when parental actions or
decisions seriously conflict with the physical or mental
health of the child, the State has a parens patriae right
and responsibility to intervene to protect the child.

Sumey, 94 Wn.2d at 762 (alterations in original). /1
We have found the State may be civilly liable when it breaches a duty
created by statute, but we have taken care to predicate that duty upon
the statutory obligation created by the Legislature. McKinney v.
State, 134 Wn.2d 388, 396, 950 P.2d 461 (1998). A careful review
of Washington's statutory protections for children is, therefore,
imperative to understanding the scope of the duty, if any, owed by the
State and its officers when investigating child abuse.
Protective provisions for Washington's children are found in three
separate sections of Washington law. Unfortunately, the majority only
quotes brief excerpts from the intent sections of these three critical
statutory sequences, which is not enough to convey the precise intent
of the Legislature. On closer inspection, the complete intent sections
clearly delineate a legislative intent to

_______________
1 In any circumstance involving the potential dependency of a
child, Washington courts have also indicated that in any conflict
between the rights of a child and the rights of a parent, the
interests of the child must be paramount. In re Welfare
of Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973); In re
Dependency of K.R., 128 Wn.2d 129, 146, 904 P.2d 1132 (1995);
In re Dependency of Ramquist, 52 Wn. App. 854, 862, 765 P.2d
30 (1988), review denied, 112 Wn.2d 1006 (1989).

4 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

make the interests of abused or neglected children greater than the
interests of their alleged abusers. RCW 13.34.020 states:
The legislature declares that the family unit is a
fundamental resource of American life which should be
nurtured. Toward the continuance of this principle, the
legislature declares that the family unit should remain
intact unless a child's right to conditions of basic nurture,
health, or safety is jeopardized. When the rights of
basic nurture, physical and mental health, and safety of the
child and the legal rights of the parents are in conflict,
the rights and safety of the child should prevail. In
making reasonable efforts under this chapter, the child's
health and safety shall be the paramount concern. The right
of a child to basic nurturing includes the right to a safe,
stable, and permanent home and a speedy resolution of any
proceeding under this chapter.

(Emphasis added.) Moreover, RCW 26.44.010 again makes clear that the
impetus behind child abuse reporting statutes is to safeguard the
general welfare of the children:
The Washington state legislature finds and declares: The
bond between a child and his or her parent, custodian, or
guardian is of paramount importance, and any intervention
into the life of a child is also an intervention into the
life of the parent, custodian, or guardian; however,
instances of nonaccidental injury, neglect, death, sexual
abuse and cruelty to children by their parents, custodians or
guardians have occurred, and in 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 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[;] . . .

June 2000 TYNER v. DSHS (dissent) 5
Cause No. 67602-0

(Emphasis added.) Finally, RCW 74.13.010, which sets forth the
obligation of DSHS to create an appropriate child welfare system, makes
clear the State's duty runs to the children:
The purpose of this chapter is to safeguard, protect
and contribute to the welfare of the children of the
state, through a comprehensive and coordinated program
of public child welfare services providing for: Social
services and facilities for children who require guidance,
care, control, protection, treatment or rehabilitation;
setting of standards for social services and facilities for
children; cooperation with public and voluntary agencies,
organizations, and citizen groups in the development and
coordination of programs and activities in behalf of
children; and promotion of community conditions and resources
that help parents to discharge their responsibilities for the
care, development and well-being of their children.

(Emphasis added.)
The majority has not reviewed the legislative history of these
enactments; yet that history reveals an intent to focus on the welfare
of child victims, rejecting the creation of a general duty to parents,
which the majority now creates by judicial action. For example, in
1987 the Legislature amended RCW 13.34.020 by removing the phrase "in
the absence of compelling evidence to the contrary" and inserting the
phrase "unless a child's right to conditions of basic nurture, health,
or safety is jeopardized. When the rights of basic nurture, physical
and mental health, and safety of the child and the legal rights of the
parents are in conflict, the rights and safety of the child should
prevail." Laws of 1987, ch. 524, 2 (emphasis added). The final
bill report for Second Substitute Senate Bill

6 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

5659, whose enactment followed the Eli Creekmore tragedy in Snohomish
County, made this direction unambiguous:
The intent language of the child abuse chapter is clarified
regarding the paramount goal of CPS to protect a child's
right to safety. The rights of basic nurture, mental and
physical safety of a child must prevail when they conflict
with the legal rights of the parents.

(Emphasis added.) The Legislature again amended that statute in 1998,
adding the phrase "[i]n making reasonable efforts under this chapter,
the child's health and safety shall be the paramount concern."
Laws of 1998, ch. 314, 1 (emphasis added). Both of these amendments
clearly indicate the child's health and welfare were of
primary concern to the Legislature, not the parents' interest.
Despite its selected references to the statutory intent provisions in
chapters 13.34 RCW, 26.44 RCW
, and
74.13 RCW, the majority discerns a
duty owed by the State to alleged abusers with respect to child abuse
investigations. No language in any of these statutory provisions even
hints at such a general duty.
More troubling yet is the majority's failure to discuss the specific
statutory provisions that afford parents and others suspected of child
abuse and neglect due process rights with regard to CPS investigations.
Beginning as early as 1985, the Legislature recognized such rights:
The legislature finds parents and children often are not
aware of their due process rights when agencies are
investigating allegations of child abuse and neglect. The
legislature reaffirms that all citizens, including parents,
shall be afforded due process, that protection of children
remains the priority of the legislature, and that this
protection includes protecting the family unit from unnecessary

June 2000 TYNER v. DSHS (dissent) 7
Cause No. 67602-0

disruption. To facilitate this goal, the legislature
wishes to ensure that parents and children be advised in
writing and orally, if feasible, of their basic rights
and other specific information as set forth in this act,
provided that nothing contained in this act shall cause
any delay in protective custody action.

Laws of 1985, ch. 183, 1. RCW 26.44.100 was substantially amended in
1997 to add the following language:
(2) The department shall notify the alleged perpetrator of
the allegations of child abuse and neglect at the earliest
possible point in the investigation that will not jeopardize
the safety and protection of the child or the investigation
process.

Whenever the department completes an investigation of a
child abuse or neglect report under chapter 26.44 RCW, the
department shall notify the alleged perpetrator of the report
and the department's investigative findings. The notice
shall also advise the alleged perpetrator that:

(a) A written response to the report may be provided to
the department and that such response will be filed in the
record following receipt by the department;

(b) Information in the department's record may be
considered in subsequent investigations or proceedings
related to child protection of child custody;

(c) There is currently information in the department's
record that may be considered in determining that the person
is disqualified from being licensed to provide child care,
employed by a licensed child care agency, or authorized by
the department to care for children; and

(d) A person who has demonstrated a good-faith desire to
work in a licensed agency may request an informal meeting
with the department to have an opportunity to discuss and
contest the information currently in the record.

8 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

(3) The notification required by this section shall be
made by regular mail to the person's last known address.

(4) The duty of notification created by this section is
subject to the ability of the department to ascertain the
location of the person to be notified. The department shall
exercise reasonable, good-faith efforts to ascertain the
location of persons entitled to notification under this
section.

Laws of 1997, ch. 282, 2. Moreover, RCW 26.44.100 was again amended
in 1988 to expressly afford an alleged abuser the right to seek review
of any finding of abuse. The Legislature enacted a new section, RCW
26.44.125, to articulate this right of review:
(1) A person who is named as an alleged perpetrator after
October 1, 1998, in a founded report of child abuse or
neglect has the right to seek review and amendment of the
finding as provided in this section.

(2) Within twenty calendar days after receiving written
notice from the department under RCW 26.44.100 that a person
is named as an alleged perpetrator in a founded report of
child abuse or neglect, he or she may request that the
department review the finding. The request must be made in
writing. If a request for review is not made as provided in
this subsection, the alleged perpetrator may not further
challenge the finding and shall have no right to agency
review or to an adjudicative hearing or judicial review of
the finding.

(3) Upon receipt of a written request for review, the
department shall review and, if appropriate, may amend the
finding. Management level staff within the children's
administration designated by the secretary shall be
responsible for the review. The review must be conducted in
accordance with procedures the department establishes by
rule. Upon completion of the review, the department shall
notify the alleged perpetrator in writing of the agency's
determination. The notification must be sent by certified
mail, return receipt requested, to the person's last known
address.

June 2000 TYNER v. DSHS (dissent) 9
Cause No. 67602-0

(4) If, following agency review, the report remains
founded, the person named as the alleged perpetrator in the
report may request an adjudicative hearing to contest the
finding. The adjudicative proceeding is governed by chapter
34.05 RCW and this section. The request for an adjudicative
proceeding must be filed within thirty calendar days after
receiving notice of the agency review determination. If a
request for an adjudicative proceeding is not made as
provided in this subsection, the alleged perpetrator may not
further challenge the finding and shall have no right to
agency review or to an adjudicating hearing or judicial
review of the finding.

(5) Reviews and hearings conducted under this section are
confidential and shall not be open to the public.
Information about reports, reviews, and hearing may be
disclosed only in accordance with federal and state laws
pertaining to child welfare records and child protective
services reports.

(6) The department may adopt rules to implement this
section.

Laws of 1998, ch. 314, 9.
What is readily apparent from this review of the Legislature's
enactments is that the Legislature did not create a general duty for
the State to alleged abusers with regard to child abuse investigations
by DSHS and CPS. The Legislature said expressly that children's rights
are paramount. It recognized the need for due process for individuals
found to be abusers. But the Legislature did not establish a general
duty running from the State to alleged abusers, as the majority
incorrectly concludes.
Our case law involving the duty of the State and its officers in
child abuse investigations is largely imprecise. We have held a duty
to investigate exists; the

10 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

breach of such a duty can result in civil liability for the State, but
not the individual caseworkers. See Babcock v. State, 116 Wn.2d 596,
620-21, 809 P.2d 143 (1991). In Babcock, the duty arose
when CPS caseworkers negligently investigated abuse and the children
were placed in a foster home where they were sexually abused. Yet we
have also specifically held the purpose of Washington's child abuse
reporting laws is to protect the children, and those laws
create no rights for abusers. As we stated in State v. Warner,
125 Wn.2d 876, 891, 889 P.2d 479 (1995):
Even under the old negligence per se doctrine, a person can
only borrow a statutory duty of care to show negligence if
the harm that occurs is the type of harm that statute is
designed to prevent and the person claiming it is in the
class of persons the statute is designed to protect.
Herberg v. Swartz, 89 Wn.2d 916, 923, 578 P.2d 17
(1978). That is not the case here. The reporting statute
[RCW 26.44.030] is designed to secure prompt protection
and/or treatment for the victims of child abuse. The
class of persons it is designed to protect is the victims,
not the abusers. Thus, Warner cannot use the statute to
establish negligence on the part of the State.

(Emphasis added.) The majority's view cannot be reconciled with
Warner's.
A number of Court of Appeals cases have also discussed the duty of
the State and its officers to properly investigate abuse. In
Favors v. Matzke, 53 Wn. App. 789, 770 P.2d 686, review
denied, 113 Wn.2d 1033, 784 P.2d 531 (1989), foster parents
brought a negligence action against the State claiming CPS caseworkers
owed them a duty to explain the consequences of a polygraph test
administered in the course of a child abuse investigation. The Court
of Appeals

June 2000 TYNER v. DSHS (dissent) 11
Cause No. 67602-0

noted the statutory duty in a child abuse investigation was owed to the
children and declined to find any duty owed by the State to the alleged
abusers. In Lesley for Lesley v. Department of Soc. & Health
Servs., 83 Wn. App. 263, 921 P.2d 1066 (1996), review
denied, 131 Wn.2d 1026, 939 P.2d 216 (1997), however, the Court of
Appeals found the State owed a duty based on RCW 26.44.050 to properly
investigate child abuse; the court found the duty ran to alleged abusers
in a case where CPS caseworkers mistook Mongolian spots, a common
African-American birthmark, for bruising. See also Yonker v.
Department of Soc. & Health Servs., 85 Wn. App. 71, 930 P.2d 958
(duty owed to alleged abuser where caseworker's allegedly negligent
investigation resulted in dependency filing), review denied,
132 Wn.2d 1010, 940 P.2d 655 (1997); Gilliam v. Department of Soc. &
Health Servs., 89 Wn. App. 569, 950 P.2d 20, review
denied, 135 Wn.2d 1015, 960 P.2d 937 (1998).
Unfortunately, these cases do not carefully analyze the statutory
provisions previously enumerated. Moreover, Lesley`s reliance
on RCW 26.44.050 is misplaced. RCW 26.44.050 merely states:
Upon 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 in
accordance with chapter 74.13 RCW, and where necessary to
refer such report to the court.

RCW 74.13.031(3) describes the duties of DSHS as follows:

12 (dissent) TYNER v. DSHS June 2000
Cause No. 67602-0

Investigate complaints of any recent act or failure to act
on the part of a parent or caretaker that results in death,
serious physical or emotional harm, or sexual abuse or
exploitation, or that presents an imminent risk of serious
harm, and on the basis of the findings of such investigation,
offer child welfare services in relation to the problem to
such parents, legal