Grae-El et al v. City of Seattle et al, No. 2:2021cv01678 - Document 99 (W.D. Wash. 2022)

Court Description: ORDER granting Defendants' 92 Motion for Summary Judgment with respect to Plaintiffs' Fourteenth Amendment familial association claim, Plaintiffs' Fourteenth Amendment Brady claim, Plaintiffs' Fifth Amendment claim, an d Plaintiffs' state law negligence claims. The court ORDERS Plaintiffs to SHOW CAUSE why State Defendants are not entitled to summary judgment with respect to Plaintiffs' First and Fourth Amendment claims by 11/14/2022. Defendants may file a response by 11/16/2022. Signed by Judge James L. Robart. (LH)

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Grae-El et al v. City of Seattle et al Doc. 99 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 1 of 31 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ZION T. GRAE-EL, et al., Plaintiffs, 11 CASE NO. C21-1678JLR ORDER v. 12 13 CITY OF SEATTLE, et al., Defendants. 14 15 16 I. INTRODUCTION Before the court is a motion by Defendants the Washington State Department of 17 Children Youth and Families (“DCYF”), Annaliese Ferreria, Greg McCormack, Christine 18 Spencer, Rosalynda Carlton, Derrick Reinhardt, Schawna Jones, Rebecca Webster, 19 Rachel Zakopyko, Corey Grace, Stephanie Allison-Noon, and Tabitha Pomeroy 20 21 22 ORDER - 1 Dockets.Justia.com Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 2 of 31 1 (collectively, the “State Defendants” 1) for summary judgment. (Mot. (Dkt. # 92); Reply 2 (Dkt. # 98).) Pro se Plaintiffs Zion T. Grae-El and Caprice Strange (“Plaintiffs”) oppose 3 the State Defendants’ motion. (See Resp. (Dkt. # 94).) 4 The court has considered the parties’ submissions, the applicable law, and the 5 relevant portions of the record. Being fully advised, 2 the court (1) GRANTS the State 6 Defendants’ motion for summary judgment with respect to Plaintiffs’ Fourteenth 7 Amendment and state law negligence claims and (2) ORDERS Plaintiffs to SHOW 8 CAUSE why the court should not also dismiss their First and Fourth Amendment claims. 9 II. BACKGROUND 10 Plaintiffs accuse DCYF and several of its employees of violating their 11 constitutional rights and of negligence in connection with the removal of Plaintiffs’ 12 children from their care and the subsequent placement of the children in foster care. (See 13 generally Am. Compl.) The court set forth much of the factual background of this case in 14 detail in its August 23, 2022 order granting summary judgment to the City of Seattle, 15 Seattle Police Department (“SPD”) Officer Ryoma Nichols, and SPD Sergeant Daina 16 Boggs. (See 8/23/22 Order (Dkt. # 88) at 2-9.) The court recounts here only the 17 background relevant to the instant motion. 18 19 20 21 22 1 The individual named Defendants are all employees of DCYF who investigated initial reports of suspected child abuse, placed Plaintiffs’ children in foster care, and interfaced with Plaintiffs throughout the process. (See Am. Compl. (Dkt. # 77) at 3-4.) 2 Plaintiffs requested oral argument (Resp. at 1), while the State Defendants did not (Mot. at 1). The court finds that oral argument would not be helpful to its disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 3 of 31 1 A. Removal of Plaintiffs’ Children 2 This case arises out of a report of suspected child abuse made to Child Protective 3 Services (“CPS”), a component of DCYF. (Am. Compl. at 7.) On November 28, 2018, 4 Leslie Meekins, a teacher at Dunlap Elementary School (“Dunlap”) contacted DCYF 5 with concerns that her student, A.S., one of Plaintiffs’ five children, may have suffered 6 child abuse. (SPD General Offense Report (sealed) (Dkt. # 77-24) at 14-15. 3) That 7 evening, SPD Officer Timothy Jones accompanied two CPS case workers, Defendants 8 Annaliese Ferreria and Corey Grace, to Plaintiffs’ house to investigate the allegations of 9 child abuse. (Id.) According to Officer Jones, Mr. Grace and Ms. Ferreria informed him 10 that Ms. Meekins had reported that A.S. arrived at school with a black eye and that A.S. 11 said the bruise was caused by Mr. Grae-El hitting him. (Id.) Mr. Grace also showed 12 Officer Jones a photo of A.S., taken by his teacher earlier that day, which Officer Jones 13 agreed depicted “what looked like a possible bruise under [A.S.’s] eye.” (Id. at 15.) 14 Mr. Grae-El declined to permit Officer Jones or the CPS case workers to enter his 15 home, although he indicated he would allow CPS to conduct an inspection during a 16 scheduled visit. (Id.) He also asserted that A.S.’s injury happened during “an incident 17 involving his other son and possibly a dog.” (Id.) After Mr. Grae-El spoke with Ms. 18 Strange by phone, however, he agreed to bring their children out, one at a time, so that 19 the CPS case workers could speak with and inspect them. (Id.) Although the children 20 “seemed a bit nervous” to Officer Jones, they “answered all the questions asked” and 21 3 22 Unless otherwise specified, the court cites to the page numbers in the ECF header when citing Plaintiffs’ exhibits. ORDER - 3 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 4 of 31 1 exhibited no “signs of distress.” (Id.) Officer Jones was also able to see into Plaintiffs’ 2 home “a little bit,” and did not “see anything that concerned [him] at the time.” (Id.) Nor 3 was he able to observe an injury on A.S. from where he was standing, though he was told 4 by CPS case workers that “they could see an injury near [A.S.’s] eye.” (Id.) Ultimately, 5 although Officer Jones “got the impression that CPS wanted [him] to grab [A.S.] when he 6 came out or force [his] way in” to seize the other children, he took no action that evening, 7 believing that doing so—based on “the way [Mr.] Grae-El was acting, especially his 8 expressed dislike of the police”—might have caused the situation to “escalate[] into a 9 possible fight.” (Id.) According to Plaintiffs, neither Ms. Ferreria nor Mr. Grace 10 11 recorded case notes from this interaction. (Am. Compl. at 10.) The following day, SPD officers and Ms. Ferreria went to Dunlap and interviewed 12 Plaintiffs’ four school-aged children about their parents’ punishment techniques. (SPD 13 General Offense Report at 19-21.) Each of the children reported being subjected to 14 “whoopins,” which entailed being slapped, hit with a belt or spatula, or forced to assume 15 stress positions. (Id.) SPD officers also interviewed Ms. Meekins, who reported that 16 A.S. had expressed fear of Mr. Grae-El’s anger. (Id. at 20-21.) Finding reasonable cause 17 to remove the children from Plaintiffs’ care, SPD placed the children in DCYF custody. 18 (Id. at 21.) While an SPD officer prepared to interview the children, Ms. Strange 19 appeared at the school with her youngest child, Z.A.G. (Id. at 19.) She surrendered 20 Z.A.G. to SPD custody before leaving Dunlap. (Id.) That same evening, employees at 21 Seattle Children’s Hospital conducted additional examinations of Plaintiffs’ children, 22 ORDER - 4 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 5 of 31 1 independently concluded that the children had experienced unlawful abuse by Plaintiffs, 2 and made additional referrals to CPS. (See Am. Compl. at 23-32.) 3 B. 4 Dependency Proceedings and Criminal Charges After assuming protective custody over Plaintiffs’ five children, DCYF 5 commenced dependency proceedings. (See Am. Compl. at 14; Mot. at 6.) At the Shelter 6 Care hearing, DCYF found reasonable cause to remove the children from Plaintiffs’ care 7 to avoid imminent risk of harm. (Mot. at 6; Am. Compl. at 14). Following the 8 dependency proceedings, Plaintiffs were both charged with and ultimately pleaded guilty 9 to assaulting their children. (See 8/23/2022 Order at 8-9; Am. Compl. at 35-36; Grae-El 10 Guilty Plea (Dkt. # 94-2) (sealed).) According to Plaintiffs, Defendant Rebecca Webster, 11 whom Plaintiffs describe as an agent of DCYF, submitted a statement concluding that 12 Plaintiffs had physically abused their children by “caus[ing] bodily harm greater than 13 transient pain.” (Am. Compl. at 4, 93-94.) Plaintiffs note that Ms. Webster’s statement 14 was offered in support of both the criminal charges and dependency proceedings against 15 Plaintiffs. (See id.) Mr. Grae-El appealed the judgment against him in his criminal case, 16 arguing that his guilty plea was invalid because his defense attorney was constitutionally 17 ineffective. See State v. Grae-El, No. 82306-0-I, 2022 WL 670953 (Wash. Ct. App. 18 March 7, 2022), rev. denied, 512 P.3d 892 (Wash. 2022). The Washington Court of 19 Appeals denied his appeal, and the Washington State Supreme Court subsequently denied 20 review. Id. 21 22 ORDER - 5 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 6 of 31 1 C. Foster Care Placements 2 DCYF placed two of Plaintiffs’ children, Z.A.G. and A.S., in foster care with Scott 3 and Heather Hadfield, a foster family living in Bellingham, Washington. (Am. Compl. at 4 21, 39.) Plaintiffs, who are African American, practice “Afrocentric spirituality, 5 Confucism [sic] and Islamism [sic],” and live in Tacoma, state that they would have 6 preferred a foster care placement for their children that was located closer to them and 7 better reflected their race, ethnicity, and cultural and religious practices. (Id. at 95.) The 8 children were ultimately removed from the Hadfields’ care. (See id. at 17.) 9 DCYF then placed Z.A.G. in foster care with Ms. Meekins. (See id. at 17.) While 10 under Ms. Meekins’ care, Z.A.G. suffered head injuries and developed a skin condition 11 on his scalp. (Id. at 97; Resp. at 11.) Plaintiffs state that they conveyed their concerns 12 about Z.A.G.’s injuries, his skin condition, and fear that he was not receiving medications 13 to Defendant Derrick Reinhardt. (See Am. Compl. at 15-16; Resp. at 12.) Plaintiffs state 14 that they expressed the same complaints regarding Z.A.G.’s health to Defendants 15 Rosalynda Carlton, Rachel Zakopyko, Shawna Jones, Tabitha Pomeroy, and Stephanie 16 Allison-Noone, but were dissatisfied with the State Defendants’ response to their 17 complaints. (Am. Compl. at 15-16; Resp. at 12.) 18 19 20 III. ANALYSIS The court first reviews the legal standard for summary judgment before turning to the State Defendants’ motion. 21 22 ORDER - 6 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 7 of 31 1 A. Summary Judgment Legal Standard 2 Summary judgment is appropriate if the evidence, when viewed in the light most 3 favorable to the non-moving party, demonstrates, “that there is no genuine dispute as to 4 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” 6 if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 7 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” 8 if it “might affect the outcome of the suit under the governing law.” Id. The moving 9 party bears the initial burden of showing that there is no genuine dispute of material fact 10 and that it is entitled to prevail as a matter of law, which it may do by “identifying those 11 portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, 12 together with the affidavits, if any,’ which it believes demonstrate the absence of a 13 genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (quoting Fed. R. Civ. P. 14 56(c)). Thus, “regardless of whether the moving party accompanies its summary 15 judgment motion with affidavits, the motion may, and should, be granted so long as 16 whatever is before the district court demonstrates” the absence of a genuine dispute of 17 material fact and that the movant is entitled to judgment as a matter of law. Id. 18 If the moving party meets its burden of production, the burden then shifts to the 19 nonmoving party to identify specific facts from which a factfinder could reasonably find 20 in the nonmoving party’s favor. Id. at 324; Anderson, 477 U.S. at 250. Although the 21 court must construe pleadings by pro se litigants liberally, see Wilk v. Neven, 956 F.3d 22 1143, 1147 (9th Cir. 2020), it will not identify specific evidentiary support for the factual ORDER - 7 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 8 of 31 1 assertions underlying their legal claims for them, see Indep. Towers of Wash. v. 2 Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[J]udges are not like pigs, hunting for 3 truffles buried in briefs.”) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 4 1991)). Conclusory, self-serving statements are insufficient to create a genuine dispute of 5 material fact. F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 6 1997), as amended (Apr. 11, 1997). 7 B. 8 9 Plaintiffs’ Evidence At the outset, the court notes that Plaintiffs have again failed to follow the Federal Rules of Civil Procedure and the court’s local rules in filing their response to the State 10 Defendants’ motion for summary judgment, despite the court’s repeated admonitions that 11 the court’s rules are not optional and that they must comply with them. (See, e.g., 12 9/30/2022 Minute Order (Dkt. # 97) at 2 (informing Plaintiffs that they must comply with 13 the court’s rules); 1/10/2022 (Dkt. # 23) (same).) Although the court has cited to 14 Plaintiffs’ amended complaint for factual background, the complaint is not evidence and 15 allegations made therein are not competent evidence to oppose a motion for summary 16 judgment. See Fed. R. Civ. P. 56(c); Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 17 (9th Cir. 2001) (stating that “the non-moving party must go beyond the pleadings and by 18 its own evidence set forth specific facts showing that there is a genuine issue for trial”). 19 Plaintiffs have not filed any affidavits or declarations that comply with the Federal Rules 20 or the court’s local rules, nor have they directed the court to the specific portions of the 21 record that they rely on in opposing the motion for summary judgment. See Fed. R. Civ. 22 P. 56(c) (requiring that affidavits or declarations filed to oppose a motion “must be made ORDER - 8 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 9 of 31 1 on personal knowledge, set out facts that would be admissible in evidence, and show that 2 the affiant or declarant is competent to testify on the matters stated”); see also Local 3 Rules W.D. Wash. LCR 10(c)(10) (requiring litigants to attach and clearly mark exhibits 4 in support of their arguments, and providing, “References in the parties’ filings to such 5 exhibits should be as specific as possible.”). 6 Nevertheless, the court affords a certain amount of leeway to pro se litigants and 7 construes their pleadings liberally. See, e.g., Richards v. Harper, 864 F.2d 85, 88 (9th 8 Cir. 1988). Accordingly, out of an abundance of caution, the court considers the exhibits 9 attached to Plaintiffs’ amended complaint and responsive brief to the extent Plaintiffs cite 10 them in opposing Defendants’ motion for summary judgment. 11 C. The State Defendants’ Motion for Summary Judgment 12 The State Defendants move for summary judgment on each of Plaintiffs’ claims. 13 They assert that: (1) Plaintiffs’ constitutional claims are barred by qualified immunity, 14 or, in the alternative, by judicial estoppel and Heck v. Humphrey, 512 U.S. 477 (1994); 15 (2) Plaintiffs do not show violations of their Fourteenth Amendment rights; and 16 (3) Plaintiffs’ negligence claims are legally deficient. (See Mot. at 2-3.) 17 1. Heck v. Humphrey bars Plaintiffs’ Fourteenth Amendment familial association and Brady claims. 18 Plaintiffs allege that the State Defendants violated their Fourteenth Amendment 19 right to familial association by removing their children from their care based on 20 misrepresentations of Plaintiffs’ disciplinary practices and without following DCYF 21 procedures. (Am. Compl. at 12, 93-94.) Plaintiffs further allege that the State 22 ORDER - 9 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 10 of 31 1 Defendants withheld exculpatory evidence in violation of their Fourteenth Amendment 2 rights as articulated in Brady v. Maryland, 373 U.S. 83 (1963). (See Am. Compl. at 93; 3 Resp. at 4-5.) The State Defendants argue that both claims are barred by Heck. (Mot. at 4 17.) The court agrees. 5 Under Heck, a plaintiff cannot maintain a § 1983 action where it will “necessarily 6 imply the invalidity of” an existing conviction or sentence, “unless the plaintiff can 7 demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 8 U.S. at 487. Thus, where a conviction stands, Heck instructs that “if a criminal 9 conviction arising out of the same facts stands and is fundamentally inconsistent with the 10 unlawful behavior for which section 1983 damages are sought the 1983 action must be 11 dismissed.” Lemos v. Cnty. of Sonoma, 5 F.4th 979, 983 (9th Cir. 2021) (en banc) 12 (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam)). When the 13 underlying conviction is the result of a guilty plea, and not a verdict following trial, the 14 court must similarly determine whether success in the § 1983 action would undermine the 15 validity of the plea agreement. See Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 16 2005) (en banc), disapproved of on state law grounds in Lemos, 5 F.4th at 983-84; see 17 also Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). It is the 18 defendants’ burden to establish that Heck applies by showing that “success in the action 19 would necessarily imply the invalidity of a criminal conviction.” Washington v. Los 20 Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1056 n.5 (9th Cir. 2016). 21 22 Here, there is no dispute that Plaintiffs’ guilty pleas remain in effect, and Mr. Grael-El has exhausted his appeals. See State v. Grae-El, No. 82306-0-I, 2022 WL ORDER - 10 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 11 of 31 1 670953 (Wash. Ct. App. March 7, 2022), rev. denied, 512 P.3d 892 (Wash. 2022). As a 2 result, the only question before the court is whether success on Plaintiffs’ Fourteenth 3 Amendment § 1983 claims would imply the invalidity of their guilty pleas. See City of 4 Hemet, 394 F.3d at 699. The court finds that it would. 5 a. Plaintiffs’ Fourteenth Amendment familial association claims are barred by Heck. 6 As discussed in greater depth below, a violation of the right to familial association 7 arises where a state actor unlawfully interferes with the parent-child relationship. Keates 8 v. Koile, 883 F.3d 1228, 1238 (9th Cir. 2018). State actors may only separate children 9 from their parents if they had “reasonable cause to believe [the children were] in 10 imminent danger of serious bodily injury,” and if “the scope of the intrusion was 11 reasonably necessary to prevent serious bodily injury.” Id. Thus, Plaintiffs can only 12 prevail on their § 1983 claim by showing that DCYF lacked reasonable cause to believe 13 the children were in imminent danger of serious bodily injury. See id. 14 The State Defendants contend that because the court previously determined that 15 Plaintiffs’ Fourteenth Amendment claims that SPD officers relied on false or inadequate 16 information in removing their children were barred by Heck, it must also determine that 17 Plaintiffs’ similar claims against the State Defendants are barred. (See Mot. at 11, 16, 18; 18 see also 4/19/2022 Order (Dkt. # 73) at 20-22 (dismissing Plaintiffs’ Fourteenth 19 Amendment claims against SPD officers); 8/23/2022 Order at 14-16 (granting summary 20 judgment to remaining SPD officers on Plaintiffs’ Fourteenth Amendment claims). The 21 State Defendants also note that Mr. Grae-El acknowledged when he pleaded guilty to 22 ORDER - 11 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 12 of 31 1 assault in the third and fourth degrees against his children that he “‘overstepped his 2 boundaries as a parent, according to Washington law.’” (Reply at 5 (quoting State v. 3 Grae-El, 2022 WL 670953, at *3); see also Grae-El Guilty Plea at 9 (admitting to “the 4 crime of assault” and “offensive or unwanted touching”).) Ms. Strange also pleaded 5 guilty to two counts of assault in the fourth degree against one of her children. (See Am. 6 Compl. at 35-36.) 7 Plaintiffs counter that because they pleaded guilty to lesser forms of child abuse 8 than the conduct on which DCYF and its agents based their decision to remove Plaintiffs’ 9 children, their § 1983 claims do not imply the invalidity of their guilty pleas. (See Resp. 10 at 5-6.) Specifically, Mr. Grae-El states that he pleaded guilty to “an offensive or 11 unwanted touching” while physically disciplining A.S., to “hit[ting] [A.S.’s] hand,” and 12 to striking E.M.D. “with a belt, using moderate force, on top of his clothing,” which 13 Plaintiffs contend could not have left a marking. (Id.; Grae-El Guilty Plea at 9.) 14 Plaintiffs assert that DCYF’s decision to remove the children from their care, by contrast, 15 was predicated on allegations of more serious physical abuse—allegations Plaintiffs 16 dispute—including that Mr. Grae-El punched A.S. in the face, causing a black eye, and 17 left markings on E.M.D.’s body following a beating with a belt. (See Resp. at 5.) But 18 Plaintiffs admitted to assaulting their children in their guilty pleas; success in their § 1983 19 claim will necessarily imply that these guilty pleas were invalid. (See 4/19/22 Order at 20 17-19; Grae-El Guilty Plea at 9). 4 Therefore, for the same reasons articulated in the 21 4 22 Plaintiffs do not dispute that much of the same evidence was used to support both DCYF’s decision to remove Plaintiffs’ children and Plaintiffs’ criminal charges (which led to ORDER - 12 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 13 of 31 1 court’s prior orders, the court determines that Plaintiffs’ Fourteenth Amendment familial 2 association claims against the State Defendants are barred by Heck. (See 4/19/2022 3 Order at 16-22; 8/23/2022 Order at 14-16.) 4 5 b. Plaintiffs’ Brady claim is barred by Heck. The State Defendants also argue that Plaintiffs’ claim that the State Defendants 6 withheld exculpatory evidence in the form of “Ms. Ferreria’s verbatim child interview,” 7 in violation of their Fourteenth Amendment rights is barred by Heck. (See Mot. at 18; see 8 also Am. Compl. at 93; Resp. at 4-5.) The court agrees. 9 Suppression of evidence violates the accused’s due process rights where the 10 evidence “is material either to guilt or to punishment.” Brady, 373 U.S. at 87. Evidence 11 is “material” if “there is a reasonable probability that, had the evidence been disclosed to 12 the defense, the result of the proceeding would have been different.” U.S. v. Bagley, 473 13 U.S. 667, 682 (1985). A plaintiff establishes a “reasonable probability” of a different 14 result by showing that the “government’s evidentiary suppression ‘undermines 15 confidence in the outcome of the trial.’” Kyles v. Whitely, 514 U.S. 419, 434 (1995) 16 (quoting Bagley, 473 U.S. at 678). Thus, a successful Brady claim would necessarily 17 imply the invalidity of an underlying criminal conviction and is therefore barred by Heck 18 where the conviction has not been overturned. See, e.g., Skinner v. Switzer, 562 U.S. 19 521, 536-37 (2011) (suggesting Brady claims are barred by Heck); Amaker v. Weiner, 20 179 F.3d 48, 51 (2d Cir. 1999) (determining plaintiff’s Brady claim was barred by Heck). 21 22 their guilty pleas), including Ms. Webster’s assessment that the physical discipline caused more than transient pain. (See Am. Compl. at 93-94.) ORDER - 13 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 14 of 31 1 Here, if Plaintiffs could establish a reasonable probability that the disclosure of 2 Ms. Ferreria’s “verbatim child interview” would have resulted in a different outcome in 3 their criminal proceedings, it would necessarily imply that their guilty pleas were invalid. 4 Therefore, Plaintiffs’ Brady claim is barred by Heck and the State Defendants are also 5 entitled to summary judgment with respect to Plaintiffs’ Brady claim. 6 2. The individually named State Defendants are entitled to qualified immunity with respect to Plaintiffs’ Fourteenth Amendment familial association claims. 7 Even if Plaintiffs’ Fourteenth Amendment claims were not barred by Heck, the 8 court finds that qualified immunity bars these claims against the individually named State 9 Defendants. 10 In determining whether a government employee is entitled to summary judgment 11 on qualified immunity, the court must decide whether: (1) viewing the facts in the light 12 most favorable to plaintiff, the government employee violated the plaintiff’s 13 constitutional right; and (2) the right at issue was “clearly established” at the time the 14 defendant engaged in the misconduct. Crowe v. Cty. of San Diego, 608 F.3d 406, 427 15 (9th Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A court may consider 16 the two questions in any order and need not decide both questions to resolve the case. 17 Pearson v. Callahan, 555 U.S. 223, 232 (2009). 18 The Fourteenth Amendment’s Due Process Clause recognizes a liberty interest in 19 familial association, which is independently held by both parent and child. Keates, 883 20 F.3d at 1235-36; Smith v. City of Fontana, 818 F.2 1411, 1418 (9th Cir. 1987). The right 21 protects parents’ custodial interests in their minor children, City of Fontana, 818 F.2d at 22 ORDER - 14 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 15 of 31 1 1419, such that parents who raise such claims allege deprivation of their own liberty 2 interests as opposed to those of their children, Kelson v. City of Springfield, 767 F.2d 651, 3 653 n.2 (9th Cir. 1985). The right to familial association has “both a substantive and a 4 procedural component.” Keates, 883 F.3d at 1236. The court evaluates the State 5 Defendants’ motion with respect to Plaintiffs’ substantive and procedural due process 6 claims in turn. 7 8 9 a. Plaintiffs do not show a violation of substantive due process. The substantive due process right to familial association right is fundamental but not limitless: parents’ liberty interest in familial association is “limited by the compelling 10 government interest in protecting minor children.” Woodrum v. Woodward City, Okl., 11 866 F.3d 1121, 1125 (9th Cir. 1989). A state violates a parent’s substantive due process 12 right to familial association by interfering with the parent-child relationship through 13 conduct that “shocks the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 14 2008). A state official’s conduct may shock the conscience if the official acted with 15 “deliberate indifference” to the victim. Id.; see also Calonge v. City of San Jose, 16 523 F. Supp. 3d 1101, 1105-16 (N.D. Cal. 2021) (finding plaintiff sufficiently alleged 17 deliberate indifference where police officer killed plaintiff’s family member who was 18 unarmed and walking away despite the officer having sufficient time to make repeated 19 verbal commands). 5 For a defendant to act with deliberate indifference, he or she must 20 21 22 5 A substantive due process violation may also arise where an officer acts with a “purpose to harm.” Porter, 546 F.3d at 1137. The “purpose to harm” test only applies where an encounter escalates quickly, forcing the officer to make a snap judgment. See id. Because Plaintiffs’ ORDER - 15 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 16 of 31 1 “recognize the unreasonable risk and actually intend to expose the [victim] to such risks 2 without regard to the consequences to the [victim].” Herrera v. Los Angeles Unified Sch. 3 Dist., 18 F.4th 1156, 1158 (9th Cir. 2021) (internal quotation marks and brackets 4 omitted). 5 Here, although Plaintiffs repeatedly use the phrase “substantive due process” in 6 their amended complaint, they do not direct the court to specific facts that would support 7 a claim that any of the State Defendants engaged in conduct that would “shock the 8 conscience.” (See, e.g., Am. Compl. at 97-98.) To the contrary, the facts in the record 9 reveal that the State Defendants removed the children from Plaintiffs’ custody after the 10 children described physical abuse and the State Defendants observed physical injuries on 11 the children. Therefore, because Plaintiffs fail to identify evidence that would allow a 12 factfinder to find establish a violation of their substantive due process rights to familial 13 association, their substantive due process claim is barred by qualified immunity. Because 14 Plaintiffs fail to show a violation of this right, the court need not evaluate whether the 15 right was “clearly established.” See Pearson, 555 U.S. at 232 (asserting that the court 16 may consider the questions in either order and need not address both). 17 18 b. Plaintiffs do not show a violation of procedural due process. A procedural due process violation of the right to familial association arises when 19 an official fails to provide the parents with fundamentally fair procedures. See Keates, 20 833 F.3d at 1236 (quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). State actors 21 22 interactions with the State Defendants took place over a series of days, they do not fit this description. Accordingly, the court focuses only on the “deliberate indifference” test. ORDER - 16 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 17 of 31 1 do not violate this right by separating children from their parents if (1) at the time of the 2 separation, the state actors had sufficient information gleaned from a “reasonable 3 investigation” that gave them “reasonable cause to believe [the children were] in 4 imminent danger of serious bodily injury,” and (2) “the scope of the intrusion was 5 reasonably necessary to prevent serious bodily injury.” Keats, 883 F.3d at 1238. 6 In support of their procedural due process claim, Plaintiffs allege defects in the 7 investigation and dependency proceedings. Specifically, Plaintiffs point to the 8 individually named State Defendants’ (1) failure to comply with DCYF policy with 9 respect to recording notes (See Am. Compl. at 93-95; Resp. at 3-4, 11); (2) decision to 10 interview their children individually as opposed to collectively (see Am. Compl. at 94; 11 Resp. at 7 (describing this as “child taint”)); and (3) Ms. Webster’s characterization of 12 Plaintiffs’ disciplinary tactics as “beatings” instead of “whoopins” (see Am. Compl. at 13 12-13, 93). In support of their allegations that DCYF misrepresented and mishandled 14 reports of suspected child abuse, Plaintiffs cite an expert report by social worker Sonja 15 Ulrich. 6 (See Resp. at 9-10; see also Ulrich Report (Dkt. # 77-4). 7) Plaintiffs further 16 assert that Ms. Ferreria orchestrated SPD’s November 29, 2018 removal of the children 17 “out of bitterness and spite,” even though “[t]here was no documented reasonable 18 6 19 20 21 22 Ms. Ulrich appeared as an expert witness for the Defendant Mr. Grae-El’s appeal of his criminal convictions in state court. See State v. Grae-El, 2022 WL 670953, at *6 (repeating trial court’s conclusion that Ms. Ulrich’s “assessment of CPS’s practices would have been largely irrelevant in the criminal case”). 7 The State Defendants ask the court to disregard Ms. Ulrich’s report because Plaintiffs did not attach it to their response and because it is unauthenticated and hearsay. (See Reply at 3.) The court does not address the State Defendants’ request because it would not impact the outcome of this ruling. ORDER - 17 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 18 of 31 1 articulable suspicion identified November 28th[,] 2018 by SPD that indicated any crime 2 had been committed.” (Resp. at 2-3.) In further support of their claims that individually 3 named State Defendants lacked reasonable cause to remove their children, Plaintiffs rely 4 on Mr. Reinhardt’s report declining to conclude Mr. Grae-El had caused A.S.’s black eye. 5 (see id. at 3-4.) Plaintiffs additionally reiterate their own assertion that Ms. Webster’s 6 assessment was an “inflammatory and unprofessional opinion” to support this claim. 7 (See Am. Compl. at 12, 92-93.) 8 9 None of the alleged misconduct Plaintiffs identify persuades the court to walk back its prior determination that SPD had “‘reasonable cause to believe’ that the children 10 were ‘likely to experience imminent bodily harm.’” (8/23/2022 Order at 18 (quoting 11 Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 790 (9th Cir. 2016), 20-22). Because 12 SPD’s decision to remove the children was based on substantially the same information 13 as the State Defendants’ decision, the court reaches the same conclusion here. In 14 addition, while the court must view the facts in Plaintiffs’ favor, it need not accept a 15 version of events that is wholly unsupported by the record. See Villiarimo v. Aloha 16 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2022) (noting that courts refuse to find a 17 genuine issue of fact where the only evidence presented is uncorroborated and 18 self-serving). Plaintiffs cannot create a genuine dispute of fact by simply asserting, for 19 example, that Ms. Ferreria acted “out of bitterness and spite.” See Publishing Clearing 20 House, Inc., 104 F.3d at 1171 (determining that conclusory and self-serving statements 21 are insufficient to raise a genuine dispute of material fact). Ms. Ulrich’s report also fails 22 to raise a genuine dispute of fact: Plaintiffs cite portions of her report that are redundant ORDER - 18 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 19 of 31 1 of Plaintiffs’ own conclusory allegations regarding irregularities in the State Defendants’ 2 investigative procedures. (See Resp. at 9-10.) The irregularities Ms. Ulrich identifies 3 would not lead a factfinder to reasonably find in Plaintiffs’ favor when SPD officers— 4 whose investigations did not share these alleged flaws—had reasonable cause to believe 5 Plaintiffs’ children were likely to experience imminent bodily harm. 6 Therefore, because Plaintiffs cannot demonstrate that the State Defendants lacked 7 reasonable cause to remove their children, Plaintiffs cannot establish a violation of their 8 procedural due process right to familial association. 8 Plaintiffs’ procedural due process 9 claim is barred by qualified immunity. 9 10 3. Plaintiffs’ Brady claim against State Defendants fails as a matter of law. 11 The State Defendants urge that even if Plaintiffs’ Brady claim were not barred by 12 Heck, the claim is legally deficient and should be dismissed. (See Mot. at 18-19.) In 13 response, Plaintiffs reiterate that Ms. Ferreria’s “verbatim child interview” was never 14 submitted in the Shelter Care hearing or to any other court, assert that she “deliberately 15 lied” about the November 29, 2018 interview, and pose the rhetorical question, “How is 16 this not withholding exculpatory evidence, facts or statements?” (Resp. at 4.) The court 17 agrees that Plaintiffs have failed to carry their burden to show that the alleged 18 19 20 21 22 8 Construing Plaintiffs’ briefing liberally, the court cannot identify any arguments that the scope of the State Defendants’ intrusion into the parent-child relationship was greater than “reasonably necessary to prevent serious bodily injury.” Keates, 883 F.3d at 1238. 9 As with Plaintiffs’ substantive due process claim, see supra Section III.C.2.a, the court need not address whether the procedural due process right to familial association was “clearly established” in order to find that the individually named State Defendants are entitled to qualified immunity. See Pearson, 555 U.S. at 232. ORDER - 19 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 20 of 31 1 withholding of Ms. Ferreria’s verbatim child interview undermines confidence in the 2 outcome of their criminal proceedings and therefore have not established the necessary 3 elements of a Brady claim. (See supra Section III.C.1.b); see also Kyles, 514 U.S. at 434. 4 4. Plaintiffs’ familial association claim against DCYF fails as a matter of law. 5 The State Defendants argue that even if Plaintiffs’ Fourteenth Amendment familial 6 association claim against DCYF were not barred by Heck, their claim fails as a matter of 7 law because Plaintiffs fail to show that the removal decision was based on insufficient 8 evidence that Plaintiffs’ children were in imminent danger of serious bodily harm, and 9 therefore cannot prove a constitutional violation. (See Mot. at 15-17.) Plaintiffs respond 10 that “DCYF improperly requested removal” and “incorrectly escalated” the investigation 11 based on “incorrect, defamatory, and inflammatory information.” (Resp. at 2-3, 6-7.) 12 The court agrees with the State Defendants. 13 The court previously determined that the “compilation of evidence” on which SPD 14 relied in removing Plaintiffs’ children from their care was “sufficient to establish 15 probable cause” that the children were likely to experience serious bodily harm. 16 (8/23/2022 Order at 18-20.) That “compilation of evidence” included Dunlap staff’s 17 reports, SPD officers’ documented observations, reports by individually named State 18 Defendants, and statements by Plaintiffs’ children regarding Plaintiffs’ disciplinary 19 tactics. (See id.) The court further noted that the SPD officers’ observations were 20 corroborated by doctors at Seattle Children’s Hospital after the children were removed. 21 22 ORDER - 20 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 21 of 31 1 (Id. at 19 n. 8.) 10 Here, Plaintiffs assert that even if DCYF and its case workers observed 2 bruises and scratches on their children, they lacked a basis for attributing the bruises and 3 scratches to Plaintiffs. (See Resp. at 6-7.) But as this court already noted, the children 4 told SPD officers and Ms. Ferreria that Plaintiffs had caused these and other physical 5 manifestations of assault through their “whoopins.” (See 8/23/2022 Order at 18 (citing 6 SPD General Offense Report at 20).) 7 Even when viewing these facts in Plaintiffs’ favor, the court concludes that no 8 reasonable factfinder could find that DCYF’s involvement in removing Plaintiffs’ 9 children was based on insufficient evidence that the children were likely to face serious 10 bodily injury. Nor do Plaintiffs’ unsupported, conclusory assertions that DCYF relied on 11 “incorrect, defamatory, and inflammatory information” create a dispute of material fact 12 with respect to the sufficiency of the evidence before the agency. See Publishing 13 Clearing House, Inc., 104 F.3d at 1171 (determining that conclusory and self-serving 14 statements are insufficient to raise a genuine dispute of material fact). 15 Finally, Plaintiffs cite an expert report by Dr. Steven Gabaeff finding that 16 Plaintiffs’ children were not abused, but the report does not create a dispute of material 17 fact with respect to whether DCYF had sufficient cause to remove Plaintiffs’ children. 18 (See Resp. at 9 (referencing Gabaeff Report (sealed) (Dkt. # 77-3)).) Dr. Gabaeff 19 originally prepared this report in support of Mr. Grae-El’s motion seeking to vacate his 20 criminal convictions in state court. See State v. Grae-El, 2022 WL 670953, at *3. After 21 10 22 Plaintiffs’ guilty pleas also undermine their argument that the State Defendants lacked authority to remove their children. ORDER - 21 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 22 of 31 1 an evidentiary hearing, the trial court determined that Dr. Gabaeff’s opinion would have 2 been of limited value because Dr. Gabaeff did not review the children’s forensic 3 interviews, the defense interviews, or the prior trial testimony. Id. at *5. The trial court 4 concluded that Dr. Gabaeff’s testimony “would not have been helpful at the criminal trial 5 or likely affected its outcome,” and the reviewing court agreed. Id. The court agrees 6 with the state courts’ assessment of Dr. Gabaeff’s report. Therefore, the court is not 7 persuaded that Dr. Gabaeff’s opinion would constitute admissible evidence that Plaintiffs 8 children were in imminent danger of serious bodily harm. See United States v. 9 Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019) (“Before admitting expert 10 testimony into evidence, the district court must perform a ‘gatekeeping role’ of ensuring 11 that the testimony is both ‘relevant’ and ‘reliable’ under Federal Rule of Evidence 702.”) 12 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)); see 13 also Fed. R. Evid. 702(a). 11 14 Accordingly, the State Defendants are entitled to summary judgment with respect 15 to Plaintiffs’ familial association claim against DCYF, even if that claim is not barred by 16 Heck. 17 18 19 20 21 22 11 The State Defendants ask the court to disregard Dr. Gabaeff’s report because Plaintiffs did not attach it to their response and because it is unauthenticated and hearsay. (See Reply at 3.) The court does not address the State Defendants’ request because it would not impact the outcome of this ruling. ORDER - 22 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 23 of 31 1 5. Plaintiffs do not identify violations of their Fifth Amendment rights. 2 Plaintiffs assert that the State Defendants violated their Fifth Amendment Rights. 3 (See Am. Compl. at 93.) The State Defendants characterize this claim as alleging a 4 violation of Plaintiffs’ right against self-incrimination. (See Mot. at 7, n.4.) Plaintiffs 5 neither dispute this characterization nor direct the court to any facts which would lead a 6 factfinder to reasonably find in their favor on this claim. (See Resp.); see also Celotex 7 Corp., 477 U.S. at 324. Accordingly, the State Defendants are entitled to summary 8 judgment with respect to Plaintiffs’ Fifth Amendment claim. 9 6. Plaintiffs’ state law negligence claims fail. 10 The State Defendants argue that (1) Plaintiffs’ negligent investigation claim fails 11 because Plaintiffs cannot establish the requisite elements of their claim and (2) Plaintiffs 12 lack standing to assert their state law negligence claims because Plaintiffs sue on their 13 own behalf, rather than on behalf of their children who allegedly suffered the injuries. 14 (See Mot. at 19-21; Reply at 6.) Liberally construed, Plaintiffs’ amended complaint 15 asserts two state law negligence claims against the State Defendants. First, Plaintiffs 16 allege DCYF was negligent in investigating reports of suspected child abuse by Plaintiffs, 17 resulting in the removal of Plaintiffs’ children from a nonabusive home. (See Am. 18 Compl. at 93-94; Resp. at 10-11.) Second, Plaintiffs allege DCYF was negligent in (1) 19 investigating reports that their children suffered mistreatment in foster care and (2) 20 removing the children from unsuitable foster homes quickly enough. (See Am. Compl. at 21 94-98; Resp. at 11-12.) The court agrees with the State Defendants that both claims fail 22 and addresses each claim in turn. ORDER - 23 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 24 of 31 1 a. Plaintiffs fail to establish that DCYF removed their children from a nonabusive home. 2 Washington courts recognize an implied cause of action under RCW 26.44.050, 3 the statute requiring DCYF to investigate child abuse. M.W. v. Dep’t of Soc. & Health 4 Servs., 70 P.3d 954, 957 (Wash. 2003). “A negligent investigation claim is available only 5 when law enforcement or DSHS conducts an incomplete or biased investigation that 6 ‘resulted in a harmful placement decision.’” McCarthy v. Cty. of Clark, 376 P.3d 1127, 7 1134 (Wash. Ct. App. 2016) (quoting M.W. v. Dep’t of Soc. & Health Servs., 70 P.3d 8 954, 955 (Wash. 2003)). 12 “A harmful placement decision includes ‘removing a child 9 from a nonabusive home, placing a child in an abusive home, or letting a child remain in 10 an abusive home.’” Id. (quoting M.W., 70 P.3d at 960). The Washington Supreme Court 11 has “rejected the proposition that an actionable breach of duty occurs every time the state 12 conducts an investigation that falls below a reasonable standard of care by, for example, 13 failing to follow proper investigative procedures.” Petcu v. State, 86 P.3d 1234, 1246 14 (Wash. Ct. App. 2004) (citing M.W., 70 P.3d at 960). To prevail on a negligent 15 investigation claim, “the claimant must prove that the allegedly faulty investigation was a 16 proximate cause of the harmful placement.” Id. at 1244. Plaintiffs must establish both a 17 “harmful placement” and a “proximate cause” element. See id. This type of negligent 18 investigation claim is available to the parent as well as to the child. M.W., 70 P.3d at 958. 19 20 21 22 12 DSHS, or the Department of Social and Health Services, previously administered Washington State’s foster care program. In July 2018, DCYF became responsible for administering the program. See Norah West, “On July 1, change is coming to child welfare, behavioral health in Washington state,” Washington State Department of Social and Health Services (June 12, 2018), http://www.dshs.wa.gov/sesa/office-communications/mediarelease/july-1-change-coming-child-welfare-behaviorl-health-washington-state. ORDER - 24 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 25 of 31 1 Plaintiffs allege that the State Defendants failed to follow DCYF procedures in 2 investigating and processing reports of suspected child abuse and intentionally 3 misrepresented the “whoopins” Plaintiffs inflicted as discipline on their children as 4 “beatings.” (See Am. Compl. at 93-94; Resp. at 9-11.) Plaintiffs argue that because their 5 disciplinary tactics were mere “whoopins,” the children were removed from a nonabusive 6 home. (See Am. Compl. at 93-94.) The State Defendants argue this is insufficient to 7 establish a negligent investigation claim because (1) the State Defendants and other 8 officials based the decision to remove the children on extensive evidence gathered by 9 multiple parties, and (2) Plaintiffs agreed, through their guilty pleas, that their 10 disciplinary tactics amounted to unlawful assaults on their children. (See Mot. at 20.) 11 The court agrees with the State Defendants that Plaintiffs have failed to establish their 12 negligent investigation claim and have failed to identify any facts that would lead a 13 factfinder to reasonably find in their favor. 14 Here, even casting the facts in Plaintiffs’ favor, Plaintiffs cannot succeed in their 15 claim that DCYF was negligent in its investigation and that this negligence proximately 16 caused Plaintiffs’ children to be removed from a nonabusive home. First, Plaintiffs 17 admitted to assaulting their children in their guilty pleas. (See Grae-El Guilty Plea at 9; 18 Am. Compl. at 35-36.) Plaintiffs do not discharge their burden of identifying specific 19 facts that would lead a reasonable factfinder to conclude their children were removed 20 from a nonabusive home by downplaying the assaults as “whoopins” or denying they 21 caused their children’s injuries despite ample evidence to the contrary. (See, e.g., supra 22 Section III.C.3.) Therefore, Plaintiffs cannot establish the “harmful placement decision” ORDER - 25 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 26 of 31 1 element of their claim. McCarthy, 376 P.3d at 1134. Second, even if DCYF failed to 2 follow the investigation procedures Plaintiffs identify, the removal decision was based on 3 extensive additional, corroborating evidence presented by other witnesses, including 4 Plaintiffs’ children. (See, e.g., 8/23/2022 Order at 18-19.) Failure to follow internal 5 procedures is not a basis for a negligent investigation action. Petcu, 86 P.3d at 1246. 6 Therefore, Plaintiffs also fail to identify specific facts that would lead a factfinder to 7 reasonably find that they established the causation element of their negligence claim. 8 The State Defendants are therefore entitled to judgment as a matter of law with respect to 9 this claim. 10 b. Plaintiffs’ claim that DCYF negligently failed to protect their children from abuse in foster homes fails. 11 Plaintiffs allege that DCYF was negligent in caring for some of their children 12 while they were placed in foster care. (See Am. Compl. at 21, 42, 96; Resp. at 11.) 13 Specifically, Plaintiffs allege that in placing Z.A.G. and A.S. with the Hadfields, foster 14 parents with a documented history of infractions, DCYF failed to discharge its duty to 15 protect the children from abuse. (Am. Compl. at 96; Resp. at 11.) Plaintiffs further 16 allege that DCYF failed to promptly remove their children from the Hadfields’ care after 17 concerns of abuse surfaced. (Am. Compl. at 96-97; Resp. at 11-12). Finally, Plaintiffs 18 allege DCYF failed to promptly investigate Plaintiffs’ own complaints that Z.A.G. had 19 20 21 22 ORDER - 26 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 27 of 31 1 suffered injuries and was not receiving adequate medical care while in the care of Ms. 2 Meekins. 13 (Am. Compl. at 97-98; Resp. at 11-12.) 3 An action for negligence is available to a plaintiff to whom a defendant owed but 4 failed to discharge a duty of care. H.B.H. v. State, 429 P.3d 484, 491-92 (Wash. 2018) 5 (citing Peterson v. State, 671 P.2d 230, 425-26 (Wash. 1983)). Although there is 6 generally no duty to protect a person from harm by a third party, a duty nonetheless arises 7 where there is a “special relationship” between the defendant and the third party or 8 defendant and the foreseeable victim of the third party’s conduct. Peterson, 671 P.2d at 9 426 (quoting Niece v. Elmview Grp. Home, 929 P.2d 420, 423 (Wash. 1997)). Thus, “a 10 special relationship, and the accompanying duty to protect, arises where . . . the defendant 11 has a special relationship with the victim that gives the victim a right to protection.” Id. 12 (citing Niece, 929 P.2d at 423). DCYF stands in a special relationship to foster children 13 and thus owes a duty to protect those children from foreseeable harm at the hands of 14 foster parents. H.B.H., 429 P.3d at 496 (citing Restatement (Second) of Torts § 315(b) 15 (1965)). 16 17 However, Washington courts narrowly construe this special duty to protect only those in DCYF’s custody and care. The agency’s special duty to foster children derives 18 19 20 21 22 13 Plaintiffs also allege that “DCYF acted unreasonably in the placing of AS into the home of Leslie Meekins.” (Resp. at 11.) Ms. Meekins, a Dunlap teacher, made the first report of suspected abuse; Plaintiffs allege that placing A.S. in her care was a “direct violation” of the Washington statute prohibiting DCYF from placing foster children with adults who have investigated allegations of abuse in connection with their employment. (See id. (citing RCW 74.13.530).) However, this statute does not expressly contain a private right of action, nor have Washington courts interpreted it to contain one. Therefore, the court disregards this allegation. ORDER - 27 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 28 of 31 1 from its organic statute, the purpose of which “is to safeguard, protect, and contribute to 2 the welfare of the children of the state.” Id. at 495-96 (quoting RCW 74.13.010) 3 (emphasis added) (recognizing special relationship and duty owed to foster children 4 where children sued on their own behalf). Plaintiffs do not identify any authority 5 recognizing a special duty owed to the biological parents of children placed in foster care 6 that would give Plaintiffs standing to recover from DCYF for harm suffered by their 7 children in foster care. (See generally Resp.) The court has not identified any such 8 authority in its own research. 9 Plaintiffs’ negligence claim alleging DCYF failed to protect their children from 10 harm by various foster parents fails because DCYF did not owe Plaintiffs, the parents of 11 the children in its care, any special duty. See id. If DCYF failed to protect Plaintiffs’ 12 children from foreseeable harm in the care of their foster parents, the right to recover for 13 those harms belongs to Plaintiffs’ children, and not to Plaintiffs. See id. Because 14 Plaintiffs have brought this claim on their own behalf, rather than on behalf of their 15 children, their claim is legally deficient. The State Defendants are entitled to summary 16 judgment as a matter of law on this claim. 17 D. Plaintiffs must show cause why the court should not dismiss Plaintiffs’ First and Fourth Amendment claims on summary judgment. 18 Plaintiffs assert that the State Defendants violated their First and Fourth 19 Amendment rights. (Am. Compl. at 93.) The court construes Plaintiffs’ First and Fourth 20 Amendment claims against the State Defendants as alleging that the State Defendants 21 violated their familial associational rights protected by those amendments. (See Am. 22 ORDER - 28 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 29 of 31 1 Compl. at 93-95 (alleging State Defendants removed Plaintiffs’ children based on 2 inadequate showing and without following procedures and placed children with foster 3 families without accounting for “family constellation, sibling relationships, ethnicity, 4 culture, and religion”)); see also Keates, 888 F.3d at 1236 (noting that the First 5 Amendment protects family relationships); Kirkpatrick, 843 F.3d at 791 (discussing the 6 “settled premise that social workers violate the Fourth Amendment by removing children 7 absent a warrant or exigent circumstances.”). 8 Although the State Defendants seek summary judgment on all of Plaintiffs’ claims 9 against them (Mot. at 8), they do not present substantive arguments for summary 10 judgment on Plaintiffs’ First or Fourth Amendment claims (see generally id.). 14 11 Nevertheless, Federal Rule of Civil Procedure 56(f)(2) provides that a court may grant a 12 motion for summary judgment on grounds not raised by a party after giving notice and a 13 reasonable time to respond. Fed. R. Civ. P. 56(f)(2). Here, the court has already 14 determined that Plaintiffs’ familial association claims under the Fourteenth Amendment 15 fail because (1) they are barred by Heck or by qualified immunity, or (2) Plaintiffs fail to 16 meet their burden to identify facts from which a factfinder could reasonably find that the 17 14 18 19 20 21 22 The State Defendants attempt to dispose of Plaintiffs’ First Amendment claim in a footnote, arguing “It appears the allegations of First Amendment violation is directed to SPD. Notwithstanding, any First Amendment claim against DCYF would fail for the same reason that it failed against the City of Seattle.” (Mot. at 7, n.4 (citing 8/23/22 Order at 17-21).) The court disagrees with State Defendants’ construction. The court previously dismissed Plaintiffs’ claim that an SPD officer assumed protective custody over Plaintiffs’ children without a warrant in retaliation for Mr. Grae-El’s statements and conduct during the November 28, 2018 visit. (See 8/23/2022 Order at 17; see also Am. Compl. at 71.) The court interprets Plaintiffs’ Amended Complaint to accuse the State Defendants not of retaliation but of violating their familial association rights. ORDER - 29 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 30 of 31 1 State Defendants violated their rights. (See supra Sections III.C.1; III.C.2, III.C.4.) In 2 light of this reasoning, the court is doubtful that Plaintiffs’ familial association claims 3 under the First and Fourth Amendments remain viable. Therefore, pursuant to Rule 4 56(f)(2), the court ORDERS Plaintiffs to show cause why it should not grant summary 5 judgment on Plaintiffs’ First and Fourth Amendment claims in light of the court’s 6 reasoning regarding Plaintiffs’ Fourteenth Amendment claims. 15 7 8 9 IV. CONCLUSION For the forgoing reasons, the court GRANTS the State Defendants’ motion for summary judgment (Dkt. # 92) with respect to Plaintiffs’ Fourteenth Amendment familial 10 association claim, Plaintiffs’ Fourteenth Amendment Brady claim, Plaintiffs’ Fifth 11 Amendment claim, and Plaintiffs’ state law negligence claims. The court ORDERS 12 Plaintiffs to SHOW CAUSE why State Defendants are not entitled to summary judgment 13 with respect to Plaintiffs’ First and Fourth Amendment claims. Plaintiffs shall file a 14 response to this order, limited to six pages and in full compliance with the Federal Rules 15 of Civil Procedure and the Local Rules for the Western District of Washington, no later 16 17 18 19 20 21 15 22 The court again reminds Plaintiffs to comply with the Federal Rules of Civil Procedure and the Local Rules in their response, if any, to this order. ORDER - 30 Case 2:21-cv-01678-JLR Document 99 Filed 11/08/22 Page 31 of 31 1 than November 14, 2022. The State Defendants may, but are not required to, file a 2 response, also limited to six pages, no later than November 16, 2022. 3 Dated this 8th day of November, 2022. 5 A 6 JAMES L. ROBART United States District Judge 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 31

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