IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GREGORY TAYLOE-MCCANDLESS,
individually, and BECKY GEARHART, NO. 72736-2-I
CO O
individually, and SARA ANDERSON,
Personal Representative for the Estate
Of Hunter L. McCandless and on behalf G~> c;
of the Estate of Hunter L. McCandless,
3s. com
Appellants,
DIVISION ONE V?
v. o O
en 21
STATE OF WASHINGTON, and its
subsidiaries, THE DEPARTMENT
OF SOCIAL AND HEALTH SERVICES
AND CHILD PROTECTIVE SERVICES, UNPUBLISHED OPINION
JOHN DOES, 1-10, JANE DOES, 1-10
and CORPORATIONS ABC, DEF &
GHI,
Respondents. FILED: August 17, 2015
Lau, J. — Gregory Tayloe-McCandless, Becky Gearhart,1 and the estate of
Hunter McCandless (collectively "McCandless") appeal the trial court's dismissal of their
wrongful death negligence action against the State of Washington, the Department of
1Appellants' written submissions below and on appeal appear to misspell
Gearhart's last name. In this opinion we use the spelling from the caption in the
amended complaint.
No. 72736-2-1/2
Social and Health Services, and other respondents (collectively "DSHS") under Civil
Rule 12(c). On appeal they claim that they properly pleaded causes of action against
DSHS for negligent failure to make a report of child abuse and neglect and for negligent
failure to conduct an investigation. They also contend the trial court improperly denied
their motion to amend their complaint under CR 15. Because McCandless fails to show
that DSHS owed them a duty to report or investigate alleged abuse or neglect of Hunter
and because the trial court properly declined to rule on the oral motion to amend the
complaint, we affirm.
FACTS
The first amended complaint for damages alleges the following: on May 26,
2010, three-month-old Hunter McCandless died while in the care of his father, Gregory
Tayloe-McCandless.2 The death occurred when Gregory suffered a seizure and
collapsed on top of Hunter, suffocating him.
At the time of his death, Hunter was living with his parents and five-year-old
sister at their apartment in Everett, Washington. Hunter's mother, Becky Gearhart,
worked during the day while Gregory stayed at home to care for Hunter.
Gregory received medical care for epilepsy and suffered from seizures. His
doctors cautioned that he should not be left alone with his children due to his risk of
seizures.
Gregory and Gearhart applied to the State of Washington and DSHS for
childcare assistance. To support their application, they submitted a doctor's letter
2 We use first names for clarity.
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No. 72736-2-1/3
stating, "this is to confirm Mr. Tayloe-McCandless has epilepsy and should not be left
solely caring for his young children."
DSHS denied the application.3
In June 2013, McCandless, Gearhart, and the personal representative of
Hunter's estate (McCandless) filed a lawsuit against DSHS alleging it was negligent in
failing to extend childcare benefits. The complaint further alleged that DSHS:
conducted no investigation into the home where Plaintiffs and their minor
children resided and did not intervene to prevent Tayloe-McCandless from
being alone at home with his child. Despite its knowledge that a child was
in the sole custody of his father, an epileptic who posed an immediate
danger to the child, Defendant did nothing.
Clerk's Papers (CP) at 58. In essence, McCandless alleges that DSHS owed
them a duty to report, investigate, and remove Hunter from their home and its
failure to do so proximately caused Hunter's death.
In September 2014, DSHS filed a motion for judgment on the pleadings under
Civil Rule 12(c). DSHS argued that McCandless' claim for failure to extend childcare
benefits is not a cognizable cause of action. DSHS also argued that even assuming the
truth of each of McCandless' allegations, they failed to establish a cause of action under
the Abuse of Children statute, chapter 26.44 RCW, because they alleged neither a
harmful placement decision nor child abuse or neglect.
3 In its answer to McCandless' complaint, DSHS states this denial was based on
the parents' failure to complete the application. At oral argument to this court,
appellants' counsel acknowledged that the parents failed to complete their application
timely and failed to reapply for benefits after their application was denied.
No. 72736-2-1/4
In October 2014, the trial court granted DSHS's motion and dismissed the
complaint. The trial court also declined to rule at that time on McCandless' oral motion
to amend the complaint.
McCandless appeals.4
ANALYSIS
Standard of Review
McCandless appeals from the trial court's dismissal of their claims for negligent
failure to report abuse or neglect and negligent failure to investigate abuse or neglect
under Civil Rule 12(c).
This court treats a CR 12(c) motion for judgment on the pleadings identically to a
CR 12(b)(6) motion to dismiss for failure to state a claim. P.E. Systems, LLC v. CPI
Corp., 176 Wn.2d 198, 203, 289 P.3d 638 (2012). "Like a CR 12(b)(6) motion, the
purpose is to determine if a plaintiff can prove any set of facts that would justify relief."
P.E. Systems, 176 Wn.2d at 203. Dismissal under a 12(b)(6) claim is appropriate
where it appears beyond a reasonable doubt that no facts exist that would justify
recovery, even when accepting as true the allegations contained in the plaintiff's
complaint. P.E. Systems, 176 Wn.2d at 210-11. In performing this analysis, we "must
take the facts alleged in the complaint, as well as hypothetical facts, in the light most
favorable to the nonmoving party." M.H. v. Corp. of Catholic Archbishop of Seattle, 162
4 McCandless does not assign error or present argument on their claim that
DSHS failed to extend childcare benefits. A party abandons an issue on appeal by
failing to brief the issue. Holder v. City of Vancouver, 136 Wn. App. 104, 107, 147 P.3d
641 (2006). We decline to address this issue.
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No. 72736-2-1/5
Wn. App. 183, 189, 252 P.3d 914 (2011). We review dismissal under CR 12(c)
de novo. P.E. Systems, 176 Wn.2d at 203.
The primary issues in this appeal relate to whether DSHS owed McCandless a
duty sufficient to support a cause of action in negligence. A claim for negligence
requires a plaintiff to establish "(1) the existence of a duty to the plaintiff, (2) a breach of
that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury."
Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013).
In a negligence action, courts first address the threshold question of whether the
defendant owes a duty of care to the injured plaintiff. Estate of Kelly v. Falin, 127
Wn.2d 31, 36, 896 P.2d 1245 (1995). At common law, the State was immune from
lawsuit. Linville v. State, 137 Wn. App. 201, 208, 151 P.3d 1073 (2007). Thus, only
where the legislature has expressly waived sovereign immunity by statute can there be
the possibility of an actionable duty owed by the State. Linville, 137 Wn. App. at 208.
That duty may be found in the language of the statutes. Tyner v. Dep't of Social and
Health Serv's, 141 Wn.2d 68, 78, 1 P.3d 1148 (2000).
Existence of a Duty
McCandless argues that the trial court erred by dismissing their lawsuit because
they pleaded a valid negligence cause of action in Washington. But McCandless'
arguments merely assume that given Gregory's seizure disorder, leaving him alone to
care for Hunter constitutes child abuse or neglect. McCandless pleaded no facts, actual
and imagined, that trigger a duty on the part of DSHS to report or to investigate acts of
alleged child abuse or neglect under the unique circumstances presented here.
No. 72736-2-1/6
The Abuse of Children statute contains mandatory reporting, investigation, and
other procedures related to child abuse. In enacting this statute, the legislature stated
its intent to safeguard children from abuse or neglect:
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.. . .
RCW 26.44.010 (emphasis added).
Under RCW 26.44.030, all DSHS employees are mandatory reporters required to
report abuse when there is "reasonable cause to believe that a child has suffered abuse
or neglect." "Abuse or neglect" are statutorily defined as:
[Sjexual abuse, sexual exploitation, or injury of a child by any person
under circumstances which cause harm to the child's health, welfare, or
safety, excluding conduct permitted under RCW 9A.16.100; or the
negligent treatment or maltreatment of a child by a person responsible for
or providing care to the child. An abused child is a child who has been
subjected to child abuse or neglect as defined in this section.
RCW 26.44.020(1).
"Negligent treatment" is defined as:
[A]n act or failure to act, or the cumulative effects of a pattern of conduct,
behavior, or inaction, that evidences a serious disregard of consequences
of such magnitude as to constitute a clear and present danger to a child's
health, welfare, or safety, including but not limited to conduct prohibited
under RCW 9A.42.100.
RCW 26.44.020(16).
Mandatory reporters must report suspected abuse within 48 hours of developing
reasonable cause to believe abuse or neglect has occurred. RCW 26.44.030(1 )(g).
Similarly, DSHS is required by statute to investigate and provide protective services
when it receives a report alleging possible abuse or neglect. RCW 26.44.050.
No. 72736-2-1/7
The core of McCandless' contention is that the "State did nothing after being
presented with information and becoming aware that [Gregory] posed a threat to the
welfare and wellbeing of his children." Br. of Appellant at 11. Citing to the statement of
legislative intent in RCW 26.44.010, McCandless argues that the child abuse statutes
are "broadly worded to protect children from non-accidental injury and death and to
protect and safeguard such children's safety and health." Br. of Appellant at 9.
RCW 26.44.010, quoted above, expresses the legislature's concern over abuse
involving "nonaccidental" injury, among others, where a child is deprived of minimal
nurture, health, and safety. Here, no party disputes that the death of Hunter was a
tragic accident.
The Legislature also clearly expressed its intent to insulate a parent from
allegations of child abuse or neglect based solely on the existence of a parent's
disability or handicap.
No parent or guardian may be deemed abusive or neglectful solely by
reason of the parent's or child's blindness, deafness, developmental
disability, or other handicap.
RCW 26.44.015(3).
This unambiguous language leaves no doubt that Gregory's epilepsy seizure
disorder falls squarely within this statute's narrow limitation.
McCandless relies on Beggs v. Dep't of Social and Health Serv's, 171 Wn.2d 69,
247 P.3d 421 (2011), Yonkers v. Dep't of Social and Health Servs.. 85 Wn. App. 71,
930 P.2d 958 (1997), M.W. v. Dep't of Social and Health Serv's, 149 Wn.2d 589, 70
P.3d 954 (2003), Lewis v. Whatcom County, 136 Wn. App. 450, 149 P.3d 686 (2006).
But those cases do not control because unlike here, they undisputedly involve direct
No. 72736-2-1/8
physical abuse or neglect of a child. McCandless cites to no controlling authority
extending the statutory duty to report and investigate child abuse and neglect to the
unique circumstances presented here.
Likewise, nothing in chapter 26.44 RCWs statutory scheme indicates the
legislature intended to expand the duty alleged here premised on a parent's diagnosed
medical condition. Indeed, the legislature required "reasonable cause to believe that a
child has suffered abuse or neglect" before the State may intrude in "[t]he bond between
a child and his or her parent. . . any intervention into the life of a child is also an
intervention into the life of the parent " RCW 26.44.010.
McCandless further contends that the trial court "should also accept as true that
the State and its employees had a duty to report under RCW 26.44.030 but failed to do."
Br. of Appellant at 11. This argument is equally misplaced. As discussed above, no
duty runs to the DSHS as a matter of law. A motion for judgment on the pleadings
admits only the facts well pleaded, not mere legal conclusions, the pleader's
interpretation of the statute involved, or his construction of the subject matter. City of
Moses Lake v. Grant County, 39 Wn. App. 256, 262, 693 P.2d 140 (1984). Whether or
not the duty element exists in the negligence context is a question of law that is
reviewed de novo. Sheikh v. Choe, 156 Wn.2d 441, 448, 128 P.3d 574 (2006).
We conclude that under the unique circumstances here, McCandless pleaded no
facts, real and imagined, sufficient to trigger a duty on the part of DSHS to investigate
and report.
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No. 72736-2-1/9
Motion to Amend Complaint
McCandless contends that the trial court erred when it "denied" his motion to
amend his complaint. Br. of Appellant at 15. We disagree. The record plainly shows
the trial court declined to rule on the motion at that time.
Under CR 15(a), a plaintiff must obtain permission from the court or written
consent of the adverse party to amend a complaint if an answer has been filed. The
rule also provides that leave to amend "shall be freely given when justice so requires."
CR 15(a). The decision to grant leave to amend the pleadings is within the discretion of
the trial court. Wilson v. Horslev, 137 Wn.2d 500, 505, 947 P.2d 316 (1999). The trial
court's decision will not be disturbed except where there is a clear showing of an abuse
of discretion. Wilson, 137 Wn.2d at 505.
The trial court's minute entry states: "Plaintiff's motion to amend the complaint:
not ruled upon as it is not before the court today." CP at 3. McCandless submitted no
written motion to amend and attached no proposed amended pleading. CR 15(a). No
signed order denying the oral motion to amend is included in our record.
McCandless relies on Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 189 P.3d
168 (2008). That case does not apply. There, the trial court denied plaintiffs' motion to
amend the pleadings without an explicit explanation. We affirmed the denial because
the apparent reason was futility of amendment.
Here, the trial court did not rule on the motion so there is no ruling for this court to
review. See Mavekawa Mfg. Co. v. Sasaki, 76 Wn. App. 791, 796 n.6, 888 P.2d 183
(1995) (ruling must be final and definitive to preserve right to review). The trial court's
explanation that McCandless' oral motion was not properly before it, left open the
No. 72736-2-1/10
opportunity for McCandless to note a subsequent motion to amend the complaint.
McCandless made no motion to amend the complaint.
CONCLUSION
For the reasons discussed above, we affirm the CR 12(c) dismissal of
McCandless' negligence lawsuit.
WE CONCUR:
T7 i s/ke^/ > J"
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