Kent Ducote, Petitioner, v. The Department of Social and Health Services, Respondent, 167 Wash. 2d 697

Fairhurst, J. fl Kent Ducote was barred from his home and from contact with his stepchildren after his stepdaughter alleged he engaged in sexual misconduct toward her. Following a lengthy dependency hearing, the trial court ultimately determined the allegations were not supported by the evidence and Ducote was allowed to return home. ¶2 Ducote asks this court to hold that stepparents have standing to bring a claim of negligent investigation against the Department of Social and Health Services (DSHS) pursuant to RCW 26.44.050. We decline. I.

FACTUAL AND PROCEDURAL HISTORY ¶3 Ducote married Dixie Ducote in 1994 and is the stepfather of her three children, Brittney, Cole, and Morgan. In spring 2000, Brittney, then 14 years old, told her middle school counselor that her stepfather struck her younger brother Cole, entered the bathroom while Brittney was on the toilet, and forced Brittney to sit on his lap and touched her buttocks. Approximately one week later, Brittney repeated these allegations to David Parks, a DSHS social worker.

Brittney additionally alleged to Parks that she had seen Ducote watching her disrobe through her bedroom window. ¶4 Based on Brittney’s allegations, DSHS placed her in emergency, temporary shelter care and filed dependency petitions for all three children.

On April 13, 2000, the superior court ordered Brittney removed from the family home, barred Ducote from the family home and from having contact with his three stepchildren, and prohibited Dixie from leaving the county with the children. ¶5 At the dependency hearing, approximately six months later, the trial court determined that Brittney’s allegations were not supported by the evidence, that Dixie was capable of adequately caring for her children, and that Brittney, Cole, and Morgan did not qualify as abused or neglected children.

The trial court lifted its earlier orders restricting Ducote’s contact with Cole and Morgan and prohibiting him from entering the family home. ¶6 Ducote subsequently filed a complaint for damages against the State of Washington, DSHS, alleging negligent investigation. In a motion for

summary judgment, the State argued DSHS did not owe stepparents a duty of care under RCW 26.44.050 because they were not within the class of persons for whose especial benefit the statute was enacted. The State argued that a claim for negligent investigation is limited to children, parents, guardians, and custodians. The trial court agreed and granted

summary judgment. ¶7 The Court of Appeals affirmed, holding the class of persons to whom DSHS owes a duty of care under RCW 26.44.050 is found in RCW 26.44.010 and does not include stepparents. Ducote v. Dep’t of Soc. & Health Servs., 144 Wn. App. 531, 536, 186 P.3d 1081 (2008) (published in part). Ducote asks this court to reverse the Court of Appeals and remand his negligent investigation claim to the superior court for trial. We granted review. Ducote v. Dep’t of Soc. & Health Servs., 164 Wn.2d 1014, 196 P.3d 130 (2008). II. ISSUE Whether a stepparent may bring a claim for negligent investigation under RCW 26.44.050. III. ANALYSIS ¶8 When reviewing dismissal of a case on

summary judgment, we employ the same inquiry as the trial court under CR 56(c). M.W. v. Dep’t of Soc. & Health Servs., 149 Wn.2d 589, 595, 70 P.3d 954 (2003). We review only those issues raised by the parties and considered by the trial court. Babcock v. State, 116 Wn.2d 596, 606, 809 P.2d 143 (1991) (citing RAP 12.1(a); State v. Hubbard, 103 Wn.2d 570, 573-74, 693 P.2d 718 (1985)). ¶9 RCW 26.44.050 requires DSHS to investigate allegations of child abuse: 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. A law enforcement officer may take, or cause to be taken, a child into custody without a court order if there is probable cause to believe that the child is abused or neglected and that the child would be injured or could not be taken into custody if it were necessary to first obtain a court order pursuant to RCW 13.34.050. The law enforcement agency or the department of social and health services investigating such a report is hereby authorized to photograph such a child for the purpose of providing documentary evidence of the physical condition of the child. ¶10 Neither the text of RCW 26.44.050 nor any other part of

chapter 26.44 RCW explicitly includes a claim for negligent investigation. Such claims also do not exist under common law in Washington. Pettis v. State, 98 Wn. App. 553, 558, 990 P.2d 453 (1999) (“In general, a claim for negligent investigation does not exist under the common law of Washington. That rule recognizes the chilling effect such claims would have on investigations.” (citing Corbally v. Kennewick Sch. Dist., 94 Wn. App. 736, 740, 973 P.2d 1074 (1999))).

Although neither the text of RCW 26.44.050 nor common law provides a cause of action for negligent investigation, this court implied such a cause of action for parents suspected of child abuse in Tyner v. Department of Social & Health Services, 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). ¶11 Where appropriate, a cause of action may be implied from a statutory provision when the legislature creates a right or obligation without a corresponding remedy. Bennett v. Hardy, 113 Wn.2d 912, 920, 784 P.2d 1258 (1990).

To determine whether it is appropriate to imply a cause of action, we use a three-part test: “first, 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.” Id. at 920-21 (citing In re Wash. Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987)).

The first part of the Bennett test, whether the plaintiff is within the class for whose especial benefit the statute was enacted, is the most important for deciding this case. ¶12 As discussed in Tyner, RCW 26.44.050 articulates only a general duty to investigate child abuse. Therefore, to determine whether a parent is within the class for whose especial benefit the statute was enacted, we looked to

chapter 26.44 RCW. Tyner, 141 Wn.2d at 78; Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998) (“We look to the language of the statute to ascertain whether the plaintiff is a member of the protected class.”). RCW 26.44.010 describes the purpose of the child abuse

chapter as prevention of child abuse without unnecessarily interfering with “[t]he bond between a child and his or her parent, custodian, or guardian” (Emphasis added.) Accordingly, we concluded parents fell within the class for whose especial benefit RCW 26.44.050 was enacted. Tyner, 141 Wn.2d at 80. ¶13 At issue in this case is whether Ducote, as a stepparent, falls within the class of persons protected by RCW 26.44.050. RCW 26.44.010 does not designate the bond between a child and his or her stepparent or other family member as one entitled to this same protection.

Because the legislature did not designate stepparents as members of the class protected by RCW 26.44.050, Ducote does not have standing to bring a negligent investigation claim. Adams v.

King County, 164 Wn.2d 640, 650, 192 P.3d 891 (2008) (“This court recognizes that ‘ [o] missions are deemed to be exclusions.’ ” (alteration in original) (quoting In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002))). ¶14 Aware that he does not qualify as a parent, guardian, or custodian, Ducote argues instead that our broad language in Tyner regarding the State’s “duty to act reasonably in relation to all members of the family” created a cause of action for negligent investigation for any member of the family. Tyner, 141 Wn.2d at 79 (emphasis added).

Ducote is correct that our opinion in Tyner contains a handful of expansive references to “family.” However, the plaintiff in Tyner was a parent, and when the opinion is read in its entirety, it is clear that the court was considering only whether a cause of action existed for the plaintiff in that case.

Id. at 82 (“We conclude that under RCW 26.44.050, [Child Protective Services] owes a duty of care to a child’s parents, even those suspected of abusing their own children, when investigating allegations of child abuse.”). ¶15 This case offers us the opportunity to clarify who, other than parents, are in the class of persons who may sue for negligent investigation under RCW 26.44.050.

Consistent with the test articulated in Bennett, we confirm that the class of persons who may sue for negligent investigation is limited to those specifically mentioned in RCW 26.44.010, namely, parents, custodians, and guardians, and the child or children themselves. See Pettis, 98 Wn. App. 553; see also Blackwell v. Dep’t of Soc. & Health Servs., 131 Wn. App. 372, 127 P.3d 752 (2006). ¶16 Ducote also argues case law interpreting RCW 26.44.050 supports including stepparents within the class of persons with standing to bring a claim for negligent investigation. Ducote relies on Babcock, M.W., and Roberson v.

Perez, 156 Wn.2d 33, 123 P.3d 844 (2005). In Babcock, we examined whether DSHS and its caseworkers have absolute immunity from liability for negligent foster care placement. 116 Wn.2d at 598. Although the plaintiffs included the children’s grandparents, their standing to bring an action was not an issue before this court. In M.W., we examined the scope of the injury contemplated by the legislature and did not extend the scope of RCW 26.44.050 to any injury that harmed the family unit as implied by Ducote. M.W., 149 Wn.2d at 597.

In Roberson, we examined whether a parent’s preemptive placement of her own child with a relative constituted a harmful placement decision. 156 Wn.2d at 46-47. The status of the plaintiffs was not at issue, and our opinion does not refer to the status of the stepfather except to describe the family as a mother, her son, and her husband. Id. at 36. These cases, therefore, do not support extending the scope of the State’s duty under RCW 26.44.050. ¶17 Finally, in Zellmer v.

Zellmer, 164 Wn.2d 147, 169, 188 P.3d 497 (2008), we recently held the parental immunity doctrine applied to stepparents standing in loco parentis. In that case, we traced the doctrine’s evolution in this state and in our sister states, examined policy arguments, and held we would not eliminate or limit the doctrine. Id. at 154-61. We concluded that because the doctrine was designed to protect parents’ discretion to raise their children without undue interference, its protection should extend to stepparents who are engaged in the education and discipline of their stepchildren. Id. at 164-65.

We ultimately found “no principled distinction between a legal parent and a stepparent who assumes all the obligations and exercises all the responsibilities of parenthood, as the public policy reasons supporting immunity for a biological or adoptive parent apply equally to one standing in loco parentis.” Id. ¶18 In Zellmer, however, we reexamined and explored a common law doctrine. We did not engage in the statutory construction required by the Bennett test for implied causes of action.

Implied causes of action are based upon the assumption that “ ‘the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.’ ” Bennett, 113 Wn.2d at 919-20 (quoting McNeal v. Allen, 95 Wn.2d 265, 277, 621 P.2d 1285 (1980) (Brachtenbach, J., dissenting)). Although the remedy is implicit, the right and the recipients of the right are explicit.

Thus, the Bennett test asks whether a remedy can be implied from legislative intent and whether implying a remedy is consistent with the purpose of the legislation but, when determining standing, asks “whether the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted.” Id. at 920. Although we may imply a remedy, we look to the language of the statute to determine to whom the remedy is available. Id. at 920-21. ¶19 As discussed above, we draw our class of plaintiffs from RCW 26.44.010, which does not include stepparents.

If the legislature wishes to expand tfie class of plaintiffs able to bring a claim for negligent investigation under RCW 26.44.050, it is free to revise the statute. IV. CONCLUSION ¶20 A cause of action for negligent investigation against DSHS does not exist at common law and is not explicitly stated in RCW 26.44.050. Instead, it is a cause of action implied through the Bennett test. The Bennett test looks to the language of the statute to determine to whom an implied remedy is available.

In this instance, a cause of action for negligent investigation under RCW 26.44.050 is limited by RCW 26.44.010 to parents, custodians, guardians, and children. ¶21 Although many stepparents have strong and rich relationships with their stepchildren, and may have greater rights and responsibilities with respect to their stepchildren than many other classes of persons, they are not included in the categories of persons who may sue for negligent investigation under RCW 26.44.050. We affirm the Court of Appeals. C. Johnson, Madsen, Owens, and J.M. Johnson, JJ., and Seinfeld, J. Pro Tem., concur.

After the trial court dismissed his case on

summary judgment, Ducote filed a motion for reconsideration in which he argued he had standing as a de facto parent. The trial court denied the motion because the issue of whether Ducote was a de facto parent had not been raised prior to

summary judgment. The Court of Appeals, in the unpublished portion of its opinion, rejected Ducote’s de facto parent argument for the same reason. Ducote, No. 59275-1-1, slip op. (unpublished portion) ¶ 17. Although Ducote states in his petition for review that the Court of Appeals erred when it refused to consider his standing as a de facto parent, he did not include de facto parentage as an issue or provide legal support for his argument.

We decline to consider the issue. “Stepparents” are not defined in the chapters governing dependency proceedings or investigations of child abuse; rather, they are defined in the context of support for dependent children: “ ‘Stepparent’ means the present spouse of the person who is either the mother, father, or adoptive parent of a dependent child, and such status shall exist until terminated as provided for in RCW 26.16.205.” RCW 74.20A.020(8). Notably, stepparents are defined by their relationship to the child’s parent, not to the child.