IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
L.G., a minor; L.G., a minor; RANDY
GIBSON, individually and as guardian No. 86098-4-I
in fact of L.G. and L.G.,
DIVISION ONE
Appellants,
ORDER GRANTING MOTION
v. TO PUBLISH, AND
WITHDRAWING AND
WASHINGTON STATE SUBSTITUTING OPINION DEPARTMENT OF CHILDREN,
YOUTH, AND FAMILIES, a
Washington State government agency,
and the STATE OF WASHINGTON,
Respondents.
Respondent, Washington State Department of Children, Youth, and Families,
filed a motion to publish and amend the opinion filed on May 11, 2026. Appellants,
L.G., L.G., and Randy Gibson, filed an answer to the motion. The court has
determined that the motion to publish should be granted and the opinion filed on May
11, 2026 shall be withdrawn and a substitute opinion be filed.
Now, therefore, it is hereby
No. 86098-4-I/2
ORDERED that the motion to publish and amend is granted and the opinion
filed on May 11, 2026 is withdrawn and a substitute opinion shall be filed.
FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
L.G., a minor; L.G., a minor; RANDY
GIBSON, individually and as No. 86098-4-I
guardian in fact of L.G. and L.G.,
DIVISION ONE
Appellants,
PUBLISHED OPINION
v.
WASHINGTON STATE
DEPARTMENT OF CHILDREN,
YOUTH, AND FAMILIES, a
Washington State government
agency, and the STATE OF
WASHINGTON,
Respondents.
DÍAZ, J. — Randy Gibson, individually and as guardian of his minor children,
L.N.G. and L.L.G., 1 sued the Washington State Department of Children, Youth,
and Families (DCYF), claiming it negligently investigated allegations of abuse of
the children by their mother. The court dismissed his suit on summary judgment.
We affirm.
I. BACKGROUND
Between 2017 and 2020, various people contacted DCYF at least 10 times
1 For clarity, we only refer to the father as Gibson. We refer to the children by their initials to protect their anonymity.
No. 86098-4-I/2
with concerns about the safety of the two children, L.N.G. and L.L.G. Their parents
lived separately and the reported incidents occurred at both homes. DCYF never
sought a shelter hearing or instigated removal of the children. We summarize each
relevant DCYF referral chronologically below. 2
1. April 2017 and September 2018
In April 2017, Gibson reported to DCYF that the children’s mother was
giving them medicine “to knock them out at night,” although the referral did not
specify what type of medicine. He also stated that L.N.G. was afraid to go to her
mother’s home because her mother had threatened to “whip [her] butt and cut her
hair off.” L.N.G. also said that her mother had slapped her face. He did not report
any marks or bruises. DCYF “screened out” the referral without investigating,
noting in the intake report that there was “[n]o specific [child abuse or neglect]
allegation or risk.”
2 The clerk’s papers indicate that DCYF received other referrals not discussed in
this opinion, some of which occurred before 2017. In his opening brief, Gibson points to five DCYF responses between 2017 and 2020 in support of their negligent investigation claim. At oral argument, Gibson claimed that there were at least six relevant incidents. Wash. Ct. of Appeals oral argument, L.G.v. Dep’t of Child., Youth & Fams., No. 86098-4-I (Mar. 5, 2026), at 3 min., 30 sec. through 3 min., 55 sec. video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals2026031191/?eventID=2026031191. It is possible that Gibson is referring to two separate incidents in August 2018 that were reported in the same referral. Gibson may also be referring to a referral in April 2017 which alleged sexual abuse of L.L.G. while he was in Gibson’s care, since the expert declaration stated that DCYF’s response did not meet the standard of care. However, Gibson does not argue that DCYF was negligent in the April 2017 response to the sexual abuse allegation. We limit the scope of our review to the DCYF responses substantively argued by Gibson in the briefing. Clark County v. W. Wash. Growth Mgmt. Hrg’s Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013) (“The scope of a given appeal is determined by the notice of appeal, the assignments of error, and the substantive argumentation of the parties.”).
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No. 86098-4-I/3
In August 2018, Gibson contacted DCYF to inform them that the mother’s
twelve-year-old nephew had allegedly sexually assaulted the children and tried to
drown them, but that their mother was still allowing the nephew unsupervised
contact with the children. DCYF investigated and concluded that the allegations
were unfounded.
2. October 2018 and February 2020
In October 2018, both Gibson and the Seattle Police Department (SPD)
contacted DCYF to inform them that L.N.G. had a black eye and that she said her
maternal aunt had picked her up by the neck and thrown her down. DCYF initiated
a “family assessment response.” After speaking with the mother and with L.N.G.
herself, DCYF closed the case.
In January 2020, a school counselor informed DCYF that L.N.G. had
disclosed that her mother told her to “get naked and get out of the house.” The
counselor did not have any additional details and could not specify a time other
than “sometime last year.” DCYF “screened out” the referral due to no specific
allegation of child abuse or neglect.
In February 2020, a school nurse, a hospital social worker, and a police
officer reported to DCYF that L.N.G. had a chipped tooth and that she had
disclosed that her mother had punched her several times. DCYF investigated and
then closed the case in March 2020, finding there was no longer any present
danger to the children because a superior court had ordered that the children were
to reside full-time with Gibson.
3. Family Court Procedural History
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No. 86098-4-I/4
Before the court entered a parenting plan, the children alternated weeks
between Gibson’s house and their mother’s house. A final parenting plan entered
in July 2018 ordered that the children reside with their mother and allowed Gibson
visitation. As referenced above, in February 2020, the children began living with
Gibson, and Gibson petitioned to change the parenting plan. In April 2020, the
court found adequate cause to change the parenting plan while the case was
pending.
The court held a two-day trial on March 1-2, 2021. The court found that, in
their mother’s home, the children experienced “physical and emotional harm
inflicted upon them on a consistent basis.” The court therefore entered a final
parenting plan, ordering that the children should reside primarily with Gibson and
that their contact with their mother should be supervised.
4. Tort Claim
In March 2022, Gibson sued DCYF, claiming both negligent investigation
and general negligence. DCYF moved for summary judgment. In response,
Gibson filed a declaration from Barbara Stone, a social worker with several years’
experience with children and family services in Washington. She had reviewed
DCYF’s reports and declared that several of its responses did not meet the
standard of care. Following a hearing, the court granted summary judgment and
dismissed both of Gibson’s claims.
II. ANALYSIS
On appeal, Gibson assigns error only to the dismissal of the negligent
investigation claim. Wash. Ct. of Appeals oral argument, L.G. v. Dep’t of Youth,
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No. 86098-4-I/5
Child., & Fams., No. 86098-4-I (Mar. 5, 2026), at 2 min., 4 sec. through 2 min., 16
sec. video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals2026031191/?eventID=2026031191. Specifically, Gibson claims that he
“presented a plethora of facts that raise genuine issues of material fact” on that
claim. We disagree.
We review summary judgment orders de novo, while “view[ing] all facts and
reasonable inferences in the light most favorable to the nonmoving party.”
TracFone, Inc. v. City of Renton, 30 Wn. App. 2d 870, 875, 547 P.3d 902 (2024).
Washington courts employ a two-step burden-shifting analysis for summary
judgment motions. Id. First, the “party moving for summary judgment bears the
initial burden of showing that there is no disputed issue of material fact.” Haley v.
Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 216, 522 P.3d 80 (2022). Second,
the “burden then shifts to the nonmoving party to present evidence that an issue
of material fact remains.” Id. “Put another way, summary judgment ‘should be
granted only if, from all the evidence, a reasonable person could reach only one
conclusion.’” Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531 P.3d
265 (2023) (quoting Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301
(1998)).
DCYF’s concomitant duties to protect children, respect the rights of parents,
and preserve families “are often in tension with each other.” Atkerson v. Dep’t of
Child., Youth, & Fams., 4 Wn.3d 307, 314, 562 P.3d 1256 (2025). The legislature
enacted a statutory framework “aimed at limiting the harm to families from State
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No. 86098-4-I/6
intervention while not chilling social workers from intervening when necessary to
protect the child.” Id. at 310.
When DCYF receives a report of child abuse or neglect, it has a duty to
investigate “[e]xcept as provided in RCW 26.44.030(12). RCW 26.44.050(1).
DCYF may “screen out” a report if the allegation “does not rise to the level of a
credible report of abuse or neglect.” RCW 26.44.020(26). If the allegation rises to
the level that triggers a duty to investigate, the legislature has given DCYF
discretion to respond with either a traditional investigation or a family assessment.
RCW 26.44.030(12)(a).
If there is probable cause to believe that a child should be removed from
their home “to prevent imminent physical harm to the child due to child abuse or
neglect,” a law enforcement officer may remove the child without a court order.
RCW 26.44.050. A shelter care hearing, at which the court determines whether
the child should be returned to the family home, should be held within 72 hours,
excluding weekends and holidays. RCW 13.34.065(1)(a). Any investigation that
occurs prior to a shelter care hearing, including investigations that never lead to
removal, are “emergent placement investigations.” Atkerson, 4 Wn.3d at 315-17.
Of the DCYF responses that Gibson argues were negligent, none of them
led to a shelter care hearing, meaning that all the responses were emergent
placement investigations. Id. One was conducted as a family assessment, two as
traditional investigations, and two as screened-out reports. We review each
response in turn.
A. Family Assessment
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No. 86098-4-I/7
Gibson argues that there is a genuine issue of material fact as to whether
DCYF was negligent when in October 2018, it responded with a family assessment
to the allegations that L.N.G.’s aunt had thrown her by her neck and that L.N.G.
had a black eye. We disagree.
A family assessment is “a comprehensive assessment of child safety, risk
of subsequent child abuse or neglect, and family strengths and needs.” RCW
26.44.020(12). A family assessment “does not include a determination as to
whether child abuse or neglect occurred, but does determine the need for services
to address the safety of the child and the risk of subsequent maltreatment.” Id.
DCYF may only be held civilly liable for responding with a family
assessment if “the state or its officers, agents, or employees acted with reckless
disregard.” RCW 26.44.030(12)(d). Reckless disregard is when someone acts
despite either knowing or having reason to know that their conduct creates “a high
degree of probability that substantial harm will result” for someone else. 3 Brown
v. Dep’t of Soc. & Health Servs., 190 Wn. App. 572, 590, 360 P.3d 875 (2015).
Gibson did not plead reckless disregard in his initial complaint. Nor does
he argue, either in his opening brief or response to the motion for summary
judgment, that DCYF showed reckless disregard. Instead, Gibson points to a
DCYF policy that states that family assessments are for “lower risk allegations of
child maltreatment” and to Stone’s declaration stating that “[a]n 8-year-old child
3 To our knowledge, no appellate court in Washington has reviewed a claim that
an investigating department or agency showed reckless disregard in responding with a family assessment instead of a traditional investigation. We therefore apply the legal definition from similar fact patterns by analogy to determine whether Gibson presents evidence of reckless disregard.
7
No. 86098-4-I/8
with a black eye who reports being picked up by her neck is not a low-risk
allegation.” Even assuming Stone’s declaration is true, a violation of policy alone
is not evidence of reckless disregard. See Petcu v. State, 121 Wn. App. 36, 59,
86 P.3d 1234 (2004) (holding that a deviation from the standard of care or failure
to follow proper procedures is insufficient for a claim of negligent investigation).
The uncontested facts show that L.N.G. said the black eye was caused by
her cousin “trying to hit her with a pillow.” L.N.G. also reported that she was able
to breathe when her aunt lifted her up and that she was not hurt when her aunt
threw her down. DCYF spoke with the mother following the referral, and the
mother clarified that the aunt had lifted L.N.G. using her coat to pull her away from
roughly playing with her sister. Even viewing the evidence in the light most
favorable to Gibson, the evidence does not give DCYF a reason to know that
responding with a family assessment and then closing the case would result in a
high probability of substantial harm to the children. See, e.g., Brown, 190 Wn.
App. at 594 (holding that a mother who did not immediately seek medical care for
her child who was burned with hot water did not show reckless disregard).
Gibson’s claim of negligent investigation regarding the October 2018 allegation
therefore fails since they do not present evidence that DCYF showed reckless
disregard.
B. Investigations
Gibson next argues that there is a genuine issue of material fact as to
whether DCYF negligently investigated the August 2018 and February 2020
referrals. We again disagree.
8
No. 86098-4-I/9
To prevail on a claim for negligent investigation, a parent must prove both
that DCYF conducted an “incomplete or biased” investigation and that the failure
was a proximate cause of the child being placed in a “harmful placement decision,
such as . . . letting a child remain in an abusive home.” Atkerson, 4 Wn.3d at 314
(internal quotation marks omitted) (quoting Desmet v. Dep’t of Soc. & Health
Servs., 200 Wn.2d 145, 160, 514 P.3d 1217 (2022)). It is not enough to show that
DCYF failed to “follow proper investigative procedures” or that the investigations
fell below a standard of care. Petcu, 121 Wn. App. at 59.
The legislature has further limited DCYF’s liability when conducting an
emergent placement investigation. Atkerson, 4 Wn.3d at 310. A parent may only
prevail if they show that the “determination to leave a child with a parent”
constituted gross negligence. Id. at 316-17 (quoting RCW 4.24.595(1)). “‘To
survive summary judgment in a gross negligence case, a plaintiff must provide
substantial evidence of serious negligence.’” Peterhans v. Univ. of Wash., 34 Wn.
App. 2d 745, 753, 571 P.3d 322 (2025) (emphasis omitted) (quoting Harper v.
Dep’t of Corr., 192 Wn.2d 328, 345-46, 429 P.3d 1071 (2018)). 4
Since DCYF’s investigations in this case are all “emergent placement
investigations,” DCYF is protected from liability by RCW 4.24.595(1) unless Gibson
4 The court in Atkerson recited an alternative definition of “gross negligence,” which
is “the failure to exercise slight care.” 4 Wn.3d at 311-12 (quoting Nist v. Tudor, 67 Wn.2d 322, 324, 407 P.2d 798 (1965)). Our courts have “expanded on” and this “frequently expressed statement,” noting that it “does not mean ‘the total absence of care but care substantially or appreciably less than the quantum of care inhering in ordinary negligence.’” Peterhans, 34 Wn. App. 2d at 752-53 (quoting Harper, 192 Wn.2d at 342, and Nist, 67 Wn.2d at 331).
9
No. 86098-4-I/10
can show gross negligence. Atkerson, 4 Wn.3d at 315-17. Gibson bears the
burden to show that DCYF acted with gross negligence. Id. at 312.
As to the August 2018 investigation into the claim that the mother’s nephew
had sexually assaulted and tried to drown the children, Gibson does not present
substantial evidence of seriously negligent acts or omissions. The DCYF social
worker spoke with both parents, both maternal grandparents, a maternal aunt, and
both children. When the social worker asked, both children denied any sexual
assault. The social worker spoke with the grandfather, who was present for the
alleged drowning incident, and who explained that the children were playing safely
and that lifeguards were present.
In response, Gibson relies greatly on Stone’s declaration, which states only
that the August 2018 investigation, was “incomplete and does not follow standard
of care.” No reasonable person could find, based upon such testimony—even
viewing the evidence in the light most favorable to Gibson—that DCYF committed
seriously negligent acts or omissions in its investigations. See Welch, 27 Wn. App.
2d at 114. The record is unclear how the investigation was incomplete, let alone
seriously incomplete. In turn, Gibson may not prevail on a negligent investigation
claim for the August 2018 referral.
As to the February 2020 referral, in which L.N.G. disclosed that her mother
had punched her several times, DCYF originally initiated a family assessment
response, but exercised its discretion under RCW 26.44.030(12)(b)(ii) to conduct
an investigation following the corroborating referral and additional information from
the school nurse. DCYF spoke with the mother, father, maternal grandmother, and
10
No. 86098-4-I/11
both children. The social worker informed the mother that force or physical
discipline should not be used going forward.
Stone again states that the investigation did not meet the standard of care
because the worker does not consult with family court, and because DCYF closed
the case when family court gave the father custody of the children. But Stone does
not testify, and Gibson does not provide any further evidence, that these alleged
omissions were a proximate cause of the child being placed in a “harmful
placement decision, such as . . . letting a child remain in an abusive home.”
Atkerson, 4 Wn.3d at 314. Thus, again, Gibson presents no issue of material fact
as to the negligent investigation claim for the February 2020 referral.
C. Screened-Out Reports
Gibson finally claims that there is a genuine issue of material fact as to
whether DCYF was negligent when it screened out the referrals regarding the April
2017 and January 2020 incidents. We again disagree.
Specifically, Gibson argues that the allegations triggered DCYF’s duty to
investigate, which DCYF failed to do when it “screened out” the referrals. DCYF
responds that its duty to investigate was not triggered by the referrals since the
information did not meet the definition of abuse or neglect. DCYF is correct.
On a negligence claim, summary judgment is proper if the plaintiff fails to
prove the essential element of duty. Martini v. Post, 178 Wn. App. 153, 164, 313
P.3d 473 (2013) (“The plaintiff must establish an issue of material fact as to each
element of negligence to defeat summary judgment.”) Gibson bears the burden to
show that DCYF had a duty to investigate. H.B.H. v. State, 192 Wn.2d 154, 168,
11
No. 86098-4-I/12
429 P.3d 484 (2018).
A report triggers DCYF’s duty to investigate only when it alleges abuse or
neglect. Wrigley v. Dep’t of Soc. & Health Servs., 195 Wn.2d 65, 71, 455 P.3d
1138 (2020) (citing former RCW 26.44.050 (2018)). Not all reports to DCYF
involve abuse or neglect. Wrigley, 195 Wn.2d at 73. To trigger a duty, the report
must specifically allege “past or current sexual abuse, sexual exploitation, or injury
of a minor child” or a “clear and present danger to a child’s health, welfare, or
safety” to constitute negligent treatment or maltreatment. Id. at 77 (quoting former
RCW 26.44.020(1) (2018)).
The April 2017 report alleged that the mother gave the children medicine
“to knock them out at night,” but it is unclear what medicine and where the mother
got it. The vague information does not specifically allege any abuse, exploitation,
injury, or a clear and present danger to the children sufficient to trigger a duty to
investigate. See Wrigley, 195 Wn.2d at 77 (holding that the report that a child
“would be dead within six months” did not trigger the duty to investigate since it
“did not allege past or current conduct of abuse or neglect”).
The allegations that the mother had slapped L.N.G.’s face and threatened
to “whip [her] butt” also do not allege abuse, exploitation, injury, or a clear and
present danger to the children sufficient to trigger a duty to investigate. See RCW
9A.16.100(1) (“the physical discipline of a child is not unlawful when it is
reasonable and moderate and is inflicted by a parent or guardian for purposes of
restraining or correcting the child”). Even with Stone’s declaration that the threats
to cut L.N.G.’s hair “were meant to cause emotional pain,” there is not a genuine
12
No. 86098-4-I/13
issue of material fact as to whether the allegations constitute abuse, exploitation,
injury, or a clear and present danger to the children. Without such evidence, DCYF
did not have a duty to investigate.
As to the January 2020 allegation that L.N.G.’s mother told her to “get naked
and get out of the house,” there is virtually no specificity nor any further explanation
of whether L.N.G. was actually forced outside naked. Stone’s conclusory
statement, “[t]hese allegations come clearly under the neglect statute,” is not
evidence that the allegation described specific abuse or neglect. There is no clear
and present danger to L.N.G., who stated that she was not living with her mother
at the time of the referral. No reasonable person would conclude that the referral
triggered DCYF’s duty to investigate. See Welch, 27 Wn. App. 2d at 114.
Even if we were to hold that, viewing the evidence in the light most favorable
to Gibson, DCYF’s duty to investigate was triggered, DCYF is still protected from
liability under RCW 4.24.595(1). The initial screening is part of the emergent
placement investigation, meaning Gibson must show gross negligence to prevail.
See, e.g., Atkerson, 4 Wn.3d at 316 (“RCW 4.24.595 does not apply only to acts
or omissions that result in shelter care hearings. It also applies to ‘any
determination to leave a child with a parent . . . or to return a child to a parent.’”)
(alteration in original) (quoting RCW 4.24.595(1)).
As to the April 2017 referral, DCYF had already initiated a family
assessment response following a different referral in April 2017. Gibson reported
the same allegations listed above to the social worker conducting the family
assessment. The social worker spoke with both parents and both children as part
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No. 86098-4-I/14
of the family assessment. The children did not disclose anything concerning to the
social worker. The social worker identified no other safety threats and closed the
case in June 2017. Stone responds summarily that “the failure to investigate this
report is a breach” and the intake “does not meet standard of care.” But Gibson
cannot show that the family assessment response in the following months was
such a substantial departure from the standard of care as to show that DCYF was
grossly negligent.
As to the January 2020 referral, Gibson has not provided substantial
evidence of serious negligence when DCYF assessed the allegation. The intake
report describes household composition, the custody situation, additional risk
factors, and a history of child abuse and neglect allegations. Although Stone states
that the response “is a breach of the mandated requirements for DCYF” and “does
not meet standard of care,” Gibson does not meet their burden to provide
substantial evidence of serious negligence as required to avoid summary judgment
on this issue.
Finally, Gibson argues that multiple breaches of the standard of care may
equate to gross negligence. Wash. Ct. of Appeals oral argument, supra at 21 min.,
50 sec. through 22 min., 15 sec. And he submits that Stone provides the factual
basis to create a genuine issue of material fact. In support, Gibson points to
Heideman v. Chelan County, ex rel. Chelan County Sheriff's Office, in which the
court noted expert testimony stating that a high number of referrals should alert
investigators of a greater risk of harm to the children. No. 33093-1-III, slip op. at
27 (Wash. Ct. App. Jun. 14, 2016) (unpublished),
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No. 86098-4-I/15
https://www.courts.wa.gov/opinions/pdf/330931.amd.pdf.
But Heideman, which was published nine years before Atkerson clarified
that RCW 4.24.595 shields DCYF from liability in emergent placement
investigations, does not address whether the several referrals warrant a higher
standard of care or otherwise serve as evidence of gross negligence. Heideman
does not support Gibson’s argument that multiple instances of alleged
negligence—each of which is insufficient to establish gross negligence—can
somehow cumulatively establish gross negligence. Indeed, if the argument were
accepted, it would allow plaintiffs to circumvent the clear statutory requirement that
there be gross negligence and would upset the balance the legislature has
established, aimed at “limiting the harm to families from State intervention while
not chilling social workers from intervening when necessary to protect the child.”
Atkerson, 4 Wn.3d at 310.
Although Gibson’s expert witness stated that the many reports showed “an
ongoing story of a family disruption with real consequences for the children” and
that DCYF failed several times to meet the standard of care, she does not state
that DCYF substantially departed from the standard of care at any time. In our
review of the evidence presented, we hold that no reasonable person could find
such a substantial departure from the standard of care as to constitute gross
negligence. See Welch, 27 Wn. App. 2d at 114. Therefore, summary judgment
dismissal was proper. 5
5 Because we uphold the dismissal based on Gibson’s failure to present evidence
of gross negligence or reckless disregard, we need not reach the issue of whether the negligent investigation was a proximate cause of the children being left in an
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No. 86098-4-I/16
III. CONCLUSION
We affirm the trial court’s order.
WE CONCUR:
abusive home.
16