WENATCHEE — A Washington appeals court ruled in favor of a state department in a civil lawsuit filed by a Wenatchee father accusing the entity of negligence after his son died in his mother's custody.
Ian Atkerson filed a civil lawsuit May 2020 in Chelan County Superior Court against the state Department of Children Youth, and Families which oversees Child Protective Services.
Atkerson believes protective services could have prevented Rustin's death if the state agency took action to remove his son from his mother's custody but instead conducted a "negligent investigation."
Atkerson's 2-year-old son, Rustin, died June 2017 in his mother's custody of a head injury. Medical examiners performed the autopsy said the injury was caused by blunt force and was classified as a homicide.
Elaine A. Hurd, the boy's mother, was convicted of second-degree criminal mistreatment in Douglas County Superior Court and was sentenced to 12 months of confinement. Hurd said at her 2019 sentencing that she felt responsible for what happened for leaving her son alone with her then-boyfriend Steven Rowe. Rowe was arrested in July 2017 in connection to Rustin's death, but never charged.
The state Department of Children Youth, and Families filed a motion for summary judgement — asking the judge make a ruling rather than proceeding to trial.
Both parties brought expert testimonies to court to determine "whether the evidence DCYF knew or should have known would have resulted in Rustin being removed from his mother's care."
The department brought the opinion of a retired Pierce County Superior Court judge while Atkerson brought a licensed independent clinical social worker, according to the appellate decision.
State law insulates, or protects, government entities and its employees from liability in "emergent placement investigations of child abuse or neglect" unless their actions "constitute gross negligence."
The state argued that the case should be dismissed because Atkerson could not prove, per state law, that the way the department acted was "grossly negligent."
Chelan County Superior Court ruled to strike the opinion of the retired judge because "the danger of the opinion's unfair prejudice substantially outweighed its probative value."
The court ultimately denied the department's motion for summary judgement after concluding that the state law's gross negligence standard did not apply," according to the filed decision.
The state of Washington Court of Appeals Division III ruled that Chelan County Superior Court was wrong in striking the opinion of the state's expert. And lastly, the appellate court also ruled that the gross negligence standard still applied.
"We reverse and remand for proceedings consistent with this opinion," said the court in its decision.
The case returns to the hands of the Chelan County Superior Court but it is unclear if the state will issue another motion for dismissal again.
