Court Interprets the Difference Between “Negligence” and “Negligent Treatment” in Case of Child Neglect

Ashley Brown v. Department of Social and Health Services (2015)

by David S. Marshall

The Court of Appeals has reversed a finding by the Department of Social and Health Services (DSHS) that Ashley Brown neglected her son, John. The record did not show that her conduct showed the serious disregard of consequences required to constitute neglect.

On November 27, 2012, John suffered burns on his scrotum and buttocks due to opening the hot water faucet while sitting in the bathtub. John was living with Brown and her boyfriend, Joshua Brink, in Elk, a community in Spokane County in Washington State.

At the time of the burn, Brink was caring for John. Brink thought it unnecessary to bring John to the emergency room. When Brown arrived home from work, she examined the burn and researched child burn care on the Internet. She planned to bring John to the hospital if the burn worsened after seven days. Brink and Brown spoke with their mothers about how to treat the burn. Brink’s boss, who was certified in first aid, also examined the wound and opined that it did not need treatment by a health care worker.

Brown treated the burn by applying ointment and changing John’s diaper frequently. During the following week, John had no fever and no change in behavior, and the burn seemed to have healed. However, on December 3rd or 4th, John was weary and lacked an appetite, so Brown took him to Providence Holy Family Hospital in Spokane, Washington, on December 7th.

At the hospital, Dr. Sicilia discerned that John had an infection that reached his bloodstream. He prescribed antibiotics and then transferred John to another Spokane hospital, Sacred Heart. There, Dr. Messer found the burn to be inconsistent with Brown’s story of what happened. She thought the burn was “abusive in nature.” She called Child Protective Services (CPS), and CPS initiated a dependency action, which a judge eventually dismissed.

DSHS then made an administrative finding that Brown engaged in neglect by negligent treatment of John for failing to seek immediate treatment of the burn.

Brown appealed the finding, and an administrative judge conducted a hearing. Dr. Messer testified at the hearing that she did not believe the story about the cause of the burn. She also testified that a reasonable person would have taken John to the hospital immediately, and therefore Brown committed negligent treatment.

DSHS upheld the finding of neglect, holding that Brown should have sought immediate medical attention. Failure to do so “showed a serious disregard of the consequences to her son of such a magnitude that it did create a clear and present danger to John’s health, welfare, and safety.”

Brown appealed the decision in superior court, arguing that DSHS misinterpreted the standard of neglect by interpreting “negligent treatment” as what a reasonable person would do under the circumstances, rather than a “serious disregard of the consequences.” The superior court upheld the DSHS decision.

On appeal, Brown argued that DSHS erroneously interpreted Revised Code of Washington Section 26.44.020(16), and that substantial evidence did not support a finding of neglect.

RCW 26.44.020(1) defines neglect, in part, as “negligent treatment or maltreatment of a child by a person responsible for providing care to the child.” RCW 26.44.020(16) defines “negligent treatment or maltreatment” as “an 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 a magnitude as to constitute a clear and present danger to a child’s health, welfare, or safety.”

The decision of the court of appeals explains the difference between “negligent treatment or maltreatment,” the terms in the statute, and ordinary “negligence.” Ordinary negligence refers to what a reasonable person would do under the circumstances.

The issue for the court was whether to use an ordinary negligence standard in interpreting “negligent treatment or maltreatment,” or to use a higher standard because of the statutory language that defines negligent treatment as “a serious disregard of the consequences.”

The court held that the higher standard is more appropriate because the statute defined negligent treatment specifically. Under Washington law, if a statute creates a specific definition, that definition controls over more general terms.

Thus, the court held that it was inappropriate for DSHS to use an ordinary negligence standard in determining whether Brown neglected John. Using such a standard “could place every Washington parent in jeopardy because what is ‘reasonable’ under a negligence regime varies depending on the situation.” Using such a standard may also violate a parent’s fundamental right to care for his or her children.

The court then held that there was no substantial evidence to support DSHS’s finding of neglect. Brown took many precautions, researched burn treatment, and attempted to care for the burn. There were no signs of infection, and she eventually brought John in for treatment.

Importantly, DSHS provided no evidence that if Brown had taken John to the hospital sooner, a health care provider would have done anything different to treat the burn.