Ruling expected soon in lawsuit over deaths of Susan Cox Powell’s sons

A U.S. district judge in Tacoma is expected to rule within a week on whether a wrongful death lawsuit brought against the state on behalf of murder victims Charlie and Braden Powell can move ahead.

State lawyers representing the Department of Social and Health Services argued before Judge Ronald Leighton on Thursday that the case should be tossed.

Attorneys for Puyallup residents Chuck and Judy Cox countered that there is enough evidence that state social workers did not protect the couple’s grandsons from their father, Joshua Powell, for the case to move ahead.

Leighton seemed to be leaning toward the state’s position, judging from his questions to the lawyers during a nearly hourlong hearing, but he conceded that he needed time to deliberate before rendering a ruling.

“This is a tragedy for everybody,” the judge said. “I am heartsick for the Cox family. I am heartsick for those people who are accused because you’re all victims of a very evil, evil person.”

The Coxes sued the state in April 2013, contending their grandsons might still be alive had social workers done more to make sure Charlie, 7, and Braden, 5, were protected from their father.

Josh Powell is thought to have killed the boys’ mother, Susan Cox Powell, in Utah in 2009. The Puyallup native disappeared that December under mysterious circumstances and has not been seen nor heard from since.

Josh Powell was under investigation in his wife’s disappearance and was facing increased scrutiny as part of a custody battle between him and the Coxes when he attacked his sons with a hatchet and then set the house they were in on fire in February 2012. The three of them died.

The state had taken the boys from Josh Powell and placed them with the Coxes while detectives investigated allegations that Josh’s father, Steven Powell, was a criminal voyeur and possessed child pornography, charges for which the elder Powell ultimately was convicted.

The wrongful death case was headed toward trial in Pierce County Superior Court when DSHS asked that it be moved to federal court last year.

On Thursday, assistant attorney general Peter Helmberger argued that the case should be thrown out of federal court without a trial.

State social workers were carrying out lawful orders by Superior Court Judge Kathryn Nelson when they arranged for Josh Powell to visit his sons once a week, Helmberger argued.

They cannot and should not be held legally responsible for that, he said.

Nelson knew of Josh Powell’s background and still ordered the visitations and told social workers to continue working toward reuniting the boys with their father, he said.

“It wasn’t news to anybody that Josh Powell was a bad person,” Helmberger told Leighton. “The court certainly knew.”

Before plaintiff’s attorney Evan Bariault began his argument, Leighton asked him to explain why social workers should be held accountable for carrying out Nelson’s orders.

“Why are the lieutenants court-martialed while the general who ordered them escapes responsibility?” the judge asked.

Bariault argued that social workers knew enough about Josh Powell’s background, including accusations of sexual deviancy, that they never should have allowed him to have visitation with his sons outside a secure facility.

Nelson, Bariault argued, made her decision based almost entirely on information provided by those very social workers.

He also contended they did not tell the judge everything they knew, including that sheriff’s deputies harbored fears Josh Powell might hurt his children.

“They could have told the court, ‘Hey, we need to hold off on visitation because we’re concern, law enforcement is concerned,’ ” Bariault said.

This story was originally published September 17, 2015 at 4:35 PM with the headline "Ruling expected soon in lawsuit over deaths of Susan Cox Powell’s sons."