Crime

Judge dismisses lawsuit against state in death of Susan Powell’s boys

A federal judge has dismissed a lawsuit brought against the state in the wake of the deaths of Charlie and Braden Powell, ruling that social workers were not at fault for the boys’ deaths at the hands of their father, Josh Powell.

U.S. District Court Judge Ronald Leighton issued his 29-page decision Tuesday.

Leighton said he was sympathetic to Charles and Judy Cox of Puyallup, who sued the state Department of Social and Health Services on behalf of their dead grandsons.

“The court feels immense sorrow for the Cox family’s losses and the heartbreak they have been forced to weather,” the judge wrote in dismissing the suit without trial.

But Leighton ruled that social workers who worked on the boys’ case enjoyed “absolute immunity” from liability in their deaths.

“To ensure the judiciary and those who further its efforts can engage in the pursuit of justice without fear of vexatious retribution, federal law provides them absolute immunity,” Leighton wrote.

“The social workers are not liable to Cox for their recommendations to the court or their facilitation of the Powell family’s court-ordered visitation.”

Anne Bremner, who along with Evan Bariault represents the Coxes, said the ruling was disappointing.

“We respectfully, of course, disagree,” Bremner said. “We believe our argument fully supports that the case should go forward.”

The Coxes sued DSHS in April 2013, contending social workers did not do enough to ensure Charlie, 7, and Braden, 5, were protected from their father, who was suspected of killing his wife, the boys’ mother, Susan Cox Powell, in 2009.

The state had taken the boys from their father 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.

Josh Powell later was granted visitation with the boys, and he attacked them with a hatchet before setting his Pierce County house on fire, killing them all in February 2012.

At a hearing before Leighton last month, Bariault argued that social workers did not give Pierce County Superior Court Judge Kathryn Nelson enough information about Josh Powell before she made a decision to allow him visitation with the boys outside a secure facility.

That information included that law enforcement officers harbored fears that Josh Powell might hurt his children. That was negligent, Bariault contended.

Assistant attorney general Peter Helmberger argued at that hearing that Nelson was apprised of enough information to make an informed decision.

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

In his ruling, Leighton sided with Helmberger.

“DSHS and the social workers were tasked, as they often are, with walking a razor’s edge between helping Joshua to develop the techniques to better parent his children and protecting the best interests of his children under the confines of a judicial order,” Leighton wrote.

“DSHS did reasonably update Judge Nelson about the state of the dependency, so its decisions were not the proximate cause of the children’s deaths.”

Though he wasn’t requried to, Leighton also absolved Nelson of responsibility in the boys’ deaths. At a hearing just a few days before Josh Powell killed his children, Nelson agreed to allow visitations to continue.

“Judge Nelson could not have lawfully stripped Joshua of custody at that hearing,” Leighton wrote in a footnote to his ruling.

“The court placed the children in DSHS’s custody because Steven’s home was an unhealthy environment and law enforcement believed Joshua would be imminently arrested for Susan’s murder, not because they believed Joshua sexually or physically abused his boys.”

Rescinding visitation was not on the table, even though social workers had reported that Josh Powell had violated Nelson’s order not to disparage his in-laws in front of his sons, Leighton wrote.

“His noncompliance — disparaging the Coxes — did not adversely affect his children’s health, safety or welfare,” Leightson said.

Bremner said Tuesday that she and the Coxes are weighing their options, which include asking Leighton to reconsider his ruling or taking the case to the Ninth Circuit Court of Appeals.

“We believe the case is worth fighting for, that our clients are worth fighting for, and, certainly, that those boys are worth fighting for,” she said.

Adam Lynn: 253-597-8644

adam.lynn@thenewstribune.com

@TNTAdam

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